Resolution 2018-30428RESOLUTION NO. 2018 -30428
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, PURSUANT TO
SECTION 82 -503 OF THE CITY CODE, FOLLOWING A DULY
NOTICED PUBLIC HEARING, APPROVING BY 517th VOTE OF
THE CITY COMMISSION, THE NAMING OF THE 9th STREET
FITNESS AREA WITHIN LUMMUS PARK AS "MUSCLE BEACH
SOUTH BEACH."
WHEREAS, at the April 11, 2018 City Commission meeting, a discussion regarding the
naming of the fitness area in Lummus Park was referred to the Neighborhood /Community
Affairs Committee ( "NCAC "); and
WHEREAS, at the May 22, 2018 NCAC meeting, the Committee recommended the
following names for the 9th Street fitness area in Lummus Park, and moved the discussion to
Commission: Muscle Beach at Lummus Park, Muscle Beach at South Beach, and Muscle
Beach South Beach; and
WHEREAS, following the NCAC discussion, a review of trademarks revealed that there is
currently a holder of a trademark for the name "Muscle Beach South Beach." Due to the
similarity of the names "Muscle Beach South Beach" and "Muscle Beach at South Beach,"
neither of these names may proceed through the naming process unless permission is obtained
from the holder of the mark; and
WHEREAS, at the June 6, 2018 City Commission meeting, the Commission accepted the
recommendation of the NCAC at its May 22, 2018 meeting to name the 9th Street fitness area
within Lummus park as "Muscle Beach South Beach," directed City Staff to move forward with a
trademark license agreement between the City and the holder of the mark, and set a public
hearing to consider the naming for July 25, 2018, subject to the prior approval and execution of
a trademark licensing agreement; and
WHEREAS, a public hearing on July 25, 2018 for the naming of Muscle Beach South
Beach is dependent on City Commission approval of the trademark license agreement; and
WHEREAS, the popular 9th Street outdoor fitness gym in Lummus Park recently
underwent significant upgrades. Though this portion of the Park does not have an official name,
many locals already commonly refer to it as "Muscle Beach "; and
WHEREAS, the owner of the mark, David Nguah, is a member of the 9th Street fitness
community and is fully supportive of the naming this interior portion of the Park as "Muscle
Beach South Beach "; and
WHEREAS, pursuant to Resolution No. 2018- 3O1/ ®/ , the City Commission approved
and authorized the execution of the Trademark License Agreement between the City and David
Nguah, and the Trademark License Agreement formalizes the commitment between the licensor
and the licensee, and authorizes the City's use of the "Muscle Beach South Beach" mark; and
WHEREAS, pursuant to the City's existing policies and procedures for the naming of
interior portion(s) of a public facility, proposals must be in compliance with provisions set forth in
Section 82- 503(b) of the City Code, which includes a referral to NCAC, a recommendation from
NCAC, a public hearing by the City Commission, and a 5 /7ths vote of approval by the City
Commission at the public hearing.
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, pursuant to Section 82- 503(b) of the City Code and following a
duly noticed public hearing and a 517th vote, the naming of the 9th Street fitness area within the
City's Lummus Park as "Muscle Beach South Beach."
PASSED and ADOPTED this 25th day of July, 2018.
ATTEST:
/( Y
Rafael E Gr ado, City Clerk
Dan Gelber, ayor
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
7
L -4°
Date
MAN\
BEACH
Resolutions - R7 D
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 25, 2018
2:15 p.m. Public Hearing
SUBJECT A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, PURSUANT TO SECTION 82 -503 OF THE CITY CODE,
FOLLOWING A DULY NOTICED PUBLIC HEARING, APPROVING BY 5 /7TH VOTE
OF THE CITY COMMISSION, THE NAMING OF THE 9TH STREET FITNESS
AREAWITHIN LUMMUS PARKAS "MUSCLE BEACH SOUTH BEACH."
RECOMMENDATION
Mayor and City Commission approval, pursuant to Section 82- 503(b) of the City Code and following a duly noticed
public hearing and a 517th vote, of the naming of an area within the Citys Lummus Park as "Muscle Beach South
B each".
ANALYSIS
At the April 11, 2018 City Commission meeting, a discussion regarding the naming of the fitness area in Lummus
Park was referred to the Neighborhood /CommunityAffairs Committee ( "NCAC ").
At the May 22, 2018 NCAC meeting, the Committee recommended the following names for the 9th Street fitness
area in Lummus Park, and moved the discussion to Commission: Muscle Beach at Lummus Park, Muscle Beach at
South Beach, and Muscle Beach South Beach.
Following the NCAC discussion, a review of trademarks reveals that there is currently a holder of a trademark for the
name "Muscle Beach South Beach." Due to the similarity of the names "Muscle Beach South Beach" and "Muscle
Beach at South Beach," neither of these names is recommended unless permission is obtained from the holder of
the mark.
At the June 6, 2018 City Commission meeting, the Commission accepted the recommendation of the NCAC at its
May 22, 2018 meeting to name the 9th Street fitness area within Lummus park as "Muscle Beach South Beach ",
directed City Staff to move forward with a trademark license agreement between the City and the holder of the mark,
and seta public hearing to consider the naming for July 25, 2018.
A public hearing on July 25, 2018 for the naming of Muscle Beach South Beach is dependent on City Commission
approval of the "Muscle Beach South Beach" trademark license agreement.
The popular 9th Street outdoor fitness gym in Lummus Park recently underwent significant upgrades. Though this
portion of the park does not have an official name, many locals already commonly refer to it as "Muscle Beach."
Within the last six months, the 9th Street fitness community created a social media page named "Muscle Beach
Page 1050 of 1464
South Beach," which has gained over 5000 followers to date.
The owner of the mark, David Nguah, is a member of the 9th Street fitness community and is fully supportive of the
naming this interior portion of the park as "Muscle Beach South Beach ". The trademark license agreement formalizes
the commitment between the licensor and the licensee, and authorizes the City's use of the "Muscle Beach South
Beach" mark. (Exhibit A)
Pursuant to the City's existing policies and procedures for the naming of interior portion(s) of a public facility,
proposals must be in compliance with provisions set forth in Section 82- 503(b) of the City Code, which includes a
referral to NCAC, a recommendation from NCAC, a public hearing by the City Commission, and a 5 /7ths vote of
approval by the City Commission at the public hearing.
Legislative Tracking
Parks and Recreation
Sponsor
Ricky Arriola
ATTACHMENTS:
Description
a Resolution - Supplemental
Exhibit A -- Muscle Beach South Beach Trademark License Agreement
Page 1051 of 1464
TRADEMARK LICENSE AGREEMENT
This Trademark License Agreement ("Agreement"), dated as of June 1. , 2018 (the
"Effective Date"), is entered into by and between David P. Nguah ("Licensor"), with an address
at 1200 14th Street #4B, Miami Beach, FL 33139, and the City of Miami Beach, Florida, a
municipal corporation ("Licensee"), with an address at 1700 Convention Center Drive, Miami
Beach, Florida, 33139 (collectively, referred to as the "Parties"). The Parties hereby agree to be
bound by the terms and conditions of this Agreement as follows:
1. Licensor hereby grants Licensee a non-exclusive, non-transferable, perpetual,
irrevocable license to reproduce, publish, photograph, film, record, or otherwise use the
copyrighted and/or trademarked material individually listed here as Exhibit A, and including the
name "Muscle Beach South Beach" (the "Marks"), The license rights granted by this Agreement
shall exist solely in connection with Licensee's 11$0 of the Marks for the purpose of naming an
area located within the City's Lummus Park as "Muscle Beach South Beach," and displaying,
exhibiting, promoting, or advertising the name of the Muscle Beach South Beach area, along
with any programming or recreational activities taking place therein (whether such activities are
conducted by the City or third-parties using the Muscle Beach South Beach area), in any
publications, media or collateral material published by the City or otherwise featuring the Muscle
Beach South Beach area, including, without limitation, use of the Marks on any websites, social
media platforms, printed materials, press releases, email messages, banners, plaques, signage
or any other formats featuring the Muscle Beach South Beach area or the programming or
recreational activities taking place therein.
2. As part of Licensee's use of the Marks, and specifically, the "Muscle Beach
South Beach" name, Licensee may use its own trademarks or copyrighted materials next to or
together with the Marks, and may incorporate or modify or alter the Marks or otherwise use the
"Muscle Beach South Beach" name at its discretion, consistent with the form, fonts, colors,
shapes and logos generally used by the Licensee in its signage or other collateral print or online
material (as same may be amended from time to time).
3. Licensor hereby represents and warrants that it is the sole owner of the Marks
and has the right to license the Marks, Licensor warrants and represents that Licensor has
obtained all written consents, releases and authorizations, if any, which may be necessary for
the Licensee's use of the 11/arks, including without limitation, consents from persons whose
voices, images, trademarks or service marks may be embodied recognizably in the Marks.
4. Licensor agrees to provide the license rights set forth in this Agreement to
Licensee for a one-time license fee of One Dollar ($1,00), and Licensor acknowledges that It will
receive valuable consideration in connection with the Licensee's promotion of the Marks and
exercise of the license rights herein.
5, This Agreement does not limit or restrain in any way Licensor's rights in and to
the Marks, including but not limited to the following rights, each of which is reserved to Licensor
(i) the right to use, transfer, sell, assign or license the Marks subject to the grant of license
provided In this Agreement; (11) the right to republish, sell and distribute all or any portions of the
Marks in any form (print, electronic or otherwise); and (11i) the right to create, publish, market,
sell and distribute derivative works which include all or portions of the Marks provided that the
rights set forth in this paragraph 5(i), (11), and (ill) do not affect, and shall be subject to, the
Licensee's license rights as granted in this Agreement. The Parties mutually agree that
1 of 3
Page 1053 of 1464
Licensee's use of the Marks is for its own benefit and that Licensee shall not acquire any right,
title or interest in the Marks except as provided for in this Agreement.
6. Neither the Licensor nor the Licensee shall use the Marks in connection with (1)
any unlawful or illegal business, use or purpose, or for any business, use or purpose which is
immoral or disreputable (including "adult entertainment establishments" and "adult" bookstores)
or extra- hazardous, or in such manner as to constitute a nuisance of any kind (public or private);
(2) for the sale of medical marijuana or paraphernalia incidental thereto; for (3) any business
engaged in intentionally deceptive or fraudulent advertising or selling practices or any other act
or business practice contrary to honest retail practices; (4) casino gambling or games of chance
or reward; (5) check cashing facilities; (6) pawn shops; (7) the sale of firearms; (8) tattoo
parlors, fortune tellers, psychics, palm readers, body piercing shops; or (9) electioneering
communications.
7. Nothing herein shall require the Licensee to use the "Muscle Beach South
Beach" name. If Licensee determines at any time that it no longer desires to designate or name
the "Muscle Beach South Beach" area as such, then this Agreement shall automatically
terminate, and neither Licensee nor Licensor shall have or owe any further obligation to the
other.
8. If either Party defaults in the performance of any of its obligations under this
Agreement and such default is not remedied within sixty (60) days after receiving written notice
of the default from the non - defaulting Party, the non - defaulting Party may terminate this
Agreement by written notice to the defaulting Party.
9. As the owner of the Marks, Licensor agrees to indemnify, defend and hold
harmless Licensee, from and against any claims, demands, causes of action, judgments, costs
(including without limitation, reasonable attorney's fees), damages, expenses or losses,
including claims of copyright infringement or trademark infringement, arising out of or relating to
a third party claim that Licensee's use of the Marks violates, infringes or misappropriates any
third party copyright or trademark.
10. The Parties to this Agreement are independent contractors. No agency,
partnership, joint venture or employer - employee relationship is intended or created by this
Agreement, and neither Party shall have the power to obligate or bind the other.
11. This Agreement shall be interpreted in accordance with the laws of the State of
Florida, with the exception of its choice of law rules. Neither Party may assign its rights or
obligations under this Agreement without the express written consent of the other Party. Any
attempted assignment in violation of this provision is void.
12. This Agreement, and all exhibits hereto, represent the entire agreement between
the Parties pertaining to the subject matter of this Agreement, and supersede all prior
agreements and understandings with respect to the matters herein. This Agreement may be
amended only by written agreement signed by duly authorized representatives of both Parties.
This Agreement may be executed in counterparts, each of which shall be deemed an original,
and all of which together shall constitute one instrument.
2 of 3
Page 1054 of 1464
13. This Agreement shall become effective upon the Effective Date,
Date
APPROVED AS TO
FORM 8( LANGUAGE
FOR XECUTION
LIy Aft= Dote
D
Title:
Date
3 of 3
Page 1055 of 1464
Exhibit A
The "Marks"
[Copy of Trademark attached]
Page 1056 of 1464
5/24/2018
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Musele Beach South Beach
Word Mark MUSCLE BEACH SOUTH BEACH
Goods and IC 025. US 022 039. G & 5; Shirts; Shirts and short-sleeved shirts; Shirts for infants, babies, toddlers and children;
Services Shirts for suits; Shirts for ablest adults, children, women, men; A-shins; Apparel for dancers, namely, tee shirts,
sweatshirts, pants, leggings, shorts and jackets; Athletic shirts; Athletic apparel, namely, shirts, pants, jackets,
footwear, hats and caps, athletic uniforms; Body shirts; Button down shirts; Button-front aloha shirts; Camouflage
shirts; Clothing for athletic use, namely, padded shirts; Collared shirts; Golf shirts; Graphic T-shirts; Henley shirts;
Hooded sweat shirts; Knit shirts; Long-sleeved shirts; Moisture-wicking sports shirts; Open-necked shirts; Pique
shirts; Polo shirts; Ramie shirts; Rugby shirts; Shod-sleeve shirts; Short-sleeved shirts; Short-sleeved or long-
sleeved t-shirts; Singlets; Sleep shirts; Sleeves worn separate and apart from blouses, shirts and other tops; Sport
shirts; Sports shirts; Sports shirts with short sleeves: Sun protective clothing, namely, shirts, pants, hats and cap;
Sweat shirts; T-shirts; T-shirts for babies, adults, children, women, men; Tee shirts; Tee-shirts; Triathlon clothing,
namely, triathlon tights, triathlon shorts, triathlon singlets, triathlon shirts, triathlon suits; Turtle neck shirts; Wearable
garments and clothing, namely, shirts; Wind shirts; Women's clothing, namely, shirts, dresses, skirts, blouses; Woven
shirts; Yoga shirts
Standard
Characters
Claimed
Mark
Drawing (4) STANDARD CHARACTER MARK
Code
Serial 87794410
Number
Filing Date February 12, 2018
Current 1B
Basis
Original
Filing 1B
Basis
Owner (APPLICANT) Nguah, David P INDIVIDUAL UNITED STATES 1200 14th Street, # 48 Miami Beach FLORIDA 33139
Page 1057 of 1464
littp://tess2,uspio,gov/bIn/showrielci`?fr,doc&state=48104grnq,2,2 1/2
5/24/2018
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Mark
Register PRINCIPAL
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LIVE
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