2019-30776 Resolution RESOLUTION NO. 2019-30776
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM,
AMENDMENT NO. 2 TO THE ONE YEAR PILOT AGREEMENT (AGREEMENT),
DATED APRIL 30, 2017, WITH VAN DAALEN TENNIS, LLC (CONTRACTOR)
TO PROVIDE TENNIS PROGRAMMING AT THE MIAMI BEACH TENNIS
CENTER; SAID AMENDMENT INCREASING THE CONTRACTOR'S
PROGRAMMING FEE AND MANAGEMENT FEE CAP FROM $500,000.00 TO
AN AMOUNT NOT TO EXCEED $750,000.00 PER YEAR DURING THE TERM
OF THE AGREEMENT; AND FURTHER AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE THE FINAL AMENDMENT.
WHEREAS, on July 26, 2017, the Mayor and City Commission adopted Resolution
Number 2017-29936, accepting the written recommendation of the City Manager and waiving,
by 5/7th vote, the competitive bidding requirement, finding such waiver to be in the best interest
of the City; and approving, in substantial form, a one (1) year pilot agreement between the City
and Van Daalen Tennis, LLC for programming at the City's Miami Beach Tennis Center; and
WHEREAS, on August 30, 2017, the City and Van Daalen Tennis, LLC. (Contractor)
executed the One (1) Year Pilot Agreement (the "Agreement") to Provide Programming at the
City's North Shore Tennis Center; and
WHEREAS, on April 11, 2018, the City Commission adopted Resolution No. 2018-
30279, changing the name from North Shore Tennis Center to the Miami Beach Tennis Center
(the "Center"); and
WHEREAS, on June 6, 2018, the Mayor and City Commission adopted Resolution No.
2018-30330, accepting the recommendation of the Finance and Citywide Projects Committee,
at its May 18, 2018 meeting, approving Amendment No. 1 to the Agreement, said Amendment,
in material part: (1) acknowledging the term extension of six months from the completion of the
scheduled construction projects at the Center and Contractor's contribution to the City's
education compact fund, in the amount of $500.00; (2) updating the name of the Center to
reflect "Miami Beach Tennis Center" and (3) adding language: (i) addressing light fees and club
baskets; (ii) addressing payment to the Contractor for the City's Summer sports specialty camp;
(iii) updating the tennis software provider; and (iv) providing the City with utilization of courts for
City produced tennis related special events and/or City sponsored special events; and
WHEREAS, at the April 10, 2019 City Commission meeting, City staff updated the City
Commission with respect to the estimated completion time for the construction and opening of
the new Center, which is slated to occur during late Spring or Summer of 2020, and that prior to
the end of the term, the Administration would be bringing forward a procurement item so that the
Agreement may be competitively bid; and
WHEREAS, since Contractor took over programming at the Center, both programming
and merchandise revenues and participation numbers have seen a steady increase; and
WHEREAS, overall customer satisfaction with the quality of the programs offered by
Contractor is significantly high and programs are so popular (in part due to the skill set of the
tennis instructors), that they fill up very quickly; and
WHEREAS, pursuant to the Agreement, Contractor is paid based upon the percentage
of gross programming revenues earned by the Center; and
WHEREAS, as a result of the unexpected programming growth, the total programming
fee and management fee per year, as well as the costs to operate the programs, have
increased, and, as such, an amendment to this Agreement is required, increasing the
programming fee and management fee caps from $500,000.00 to an amount not to exceed
$750,000.00 per year during the term of the Agreement; and
WHEREAS, the Administration recommends approving, in substantial form, Amendment
No. 2 to the Agreement, incorporated herein by reference and attached to the City Commission
Memorandum accompanying this Resolution.
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, in substantial form, Amendment No. 2 to the one year pilot
agreement (Agreement), dated April 30, 2017, with Van Daalen Tennis, LLC (Contractor) to
provide tennis programming at the Miami Beach Tennis Center; said Amendment increasing the
Contractor's programming fee and management fee cap from $500,000.00 to an amount no to
exceed $750,000.00 per year during the term of the Agreement; and further authorize the Mayor
and City Clerk to execute the final amendment.
PASSED AND ADOPTED this 10th day of April 2019.
Dan Gelber, Mayor
ATTEST:
4111/
Rafa: E. Gr-nado, ity Clerk
06. 11/
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ll`vCORp ORATLC�.' e 7
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APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
{
City Attorney Date
Agenda Item C70 _
Date 11-10-1�{
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Mayor Dan Gelber and Commissioners
Jimmy L. Morales, City Manager b--
FROM: ' - Tor
DATE: April 10, 2019
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM,
AMENDMENT NO. 2 TO THE ONE YEAR PILOT AGREEMENT
(AGREEMENT), DATED AUGUST 1, 2017, WITH VAN DAALEN TENNIS, LLC
(CONTRACTOR) TO PROVIDE TENNIS PROGRAMMING AT THE MIAMI
BEACH TENNIS CENTER; SAID AMENDMENT INCREASING THE
CONTRACTOR'S ANNUAL PROGRAMMING FEE AND MANAGEMENT FEE
FROM $500,000.00 TO AN AMOUNT NOT TO EXCEED $750,000.00 PER
YEAR DURING THE TERM OF THE AGREEMENT; AND, FURTHER,
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE FINAL
AMENDMENT.
BACKGROUND
On July 26, 2017, the Mayor and City Commission adopted Resolution Number 2017-29936,
accepting the written recommendation of the City Manager and waiving, by 5/7th vote, the
competitive bidding requirement, finding such waiver to be in the best interest of the City; and
approving, in substantial form, a one (1) year pilot agreement between the City and Van Daalen
Tennis, LLC. for programming at the City's Miami Beach Tennis Center.
On August 1, 2017, the City and Van Daalen Tennis, LLC. ("Contractor") executed the 'One (1)
Year Pilot Agreement (the "Agreement") to Provide Tennis Programming at the City's North
Shore Tennis Center, now known as the "Miami Beach Tennis Center" (the "Center").
At the April 11, 2018 City Commission Meeting, a discussion regarding a term extension of 6-
months for Van Daalen Tennis, LLC. to provide programming, following the completion of the
scheduled construction projects at the "Center" was referred to the Finance and Citywide
Projects Committee ("FCWPC").
On June 6, 2018, the Mayor and City Commission adopted Resolution No. 2018-30330,
accepting the recommendation of the FCWPC's meeting on May 18, 2018 meeting approving
Amendment No. 1 to the Agreement. The Amendment stated the following:
(1) Acknowledging the term extension of six months at the completion of the scheduled
construction projects at the Miami Beach Tennis Center for Van Daalen Tennis, LLC
(2) Acknowledging the Contractor's education compact fund contribution, in an amount of
$500.00 (3) providing for the addition of language related to identifying the center as the
Miami Beach Tennis Center
(3) Adding language addressing light fees and club baskets
(4) Adding language regarding payment to Contractor for the City's summer sports specialty
camp
(5) Updating the tennis software provider
(6) Providing the City with utilization of courts for City produced tennis related special events
and/or City sponsored special events to be added to the scope of the Agreement.
Van Daalen Tennis, LLC. has seen a steady increase, in programming numbers and
participation since taking over programming operations of the Miami Beach Tennis Center in
2017, which has resulted in an increase of revenue streams. Overall customer satisfaction with
the quality of the programs offered by Van Daalen Tennis, LLC. is significantly high and
programs are so popular (in part due to the skill set of the tennis instructors), that they fill up
very quickly. The programming growth has made necessary prompted the City to ask for an
additional amendment to the agreement to adjust the Van Daalen Tennis, LLC. programming
and management fee from $500,000.00 to a not to exceed amount of $750,000.00 per year
during the term of the agreement to meet the programming demands. The term of the
agreement was extended to six months at the completion of the scheduled construction projects
at the Miami Beach Tennis Center. Construction has not commenced but is projected to begin
next fall.
The programming and management fee for this agreement is a revenue share model. All
revenues are collected by the City and then a percentage is paid to the vendor for services
provided.
To further clarify this adjustment to the programming and management fee, it should be noted
that Van Daalen Tennis, LLC. receives a programming fee of 70% and a management fee of
21% based off of the monthly gross programming revenues collected. The fees paid to Van
Daalen Tennis, LLC. is directly connected to revenue collected. In this situation the City has
collected more revenue than originally projected. This increase in collected revenue and
associated revenue share payments has triggered the need for this amendment.
Gross programming revenues includes all income received (less returns and refunds) by the
City from clinics, tennis instruction, camps, tournaments, academy, hospitality packages, food
and beverage sales and Pro Shop sales. The gross programming revenues does not include
income received by the City for annual membership fees or hourly court fees.
The below chart shows the monthly gross programming revenues collected during FY 19 and
the 91% payout to Van Daalen Tennis, LLC. The trend is showing that by May/June 2019, the
payment will be nearing the current not to exceed amount of$500,000. The increase of a not to
exceed amount of $750,000 will provide a sufficient amount for the remainder of the contract
term on an annual basis.
FY 2019 Total Collected Payment to Contractor(91%)
Oct-18 $ 60,182.05 $ 54,765.67
Nov-18 $ 47,401.82 $ 43,135.65
Dec-18 $ 62,371.38 $ 56,757.96
Jan-19 $ 72,119.96 $ 65,629.17
Feb-19 $ 63,063.54 $ 57,387.82
Mar-19 $ 65,701.00 $ 59,787.91
Totals $ 370,839.75 $ 337,464.18
ADMINISTRATION RECOMMENDATION
Adopt the Resolution
CONCLUSION
Revenue collected at the Miami Beach Tennis Center has exceeded original projections. As a
result, revenue share payments to the vendor for services provided will exceed the projected
total value.
The Administration recommends approving, in substantial form, Amendment No. 2 to the one
year pilot agreement (Agreement), dated August 1, 2017, with Van Daalen Tennis, LLC
(Contractor) to provide tennis programming at the Miami Beach Tennis; said Amendment
increasing the Contractor's annual programming fee and management fee from $500,000.00 to
an amount not to exceed $750,000.00 per year during the term of the Agreement and further
authorizing the Mayor and City Clerk to execute the amendment.
Attachments
Exhibit A — Van Daalen Tennis, LLC. Pilot Agreement
Exhibit B—Amendment No. 1 to MVD Pilot Agreement
Exhibit C—Draft Amendment No. 2 to MVD Pilot Agreement
JLM/EC/JR
4RBS o L°IS'30330
AMENDMENT NO. 1
TO VAN DAALEN TENNIS, LLC ONE (1)YEAR PILOT
AGREEMENT TO PROVIDE PROGRAMMING AT THE
CITY'S MIAMI BEACH TENNIS CENTER
This Amendment No. 1 ("Amendment") to the Agreement, dated v. 10C1/2ci7 by
and between the City of Miami Beach, Florida, a municipal corporation organized and existing
under the laws of the State of Florida, having its principal place of business at 1700 Convention
Center Drive, Miami Beach, Florida 33139 (the "City"), and Van Daalen Tennis, LLC, a Florida
limited liability company, having its principal place of business at 15051 Royal Oaks Lane, Apt.
1604, North Miami, Florida 33181 ("CONTRACTOR"), is entered into this 2—to day of
3-+r , 2018.
RECITALS
WHEREAS, on July 26, 2017, the Mayor and City Commission adopted Resolution
Number 2017-29936, accepting the written recommendation of the City Manager and waiving,
by 5/7`h vote, the competitive bidding requirement, finding such waiver to be in the best interest
of the City; and approving, in substantial form, a one (1) year pilot agreement between the City
and Van Daalen Tennis, LLC for programming at the City's Miami Beach Tennis Center; and
WHEREAS, on August 30, 2017, the City and CONTRACTOR executed the Van Daalen
Tennis, LLC. One•(1) Year Pilot Agreement (the "Agreement") to Provide Programming at the
City's North Shore Tennis Center now known as Miami Beach Tennis Center(the "Center"); and
WHEREAS, on April 11, 2018, the City Commission adopted Resolution No. 2018-
30279, changing the name from North Shore Tennis Center to Miami Beach Tennis Center; and
WHEREAS, CONTRACTOR has requested approval of a term extension of six months
from the completion of the scheduled construction projects at the Miami Beach Tennis Center
and has agreed to pay the City the total sum of $500.00 ("Education Compact Fund
Contribution")to fund the City's educational initiatives; and
WHEREAS, on June 6, 2018, the Mayor and City Commission adopted Resolution No.
2018-30330, accepting the recommendation of the Finance and Citywide Projects Committee,
at its May 18, 2018 meeting, approving Amendment No. 1 to the Agreement, said Amendment,
in material part, (1) acknowledging the term extension of six months at the completion of the
scheduled construction projects at the Miami Beach Tennis Center for Van Daalen Tennis, LLC;
(2) acknowledging the Contragtor's education compact fund contribution, in an amount of
$500.00; (3) providing for the addition of-language related to identifying the Center as the Miami
Beach Tennis Center (3) adding language addressing light fees and club baskets; (4) adding
language regarding payment to CONTRACTOR for the City's summer sports specialty camp;
(5) updating the tennis software provider; and (6) providing the City with utilization of courts for
City produced tennis related special events and/or City sponsored special events.
NOW THEREFORE, in consideration of the mutual promises and conditions contained
herein, and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the City and Contractor hereby agree to amend.the Agreement as follows:
Page 1 of 5
Page 463 of 1091
1. ABOVE RECITALS.
The above recitals are true and correct and are incorporated as part of this Amendment.
2. MODIFICATIONS.
The Agreement is hereby amended (deleted items struck -thcGugh and inserted items
underlined)as follows:
(a) Subsection 2.1 of the Agreement is hereby deleted in its entirety and replaced with the
following:
2.1 The City owns and operates that certain recreational facility commonly known
as the Miami Beach Tennis Center, located at 501 72nd Street, Miami Beach,
Florida 33141 (the"Center").
(b) Subsection 6.4.2 of the Agreement is hereby amended to read as follows:
CONTRACTOR agrees to provide free instructional lessons to after-school and
summer camp participants, to be mutually agreed upon by the parties. Use of
courts pursuant to the immediately preceding sentence shall be deemed to be
the utilization of courts for public usage. Additionally, in connection with the
Parks and Recreation Department's summer sports specialty camp program,
CONTRACTOR agrees to provide two instructors who will provide tennis
classes for the participants enrolled in the summer sports specialty camp, for
one week during the scheduled summer sports specialty camp, for a total of ten
(10) hours. typically between the hours of 9:30 am and 12:00 pm, for the total
fee of$850.00. CONTRACTOR and City shall reach an agreement with respect
to the dates, times and locations for the summer sports specialty camp.
(c) Subsection 7.1 of the Agreement is hereby amended to read as follows:
7.1 The CONTRACTOR must comply with the fee schedule for professional tennis
instruction that offers the tennis patron a choice in instructor level and hourly fee
commensurate with the instructor's level, as agreed upon and listed in Exhibit"A"
(to be provided by the CONTRACTOR)attached hereto. Any change of this said
fee and instructor levels shall be approved by the City prior to implementation of
fees.
CONTRACTOR shall also comply with the City's established fees for hourly
tennis court play. annual permits and other specialized play. CONTRACTOR will
provide a club basket available for use on a first come first serve basis for
members and resident nonmembers. The club basket will be for a fee of$10.00
per hour for members and $20.00 per hour plus court fees for resident
nonmembers. Usage of the club basket will be limited to no more than 2 players
on a court.
If the play time of a tennis court user (for a lesson, clinic, etc.) is interrupted
due to weather resulting in less than 30 minutes of plan. the user will be
entitled to a reimbursement/pay-out/raincheck. If there is a weather
interruption, but the play time exceeded 30 minutes, it will be at the discretion
Page 2 of 5
Page 464 of 1091
of the CONTRACTOR as to whether or not to offer a reimbursement/pay
out/raincheck. Furthermore, light fees will only be charged to non-members.
Those purchasing memberships will not be required to pay light fees.
(d) Subsection 7.6 of the Agreement is hereby deleted In its entirety and replaced with the
following:
7.6 The CONTRACTOR shall utilize RecTrac. the City's current recreation
software system, for the purposes of tracking reservations, financials.
memberships, concessions, merchandise. etc. The CONTRACTOR shall
have Tennis Module rights to the Miami Beach Tennis Center computer
software system. Additionally. phone and in-person reservations must be
provided for by the CONTRACTOR all of which must be cross referenced to
avoid overbookings, no-shows, and adherence to prioritization and
utilization of courts for public usage by restricting lesson/clinic/programming
courts during peak hours. All revenue collected at the Center must go
through the City's secured systems.
(e) Subsection 14.2 of the Agreement is hereby deleted in its entirety and replaced with the
following:
14.2 City Special Events.
Notwithstanding Subsection 14.1 above, and in the event that the
City, at its sole discretion, deems that it would be in the best interest
of the City, the City reserves the right to utilize the Center for City
produced tennis related special events and/or other City sponsored
special events productions such as local and international tennis
tournaments. In such cases. the City will coordinate with the
CONTRACTOR to cooperatively produce such events.
CONTRACTOR agrees that the number of courts utilized shall be
determined by the City and that events will be held during the
Center's operating hours. CONTRACTOR shall retain any income
related to the special event and/or production as it pertains to food
and beverage concessions. stringing and merchandise sales.
CONTRACTOR agrees that facility usage for events may include
use of: locker rooms, activity rooms and office space. umpire chairs,
umbrellas, coolers, scoreboards, net-sticks and the like. If
negotiations between the City and the CONTRACTOR prove to be
unsuccessful, the CONTRACTOR shall cease and desist operations
during the term of, and in the area of, the special event and/or
production.
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the Agreement shall remain
unchanged and in full force and effect. In the event there is a conflict between the provisions of
this Amendment and the Agreement, the provisions of this Amendment shall govern.
Page 3 of 5
Page 465 of 1091
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their appropriate officials, as of the date first entered above.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
Page 4 of 5
Page 466 of 1091
FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Raf I E. Gr nada, City Clerk Dan Gelber, Mayor
C.
Date .....
FOR CONTRACTOR: V;\ I`-Nantbaalen Tennis, LLC
ATTEST:
By:
Director of Programming
C1AIX4fl(12 (!c(1,0046 — ( Martin Van Daalen
Print Na e and Title � $ Wt',, Print Name
6,
Date
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
Page 5 of 5
Page 467 of 1091
City Amey Comet
Exhibit A—Van Daalen Tennis, LLC. Pilot Agreement
, I I�
VAN DAALEN TENNIS, LLC.
ONE 1 YEAR PILOT AGREEMENT
TOPROVIPEPROGRAMMINGATTHE
CITY'S NORTH SHORE TENNIS
CENTER
_J1
INDEX
TITLE PAGE
SECTION 1:TERM _ 4
SECTION 2. CENTER WHERE PROGRAM OCCURS. 4
SECTION 3. USE(S) 5
3.1 Public Tennis Facility. 5
3.2 Prohibited Activities. 5
3.3 Hurricane Evacuation Plan. 6
3.4 Personnel Background Checks, ID Badge Requirements. 6
3.5 Business Tax Receipt. 6
SECTION 4. FEES AND REPORTS 7
4.1 Contractor Payment 7
4.2 Contractor Reports. _ 7
4.3 Sales and Use Tax 8
SECTION 5. EMPLOYEES AND INDEPENDENT CONTRACTORS 8
SECTION 6. HOURS OF OPERATION AND COURT USAGE 9
6.1 Center Hours. . . 9
6.2 Change of Hours. 9
6.3 Court's Usage. 9
6.4 Public Benefits. 10
SECTION 7. TENNIS FEES, CHARGES AND PROGRAMS, AND RELATED
SERVICES TO BE PROVIDED. 10
I SECTION 8. ALTERATIONS, MAINTENANCE, REPAIRS AND SECURITY. 11
8.1 Building and Facility Alterations 11
8.2 Building and Facility Maintenance. 11
8.3 Courts and Related Facilities Maintenance Standards 12 r
8.4 Equipment. 12 ,.
8.5 Orderly Operation. 13
8.6 Dangerous Materials. 13
8.7 Security. 13
8.8 Inspection. ' 13
SECTION 9. INSURANCE. 13
SECTION 10. FINES AND PENALTIES 14
SECTION 11. INDEMNITY. 15
�
11.4 Subrogation. 15
11.5 . Force Majeure. 16
11.6 Labor Dispute. 16
11.7 Waiver of Loss From Hazard 16
SECTION 12. DEFAULT AND TERMINATION. 16
I 12.1 Bankruptcy. 16
12.2 Non-Monetary Default. 17
12.3 City's Remedies for Contractor's Default 17
12.4 Surrender of Center 17
I
r
2
12.5 Termination for Convenience. 18
SECTION 13. ASSIGNMENT 18
SECTION 14. SPECIAL EVENTS. 19
14.1 City Special Events 19
SECTION 15. NO IMPROPER USE. 20
SECTION 16. NOTICES. _ 20
SECTION 17. LAWS. 20
17.1 Compliance. 20
17.2 Governing Law. 21
17.3 Equal Employment Opportunity 21
17.4 No Discrimination. 21
SECTION 18. MISCELLANEOUS. 21
18.1 No Partnership. 21
18.2 Modifications. 21
18.3 Complete Agreement. 21
18.4 Headings. 21
18.5 Binding Effect. 21
18.6 Clauses. 22
18.7 Severability. 22
18.8 Right of Entry. 22
18.9 Not a Lease. 22
18.10 Signage. 22
18.11 Conflict of Interest. 22
18.12 Reasonableness 22
18.13 Procedure for Approvals and/or Consents. 23
18.14 No Waiver. 23
18.15 No Third Party Beneficiary 23
SECTION 19. LIMITATION OF LIABILITY 23
SECTION 20. VENUE. 23
SECTION 21. FLORIDA PUBLIC RECORDS LAW. 24
SECTION 22. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED
POLYSTYRENE FOOD SERVICE ARTICLES. 25
3
ONE (1) YEAR PILOT AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND VAN DAALEN TENNIS, LLC TO PROVIDE
TENNIS PROGRAMMING AT THE CITY'S NORTH SHORE TENNIS CENTER
THIS AGREEMENT made the day of ,2017("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
VAN DAALEN TENNIS, LLC., a Florida limited liability company, having its principal offices at
15051 Royal Oaks Lane, Apt. 1604, North Miami, Florida 33181 (hereinafter called
"CONTRACTOR").
•
SECTION 1. TERM.
1.1 The term of this Agreement shall be for one year. The Agreement shall be deemed by the
parties hereto to have commenced retroactively,as of August 1,2017(the"Commencement
Date"), and shall terminate on July 31, 2018.
1.2 At the conclusion of the one (1) year term in subsection 1.1 above, the Agreement shall
continue on a month_tomonth basis (the "Holdover Term"), so as to enable the City to
evaluate such factors including but not limited to,CONTRACTOR'S performance hereunder,
customer satisfaction, program offerings,revenues generated and expenses incurred; all so
that the City may determine,during this month to month Holdover Term,whether it wishes to
continue CONTRACTOR'S services under this Agreement,or terminate the Agreement and
explore such other options as the City, in its reasonable discretion, may elect. During the
Holdover Term, the City, through its City Manager, shall have theoption to terminate the
Agreement,without cause and for convenience, upon thirty(30)days prior written notice to
CONTRACTOR. The term and the Holdover.Term may be,collectively referred to as the
"Term".
SECTION 2. THE CENTER . . .
2.1 The City owns and operates that certain recreational facility commonly known as the
North Shore Tennis Center, located at 501 72 Street, Miami Beach, Florida 33141
(the"Center").
2.2 City and CONTRACTOR Responsibilities. The City has employed the
CONTRACTOR, and CONTRACTOR agrees, to manage and operate the tennis
programs and the Pro Shop at the Center, pursuant to the terms and conditions set
forth herein. The City shall continue to be responsible for the following duties at the
Center: opening and closing the Center; staffing and operating the front desk;
maintaining the reservation software system; maintaining the courts and overall
facilities of the Center; collecting all revenues for the Center including, without
limitation,all programming fees(including revenue from the Pro Shop),membership
fees and court fees; providing court maintenance personnel; and providing facility
maintenance personnel. The City will assist the public in scheduling tennis programs
and instruction,with a significant assistance from the CONTRACTOR.
4
SECTION 3. USE(S).
The CONTRACTOR is hereby authorized to conduct the following kind*)of businesses and provide
the following kind(s) of services within the Center, all at its sole cost and expense:
3.1 Public Tennis Facility.
CONTRACTOR agrees it will use the Center solely for the operation of a first-class tennis
programming facility. This use shall include the management and operation (including
staffing)of the tennis programs, including the courts, and the Pro Shop(including food and
beverage service), but excluding the collection of revenue therefrom. CONTRACTOR'S
services in connection with the uses set forth herein shall include those services proposed
by CONTRACTOR, as attached and incorporated in Exhibit "A" hereto, and permitted
Special Events (as defined in Section 17) related to such public tennis center activities;
provided, however, that in the event of a conflict between Exhibit"A" and the terms of this
Agreement,the terms of this Agreement shall take precedence. No other use,business, or
services shall be conducted by CONTRACTOR at the Center without the prior written
consent of the City Manager, or his designee.
CONTRACTOR agrees, acknowledges, covenants and represents to the City that the
Center is for the use by the public;that such public use is a prime consideration; and must
be balanced accordingly with the services to be provided by the CONTRACTOR, without
restricting, or in any way limiting, the public access, nature, or ambiance of the Center.
Accordingly, CONTRACTOR agrees,acknowledges, covenants and represents to City that
the public's right to use the Center shall not be infringed upon by any activity of •
CONTRACTOR. This includes,without limitation, the monopolization ofcourts for lessons
during identified "peak times".
CONTRACTOR hereby agrees, acknowledges, covenants, and represents to City that,
during the Term of this Agreement, it shall continually provide high-quality, first-class
affordable tennis services to the City's residents and visitors; to meet the demands of the
City's hotel community for access to high quality,first-class tennis programming within Miami
Beach; and to progressively upgrade tennis programming at the Center throughout such
Term.
3.2 Prohibited Activities.
CONTRACTOR will conduct its operations so as to maintain a reasonably quiet and tranquil
environment for the adjacent areas, and make no public disturbances.
CONTRACTOR shall not use the Center for any unlawful purpose and shall comply with all
laws and permitting requirements now in force or hereafter adopted, applicable to the
Center, and/or uses and businesses conducted on the Center. CONTRACTOR agrees not
to use the Center for, or to permit the operation of, any offensive,noisy or dangerous activity,
nuisance or anything against public policy. There shall be no living quarters at the Center,
nor shall anyone be permitted to live at the Center. Except as may result from acts of force
majeure, CONTRACTOR agrees that it will not allow the Center to become unoccupied or
vacant. CONTRACTOR will not permit the outside use of any musical instrument or noise-
making device at the Center, which would be in violation of the City's Noise Ordinance, as
same may be amended from time to time.
I.i
5 -
3.3 Hurricane Evacuation Plan.
CONTRACTOR agrees to comply with the City's Hurricane Evacuation Plan and will
cooperate fully with the instructions given by the City's representative to initiate the plan
immediately upon notice of the issuance of a Hurricane Warning by the Miami-Dade County
Office of Emergency Management.CONTRACTOR shall,at a minimum,secure the Center
and all related materials and assist with the removal and reinstalling of windscreens in
accordance with the procedures included in the City's Recreation Division Hurricane
Evacuation Plan, as included inExhibit"B,"attached hereto.
3.4 Personnel Background Checks, ID Badge Requirements.
CONTRACTOR shall comply with the requirements of Sections 1012.32 and 1012.465,
Florida Statutes, requiring that only those employees who have successfully passed the
background screening required by the referenced statutes, and who meet the standards
established by the statutes, be allowed access to the Center and/or allowed to perform
services under this Agreement. This requirement shall also extend to all CONTRACTOR
representatives, agents, independent contractors; sub-contractors, or'.volunteers (such
employees,representatives,agents,jndependent contractors,sub-contractors,or volunteers.
of CONTRACTOR shall be collectively referred to herein as"Personnel")performing duties
under this Agreement.
The Personnel shall undergo the aforestated background screening and a drug screening,
(collectively referred to herein as"Background Check Process")prior to entering the Center
to begin employment and/or deliver services. The Background Check Process will be
conducted by the City of Miami Beach Human Resources Department.The Personnel shall
not be permitted to work at the Center until such time as the Background Check
Process has been completed and the Personnel are cleared to perform duties under
this\Agreement. If any Personnel is away from the job for a period of 45 or more days, the
City will require a new Background Check Process.
The CITY and CONTRACTOR agree and acknowledge that the failure of CONTRACTOR to
perform any of the duties described in Subsection 3.4 shall constitute a material breach of
this Agreement, for which the City reserves the right to terminate immediately and without
further liability to the City.CONTRACTOR agrees to indemnify and hold harmless the City,
its officers and employees of any liability in the form of physical or mental injury, death or
property damage resulting in CONTRACTOR's failure to comply with the requirements of
this Subsection 3.4, or Sections 1012.32 and 1012.465, Florida Statutes.
CONTRACTOR agrees to require all of its Personnel to notify the CONTRACTOR and the
City of any arrest(s) or conviction(s) of any offense within 24 hours of its occurrence.
CONTRACTOR further agrees to immediately notify the City upon becoming aware that one
of its Personnel,who was previously certified as completing the Background Check Process,
is subsequently arrested or convicted of any disqualifying offense. Failure by
CONTRACTOR to notify the City of such arrest or conviction within 24 hours of being
put on notice shall constitute a material breach of this Agreement entitling the City to
terminate this Agreement immediately,without further liability to the City.
3.5 Business Tax Receipts.
CONTRACTOR shall obtain,at its sole cost and expense,any and all business tax receipts
required by law for the proposed uses contemplated in this Agreement.
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Without limiting the generality of the foregoing,securing the requisite business tax receipts,
in addition to completing the Background Check Process in accordance with Subsection 3.4
hereof, shall be required and obtained for each individual professional tennis instructor
providing lessons and/or clinics at the Center.
SECTION 4.FEES AND REPORTS
4.1 CONTRACTOR Payment
The fees to participate in CONTRACTOR'S North Shore Tennis Programs are set forth in
Attachment"A" hereto, which is incorporated herein by reference. In consideration of the
Services to be provided, City shall pay CONTRACTOR a programming fee equal 70%of the
total monthly gross programming revenues collected by the City and a management fee
equal to 21%of the total monthly gross programming revenues collected by the City,with the
City retaining the remainder of the total monthly gross programming revenues collected.
Additionally, the City shall retain 100% of the membership fees and court fees collected.
The CONTRACTOR's annual programming fee and management fee shall not exceed
$500,000 during the term, or a pro-rata thereof, during any Holdover Term. The City shall
provide payment to CONTRACTOR by the 15th of the Month.
By way of an example,assuming that the gross programming revenues for one month equal
$100,000, the CONTRACTOR'S programming fee and management fee would be
calculated as follows:
CONTRACTOR receives a programming fee of 70% of the monthly gross
programming revenues, in the amount of$70,000;
CONTRACTOR will receive a management fee of 21% of the monthly gross
programming revenues, in the amount of$21,000; and
The City will receive the remaining $9,000 of the total monthly gross programming
revenues, plus 100% of all membership fees and court fees collected during the
month.
As referred to herein, "gross programming revenues"shall mean all income received
(less returns and refunds) by the City from clinics, tennis instruction, camps,
tournaments, academy, hospitality packages, food and beverage sales and Pro
Shop sales.The gross programming revenues shall not include income received by
the City for annual membership fees or hourly court fees.
4.2 CONTRACTOR Reports
The CONTRACTOR shall provide a monthly activity report/revenue report which
shall be submitted to the City by the fifth day of the following month. The monthly
reports shall include,but not be limited to, the following information:
(A) a comprehensive break-down of all day play, clinics, tournaments and
revenues generated in the prior month by category, and other performance
measures as determined by the City Manager or his designee.
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(B) a work plan to adequately address Continuous Quality Improvement goals in
t the CONTRACTOR's management plan.
(C) the City reserves the right to add or modify the items required in the monthly
report,as the City Manager or his designee deems necessary,in its sole and
reasonable discretion, in order to adequately monitor performance of the
3 CONTRACTOR.
It
4.3 Sales and Use Tax. i
1 .
Payment of any required Florida State Sales and Use Tax shall be the responsibility of the •
City,
1
SECTION 5. EMPLOYEES AND INDEPENDENT CONTRACTORS.
5.1 CONTRACTOR agrees that during the Term of this Agreement, Martin Van Daalen shall t
have active, ongoing direct participation in the day to day tennis programming operation of ;i
the Center. In the event that;the CONTRACTOR, or otherwise ceases to participate in the
day to day tennis programming operation of the Center pursuant to this Agreement,then the
City, at its sole option, may terminate this Agreement for cause pursuant to Section 15. In
the alternative,should the City not opt to terminate this Agreement as provided therein,the P,
City shall have prior written approval as to any replacement of the Principal subsequently
g offered by the CONTRACTOR. i
111 In connection with the performance of its responsibilities hereunder, CONTRACTOR may
hire Personnel (as defined in Subsection 3.4 herein), who will be the Personnel of the i
,, CONTRACTOR and not of the City, and who will be subject to a background Check r
,i
Process, as set forth in Subsection 3.4 herein, at the expense of the CONTRACTOR. y
CONTRACTOR shall provide an adequate number of Personnel and man-hours in-orderto
perform the services required under this Agreement. CONTRACTOR shall select the
number,function,compensation,including benefits(if any),and may,at its discretion and at
11 any time, adjust or revise the terms and conditions relating to such Personnel, in order to
ensure an adequate number of Personnel and man-hours.
{
5.1.2 The CONTRACTOR agrees that all personnel for the Center shall be certified Tennis
Professionals by USPTA,.USTA,USPTRorequivalent.The.CONTRACTOR and personnel ,
must demonstrate knowledge and experience in tennis instruction and related activities, as
i well as, knowledge of the legal requirements that are involved in this type of operation.
There must be onsite tennis program management by the CONTRACTOR, at the Tennis
Center during operating hours. n
till11 5.1.3 Independent/Sub-contractors/Third Party Professionals shall not be permitted at the Center.
1 Independent/Sub-contractors/Third Party Professionals include, but are not limited to, a
1 resident/nonresident:
(A) Who teaches or gives tennis lessons for a fee independent of CONTRACTOR; p.
5 (B) Who teaches on a court with a ball basket and with more than three balls with one or
more players independent of CONTRACTOR; and °i
1 (C) Who collects money for instruction and/or lesson independent of the City.
Il
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5.2 CONTRACTOR's Personnel shall wear clean appropriate apparel to include uniforms/name i1
tags, such that Center patrons can easily identify CONTRACTOR and its Personnel. All '�
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Personnel furnished to theCity of Miami Beach must be uniformed. Each uniform shall display
CONTRACTOR's name and logo,which logo shall be subject to approval by the City.Uniforms
must be provided at the-CONTRACTOR's expense,and may not be charged to an employee
or deducted from an employees'paycheck,therefore reducing the hourly pay rate to less than
the living wage rate required under the City's Living Wage Ordinance, as same may be
ij amended from time to time.
All Personnel shall observe all the graces of personal grooming.The CONTRACTOR shall
hire Personnel to work in its operation who are neat, clean, qualified and efficient and shall
comport themselves in a professional and courteous manner and be in conformity with the
City's Customer Service standards, as set forth in the attached Exhibit "C". If the City
Manager or his designee deems it appropriate, the CONTRACTOR and its Personnel may
be required to attend Customer Service training as conducted by the City. The
CONTRACTOR and any Personnel hired by same shall comply with the pre-employment
requirements and standards as established by the City of Miami Beach's Human Resources
Department. If CONTRACTOR materially fails to comply with these provisions,the City may
send notice of default.The CONTRACTOR shall have an experienced Tennis Programming
manager overseeing the Center and related operations at all times the Center is open to the
general public in the absence of the CONTRACTOR.
SECTION 6. HOURS OF OPERATION & COURTS USAGE.
6.1 Center Hours
The CONTRACTOR shall offer programming at the Centers from 7:30 A.M. to 9:30 P.M.
every day of the year,with the exception of closures due to weather conditions or events of
force majeure permitting, and certain holiday agreed upon by the CONTRACTOR and the
City of which proper signage and notification to patrons must be adhered to.
6.2 Change of Hours
Any change in the hours of operation shall be at the City's sole option and discretion, and
any request by CONTRACTOR for an increase or decrease in same shall be subject to the
prior written approval of the City Manager or his designee.
6.3 Court's Usage.
6.3.1 The CONTRACTOR acknowledges and agrees to prioritize utilization of courts for
public usage by restricting lesson/clinic/programming courts not to exceed five (5)
clay-courts and one(1)hard court at the Center during peak hours of play(7:30 AM
to 11:00 AM and 4:00 PM to 7:00 PM ). Courts are not to be booked or reserved by
the professional tennis instructors for lessons more than one (1) day in advance.
The term lesson shall mean a unit of instruction on an individual or group basis for
which payment is received as outlined in Exhibit"A".
6.3.2 Additional court usage for lessons,programs and clinics during non-peak hours shall
be subject to the prior written approval of the City. At no time shall more than 50%of
all courts be utilized for lessons, programs and clinics until 10 minutes after any non-
peak hour and there are no tennis patrons waiting for a court, without the prior
written approval of the City. CONTRACTOR must use due diligence when assigning
courts for open play and lessons to include:(a)alternating courts where lessons are
taught to avoid overplaying a court or battery of courts and(b)separating open play
courts from lesson courts to avoid injury. CONTRACTOR can allow for court
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reservations to he made on hour or half hour intervals as appropriate. Reservations
for doubles play shall be for up to two.-(2) hours. '
6.4 Public Benefits.
• 6.4.1 The CONTRACTOR agrees that the City's Parks and Recreation Department
programs or co-sponsored programs will have use of two(2)courts at the Center,at
no charge to the City, twice per week, for two(2)hours for each court, between the •
hours of 11:00 a.m. and 5:00 p.m., to be mutually agreed upon by the parties.
6.4.2 CONTRACTOR agrees to provide free instructional lessons,to after-school and
summer camp participants,to be mutually agreed upon by the parties. Use of courts
pursuant to the immediately preceding sentence shall be deemed to be the utilization
of courts for public usage.
6.4.3 The CONTRACTOR also agrees to provide fee waivers and/or fee reductions in
pricing for programs{i.e. clinics, academies, lessons,camps, etc.)for those City of
Miami Beach residents from low socio-economic backgrounds who qualify. The
CONTRACTOR agrees to Utilize'the same criteria for determining eligibility for fee
waivers or reductions as being used by the City of Miami Beach Parks and
Recreation Department at the time of the request. Fee waivers do not apply to
private lessons unless agreed upon by CONTRACTOR.
6.4.4 The CONTRACTOR'shall also offer free and/or affordable programming for Miami
Beach residents with disabilities (i.e. Wheelchair Tennis) and for Miami Beach
Senior residents.The CONTRACTOR will make provisions for summer and specialty
camps, which camp programs will include,'without limitation, camp programs for
people with disabilities and for Seniors based on the established Parks and
Recreation Department format.
SECTION 7. TENNIS FEES, PROGRAMS & RELATED SERVICES TO BE PROVIDED.
•
7.1 The CONTRACTOR must comply with the fee schedule for the professional tennis
instruction that offers the tennis patron a choice in instructor level-and hourly fee
commensurate with the instructor's level, as agreed upon and listed in Exhibit"A", (to be
provided by the CONTRACTOR)attached hereto. Any change of this said fee and
instructor levels shall be approved by the City prior to implementation of fees.
7.2 Fees for lessons and clinics to be offered must be prominently posted at the Center at
those location(s)where such fees are normally paid. All fees and charges-shall be
competitive with those charged by comparable public tennis centers in Miami-Dade and
Broward Counties. Initial fees for programs,clinics and lessons are set forth in Exhibit"A"(to
be provided by CONTRACTOR)attached hereto.
7.3 The fees to participate in CONTRACTOR'S tennis programs are set forth in Exhibit"A"
hereto,which is incorporated herein by reference.Any changes to the approval fees
shall require prior written approval of the City Manager, or his designee.
7.4 The CONTRACTOR agrees to provide the programs set forth in Exhibit"A". An
implementation schedule of said services shall be provided by the CONTRACTOR within
thirty(30)days of the-Commencement Date.Said schedule and any modifications, additions
or deletions to the list are subject to the prior approval of the City.
ri
7.5 The CONTRACTOR, subject to the prior written approval of the City,shall be authorized to
provide courts,free of charge for the following: practice for professional tennis players and
their coaches, during professional tennis demonstrations, promotional events, clinics and
• lessons being offered to the public at no charge.
7.6 The CITY shall utilize a computer software system (i.e. Tennis Director, RecWare, Active
Network, etc.)for the purposes of tracking reservations,financials, memberships, etc.The
City shall have administrator rights to the CONTRACTOR's computer software system for
the purposes of conducting audits.Additionally, on-line reservations will be provided for by
the CITY, as well as phone and in-person reservations,all of which must be managed and
cross-referenced to avoid overbookings, no-shows, and adherence to prioritization and
utilization of courts for public usage by restricting lesson/clinic/programming courts during
peak hours.
7.7 Any print materials prepared by the CONTRACTOR for use of the Center shall require the
written approval of the City Manager or his designee prior to printing. Materials must include
the City designation/logo and appropriate ADA(Americans with Disabilities Act)disclaimer.
CONTRACTOR shall submit to the City (for review and approval prior to the initiation of
contract activities), a communication plan addressing programming to be scheduled at the
Center. All communications shall be directed to the appropriate City staff. City shall assist
with marketing materials to include: banners,fliers, postcards and website information.
7.8 Management of the Pro-Shop. CONTRACTOR, at its own cost and expense, shall be
responsible for purchasing and stocking the Pro-Shop with appropriate tennis products,
including but not limited to snacks,; strings, racquets, apparel, and beverages.
Notwithstanding anything contained in this Section 7,or in the Agreement,CONTRACTOR's
food and beverage service shall be subject to and shall not, under any event,conflict with,or
otherwise violate,the City's exclusive vending contract with Coca-Cola Refreshments USA,
Inc.d/b/a Florida Coca-Cola Bottling Company and Coca-Cola North America,a division of
the Coca-Cola Company("Coca-Cola Contract")and the City's exclusive vending contract
with Bettoli Trading Corp.("Bettoli Contract")(collectively referred to herein as"City Vending
Contracts"); copies of which are attached hereto and made a part hereof as composite
Exhibit D. All monthly income from the Pro-Shop shall be collected by the City and treated
as part of the monthly gross programming revenues.The City will not be responsible for the
purchasing, inventory, ordering, delivery or security of such products.
SECTION 8 ALTERATIONS, MAINTENANCE, REPAIRS &SECURITY
8.1 Building and Facility Alterations.
CONTRACTOR may not make alterations or additions to the Center. In the event of an
emergency to prevent injury to persons or property, CONTRACTOR shall use reasonable
efforts to secure the affected area and will immediately notify the City's Parks and
Recreation Department to advise of said emergency. At that time the City will assess the
situation, further secure the area in question, and determine means and method of
repairs.
CONTRACTOR shall not have the right to create or permit the creation of any lien attaching
to City's interest in the Center as a result of any such alterations or additions.
8.2 Building and Facility Maintenance.
The City further acknowledges that the CONTRACTOR shall not be required to improve,
repair, restore, refurbish, or otherwise incur any expense in improving or changing the
li condition of the Center, except for all costs in connection with the fulfillment of this !!
Agreement including, without limitation, costs in connection with the maintenance of the
programming equipment.
The City shall maintain all electrical, HVAC,plumbing and foundation and structural systems,
roofs, exterior walls, and sports lighting at the Center at its sole cost, and in its sole
discretion as to the means, manner and methods used for such maintenance.
The City will maintain the grass and landscaped areas in those portions surrounding the
Center and within the Center,as well as the equipment in connection with the upkeep of the
tennis courts to include:
(A) Windscreens
(B) Clay
(C) Nets (includes hardware)
(D) Lines(includes hardware)
(E) Purchase of start-up Tennis Balls(in the amount not to exceed$5,000 during
the Term)
(F) Algae and Weeds on courts
(G) Restrooms(clean and stocked)
(H) Pro Shop and facility cleanliness
(I) litter Control �I
(J) Water cbolers, ice, water and cups on the courts for patron use.
CONTRACTOR agrees to assist in helping to ensure the Center remains clean and tidy.
City shall have sole discretion as to the means, manner and methods utilized for the
aforestated maintenance.
•8.3 Courts and Related Facilities Maintenance Standards.
The City shall comply with minimum standards set forth for the underground watering
systems, as set forth by the builder of the Center(Welch Tennis). The City shall conduct
monthly maintenance inspections by a City approved outside independent certified tennis
court builder/manufacturer to ensure courts are up to industry standards.
8.4 Equipment.
The CONTRACTOR must purchase and maintain, at its own cost and expense, all
materials, labor, and any and all equipment (the "programming equipment") required to
operate the tennis programs at the Center. Such programming equipment shall include the
following:
(A) Ball Caddies
(B) Tennis Balls (after City's start-up contribution of$5,000 is met)
(C) Racquets
(D) String
(E) Water Cooler
(F) Stringing Machine �!
(G) Ball Machine
(H) Clothing Racks for Display
In the event any of the CONTRACTOR'S equipment or materials are lost, stolen, or
damaged, they shall be replaced •or repaired at the sole cost and expense of the
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CONTRACTOR, in no more than five (5) days from date of loss, or if not possible, within
such time frame, as promptly as reasonably possible, but in no event to exceed fifteen(15)
days. The CONTRACTOR shall maintain, in accordance with the manufacturer's
specifications and maintenance requirements,all equipment,whether City owned or owned
by the CONTRACTOR, herein specified and purchased.All equipment shall be kept clean,
fully functional and free of damage.
8.5 Orderly Operation.
The CONTRACTOR shall have a neat and orderly operation at all times and shall be solely
responsible for tennis programing. There shall be no living quarters nor shall anyone be
permitted to live within the Center.
8.6 No Dangerous Materials.
The CONTRACTOR agrees not to use or permit at the Center the storage and/or use 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 Center shall be immediately removed.
Notwithstanding any contrary provisions of this Agreement, CONTRACTOR, after the
Commencement Date,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 CONTRACTOR, after the
Commencement Date, but during the term of this Agreement, of any hazardous substance,
or petroleum products on, under, in or upon the Center as those terms are defined by
applicable Federal and State Statute, or any environmental rules and environmental
regulations promulgated thereunder; provided, however, CONTRACTOR shall have no
liability for any violation arising or damage incurred as a result of the willful misconduct or
gross negligence of the City, its agents, servants or employees. The provisions of this
Subsection shall survive the termination or earlier expiration of this Agreement.
8.7 Security.
The CITY shall be provide reasonable security measures that may be required in the City's
discretion to protect the Center and any of the equipment, materials and facilities thereon.
8.8 Inspection.
The CONTRACTOR agrees that CONTRACTOR's operations at the Center, including all
program equipment thereon may be inspected at any time during hours of operation by the
City Manager or his designee, or by any other Municipal, County, State officer, or agency
having responsibilities for inspections of such operations. The CONTRACTOR hereby
waives all claims against the City for compensation for loss or damage sustained by reason
of any interference (which interference, if by the City, must be reasonable) with the
operations by any public agency or official in enforcing its or his duties or any laws or
ordinances. Any such interference(which interference, if by the City, must be reasonable)
shall not relieve the CONTRACTOR from any obligation hereunder.
SECTION 9. INSURANCE.
CONTRACTOR shall maintain, at its sole cost and expense, the following types of insurance
coverage at all times throughout the Term of this Agreement.
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a. Comprehensive General Liability in the minimum amount of One Million Dollars
($1,000,000)per occurrence for bodily injury and property damage.This policy must
also contain coverage for Center operations, products and contractual liability.
b. Workers Compensation Insurance as required under the Laws of the State of
Florida.
The policies of insurance referred to above shall not be subject to cancellation or change except
upon at least thirty(30)days prior written notice to the City,and then only subject to the prior written
approval of the City Manager or his designee. Prior to the Commencement Date, CONTRACTOR
shall provide City with a Certificate of Insurance for each such policy.ALL POLICIES SHALL NAME
THE CITY OF MIAMI BEACH FLORIDA AS AN ADDITIONAL NAMED INSURED. All such policies
shall be obtained from companies authorized to do business in the State of Florida with an A.M.
Best Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and any
replacement or substitute company shall also be subject to the prior writtenapproval of the City's
Risk'Manager. Should CONTRACTOR fail to obtain, maintain or renew the policies of insurance
referred to above, in the required amounts, the City may, at its sole discretion, obtain such
insurance, and any sums expended by City in obtaining said insurance, shall be repaid by
CONTRACTOR to City,plus ten percent(10%)of the amount of premiums paid to compensate City
for its administrative costs. If CONTRACTOR fails to repay City's expenditures within fifteen (15)
days of demand, the total sum owed shall accrue interest at the rate of twelve percent(12%)until
paid, and such failure shall be deemed an event of default hereunder.
SECTION 10. FINES AND PENALTIES.
The City reserves the right to levy fines against the CONTRACTOR when the City determines that
CONTRACTOR is not meeting the necessary work requirements.The following table below depicts
areas where fines will be levied:
Work Activity Grace Period
Quality of Operations 24 hours
Personnel Shortages 4 hours '
Personnel Dress Code 8 hours
Equipment Deficiencies 72 hours
Supplies 8 hours
Program Management 24 hours
' Communications 48 hours
Life Safety Maintenance 2 hours
Fines for failures to complete corrective action for any of the work activities listed above are as
follows:
-$100 after failing to complete corrective action after two(2)notifications
-$200 after failing to complete corrective action after three (3) notifications
-$500 after failing to complete corrective action after four(4) notifications
If additional time is required to complete corrective action, a written request must be submitted for
approval to the City prior to the end of the grace period. The basis for the implementation of fines •
and penalties includes but is not limited to the following:
a. Personnel Shortages — Failure to provide a staffing plan that meets the
14_
maintenance coverage requirements of the service area, and/or failure to
provide the necessary on-site personnel in accordance to the staffing plan.
b. Personnel Dress Code—Failure of employees to meet uniform requirements,
including wearing clean uniforms.
c. Equipment Deficiencies — Inability to fully operate; in non-functional
condition; in state of disrepair and or visibly damaged;lacking maintenance;
and not generally maintained and in clean condition.
d. Supplies—Failure to provide the supplies necessaryforthe proper execution
of the program or maintenance service specified.
e. Program Management-Failure to implement a comprehensive management
program to respond to City and/ or stakeholder requests for services and
maintenance issues covered by the Contract.
f. Communications — Failure to submit an approved communications plan
addressing routine, scheduled, and emergency maintenance and repair
activities, and failure to provide timely notifications as previous prescribed.
g. Safety Regulations— Failure to adhere to OSHA's most recently published
Safety and Health Regulations and general Occupational Safety and Health
Standards.
SECTION 11. INDEMNITY.
11.1 in consideration of a separate and specific consideration of $10.00 and other good and
valuable consideration the receipt and sufficiency of which are hereby acknowledged,
CONTRACTOR shall indemnify, hold harmless and defend the City,its agents,servants and
employees from and against any claim, demand or cause of action of whatsoever kind or
nature arising out of error,omission,or negligent act of CONTRACTOR,its subcontractor(s), i.
agents,servants or employees in the performance of services under this Agreement unless
such claim, demand or cause of action arises as a result of the City's gross negligence or
willful misconduct.
11.2 In addition, in consideration of a separate and specific consideration of$10.00 and other 1
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, CONTRACTOR shall indemnify, hold harmless and defend the City, its •
agents, servants and employees from and against any claim, demand or cause of action of
whatever kind or nature arising out of any misconduct of CONTRACTOR not included in the
paragraph in the subsection above and for which the City,its agents,servants or employees
are alleged to be liable.
11.3 Subsections 11.1 and 11.2 shall survive the termination or expiration of this Agreement.
Subsections 11.1 and 11.2 shall not apply, however, to any such liability, that arises as a
result of the willful misconduct or gross negligence of the. City, its agents, servants or
employees.
11.4 Subrogation.
The terms of insurance policies referred to in Section 9 shall preclude subrogation claims
against CONTRACTOR, the City and their respective officers, employees and agents.
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11.5 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 cumulative facilities
unusable and which is not caused by negligence of CONTRACTOR;
b. Earthquake; hurricane; flood; act of God; civil commotion occurring at the
Center during or in connection with any event;or other matter or condition of
like nature; or
c. 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.
The parties hereto acknowledge that CONTRACTOR'S obligations and benefits hereunder
may be negatively affected by an event of Force Majeure. If an event of Force Majeure
occurs during the term of this Agreement,then the City Manager or his designee,in his sole
discretion, may extend the term of this Agreement fora reasonable period of time;provided,
however,such extension shall take effect only if CONTRACTOR agrees to such extension.
11.6 Labor Dispute.
In the event of a labor dispute which results in a strike,picket or boycott affecting the Center
or operation described in this Agreement, CONTRACTOR shall not thereby be deemed to
be in default or to have breached any part of this Agreement, unless such dispute shall have
been caused by illegal labor practices or violations by CONTRACTOR of applicable
collective bargaining agreements and there has been a final determination of such fact
which is not cured by CONTRACTOR within thirty(30)days.'
11.7 Waiver of Loss from Hazards.
The CONTRACTOR hereby expressly waives all claims against the City for loss or damage
sustained by the CONTRACTOR resulting from fire, water, natural disasters/acts of God
(e.g. hurricane, tornado,' -etc.), civil commotion, riot, or any other Force Majeure LI
contemplated in Subsection 14.5 and Labor Dispute in Subsection 14.6 above, and the
CONTRACTOR hereby expressly waives all rights, claims, and demands against the City
and forever releases and discharges the City from all demands,claims,actions and causes
of action arising from any of the aforesaid causes. ;I
SECTION 12. DEFAULT AND TERMINATION.
Subsections 12.1 through12.2 shall constitute events of default under this Agreement. An event of
default by CONTRACTOR shall entitle City to exercise any and all remedies described as City's
remedies under this Agreement, including but not limited to those set forth in Subsection 12.3.An
event of default by City shall entitle CONTRACTOR to exercise any and all remedies described as
CONTRACTOR'S remedies under this Agreement, including but not limited to those set forth in
Subsection 12.4.
12.1 Bankruptcy.
If either the City or CONTRACTOR shall be adjudged bankrupt or insolvent, or if any
receiver or trustee of all or any part of the business property of either party shall be
appointed, or if any receiver of all or any part of the business property shall be appointed
OiMIONOMMIll 16
and shall not be discharged within sixty(60)days after appointment, or if either party shall
make an assignment of its property for the benefit of creditors, or shall file a voluntary
petition in bankruptcy,or insolvency,or shall apply for reorganization or arrangement with its
creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted,
Federal, State, or otherwise, or if such petitions shall be filed against either party and shall
not be dismissed within sixty (60) days after such filing, then the other party may
immediately, or at any time thereafter, and without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available to it for
breach of contract.
12.2 Default.
In the event that CONTRACTOR or the City fails to perform or observe any of the covenants,
terms or provisions under this Agreement, and such failure continues thirty(30)days after
written notice thereof from the other party hereto,such non-defaulting party may immediately
or at any time thereafter, and without further demand or notice, terminate this Agreement
without being prejudiced as to any remedies which may be available to it for breach of
contract. In the event that a default (except with respect to a monetary default) is not
reasonably susceptible to being cured within such period, the defaulting party shall not be
considered in default if it shall, within such period, commence with due diligence and
dispatch to cure such default and thereafter completes with dispatch and due diligence the
curing of such default, but in no event shall such extended cure period exceed ninety(90)
days from the date of written notice thereof. In the event a defaulting party cures any default
pursuant to this subsection, it shall promptly provide the other party with written notice of
same.
12.3 Remedies for CONTRACTOR'S Default.
If any of the events of default,as set forth in this Section,by CONTRACTOR shall occur,the
City may, after notice(if required)and the expiration of cure periods, as provided above, at
its sole option and discretion, institute such proceedings as in its opinion are necessary to
cure such defaults and to compensate City for damages resulting from such defaults,
including but not limited to the right to give to CONTRACTOR a notice of termination of this
Agreement. If such notice is given,the term of this Agreement shall terminate upon the date
specified in such notice from City to CONTRACTOR. On the date so specified,
CONTRACTOR shall then quit and surrender the Center to City pursuant to the provisions of
Subsection 12.5. Upon the termination of this Agreement, all rights and interest of
CONTRACTOR in and to the Center and to this Agreement, and every part thereof, shall
cease and terminate and City may,in addition to any other rights and remedies it may have,
retain all sums paid to it by CONTRACTOR under this Agreement.. In addition to the rights
set forth above, City shall have the rights to pursue any and all of the following:
a. The right to injunction or other similar relief available to it under Florida law
against CONTRACTOR; and/or
b. The right to maintain any and all actions at law or suits in equity or other
proper proceedings to obtain damages resulting from CONTRACTOR'S
default.
12.4 Remedies for City's Default. If any of the events of default, as set forth in this Section, by
the City shall occur, the CONTRACTOR may,after notice(if required)and the expiration of
the cure periods, as provided above, at its sole option and discretion, terminate this
Agreement upon written notice to the City and/or sue for damages. Said termination shall
II become effective upon receipt of a written notice of termination by the City, but in no event
f
17 -
shall CONTRACTOR specify a termination date that is less than sixty(60) days from the
date of the written termination notice.On the date specified in the notice, CONTRACTOR
shall quit and surrender the Center to the City pursuant to the provisions of Subsection 12.5.
12.5 Surrender of Center.
At the expiration of this Agreement,or earlier termination in accordance with the terms of this
Agreement, CONTRACTOR shall surrender programming at the Center in the same
condition as the Center was prior to the commencement of this Agreement,reasonable wear
and tear, and City maintenance and repair obligations, excepted. CONTRACTOR shall
remove all its equipment,fixtures,personal property,etc.upon five(5)-business days written
notice from the City Manager, or his designee, unless a longer time period is agreed to by
the City.The CONTRACTOR'S obligation to observe or perform this covenant shall survive
the expiration or other termination of this Agreement. Continued occupancy of the Center
after termination of the Agreement without the City's approval shall constitute trespass by
the CONTRACTOR,and may be prosecuted as such. In addition,the CONTRACTOR shall
pay to the City two hundred dollars($200)per day as liquidated damages for such breach of
this Agreement.
12.6 Termination for Convenience.
During the Term of this Agreement,the City may terminate this Agreement at any time,at its
convenience and without cause, upon providing the CONTRACTOR with sixty (60) days
written notice. In the event of termination for convenience pursuant to this subsection,
CONTRACTOR shall quit and surrender the Centers to City pursuant to the provisions of
Subsection 12.5 hereof.
SECTION 13.ASSIGNMENT.
Except as otherwise provided in this Section,CONTRACTOR shall not assign;sublease;grant any
concession or license; permit the use of by any other person other than CONTRACTOR; or
otherwise transfer all or any portion of this Agreement and/or of the Center(all of the forgoing are
herein after referred to collectively as"transfers"),without the prior written consent of the City,which
consent shall not be unreasonably withheld.
If there is a change in control of CONTRACTOR,then any such'change in control shall constitute a
"transfer"for purposes of this Agreement and shall be approved by the City Commission prior to
consummation of such change in control. "Change in control", for purposes hereof, shall mean a
change of the ownership, directly or indirectly, of greater than 10% of the voting or ownership
interest or right to profits in such CONTRACTOR, by means of one or more transfers, sales,
mergers, consolidations,dissolutions or otherwise;provided that the foregoing shall not be deemed
to include(I)any transfer to other owners of CONTRACTOR or to trusts the beneficiaries of which
are any owner(s)of CONTRACTOR or member(s)of their immediate family; or(ii)a change in the
ownership of CONTRACTOR through a registered public offering of shares in CONTRACTOR-((I)
and (ii) above collectively are referred to herein as the "Transfer Exclusions"). Except for the
Transfer Exclusions,any change of the ownership,directly or indirectly,of 10%or less of the voting
or-ownership interest or right to profits in such CONTRACTOR(a"MinorChange"),by means of one
or more transfers,sales, mergers,consolidations, dissolutions or otherwise, shall be subject to the
approval of the City Manager, or his designee.
CONTRACTOR shall notify the City of any proposed transfer, and shall notify the City Manager,or
his designee, of any proposed Minor Change, prior to consummation of same and the City or the
CityManager, as applicable,shall respond within thirty(30)days. In the event that any such transfer
18_
or Minor Change is approved, the transferee shall agree to be bound by all the covenants of this
Agreement required of the transferor hereunder. Any transfer or Minor Change made without
complying with this Section shall be null, void, and of no effect and shall constitute an act of default
under this Agreement. Notwithstanding any such consent,or any permitted transferor Minor Change
under any provision of this Section, unless expressly released by the City, CONTRACTOR shall
remain jointly and severally liable (along with each approved transferee, who shall automatically
become liable for all obligations of the transferor hereunder with respect to that portion of the
Agreement so transferred), and the City shall be permitted to enforce the provisions of this
Agreement directly against CONTRACTOR or any transferee of the CONTRACTOR without
proceeding in any way against any other person.
SECTION 14. SPECIAL EVENTS.
14.1 CONTRACTOR'S proposed uses, as defined in Section 3 herein, contemplates the
production, promotion or sponsorship by the CONTRACTOR of tennis related special events
at the Center. For purpose of this subsection 14.1 only, CONTRACTOR'S"Special Event"
shall mean any event in which CONTRACTOR shall dedicate, and close to the general
public, 50% or more of the Center's tennis courts. In the event CONTRACTOR does
produce, promote or sponsor a Special Event at the Center,other than those provided for in
this Agreement; it shall abide by the City's Special Events Permit Requirements and
Guidelines. For any use, other than those provided for in this Agreement, a Special Events
Permit may be required, and if required, shall be obtained through the City's Office of Arts,
Culture and Entertainment. The City Manager's, or his designee's, authorization must be
obtained for any such Special Event. The City Administration shall evaluate requests for
Special Events Permits on a case by case basis, in accordance with the City's Special Event
Permit Requirements and Guidelines.
14.2 City Special Events.
Notwithstanding Subsection 14.1 above,and in the event that the City,at its sole discretion,
deems that it would be in the best interest of the City,the City reserves the right to utilize the
Center for City produced tennis related special events and/or other City-produced special
events or productions. In such cases, the City will coordinate with the CONTRACTOR to
cooperatively produce such events. The City shall make its best effort to negotiate with
CONTACTOR including utilization of off-site City-owned neighborhood tennis courts, but if
unsuccessful the CONTRACTOR shall cease and desist operations during the term of,and
in the area of the special event and/or production. If the CONTRACTOR is not required to
close, or chooses to remain open without interference to the special event and/or production,
CONTRACTOR agrees to cooperate with the City. If the CONTRACTOR is allowed to
remain open during special events and/or productions,the CONTRACTOR may be allowed
to have in operation its normal daily complement of equipment and staff. "Normal"shall be
defined as equipment and staff,approved by the City,that the CONTRACTOR has available
for the public on a normal day, 365 days per year. Such equipment or staff shall not be
increased or altered during special events and/or productions without the prior written
permission of the City Manager, or his designee. To the extent that the normal daily
complement of equipment and staff is displaced by the special event and/or production,the
CONTRACTOR may reallocate such displaced equipment and staff on a pro-rata basis
within the Center not being utilized by the special event or production.
• 19
•
SECTION 15. NO IMPROPER USE.
The CONTRACTOR will not use,nor suffer or permit any person to use in any manner whatsoever,
the Center or any facilities herein for any improper,immoral or offensive purpose,or for any purpose
in violation of any Federal,State,County,or Municipal ordinance,rule,order or regulation, or of any
governmental rule or regulation now in effect or hereafter enacted or adopted.The CONTRACTOR
will protect, indemnify, and forever save and keep harmless the City, its agents, employees and
contractors from andagainst damage, penalty, fine, judgment, expense or charge suffered,
imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or
regulation occasioned by any act, neglect or omission of the CONTRACTOR, or any of its
subcontractors, employees or agents. In the event of any violation by the CONTRACTOR or if the
City or its authorized representative shall deem any conduct on the part of the CONTRACTOR to be
objectionable or improper, CONTRACTOR shall be deemed to be in default of this Agreement
should CONTRACTOR fail to correct any such violation, conduct, or practice to the satisfaction of
the City within twenty-four(24) hours after receiving written notice of the nature and extent of such
violation, conduct, or practice.
SECTION 16. NOTICES.
All notices, consents,waivers,directions,requests or other instruments of communications provided
for under this Agreement,shall be deemed properly given if,and only if,delivered personally or sent
by registered or certified U.S. mail, postage pre-paid, as follows:
IF TO THE CITY: Jimmy L. Morales
City Manager •
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to: John Rebar, Director
Parks and Recreation
2100 Washington Avenue
Miami Beach, Florida 33139
IF TO CONTRACTOR: Mr. Martin Van.Daalen,
Van Daalen Tennis, LLC
15051 Royal Oaks Lane, Apt 1604
North Miami, Florida 33181
The CONTRACTOR and the City may change the above mailing address at any time upon giving
the other party written notification. All notices under this Agreement must be in writing
SECTION 17. LAWS.
17.1 Compliance.
CONTRACTOR shall comply with all applicable City,County,State,and Federal ordinances,
statutes,rules and regulations,including but not limited to all applicable environmental City,
County, State, and Federal ordinances, statutes, rules and regulations.
! I'
A 20
•
17.2 Governing Law.
This Agreement shall be deemed to have been made and shall be construed and interpreted
in accordance with the laws of the State of Florida. In case of any inconsistency between the
terms of this Agreement,and any applicable general or special law,said general,special law
shall prevail.
17.3 Equal Employment Opportunity.
Neither CONTRACTOR nor any affiliate,of CONTRACTOR performing services hereunder,
or pursuant hereto, will discriminate against any employee or applicant for employment
because of race, creed, sex, color, national origin, sexual orientation, and disability, as
defined in Title I of ADA.
17.4 No Discrimination.
In connection with the performance of its services, CONTRACTOR shall not exclude from
participation in, deny the benefits of,or subject to discrimination anyone on the grounds of
race, color, national origin, sex, age, disability, religion, income or family status.
Additionally, CONTRACTOR shall comply fully with the City of Miami Beach Human Rights
Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to time,
prohibiting discrimination in employment, housing, public accommodations, and public
services on account of actual or perceived race, color, national origin, religion, sex,
intersexuality, gender identity,sexual orientation, marital and familial status,age,disability,
ancestry, height,weight,domestic partner status, labor organization membership,familial
situation, or political affiliation.
SECTION 18. MISCELLANEOUS.
18.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or create a
partnership or joint venture between the City and CONTRACTOR.
18.2 Modifications.
This Agreement cannot be changed or modified except by agreement in writing executed by
all parties hereto. CONTRACTOR acknowledges that no modification to this Agreement
shall be binding on the City unless approved by the Mayor and City Commission except
where such authority has been expressly provided herein to the City Manager or his
designee.
18.3 Complete Agreement.
This Agreement,together with all exhibits attached hereto,constitutes all the understandings
and agreements of whatsoever nature or kind existing between the parties with respect to
the matters as contemplated herein.
18.4 Headings.
The section, subsection and paragraph headings contained herein are for convenience of
reference only and are not intended to define, limit, or describe the scope or intent of any
provision of this Agreement.
18.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
21
respective successors and permitted assigns.
18.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall not affect the
validity of the remainder of the Agreement,and the Agreement shall remain in full force and
effect as if such illegal or invalid term or clause were not contained herein unless the
elimination of such provision detrimentally reduces the consideration or benefits that either
party is to receive under this Agreement Or materially affects the continuing operation of this
Agreement.
18.7 Severability.
If any provision of this Agreement or any portion of such provision or the application thereof
to any person or circumstance shall be held to be invalid or unenforceable,or shall become
a violation of any local, State, or Federal laws,then the same as so applied shall no longer
be a part of this Agreement but the remainder of the Agreement shall not be affected thereby
and this Agreement as so modified shallremain in full force and effect.
18.8 Right of Entry.
The City,at the direction of the City Manager,or his designee,shall at all times during hours
of operation; have the right to enter into and upon any and all parts of the Center for the
purposes of examining the same for any reason relating to the obligations of parties to this
Agreement.
18.9 Nota Lease.
It is expressly understood and agreed that no part, parcel, building, facility, equipment or
space is leased to the CONTRACTOR.CONTRACTOR is an independent contractor
providing management services for the operation of the City's tennis programs and the Pro-
Shop at the Center, and is not a lessee;and that the CONTRACTOR'S right to manage and
operate the Center for the City shall continue only so long as this Agreement remains In
effect.
18.10 Signage.
CONTRACTOR shall provide, at its sole cost and expense, any required signs for its
operation on the Center.All advertising,signage and postings shall be approved by the City,
and shall be in accordance with all applicable Municipal,County,State and Federal laws and
regulations:Any signage posted by CONTRACTOR at the Center shall be subject to the
prior written approval of the City as to size, shape and placement of same.
18.11 Conflict of Interest.
CONTRACTOR shall perform its services under this Agreement and conduct the
professional tennis management and operations contemplated herein,in a manner so as to
show no preference for other tennis operations/facilities owned, operated, managed, or
otherwise controlled by CONTRACTOR with regard to its responsibilities pursuant to this
Agreement.
18.12 Reasonableness.
Notwithstanding anything to the contrary in this Agreement, including but not limited to
references to"sole option"or"sole discretion"or words of similar meaning, in each instance
in which the approval or consent or other action of the City Commission or the City Manager
orhis designee is allowed or required in this Agreement, such approval, consent or other
action shall not be unreasonably withheld, conditioned or delayed.
22
18.13 Procedure for Approvals and/or Consents.
In each instance in which the approval or consent of the City Manager or his designee is
allowed or required in this Agreement, it is acknowledged that such authority has been
expressly provided herein to the City Manager orhis designee by the Mayor and City
Commission of the City. In each instance in which the approval or consent of the City
Manager or his designee is allowed or required in this Agreement, CONTRACTOR shall
send to the City Manager a written request for approval or consent(the"Approval Request").
The City Manager or his designee shall have up to sixty(60)days from the date of Approval
Request to provide written notice to CONTRACTOR approving of, consenting to or
disapproving of the request. However,the City Manager or his designee's failure to consider
such request within this time provided shall not be deemed a waiver, nor shall
CONTRACTOR assume that the request is automatically approved and consented to.The
Subsection shall not apply to approvals required herein by the Mayor and City Commission.
18.14 No Waiver.
No waiver of any covenant or condition of this Agreement by either party shall be deemed to
imply or constitute a waiver in the future of the same covenant or condition or of any other
covenant or condition of this Agreement.
18.15 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity,including,but not limited to
subcontractors,other than the parties hereto and their respective successors and permitted
assigns, any rights or remedies by reason of this Agreement.
SECTION 19. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement placing the operation and management of the Center
in the hands of a private management entity only if so doing the City can place a limit on its liability
for any cause of action for breach of this Agreement, so that its liability for any such breach never
exceeds the sum of$100,000.00. CONTRACTOR hereby expresses its willingness to enter into this
Agreement with a $100,000.00 limitation on recovery for any action for breach of contract.
Accordingly, and in consideration of the separate consideration of$100,000.00,the receipt of which
is hereby acknowledged, the City shall not be liable to CONTRACTOR for damages to
CONTRACTOR in an amount in excess of$100,000.00,for any action for breach of contract arising
out of the performance or non-performance of any obligations imposed upon the City by this
Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way
intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes,
Section 768.28.
SECTION 20.VENUE.
This Agreement shall be enforceable in Miami-Dade County, Florida,and if legal action is necessary
by either party with respect to the enforcement of any and all the terms.or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. CITY AND
CONTRACTOR HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING THAT CITY AND CONTRACTOR MAY HEREIN
AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR THE CENTER.
23
SECTION 21. FLORIDA PUBLIC RECORDS LAW.
(A) Contractor shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
(B) The term "public records" shall have the meaning set forth in Section 119.011(12), which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or othermaterial, regardless of the physical form,
characteristics,or means of transmission, made or received pursuant to law or ordinance or
in connection with the transaction of official business of the`City.
(C) Pursuant to Section 119.0701 of the Florida Statutes,if the Contractor meets the definition of
"Contractor" as defined in Section 119.0701(1)(a), the Contractor shall:
(1) Keep and maintain public records'required by the City to perform the service;
(2) Upon request from the City's"custodian of public records,provide the City with a copy
of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in Chapter 119,
Florida Statutes or as otherwise provided by law; ;
(3) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed, except as authorized by law,for
the duration of the contract term and following completion of the Agreement if the
Contractor does not transfer the records to the City;
(4) Upon completion of the Agreement,transfer,at no cost to the City,all public records
in possession of the Contractor or keep and maintain public records required by the
City to perform the service. If the Contractor transfers all public records to the City
upon completion of the Agreement,the Contractor shall destroy any duplicate public
records that are exempt or confidential and exempt from public records disclosure
requirements. If the Contractor keeps and maintains public records upon completion
of the Agreement,the Contractor shall meet all applicable requirements for retaining
public records. All records stored electronically must be provided to the City, upon
request from the City's custodian of public records,in a format that is compatible with
the information technology systems of the City.
(C) REQUEST FOR RECORDS; NONCOMPLIANCE.
(1) A request to inspect or copy public records relating to the City's contract for services
Mustbe made directly to the City: If.'the City does not possess the requested
records, the City shall immediately notify the Contractor of.,the request, and the
Contractor must provide the records to the City or allow the records to be inspected
or copied within a reasonable time.
(2) Contractor's failure to comply with the City's request for records shall constitute a
breach of the Agreement, and the City, at its sole discretion, may: (1) unilaterally
terminate the Agreement; (2) avail itself of the remedies set forth under the
Agreement; and/or(3) avail itself of any available remedies at law or in equity.
(3) A Contractor who fails to provide the public records to the City within a reasonable
time may be subject to penalties under s. 119.10.
(D) CIVIL ACTION..
(1) If a civil action is filed against a Contractor to compel production of public records
relating to the City's contract forservices,the court shall assess and award against
the Contractor the reasonable costs of enforcement,including reasonable attorney
fees, if:
a. The court determines that the Contractor unlawfully refused to comply with the
public records request within a reasonable time; and
24
b. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the Contractor
has not complied with the request, to the City and to the Contractor.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to the Contractor at the Contractor's address listed on its contract
with the City or to the Contractor's registered agent. Such notices must be sent by
common carrier delivery service or by registered, Global Express Guaranteed, or
certified mail, with postage or shipping paid by the sender and with evidence of
delivery, which may be in an electronic format.
(3) A Contractor who complies with a public records request within 8 business days after
the notice is sent is not liable for the reasonable costs of enforcement.
(E) IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO(&,,MIAMIBEACHFL.GOV
PHONE: 305-673-7411 •
SECTION 22. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE
FOOD SERVICE ARTICLES.
Expanded polystyrene, a petroleum byproduct commonly known as Styrofoam, is neither readily
recyclable nor biodegradable and takes hundreds to thousands of years to degrade. Expanded
polystyrene is a common pollutant,which fragments into smaller,non-biodegradable pieces that are
harmful to marine life,other wildlife, and the environment.The City's goals are to reduce the use of
expanded polystyrene and encourage the use of reusable,recyclable,or compostable alternatives.
Expanded polystyrene means blown polystyrene and expanded and extruded foams that are
thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of
techniques including,but not limited to,fusion of polymer spheres(expandable bead foam),injection
molding, foam molding, and extrusion-blown molding (extruded foam polystyrene).
Expanded polystyrene food service articles means plates, bowls, cups, containers, lids, trays,
coolers, ice chests, and all similar articles that consist of expanded polystyrene.
CONTRACTOR agrees not to sell, use, provide food in, or offer the use of expanded polystyrene
food service articles at the Center.A violation of this section shall be deemed a default under the
terms of this Agreement. This subsection shall not apply to expanded polystyrene food service
articles used for prepackaged food that have been filled and sealed prior to receipt by the
CONTRACTOR.
25
IN WITNESS WHEREOF,the parties hereto have caused their names to be signed and their seals
to be affixed, all as of the day and year first above written, indicating their agreement.
CITY OF MIAMI BEACH
a municipal corporatio. o'-F-- '
State of Florida
W..
By:
•Print Name Ph, .,/ ne
Print Title M or
Date:
ATTEST: ; -�'��\ B E 0 i
/ A i q/
�el t,
,�; . ' � �•�,r APPROVED AS TO
Rafael E. G`ranado, City Clerk y •°fG - •. FORM & LANGUAGE
ABO: & FOR EXEC " 0 N
OP SRP
01
STATE OF FLORIDA ) ,t\ = terd //q. .r'
`J_ .•' �- Ci Attorney ' � Date `
COUNTY OF `: •Q';;•..• • " f ,
I HEREBY CERTIFY that on this day, before`urr�rTtr officer duly authorized in the State aforesaid
and in the County aforesaid to take acknowledgments,the foregoing instrument was acknowledged
before me by Philip L�ev�inea Mayor of the City of Miami Beach, a municipal corporation of the
State of Florida,who"V is personally known to me or who has produced a valid driver's license
as identification.
A WITNESS my hand and official seal in the County and State last aforesaid this 30 day of
igte; ,'2017.`
1
a.__ -_
_a , ,
Notary Public, State of Florida
My Commission Expires:
: °'0 LILIACARDILLO
i+ MY COMMISSION#FF 153372
o
f moo€ EXPIRES:August 27,2016
off Bonded T ru Notary Public Under ers
26 1
'VAN DAALEN TENNIS, LLC.
a Florid- limited l'-bility company
By:
Print Name: 11.4(1";r% VAN DAkhieu•
Print Title: V%r.-C f' a' 1)ro G rAMt"tWNC,
Date: ®8 I Z i l�
ATTEST:
By:
ROL ► lir o,i cifrikera-e-,464,0662
Name and Title
STATE OF FLORIDA
SS:
COUNTY OF Miami trade )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid
and in the County aforesaid toltake acknowledg Rts,the foregoing instrument was acknowledged
before me by C v A# ?chits , as t.),!• ° 1'ifo/i*t c of VAN DAALEN TENNIS, LLC., a
Florida limited liability company, who is personally known to me or who / has produced a
valid vsa4-5b3-si-bz40 driver's license as identification.
WITNESS my hand and official seal in the County and State last aforesaid this 22".l ay of
Pugusi- , 2017.
e/r
Notary Public,�State of Florida
My Commission Expires: /Public,
!I
`SppY PV�i� MELODY PER EZ
• ._' � State of Florida-Notary Public
Commission # GG 128038
r
F'i'l!o,; My Commission Expires
;"it" July 25, 2021
of ._... _.... .. ...... .... ., �
27
Exhibit "A" to
VAN DAALEN TENNIS, LLC.
ONE (1 ) YEAR PILOT AGREEMENT TO PROVIDE
PROGRAMMING AT THE CITY'S NORTH SHORE
TENNIS CENTER
Instructional Fees
Private Lessons(1-2 students,to be determined by Director,$20 court fee included)
$85.00 (per hr) - , Director of tennis
$80.00 (per hr) - Head Professional
$75.00 (per hr) - Academy instructor
$65.00 (per hr) - Assistant instructor
$60.00 (per hr) - RecreationaI instructor
Adult Programs(up to 6 students per court)
$25.00 (1.5 hr clinic) - Advanced group
$25.00 (1.5 hr clinic) - Beginner group
•
Junior programs
$70.00(2.5 hr clinic) - Academy after school program(4:30—7)
$150.00(monthly) - Academy tournament coaching fee
$40(1.5 hr clinic) - Academy after school program(5:30—7)
$20 (per hr) - Recreational group
• Junior Camps
$400 (week,full day) - recreational
$200 (week,half day) - recreational
$700(week,tourn) - Tournament players
Cooperate Clinics(3-4 students,1.5 hrs) •
$160 (per group) - Elite training
Exhibit "B" to
VAN DAALEN TENNIS, LLC.
ONE (1 ) YEAR PILOT AGREEMENT TO PROVIDE
PROGRAMMING AT THE CITY'S NORTH SHORE
TENNIS CENTER'
DATE ISSUED: Page: 1 SECTION:
11/28/2007 Of:3
PARKS&RE REATION DEPARTMENT SUBJECT: •
RECREATIO DIVISION EMPLOYEE'S HURRICANE PROCEDURES
POLICY: The 'arks and Recreation Department requires the following procedures In case
of a urricane watch or a hurricane
PROCEDURES:
1. HURRICANE 4 TCH PROCEDURES
A. All Staff
1. If a Hurricane Watch is issued while you are on duty,stay at your facility and
oil your immediate supervisor for instruction.
2. A I employees must make sure that the Department and the Immediate
s pervisor have at least two(2) telephone numbers where the employee can
b.: readied.
3. If you are not on duty,and a Hurricane Watch is issued,call your immediate
s pervisor for Instructions.
4. Yeu may be called to your facility to follow hurricane procedures and may be
• a signed to assist anywhere help Is needed.
B. AR Supe isors
1. A I supervisors are to report to Division office at 2l Street Recreation.
2. E:ch supervisor will instruct their staff at each facility to carry out safety
p •cedures.
C. All Tenni Center Managers
1. Ar Tennis Center Managers are to report to your Tennis Center.
2. N.tify your immediate supervisor that you are on duty.
3. F,How safety procedures.
•
D. All Pool anagers
1. Al Pool Managers are to report to your pools,
2. N Itify your Immediate supervisors that you are on duty.
3. Pillow safety procedures.
All personnel are no to leave their site until permission is given by your supervisor.
II. PROCEDURE T' SECURE FACILITIES
A. Tennis C=eters
1. T:nnis Personnel must report to work immediately,if off duty.
2. CI p wires and take down windscreens. Roll up tightly by sections and store
al nets.
3. R=move all maintenance equipment i.e. brooms, rakes, etc. and store in a
s. e place.
4. T7= down benches to posts.
5. Stere all trash cans in locker rooms.
6. R•move all seats i.e.bleachers,chairs.etc.and store as instructed.
7. S=cure all loose objects,computers,and all miscellaneous items In the pro-
s •ep.
8. T m off all power at the main panel box.
DATE ISSUED:._ Pege:2 SECTION:
11/28/2007 rage:
3
PARKS&RE'REATION DEPARTMENT SUBJECT:
• RECREATIO DIVISION EMPLOYEE'S HURRICANE PROCEDURES '
Do not leave the fa,filly until fully secured.
B. Playgro rids and Youth Centers '
1. -emove everything on the first floor that can be damaged by water.
2. -emove all objects away from window.
3. urn off power at the main panel switch.
4. :ring In all trashcans and store in a safe place.
5. ie all benches and swings securely.
6. :e sure that all sports equipment is stored In a safe place.
7. sever and unplug all electrical equipment with plastic (i.e. computers,
p Inters,copy machine.'TV's,etc.)
Do not leave the fa.Ility until fully secured.
C. Swimml g Pools
1. T.ke down all canvas on deck;sun shelters,umbrellas,etc.,roll up and stare
i safe place.
2. •ear the decks and store all movable items in the deck storage room.
. 3. L•wer the water In the pool about two (2) feet (youth center lower three (3)
f:et).
4. S ack things off the floor that can be damaged by water.
5. L,,ck all windows and doors.
6. S ut off electricity to pumps,chlorinator,etc.
7. T m off power at main switch.
11/. POST HURRIC NE PROCEDURES
A. All Staff
1. A staff is to call City Hall Employee Hotline(604-City)and their Immediate
s per4isor(if possible)as soon as possible,and wait for further instructions.
2. A i staff will be assigned work locations to begin cleanup of all storm damage
s• that normal services to the public can be resumed as soon as possible.
3. A staff must report to work when notified by their supervisor unless
u foreseen circumstances prohibit otherwise.
B. All Supe isors
1. A) Supervlsors are to report to City Hall (I don't know about this one...we
u•ually report to our sites)as soon as possible.
2. C.ordinate the damage assessment and clean up procedures.
3. I mediately upon reporting back to work a damage report must be turned in
to the Recreation Assistant Director.
4. ••sign staff to each facility.
C. All Tenni- Center Managers
1. Al Tennis Center Managers are to report to their Tennis Centers as soon as •
p.ssibie,
2. P -pare a written damage report of their facility.
3. ' sign staff to cleanup procedures.
•
Itz) DATE ISSUED: I Page:3 SECTION;
11/28/2007 + Of:3
PARKS&RECREATION DEPARTMENT SUBJECT:
RECREATION DIVISION• EMPLOYEE'S HURRICANE PROCEDURES •
• D, All Pool Managers
1, All Pool Managers are to reports to their Pool as soon as possible.
2. Prepare a written damage report of their facility.
3. Assign staff to cleanup procedure.
•
•
•
•
•
Exhibit "C" to
VAN DAALEN TENNIS, LLC.
ONE (1 ) YEAR PILOT AGREEMENT TO PROVIDE
PROGRAMMING AT THE CITY'S NORTH SHORE
TENNIS CENTER
r _
. , ..,
,, ., ., ,
A[ EH, , . ,,, , ,.
, _ _ j
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1
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..
ct our custom• ers haveya right'to expect._."
,i1
Serving our public wi }i digniiy;dnd resile - -_ _-�
- ;; t
TELEPHONE Telephone Will be coveiedotall customer-contacpoints during normal business hours answering within thethird ring.
• Phone messages received will be responded to(if requested)in a timely manner,two business days,even iF just to'
acknowledge receipt_An estimate of lime to resolve the problem will be given if applicable.
I. •Calls coming from eternal sources will be answered with a consistent greeting such as'Good morning,City of Miami i
Beach,John Smith,may I help you?'
•Employee will take responsibility for providing a solution and/or options to the customer's request.
•Request permission from the caller before transferring a call.Provide the caller with the name and number of the person
being transferred to,and stay on the line to announce the caller to the person receiving the transferIf the transfer cannot
be accomplished(bury,no answer or the person is unavailable),the employee will reconnect with the caller and ask if
they want to leave a message.
•Voice mai(messages will include employee's full name,working hours,and an optional phone number for customers to
call.When employer is away from the office For an extended period of time,the voice mail message will communicate
such absence and offer an option for the caller.
•Thank the customer for calling and ask if further assistance is needed prior to concluding the coll.
WRITTEN ` •Corresponde'n`ce`star:_ith v greeting.
CORRESPONDENCE: •E-maifsrgnatureswill-include the name,title,department,division,and contact number.
- , •Activate the E-mail Out-o4Office Assistant when away from the office for an extended period of time.
// •Acknowledge E-mails and faxes that require a response within two business days.
6t. •Respond to letters within 10 business days.
•Correct spelling and grammar will be used,including accurate name and address.
•Provide complete,accurate,and precise information regarding their inquiries.
•Fax cover sheets will be legible and include name,telephone number,and the name and fax number of the receiver. I
PERSONAL •Respond to customers in a cwrteaus manner.The customer is not always right,but always deserves to be treated with respect.
CONTACT •Provide accurate and understandable solutions/options to customer requests ordirect the customer to the appropriate person
who may have knowledge in the subject molter.
�[ •Average or maximum wait time without an appointment should be no longer than 30 minutes or scheduled for a
11 mutually convenient time. '
•Counter will be staffed during business hours.
•Employees will dress in attire that is professional,tasteful,appropriate and consistent with individual departmental policies
MONITORING •Our customer service team will oversee all customer service standards.
OUR PROGRESS•IF we do not meet our standards,we will implement an action plan to improve our service.
® •We will listen and do all we can to resolve issues.
•For questions and/or concerns,call 305.604.0TY(2489).
1110.0
i
. Vile are committed to providing excellent public service and: safely to. all who:live, f
work-and play,in our vibrant,,tropical, historic community. : i
____ _,______ __ ___-_s____.-__ ... ___ ___�._. �____- _ --:_-_ �_�.____ ________1
Exhibit "D" to
VAN DAALEN TENNIS, LLC.
ONE (1 ) YEAR PILOT AGREEMENT TO PROVIDE
PROGRAMMING AT THE CITY'S NORTH SHORE
TENNIS CENTER
AMENDMENT NO. 1
TO CONCESSION AGREEMENT BY AND BETWEEN CITY OF MIAMI
BEACH, FLORIDA AND BETTOLi TRADING CORP. FOR OPERATION
OF SNACK MACHINE CONCESSIONS AT VARIOUS LOCATIONS ON
CITY OF MiAMi BEACH PROPERTIES PURSUANT TO REQUEST FOR
PROPOSALS#44-10/11
THIS AMENDMENT NO. 1, (Amendment) to the Concession Agreement (Agreement)
for operation of snack machines by Bettoli Trading Corp.dated, May 3, 2012, by and
between the City of Miami Beach, Florida, a municipal corporation organized and
existing under the laws of the State of Florida, having its principal place of business at
1700 Convention Center Drive, Miami Beach, Florida 33139 (City), and Bettoli Trading
Corp. a Florida corporation, with offices at 6095 NW 167 street, Suite D, Miami, Florida
33015 (Concessionaire), is entered into retroactively as of the 1s` day of November,
2016 (Effective Date).
RECITALS
WHEREAS, the City and Concessionaire are parties to an Agreement, dated May 3, 2012, for
the operation of snack machine concessions at various locations on -City of Miami Beach
properties; and
WHEREAS, the Concession Agreement has an initial term of five (5) years, commencing on
May 1, 2012 and ending on April 30, 2017, which may be extended, at the City's sole discretion,
for five-(5) additional periods of one(1) year each; and
WHEREAS, on June 8, 2016, the Neighborhoods/Community Affairs Committee (NCAC)
recommended in favor of implementing the Miami-Dade County Public Schools (MDCPS)
standards in all snack vending machines;and
WHEREAS, at the October 19, 2016 City Commission meeting,the Mayor and City Commission
directed the Administration to implement the MDCPS standards for one hundred percent (100%)
of the snack selections in the vending machines located in parks and youth centers; to
implement the MDCPS standards for fifty percent (50%) of the snack selections in the vending
machines located in other City structures, such as garages and office buildings; and to revisit
the item again in 6 months; and
WHEREAS, on October 19, 2016 the Mayor and City Commission adopted Resolution 2016-
29609 approving Amendment No. 1 to Concession Agreement, modifying the scope of the
Concession Agreement to require.the implementation of the MDCPS healthy snacks standards
as approved by the Mayor and City Commission, and reducing the annual Minimum Guaranty
payment which Concessionaire pays under the Concession Agreement from $12,731 to
$11,000 annually;and
WHEREAS, City Manager; as referenced in the Agreement shall include City Manger's
designee, as may be designated, in writing, by the City Manager from time to time.
1
NOW THEREFORE, in consideration of the mutual promises and conditions contained herein,
and other good and valuable consideration, the Sufficiency of which is hereby acknowledged,
theCity and Concessionaire hereby agree to amend the Agreement as follows:
1. ABOVE RECITALS.
The above recitals are true and correct and are,incorporated as part of this Amendment.
2. MODIFICATIONS.
The Agreement is hereby modified (deleted items ctruck through and inserted items
underlined)as'follows
(a) Exhibit 2.0 to the Agreement is deleted in its entirety and replaced with the attached Exhibit
2.0.
(b) Exhibit 3.2.5.1 to the Agreement is deleted in its entiretyand replaced with the attached
Exhibit 3.2.5.1.
-(c).Exhibit 3.2.1.6.2 to the Agreement is hereby added to the Agreement.
(d) Subsection 3.2.1.6.2 of the Agreement is hereby deleted in its entirety and replaced as
follows:
3.2.1.6.2 Miami-Dade County Public Schools Standards.
From time to time, with 30 days notice, the City Manager, in the City Manager's sole
discretion, may require that all or a portion of the products sold from any of the vending
machines described in the amended Exhibit 2.0 meet the Miami-Dade County Public
Schools (MDCPS) Wellness Policy Standards (MDCPS Standards), attached hereto as
Exhibit 3.2.1.6.2. A current list of the City approved products meeting the MDCPS
Standards is attached hereto,as Exhibit 3.2.5.1. Any change to the approved product list,
including any change in the nutritional information, shall require the prior written approval of
the City Manager. The City Manager 'reserves the right to reasonably decline any particular
snack or food option, at any time; and upon the Concessionaire receiving written notice,
Concessionaire must remove declined food or food item within five (5) days from any or all
food and snack vending machines; as directed by the:City Manager.
(e) Subsection 4:2 of the Agreement is hereby modified to read as follows:
4.2 Minimum Guarantee(MG).
In consideration of the City executing this Agreement and granting the rights provided in this
Agreement, commencing May 1, 2012, and thereafter on May 1st of each year during the
Term of this Agreement, the-Concessionaire shall pay to the City a Minimum Guaranteed
(MG)Annual Concession Fee of Twelve Thousand Dollars($12,000), plus applicable Sales
and Use Taxes (as provided in Section 4,6 herein); said MG,shall be subject to the annual
increases in Subsections 4.2.1. and 4.2.2 below. Effective November 1,2016, the MG shall
be reduced toEleven Thousand Dollars ($11.000), plus applicable Sales and Use Taxes
(Amended MG). The past due annual MG payment for the current Contract Year, due May
1, 2016, shall be prorated for the portion of the Contract Year covering May 1, 2016 to
October 31, 2016. Correspondingly, the Amended MG payment shall be prorated for the
portion of the Contract Year covering from November 1, 2016 to April 30, 2017. The
Amended MG payment shall continue to be due May 1st of each Contract Year during the
Term and subiect to the annual increases in Subsection 42.1.
(f) Subsection 4.2.2 of the Agreement is hereby deleted in its entirety
2
(g) Subsection 4.2.3 of the Agreement is hereby deleted in its entirety
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the Agreement shall remain
unchanged and in full force and effect. In the event there is a conflict between the provisions
of this Amendment and the Agreement, the provisions of this Amendment shall govern.
IN WITNESS WHEREOF,the parties hereto have caused this Amendment to be executed
by their appropriate officials, as of the date first entered above.
FOR CITY: CITY OF MIA .>E i ►H, FLORIDA
ATTEST:
By:
Rafael E. Granado, City Clerk Phi Le -, Mayor
Date
FOR CONCESSIONAIRE FBcT I OLI TRADING CORP.
`
AGO
ATTEST: ` �Lj
of of
By: -��
Secretary — President
•
\jc_Q_2 ri c &JCS t H a u r s �t
Print Name Print Name
()Li 12(.-
Date
2(Date
APPROVED AS TO
FORM &LANGUAGE
&FO E ECUTIONtrt
IZSf
City AttorneyJO" Date
F:RHCO1SALLIECONISALLNASSET\VENDING\LEASE DOCUMENTSIBETTOLI AMENDMENTIBETTOLI 1ST AMENDMENT'AMENOMENT
BETTOLLI NO 1 2016_11 08_RJG V3.DOCX
3
EXHIBIT 2.0
Number of Number of Number of %MDCPS ,
Machines approved Approved Ice Approved Approved
Snack Cream Combo Healthy Snacks
Machines Machines Machines by location
17th St.garage Snack 1 1 0 50%
City Hall Parking Garage 1, 0 0 50%
City Hall lobby 1 1 0 50%
City Hall 3rd floor 1 0 0 50%
13th street-Garage 1 0 0 50%
Miami Beach Police Roll Call 2 1 0 50%
Miami Beach Police Lobby 1 0 0 50%
South Shore Comm.Ctr. 1 0 0 50%
North Shore YC Snack 2 , 1 0 100%
North Shore Tennis Snack 1 0 0 50%
Scott Rakow YC 3080 2 1 0 100%
Scott Rakow YC 3136 1 0 0 100%
Flamingo Park Snack 1 1 0 50%
Please note,%MDCPS approved Healthy Snacks apply to Snack Machines not Ice Cream Machines
4
EXHIBIT 3.2.5.1
Approved Healthy food items and prices
Brand Item Price MDCPS
Popchips Sea Salt ' $1.75 `
Popchips Barbecue $1.75 ' •
Popchips Sea Salt&Vinegar $1.75
Popchips Sour Cream and Onion • $1.75 *
Popchips Cheddar&'Sour Creain $1.75 •
Popcorner • White Cheddar $1.25 ' '
'Non GMO coming soon$1-50 ' Kettle. ' . $1.25
'Non GMO coming soon$1-50 Sweet Spicy Chili S1.25
' 'Non GMO coming'soon$i-50 • Jalapeno S1.25 ;
'Non GMO coming soon$1-S0 Sea Salt $1.25 •
Indiana Popcorn Kettlecorn $1.25
Snyder's Pretzel 'Old'Nine $1.00 '
Kar's NutsMango Pineapple mix $1.25
Rice Krispies Whole Grain Treat $1.50 •
Cheez it Whole Grain Cheddar $1.00 '
Gold Fish Whole Grain Cheddar $1.00 '
General mills Cocoa Puff Bar $1.25 •
Nature's Valley , •
Oat&Honey $1.25 '
Nature's Valley Trail mix chewy $1.25 '
Frito Lay's Reduced Fat Doritos Nacho $1.00 '
Frito Lay's Old Tyme $1.00 •
Frito Lay's Reduced Fat Doritos Sweet Spicy Chili $1.00 '
Frito Lay's Reduced Fat Cheetos Puff $1.00 '
Frito Lay's Reduced Fat Cheetos Hot Puff $1.00
Frito Lay's Baked Cheetos S1.00 '
• Frito Lay's Baked Cheetos Hot $1.00 '
Frito Lay's Baked lays Sour Cream&Onion $1.00 '
Frito Lay's Baked Lays BBR ' $1.00 '
Frito Lay's - Baked Ruffles Cheddar Sour Cream 51.00
Frito Lay's Fantastix Chili 81.00 •
Frito Lay's Fantastix Hot 51.00 •
' Please note only the items above meet the MDCPS standard
Other Food Item Prices
Chips and Crackers I $0.80
Candy/Choclate Pastries I $1.00
Milk 8oz $1.00
Milk l6oz $2.25
Ice Cream $1.25
Ice Cream Large _S1.75
I Refriderated Food Items Small 51.50
Refriderated Food Items Large $3.50
5
1 .
NEW
EXHIBIT 3.2.1.6.2
Miami-Dade County Public Schools Wellness Policy Standards
OPERATIONS 8510/page 8, 9,and 10 of 10
Rule on Food and Beverages Sold on Campus and in Vending Machines District-Wide
The District is committed to providing an environment in which all students and staff can
make healthy food choices for lifelong health. As such, the following Rule on Food and
Beverages Sold on Campus and in Vending Machines District-Wide will be implemented for
all sites, for all food sales beginning one (1) hour before the start of the school day and up
until one(1)hour after dismissal of the final class of the day.This rule shall be applicable to
all food and beverages sold in vending machines twenty-four(24)hours a day.
A. Beverages
All beverages must be non-carbonated and have no added caffeine.
1. Elementary School
a. Plain water.
b. Up to eight(8)ounce servings of milk and 100%juice.
l) Fat-free or low-fat regular and flavored milk and nutritionally
equivalent (per USDA) milk alternatives with up to 150 •
calories/eight(8)ounces.
2) 100%juice with no added sweeteners, up to 120 calories/eight
(8) ounces, and with at least ten percent (10%) of the
recommended daily value of three (3) or more vitamins and
minerals.
2. Middle School
Same as elementary school, except juice and milk may be sold in twelve (12)
ounce servings.
3. High School
a. Plain water.
b. No- or low-calorie beverages with up to ten (10) calories/eight (8)
ounces.
c. Up to twelve (12) ounce servings of milk, 100%juice and certain other
drinks.
1) Fat-free or low-fat regular and flavored milk and nutritionally
equivalent (per USDA) milk alternatives with up to 150
calories/eight(8)ounces.
2) 100%juice with no added sweeteners, up to 120 calories/eight
(8) ounces, and with at least ten percent (10%) of the
recommended daily value of three (3) or more vitamins and
minerals.
6
3) Other drinks with no more than forty (40) calories/eight (8)
ounces.
OPERATIONS 8510/page 8, 9, and 10 of 10
d. At least twenty-five percent(25%)of non-milk beverages must be water
and no more than twenty-five percent(25%) of beverages may be no-or
low-calories options.
B. Food and Snacks
All food and snacks sold in school must meet the following:
1. No more than thirty-five percent (35%) of total calories from fat.
2. No more than ten percent (10%) of total calories from saturated
fat.
3. No more than thirty-five percent (35%) added sugar by weight.
4. No added trans fat.
5. Be a"whole grain-rich" product;
6. Be a fruit, vegetable, dairy, protein food; or
7. Be a combination food that contains at least 1/4 cup of fruit and/or
vegetable.
*Appendix A has been edited for formatting purposes and the end of the Appendix A after Section B.7.
was intentionally removed as it is not applicable
7
aor-7- a17iy
Execution. Version
GiO
COCA-COLA PLAZA
ATLANTA,GEORGIA
March 16,2017
City of Miami Beach
Attention:Ms.Gisela Torres
1700 Convention Center Drive,Fourth Floor
Miami Beach,Florida 33139
Re: Sale of the Assets of Coca-Cola Refreshments USA, inc. to Coca-Cola Beverages
Florida,LLC
Dear Ms.Torres:
Reference is hereby made to that certain agreement(the"Agreement"),dated March I4,
2012, by and among the City of Miami Beach, Florida (the"City"), Coca-Cola Refreshments
USA, Inc. d/b/a Florida Coca-Cola Bottling Company("CCR")and The Coca-Cola Company,
acting by and through Coca-Cola North America,attached hereto as Exhibit A.
As you know from our prior communications,CCR has transferred certain of its assets to
Coca-Cola Beverages Florida,LLC("CCBF'). In connection with such transfer,CCR formally
requests the City's consent to: (i) assign all of CCR's right, title and interest in and to the
Agreement to CCBF,including those rights noted in the Agreement as non-assignable by CCR,
as of February 25,2017(the"Assignment Effective Date")and(ii)CCBF's assumption of all of
CCR's obligations and liabilities under the Agreement from and after the Assignment Effective
Date (collectively, the'"Assignment"). CCBF hereby accepts the Assignment and further
assumes and agrees to perform all of the duties and obligations of the Bottler under the
Agreement,subject to the Agreement's terms,from and after the Assignment Effective Date.
By consenting to the Assignment,the City acknowledges and agrees that the Agreement
shall remain in full force and effect after completion of the Assignment and that there is no
default or breach by any party under the Agreement in connection with, or as a result of, the
Assignment, and the City agrees to release CCR from all liabilities and obligations under the
Agreement arising after the completion of the Assignment.
From and after the Assignment Effective Date, all references to the Bottler or "CCR"
under the Agreement shall be construed to refer to CCBF. The address for notices to Sponsor,
as set forth in Section 10 of Attachment A to the Agreement shall be as follows:
Coca-Cola Beverages Florida,LLC
10117 Princess Palm Avenue,Suite 400
Tampa,Florida 33610
Attention:Thomas Benford,Executive Vice President
tbenford@cocacolaflorida.com
Classified-Confidential ��
With a copy to:
Deborah Pond,Vice President and General Counsel
dpond@cocacolaflorida.com
at the address above
We would greatly appreciate that you indicate your consent by countersigning in the
space below.
[Signature page follows]
Classified-Confidential
Execution Version
Sincerely,
THE COCA-COLA COMPANY,ACTRIG BY AND
THROUGH COCA-COLA NORTH AMERICA
'kr9-1/91/4.
By:
,vam • J.A.M. Douglas,Jr.
Title-
' President, Coca-Cola North America
Date:
March 16,2017
COCA-COLA ICLEREsmar,rrs USA,INC.D/E/A
FLORIDA COCA-COLA.BOTTLPIG COMPANY
• By:
Name:L J.A.M.Douglas,Jr.
Title:
President, Coca-Cola North America
Date:
March 16,2017
COCA OLA BEVERAGES LCRIDA,LLC
W276-1/- .
Name:
Title: (:;E ot;;\.,S
Date:
ACCEPTED,"COWL BCE])AND AGREED
CITY OF a Nn BEAC ,FLORIDA
E3y:
Name:
Title:
Date: 312h7
APPROVED AS TO
FORM&LANGUAGE
Ai TEED a FOR EXECUTION
2-%
Rafdel E.Granado:City Jerk City Attorney a rtit Data
Sign4 war e Fag e719'..City of MiamI Beach Consent Letter
_ .
•
i .
fI March 14,2012
Mayor Matti Herrera Bower •
Mayor of City of Miami Beach
1700 Convention Center Drive
Miami Beach,FL 33138
•
Dear Mayor:
This letter confirms the agreement made by and among the City of Miami Beach, Florida ("City"),
Coca-Cola Refreshments USA,Inc,d/b/a Florida Coca-Cola Bottling Company("Bottler")and Coca-Cola North
America,a division of The Coca-Cola Company("Company",and collectively with Bottler, "Sponsor"),which
sets forth certain exclusive rights granted to Bottler by City,as set forth in the Term Sheet and Exhibits attached
thereto,all of which are attached hereto as Attachment A.
1. Term Sheet and Definitive Agreement •
• The Term Sheet and Exhibits attached thereto are hereby incorporated herein in their entirety. This letter and the
Term Sheet,together with any other attachments referenced in either,will constitute a legally binding agreement
• (the"Agreement")when this letter is signed by all parties in the spaces provided below. All capitalized terms not
defined in this letter shall have the meanings assigned to them in the Term Sheet. This letter shall prevail in the
event of any conflict between the provisions of this letter and the Term Sheet.
2. Advertising Rights •
(a) City agrees that Bottler's advertising shall be positioned at all times in such a manner that the ••
advertising message is in no way obscured(electronically or otherwise)and is clearly visible to the general public.
The Products shall be prominently listed on any menu boards located at the Facilities and all Equipment(as such
term is defined herein)dispensing Products shall be prominently identified with the appropriate trademarks/logos.
(b) City further agrees that all Products will be dispensed in Sponsor's Equipment and that no other
trademarked,equipment,coolers or containers will be permitted.
3. - Product Rights
•
(a) City shall purchase or shall cause its Concessionaires to purchase,all Products,(and cups,lids and
carbon dioxide,if applicable)directly from Bottler.
(b) City'hereby grants to Bottler the exclusive Beverage rights at the Facilities, except as may be
otherwise provided for in this Agreement and Exhibits.
(c) ' If City contracts a concessionaire, City will cause concessionaire to purchase from Bottler all
requirements for Beverages (and cups, lids and carbondioxide, if applicable). Such purchases will be made at
prices and on terms set forth in Bottler's.existing agreement with concessionaire, if any. If no agreement exists .
• • . between concessionaire and Bottler, such purchases will be made at prices and on terms set forth in this .
Agreement. City acknowledges that there will be no duplication of allowances, funding or benefits (including
pricing)to City or concessionaire if concessionaire has an existing agreement with Bottler.
•
. 1 '
•
•
•
•
4.' Equipment and Service
(a) Bottler Equipment and Service: During the Term,Bottler will loan to City,pursuant to the terms of
Bottler's equipment lacement agreements,at no cost,that Beverage vending equipment reasonablY required and as
mutually agreed upon to dispense Products at the Facilities("Bottler Equipment"). In addition,Bottler will provide
at no charge regular mechanical repair reasonably needed for Bottler Equipment,as further outlined in Exhibit 7 to
the Term Sheet. Prior to Bottler's.installation of Bottler's Equipment at a particular Facility,the City shall provide
Bottler with written confirmation that it has conducted an inspection of the electrical service at such Facility and
•
that, based on such inspection,the City finds that the electrical service at the Facility is proper and adequate for
installation of Bottler's Equipment.Notwithstanding the preceding,if at any time following Bottler's installation of
Bottler's Equipment at a Facility,Bottler's Equipment is damaged as the direct result of defective electrical service
at the Facility, then the City will reimburse Bottler for the cost of repair or replacement,as the case may be, of
• Bottler's Equipment, pursuant to the filing of a claim with the City's self-insurance fund. Notwithstanding the
preceding,the City shall not be responsible nor liable to Bottler under this subsection for any damages to Bottler's
Equipment which is not caused as a direct result of defective electrical service at a Facility (including, without
limitation, any damage to Bottler's Equipment which is caused due to the negligence or misconduct of Bottler's
employees,contractors,and/or agents,or from any other cause or act other than faulty electrical service).
(b) Fountain Equipment and Service: During the Term,Company will loan to City,pursuant to the
terms of Company's equipment placement agreement, at no cost, that Fountain Beverage dispensing equipment
reasonably required and as mutually agreed upon to dispense a quality fountain Beverages at the Facilities
("Fountain Equipment")(colIectively,Bottler Equipment and Fountain Equipment are called"Equipment"). No
• ice makers or water'filters will be provided. All Fountain Equipment provided by Company will at all times
remain the property of Company and is subject Company's equipment agreement,but no lease payment will be
charged. To the extent that Fountain Equipment loaned from Company under this Agreement is located at
Facilities that are owned, controlled or managed by a concessionaire of City or other persons not party to this
Agreement, City will include provisions in its agreements with such concessionaires that,recognize that the
Fountain Equipment.is owned by Company and that obligates the concessionaires to honor the terms and
conditions such equipment agreement.
•
Company (or Bottler) will provide at no charge regular mechanical repair reasonably needed for Fountain •
Equipment. Any removal, remodel, relocation or reinstallation .of dispensing equipment, flavor changes,
sumrnerize/winterize, line changes,or service necessitated by damage or adjustments to the equipment resulting
from misuse, abuse,failure to follow operating instructions,service by unauthorized personnel,unnecessary calls
(equipment was not plugged in, CO2 or fountain syrup container was empty), or calls that are not the result of
mechanical failure (collectively "Special Service Calls"), are not considered regular service and will not be
provided free of charge. Charges for Special Service Calls will be charged at Company's (or Bottler's) then
current rate and will be invoiced on a semi-annual basis. Charges will,include labor, travel time, parts, and
administrative costs.
5. Competitive Products Prohibited.
(a) City agrees that it will not knowingly permit any Competitive Products to be sold, distributed,
served,sampled,marketed,.advertised,or promoted in any manner at the Facilities,or in association with City,the
Facilities or the City trademarks,during the Term, except as outlined in this Agreement.
•
(b) City agrees that City will not grant any rights, or enter into any contractual or other relationship,
whereby City, the Facilities, and/or the City trademarks will be, or have the potential to be, associated in any '
manner,with any Competitive Products,except as outlined in this Agreement and the Term Sheet.
2
(c) If City learns of any Competitive Produ- - b . -•, •• - • "•, • • • -• 1 •• ' "-tanner
which implies an association with City, Facilities or City trademarks (hereinafter referred to as "Ambush
Marketing"),City will promptly notify Bottler in writing of the Ambush Marketing and also will promptly use its
efforts,and cooperate in good faith'with Bottler;`to prevent or stop such Ambush Marketing in order to protect the
exclusive associational rights granted to Bottler under this Agreement.
(d) Special Promotional Events Exception. See Exhibit.8.
(e) The City will provide Bottler with no less than thirty(30)calendar days prior written notice of each
event which it intends to designate as a Special Promotional Event.
(f) The private,personal consumption of Competitive Products:by athletes,coaching staff,musicians,
actors,corriedians,or other entertainment personalities appearing and performing at the Facility is allowed and will
not be considered a Special Promotional Event City shall use efforts to ensure such consumption is limited to
private areas and may not be permitted in any area of the Facility to which the public or any member of the print or
electronic media has Iegal access:
(g) Product availability at Facilities for private events.A private event at a Facility shall mean the use
of a Facility, either through the rental of the Facility or throughthe issuance'of a City=approved Special Event
Permit, by a person(s) or business entity(ies) (i.e:such as a corporation) which is not open or accessible to the
general public either free or via`a purchased ticket.For example purposes only,private events may include,but not
be limited, to the following weddings, bar mitzvah/bat mitzvah and corporate events. Product availability and
exclusivity at private'events shall be handled as follows: Only Products will be sold,'distributed, sampled or
otherwise served at Facilities at any time. Notwithstanding the foregoing,Competitive Products may be distributed
at no cost by the user'of the Facility for private events,provided that Products will continue to be the only Products
sold,distributed,sampled,or otherwise served by Facilities concession operations.
(h) Product availability at Facilities as it relates to charitable events (including, events produced by
not-for-profit entities with valid tax exemption from the IRS)at Facilities or at City-Permitted Special Events(e:g., ;
Relay for Life;Aids Walk,American Cancer.Society), shall be handled as follows: Only Products will be sold,
distributed, sampled or otherwise served at Facilities at any time. Notwithstanding the foregoing,Competitive
Products may be distributed at no cost by the charitable organization using the Facility provided that Products
will continue to be the only Products sold, distributed, sampled,or otherwise served by Facilities concession
operations and that Bottler had opportunity to supply Products for the charitable event and declined.
6. Consideration. .
(a) Pricing Pricing(including price increases)will be implemented as outlined in the Term Sheet.
(b) Credit Card Readers and Funding. Bottler and City will mutually agree to install credit card
readers in select Beverage dispensers,which are identified as high traffic locations. Bottler will pay for the credit
card readers in an aggregate amount of not to exceed Ten Thousand Dollars ($10,000). This funding will be
earned over the Term of the Agreement:.City shall have no responsibility to fund any overage for payment of the
credit card readers should they exceed Ten Thousand Dollars ($10,000). Bottler shall be responsible for all
maintenance and repair of the credit card readers. Upon termination or expiration of the Agreement, City shall
return all credit card readers to Bottler.
7. Trademarks:Approvals. i
(a) City acknowledges that The Coca-Cola Company is the owner of all right and title in the trademarks"Coca-
Cola","Diet Coke","Sprite","DASANI","Minute Maid","POWERADE","Fanta""vitaminwater""Full Throttle",
"NOS"and other trademarks of The Coca-Cola Company,and it acquires no rights whatsoever in these trademarks
1
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by virtue of this Agreement City amens•n aubmit ail-proposed-uses of The-Ca-tea=-Eat-aCompany marls-to Sponsor
for approval prior to use,but such approval shall not be unreasonably withheld.
(b) Bottler acknowledges that City is the owner of all right and title in the service mark"MiamiBeach"and that
Bottler acquires no rights whatsoever in the service mark by virtue of this Agreement. Bottler shall have the right to
use the City's service mark during the Term in connection with its marketing activities at the Facilities. Bottler
agrees to submit all proposed uses of City's service marks to City for approval prior to use,but such approval shall
not be unreasonably withheld. •
8. Termination
(a) Notwithstanding the other provisions of this Agreement, if any federal, state or local law, rule,
regulation or order prohibits, restricts or in any manner interferes with the sale or advertising of Beverages at any
time during the Term of this Agreement, and the City fails to cure such breach within thirty(30) days following
written notice of same from Bottler then, at its option, Bottler may terminate this Agreement and City shall(i)
return any Equipment,and(ii)pay to Bottler the unearned portion of pre-paid Sponsorship Fees for the Agreement .
Year in which the termination occurs(pro-rated through the date of termination),if any,as well as any other upfront
funding deemed earned over the Term,if any,prorated through the date of termination.
(b) City represents and warrants that it has full right and authority to enter into this Agreement and to
grant and convey to Bottler the rights set forth herein. In the event of expiration or revocation of such authority,and
if the City fails to cure such breach within thirty(30)days following revocation of full right and authority,then at its
option, Bottler may terminate this Agreement,and City shall(i) return any Equipment; and (ii)pay to Bottler the
unearned portion of pre-paid Sponsorship Fees for the Agreement Year in which the termination occurs(pro-rated
through the date of termination),if any,as well as any other upfront fending deemed earned over the Term,if any,
pro-rated through the date of termination,.
(c) If Bottler breaches any of hs material obligations under this Agreement, and fails to cure such
breach within thirty (30) days following written notice of same from the City, then City may terminate this
Agreement and Bottler shall remove all Equipment from the Facilities,and the City shall be entitled to retain the
earned portion of any pre-paid Sponsorship Fees for the Agreement Year in which the termination occurs(pro-rated
through the date of termination),if any;other upfront funding deemed earned over the Term,if any,prorated through
the date of termination;and any fees or payments due for the Agreement year in which the termination occurs,such
as commission fees,if any.
• f
(d) Notwithstanding the above,nothing in this section shalt operate to restrict any other remedies that
either party may have against the other in the event of a material breach by a defaulting party.
9. Insurance
•
The Bottler acknowledges that the City is self-insured,as provided in Attachment B to this Agreement.
Bottler shall, at its sole cost and expense,obtain,provide and maintain,during the Term,the following types and
amounts of insurance,which shall be maintained with insurers licensed to sell insurance in the State of Florida
and have a B+ VI or higher rating in the latest edition of AM Best's Insurance Guide:
1) Commercial General Liability. A policy including, but not limited to, commercial general liability,
including bodily injury,personal injury, property damage, in the amount of$1,000,000 per occurrence.
Coverage shall be provided on an occurrence basis.
_ 1
4.
. I •... . ' ' . , - .: . ori a an. mp oyer s Liability •
Insurance.
•
3) Automobile Liability-$1,000,000 combined single limit for all owned/non-owned/hired automobiles.
Said policies of insurance shall be primary for Sponsor/Bottler's negligence only to and contributing with any
other insurance maintained by Bottler or City,and all shall name City of Miami Beach,Florida as an additional
insuredon the commercial general liability and automobile liability policies. Sponsor shall provide thirty(30)
days written notice to City prior to policy cancellation.
Bottler shall file and maintain certificates of the above insurance policies with the City's Risk Management
Department showing said policies to be in full force and effect at all times during the Term.
10. Notices
Any notice or other communication under this Agreement must be in writing and must be sent by registered mail
or by an overnight courier service(such as Federal Express)that provides a confirming receipt. A copy of the
notice must be sent by fax when the notice is sent by mail or courier. Notice is considered duly given when it is
properly addressed and deposited (postage prepaid) in the mail or delivered to the courier. Unless otherwise
designated by the parties,notice must be sent to the following addresses:
(A) Notice to Sponsor.
Coca-Cola Refreshments USA,Inc.d/b/a Florida Coca-Cola Bottling Company
3350 Pembroke Road •
Hollywood,Florida 33021
Attention: V.P.Market Unit,South Florida
Fax: 954-986-3173
Ticket Addressee:V.P.Market Unit,South Florida
• • Fax: 954-986-3173
With a copy to: Coca-Cola Refreshments USA,Inc.
2500 Windy Ridge Pkwy
Atlanta,Georgia 30339
Attention: General Counsel
•
(B) Notice to City.
City of Miami Beach
•• 1700 Convention Center Drive
Miami Beach,Florida 33138
• • Attention:Hilda Fernandez
• Fax:305-673-7782
•
11. Govemina Law •
This Agreement and any dispute arising out of or relating to this Agreement shall be governed by and
construed in accordance with the laws of the State of Florida,without reference to its conflict of law rules.
12. Compliance with Law .
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Each-e-khe partie. hereto-agcy that it-will, in its pertormance at its obligations hereunder, fully comply
with all applicable laws, regulations and ordinances of all relevant authorities and shall obtain all licenses,
registrations or other approvals required in order to fully perform its obligations hereunder.
13. Retention of Rights
No party shall obtain,by this Agreement,any right,title or interest in the trademarks of the other,nor shall
this Agreement give any party the right to use, refer to, or incorporate in marketing or other materials the name,
logos, trademarks, service marks or copyrights of the other, except as may be expressly provided and authorized
herein.
14. Jury Waiver
EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER
LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND
THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLIES TO ANY ACTION OR
LEGAL PROCEEDING,WHETHER ARISING IN CONTRACT,TORT OR OTHERWISE.
15. Entire Agreement
This Agreement and its exhibits contains the entire agreement between the parties with respect to the subject
matter hereof. This Agreement may•not be assigned without the prior written consent of all parties; provided,
however, that Bottler may assign this Agreeinent in connection with its reorganization or the sale of all or
substantially all of its assets. All amendments to or waivers of this Agreement must be in writing signed by all the
parties.
The Coca-Cola Company,acting by and through City of Miami Beach
its Coca-Cola North America Divisio .
j or, BY: Alit_l_ a• A. 41,,4
By.. iLril._ 1 / 11
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Print Name: � E IT.Print Name: 5ttgan_ G�1riar4- M
+ 11 c i ' Title: B i iay4'�r
Title: 5r. V�is
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Coca-Cola Refreshments USA,Inc.d/b/a Florida f.
Coca-Cola Bottling Company
By: •
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Print Name: / .�
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�v� Ca r� [,(, ..°..� ',,� APPROVED AS TO f'
Title: ! ". FORM&LANGUAGE
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ATTEST 6
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Attachment A
TERM SHEET
EXCLUSIVE NON-ALCOHOLIC BEVERAGE AGREEMENT
CITY OF MIAMI BEACH AND COCA-COLA REFRESHMENTS USA, INC.
and COCA-COLA NORTH AMERICA, A DIVISION OF THE COCA-COLA
COMPANY
1. DEFINITIONS:
Bottler: Coca-Cola:Refreshments USA. Inc. d/b/a Florida
Coca-Cola Bottling Company
Company: Coca-Cola North America, a division of
The Coca-Cola Company
Sponsor: Collectively, "Bottler"and"Company"
City: City of Miami Beach
Agreement: Exclusive Non-Alcoholic Beverage Agreement
Facilities: Includes the following Miami Beach property,
including any land, building, structures andior other facilities •
thereon: Miami Beach Golf Club; the Normandy Shores Golf
Club; The Fillmore Miami Beach at the Jackie Gleason
Theater (upon the expiration of the current management
agreement); the Miami Beach Convention Center; all currently
existing City of Miami Beach owned parks and recreational
facilities; all currently existing City of Miami Beach owned
public parking garages which are.:either directly operated by
the City, through its Parking System, or by a third party who,
pursuant to a management or concession agreement with the
City, is contractuallyauthorized to operate and manage such
garage on behalf of the•City; all currently existing public
beachfront concessions which are either directly operated by
the City or by a third party who, pursuant to a concession or
management agreement with the City, is contractually
authorized to operate and manage such concession on behalf
of the City; and any additional future Facilities or expansion of
existing or future Facilities, including but not limited to, the
concession facilities at 213t and 46u1 street and at South Pointe
Park and the Miami Beach Convention Center facility
expansion, except as may be otherwise be excluded in the
Agreement.
Beverage: all non-alcoholic beverages of an kind including but
-not limited—to--eoffee—products—tea—pradUets^-cCrated
energy drinks, including those in small servings; protein-
enhanced dairy beverages; frozen drinks (e.g. ICEE) and
smoothies made from concentrate; and the pre-mix and/or
post-mix syrups used to prepare fountain Beverages.
"Beverage" or "Beverages" shall not include dairy products
except as noted above (e.g. milk, yogurt, ice cream), water
drawn from the public water supply, or unbranded juice
squeezed fresh at the Facilities.
Products: Beverage products purchased directly from Bottler,
or with written Bottler approval from, or Bother's authorized
distributor, or sold through vending machines owned and
stocked exclusively by Bottler.
Competitive Products: Beverages which are not Products.
2. AGREEMENT TERM:
The Term shall begin January 1, 2012 and will continue until
December 31, 2021 (the "Term"). When used in this Term
Sheet, the term "Agreement Year" means each consecutive
twelve-month period during the Term, beginning with the first
day of the Term.
3. EFFECTIVE DATE:
January 1, 2012
4. EXPIRATION DATE: •
December 31, 2021 as to all Facilities
5. SPONSORSHIP FEE:
$3,725,000 for the Term of the Agreement.
O First installment of$800,000 (includes sponsorship fee for
Agreement Year One and signing bonus) will be paid within
sixty (60) days of execution of the Agreement by all parties.
The portion pertaining to the signing bonus ($475,000) will
be deemed earned over the Term and the portion
pertaining to the sponsorship fee for the Agreement Year
One ($325,000) shall be deemed earned evenly on a
monthly basis during the first Agreement Year. 1.
$325,000 due each Agreement Year thereafter during the
Term of the Agreement, due upon the anniversary date of
the Agreement and will be deemed earned over the
Agreement Year. (Subject to purchase of a minimum of
22,500 cases of bottles/cans per year.)
6. COMMISSIONS:
Commissions to be paid quarterly in arrears by Bottler to City , .
based upon cash collected less taxes and as per the
Commission Rate Structure according to Bottler's sales
records. (Exhibit Z)
7. COMMUNITY:
SUPPORT/ Bottler will provide City with a total of $17,500 in cash for the
•
enMPUM TAR_y pu chase-o equipm, tt-ar-other piuducts (mutually agreed
I PRODUCT: upon).
Bottler shall provide City, upon City's request, with up to 450
standard physical cases of complimentary Product (12 ounce
CSD cans andfor,DASANI. 12 ounce bottles) per Agreement
year for Product bank•to be used by the City. If City does not
request complimentary Product by the end of each year, any
remaining complimentary Product shall be retained by Bottler
with no further obligation to Account. Bottler will provide
complimentary Product donation report upon Account's request.
8, ADVERTISING&
SPONSORSHIP: Bottler has the exclusive right to advertise Products (i) at the
Facilities and (ii) in connection with the Facilities. No
permanent or temporary advertising, signage or trademark
visibility for Competitive-Products are permitted anywhere at the
Facilities, except as permitted pursuant to the Agreement.
I Advertising rights are further delineated in Exhibit 2. Bottler has
the exclusive right to advertise the Products as the "Official" or
"Exclusive" soft drink, sports drink, dairy-based protein drink,
water, tea, energy drink, and/or juice or juice drink, etc. of the
Facilities, ofthe City of Miami Beach and of South Beach.
Bottler will be the exclusive advertiser of Products associated I
with the Facilities.
i 9. PRODUCT RIGHTS:
Bottler has the exclusive right to_sell or distribute Products at
the"Facilities. No Competitive Products may be sold,dispensed,
sampled or served anywhere at the Facilities, or on the City's
public rights-of-ways, except as may otherwise be provided for
in this Agreement.
1 a.EXCEPTIONS:
Except for those Facilites specifically enumerated in Section
1., "Facilities' shall NOT include any City of Miami Beach j
property`(including any City-owned land, buildings, structures,
and/or other facilities thereon) which—as of the Effective 1
• Date—is used, occupied, controlled, and/or managed and
operated by a third party (or parties) pursuant to any of the i
following agreements between the City and such third 1
party(ies): (I)lease agreement; (ii) concession agreement; (iii)
operation and management agreement; (iv) development 1
agreement; (v) easement agreement; (vi),license and/or use s
agreement; (vii) revocable permit; and/or(viii)any other written 1
instrument between the City and such third party(ies) which
establishes a contractual right on behalf of such third I.
party(ies) for the use and/or occupancy of City property. This l'
shall include, but not be limited to, any City property occupied
by a tenant through a lease or rental agreement (including,
without limitation, ..leases or rental agreements .for office,
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retail, ai d%commerciai uses(s) in City-owned buildings);
any City property managed and operated, and/or otherwise
used, by a third party(ies) pursuant to a management
agreement or concession agreement; private upland owner
beachfront concessions which are issued a permit by the City
(and which are neither operated directly by the City, nor by a
third party on behalf of and pursuant to a contract with the
City); sidewalk cafes which are issued a permit to operated
pursuant to the City's Sidewalk Café Ordinance, as may be
amended from time to time; "public-private' projects
developed and constructed pursuant to a Development
Agreement (pursuant to the requirements of the Florida Local
Government Development Agreement Act under Chapter 163,
Florida Statutes); any hotel or retail development related to the
expansion of the Miami Beach Convention Center that is not
managed as part of the Convention Center operations (e.g.
adjacent commercial retail, hotel, etc.); public bus shelter
advertising managed by a third party under contract with the
City; and advertising permitted pursuant to the City's current
agreement for the public bike-share concession.
Notwithstanding the preceding, the City will: i) make
reasonable good faith efforts to meet with the bike-share
concessionaire and negotiate an amendment to the existing
bike-share concession agreement, which must also be subject
to agreement by the bike-share concessionaire, to prohibit the
bike-share concessionaire from advertising Competitive
Products; ii) if City renews the bike-share concession
agreerhent with the bike-share concessionaire, then, as a
condition to such renewal, the City Manager will recommend
that such renewal be conditioned that such renewal include a
term prohibiting the bike-share concessionaire from
advertising Competitive Products; and iii) no advertising of
Competitive Products shall be permitted on bike-share station
kiosks during the Term should the City, after the Effective
Date, approve advertising for placement on bike-share kiosks.
Should the City enter into any new bike-share agreements
during the Term, no advertising of Competitive Products shall
be permitted on the bicycles used for that bike-share
agreement(s).
Further, for the following locations which are under a pre-
existing concession and/or use agreement (i.e. in effect prior
to the Effective Date of the Agreement) with a Competitive
Products supplier, those Facilities will come under this
Agreement after such Competitive Products agreement is
terminated or expires, or until such time as the concession or
use agreement with the City for those Facilities is terminated,
expires or is subiect to any renewal provisions. The current
4
list of u-ch-fae r expildiioit dales, are as follows:
1) 215`Street146t Street Beachfront Concession/Tim
Wilcox, Inc.— 11/30/2012
2) South,Pointe Park Concession/Biissberry—11/30/2012
3) Normandy Isle Pool Concession Stand/E. Gomez—
11/09/2011
City agrees that it will not knowingly permit any Competitive
Productsto be sold, distributed,served,sampled, marketed,
advertised or promoted"at the Facilities, or in association with
'City, except, and as further explained,in Exhibit 8:
o Third party exhibitor set ups at Facilities or during City-
Permitted Special Events in accordance with the City's
Special Event Permit Guidelines, as same may be
amended from time to time.
• Charitable events at Facilities or at City-Permitted Special ,
Events .where Competitive Product are donated to the
charitable event;
• Availability at City-Permitted Special Events only within
Special Event Permit Area (as such term is defined in the
City's Special Event Permit Guidelines, as same may be
- amended from time to time).
• Up to four (4) sponsorship events at the Miami Beach Golf 1 i
Club,_ and up to four (4) sponsorship events at the
Normandy Shores GO(f.Club each Agreement year;
• up to three (3) sponsorship events at the Miami Beach •
Convention Center each Agreement Year (the number
limitation for the sponsorship events at the Miami Beach
Convention Center is subject to a review after three (3)
' Agreement Years);
® a mutually agreed upon number of sponsorship events at '
the Fillmore Miami Beach at the Jackie Gleason Theater
(upon expiration of the existing management agreement);
and
up to four (4) City-issued Special Event Permits for a "City
Approved Major . ;Sponsorship Public Event", each I`
Agreement Year, which includes an event sponsored by a
manufacturer, distributor, or marketer of Competitive t;
Products under a master sponsorship agreement with the
owner or operator of the sponsorship event; an event ,
!_
conducted on a national or regional multi-market basis; l
and/or an event where a competitor is the presenting, title
or other primary sponsor of the event. The number =i.'
limitation for City-Issued Special Events is subject to a
review after three (3)Agreement Years.
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Whenever possible, City will make reasonable good faith
efforts to encourage third party users of the Golf Courses and
Convention Center, and Special Event organizers, to use
Bottler's Products for their non-alcoholic beverage needs.
Since third party organizers who apply for Special Event
Permits will be permitted to sell only Bottler's Products, City
will amend City's Special Events Permit Application and City
will provide Sponsor contact information through the City's
Special Events Permit Application process.
11.MARKETING
PROGAM: Bottler agrees to provide Account with annual in-kind
marketing support fund with an approximate retail value of
Two Hundred Thousand Five Hundred Dollars ($200,500) as
further delineated in Exhibit 3.
92.RECYCLING
PARTNER: ! Bottler shall be designated the official "Recycling Partner" of
Account. in consideration of this designation, Bottler shall
provide, at their cost, the services/products delineated in
Exhibit 4, with a minimum total value of $15,000, and up to
$25,000 over the entire Term
13.VENDING
PROGRAM/OTHER City agrees that Bottler shall place a minimum of sixty-five (65)
EQUIPMENT Product vending machines in mutually agreed upon locations
at the Facilities, and Bottler will loan to City at no cost,
Beverage dispensing equipment as reasonably required and as
mutually agreed upon to dispense Products at the Facilities,
and in accordance with Exhibit 5.
14.CITY SUPPORT:
In consideration of the partnership, City grants to Bottler:
Twenty-six (26) rounds of golf each Agreement Year (max of
eight during peak season; no more than twelve at Miami
Beach Golf Course; benefit does not roll over); a minimum of
four (4) free tickets to at least six (6) ticketed events at
Facilities each Agreement Year, subject to availability (e.g. Art
Basel Miami Beach, Auto Show, South Beach Comedy -
Festival at the Fillmore, etc.). Additional tickets will be
provided as available_Benefit does not roll over.
15.PRICING:
Bottle/Can Pricing: City is entitled to purchase bottle/can
Products from Bottler in accordance with the price schedule
set forth in Exhibit 6; prices shall remain in effect until July 31,
2012. Thereafter, such prices will be subject to an annual
increase of no more than four percent (4%) over the previous
Agreement Year's price.
Fountain Products or Georgia Coffee Pricing: Bottler will sell
fountain Products to City at the National Account prices, as_ 4:
6
ii .• • •+ - ot ler in January of each year. Georgia
i I Coffee pricing shall be provided quarterly based on commodity
markets.
Purchasing: All Product shall be purchased directly from
Bottler, except for those Products that Bottler identifies can be
purchased from an authorized Coca-Cola distributor.
16.TERMINATION:
If City breaches any of its material obligations set forth in this
Agreement, and fails to cure such breach within thirty (30) days
following written notice of same from Bottler,.then, Bottler may
terminate this Agreement, ' and City shall (i) return any
Equipment,'`and (ii) pay to Bottler the unearned portion of any
pre-paid Sponsorship Fees for the Agreement Year in which the
termination occurs(pro-rated through thedate of termination).
If Bottler breaches any of its material obligations'set forth in this
Agreement, and fails to cure such breach within thirty (30) days
following written notice of same from City, then, City may
terminate this Agreement, and Bottler shall (i) remove any
Equipment;and (ii) pay to City the earned portion of any pre-
paid Sponsorship Fees or other fees or payments due for the
Agreement 'year in which the termination occurs (pro-rated
through the date of termination),
City shall not be in default in the event of any claim filed in
relation to City's restriction on Competitive Product sampling;
provided, however,' the Battler shall have the following
remedies: 1) ability to renegotiate financial terms, as
appropriate,within a.specified time (e.g. 90 days); or, 2) failing
to negotiate terms acceptable to both parties within specified
time, Bottler may terrriinate the.Agreement, and City shall (i)
return any Equipment and (ii) pay to Bottler the unearned
portion of any pre-paid Sponsorship Fees for the Agreement
Year in which the termination occurs(pro-rated through the date
of termination).' Nothing in this section shall operate to restrict
either party's other remedies in the event of a material breach
by the other,
17.MAINTENANCE&
SERVICE: Bottler agrees to provide reasonable service and maintenance
for the equipment during the Term. City shall allow Bottler to
enter its premises for . the purpose of inspection or
performance of such maintenance and repair, or necessary
replacement or return of the equipment. Bottler and City will
establish a mutually agreed upon refund bank and customer I
service program, as delineated in Exhibit 7.
9 8.
REPORTS/AU DiTIN,G:
Bottler will provide an annual business review report within 90
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Commission reports will be provided monthly. The format of
such reports shall be mutually agreed upon. City has the right
to audit/inspect account statements with reasonable prior
notice to Bottler and during normal business hours. If City
• requests an audit, City agrees to pay for such audit. Account
. records must be retained for a minimum of two (2)Agreement
Years after the payment of the annual Sponsorship Fee is
paid, in addition to the current Agreement Year of the Term,
and for two (2) Agreement Years following expiration or
• , termination of the Agreement.
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Exhibit 1-to-Perm-Sheet
COMMISSIONS
Workplace Facilities (City Hall, Police'Station, and other City Facilities):
Product . . Vend Price Commission Rate
20 oz. PET`carbonated/NESTEA® $1.25 30%
20 oz. PET Minute Maid® $125 30%
20 oz. PET DASANI® ' $1.25 30%
300 ml PET DASANI®. ,$0.75 30%
20 oz. PET POWERADE® $1.50 30%
20 oz. PET vitaminwater® $1.75 15% '
16 oz. cans Energy Beverages $2.00 30%
16.5 oz. PET FUZE ® $2.00 15%
15.2 oz. PET Minute Maid®Juices to Go $1.50 15%
All other public locations (such as South Beach):
Product Vend Price Commission Rate
20 oz. PET carbonated/NESTEA® $1.50 30%
20 oz.PET Minute Maid® $1.50 30% •
20 oz.PET DASANI® $1.50 30% •
300 ml PET DASANI® $1.00 30% i
20 oz. PET POWERADE® $1.75 30%
,20 oz. PET vitaminwater® $2.00 15%
16 oz.cans Energy Beverages $2.25 30% {
16.5 oz. PET FUZE® $2.25 15%
15.2 oz. PET Minute Maid®Juices to Go $1.75 15% I
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In Agreement Years Four and Seven, the Vend Prices will increase by twenty-five cents for each
Product listed above. For example,in Agreement Year Four, 300m1. DASANI will increase to$1.00
Vend Price and then in Agreement Year Seven, 300m1. DASANI will increase an additional twenty- i
five cents to $1.25. The Commission Rates will not change-during the Term of this Agreement.
There are two vend rates (one for workplace and one for public locations) that will be outlined in the
final formal agreement between the parties, but note that commission rates will remain the same. f
Commissions are paid based upon cash collected after deducting taxes, deposits, recycling fees, [ .
other handling fees, communication charges and credit and debit card fees, if any. Commissions
shall not be payable on any sales from vending machines not filled or serviced exclusively by {f
Bottler. Bottler may the vendprices and/or commission rates as necessary to reflect ►
adjust
changes in its costs, including cost of goods, upon prior written notice and approval by City.
Commissions will be paid each month following the month in•which they are earned, with an
accounting of all sales and monies in a form reasonably satisfactory to the City, and shall become
immediate property of City.
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Exhibit 2 to Term-Sheet
ADVERTISING RIGHTS
(Except as otherwise noted,the following rights may not be transferred or assigned by Bottler)
1, Recognition of Bottler as the"Official Non-Alcoholic Beverage Sponsor"of City. Official status
will include Official Status Recognition for City across all non-alcoholic beverage categories
i.e. "Coca-Cola Official Soft Drink of Miami Beach" and Official Status Recognition for South
Beach across all non alcoholic beverage categories (i.e. "POWERADE Official Sports Drink
for South Beach")
2. Official Sponsor Status (for Products) of all City-produced citywide Special Events, whether
now existing or as may exist in the future (i.e. including, without limitation, and for example
purposes only Sleepless Nights); Bottler to have highest sponsorship level and benefits
available other than presenting or title sponsorship. In addition, Bottler will be recognized as
the "Title Sponsor" of City's "Fire on the 4d' Annual Independence Day Celebration" each
Agreement Year during the Term.
3. Recognition of Bottler as the "Official Recycling Partner" for the City of Miami Beach& South
Beach
4. Joint Bottler/City Logo placement on City and City-related websites (e.g. Miami Beach
Convention Center, Miami Beach Golf Club, Normandy Shores Golf Club, Miami Beach
Culture web site (MBCulture.com); and any other City websites, whether now existing.or as
may exist in the future, to such extent as permitted by any federal or state regulations on .gov
domains. City will use reasonable commercial efforts to include joint Bottler/City Logo on all
printed convention and tourism materials, as appropriate and available.
5. Waiver of any Special Event Permit andfor Permit Application Fees for Bottler's use of certain
Account Facilities for up to two(2) mutually agreed upon events per Agreement Year,based
on availability, For purposes of the Special Event Permit and/or Permit Application Fee waiver,
these Facilities shall include public beachfront areas and Parks and Recreation facilities where
Special Events are permitted. All other fees and costs of production, including but not limited
to, taxes, security, sanitation, etc., shall be the responsibility of Bottler. Right may not be
transferred or assigned.
6, Waiver of any rental or use fees for Bottler's use of certain City Facilities for up to (two) 2
mutually agreed upon events per Agreement Year, based on availability. For purposes of the
rental or use fee waiver, these Facilities shall include the use of meeting room space or
ballroom space at the Miami Beach Convention Center.All other fees and costs of production,
including but not limited to taxes, security, audio/visual, decoration, etc., shall be the
responsibility of the Bottler. Right may not be transferred or assigned.
7. Unlimited, royalty-free Product sampling at City produced and/or sponsored events;
Royalty-free Product sampling permits per Agreement Year, as follows: 48 permits each
Agreement Year, but permits will be limited to not more than six (6) permits in any one
month period. Right may not be transferred or assigned. If Sponsor does not use all 48
permits by the end of each Agreement Year, any remaining permits will not roll-over to the
following Agreement Year, but will be forfeited.
8. Mutual agreement on the development and use of a joint logo between Bottler and Account.
9. Right to use mutually agreed upon joint logo on any point-of-sale, marketing materials,andlor
signage that may be mutually agreed upon.
10. Royalty-free advertisement in City's magazine (i.e. MB Magazine); minimum of a quarter
page each issue;larger ad size as may be available. Right may be transferred or assigned.
11. Royalty-free prominent advertisement in any Special Promotional Event programs or
collaterals produced for City-produced citywide Special Promotional Events (i.e. including,
without limitation, July 4t' and Sleepless Nights). City shall use best efforts to provide a full
page ad.
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17.The4ight to brand-City s-pool€o-beach-eencession-are-a(s).-wit€fi-approved Buttler and City joint
branding graphics (e.g. concession stands, storage shed, umbrellas, etc.), subject to
proposed branding meeting all necessary administrative and regulatory approvals.
Implementation of any approved branding shall be at.the Bottler's expense. All trademark
usage must be pre-approved prior to usage. The erection of any-other signage other than
vending machine display shall be subject to approval by the City. ..
13.One Royalty-Tree joint City/Bottler message PSA advertising panel at the 5'h and Alton bus
shelter; production/installation costs paid by Bottler. Minimum of full use of one PSA ad
panel for the entire term of the Agreement.
14.Minimum of one (1) Royalty-freeadvertising panelat the e and Alton bus shelter, on a
space availabi€ity(remnant) basis; production/installation costs paid by-Bottler. Right may be
transferredor assigned.
15.Minimum of One (1) one-month Royalty-free electronic joint City/Bottler message PSA run
on Atlantic Broadband and Welcome Channel; Additional months based on ongoing
availability;
16. Minimum of one(1) unlimited run on MBTV of City/Bottler message PSA;
17.Royalty-free POF ticket ad based on space availability; production costs paid by Bottler.
Right may be transferred or assigned.
The parties agree to perform such additional marketing activities, as the parties may mutually agree
upon to drive traffic to the Facilities and to increase Product sales.
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Exhibit--3-•e-Term-Sheet
MARKETING PROGRAM
Bottler shall provide City for approval with the proposed annual marketing plan for promotion of the
partnership no later than ninety (90) days prior to the beginning,of each Agreement Year, except.
for the first Agreement Year when the marketing plan shall be provided to the City within ninety(90)
days after execution of Agreement. The annual value of the marketing plan shall be no less than
$200,500, as determined in good faith by Bottler and based on generally accepted marketing
values. Some examples of activation may include the following; however, actual marketing
programs will depend on availability of these programs.
® Inclusion of the City in the My Coke Rewards program, or other customer reward program
offered by Bottler,through an annual promotional program (e.g. sweepstakes); estimated value
$100,000, or equivalent value.Activation based on availability
o Truck-back promotions program -value:$24,000/year based on availability
• Box Topper program or other similar high-visibility promotional program;value: $25,000/year
a Neck Ringer program: a Neck Ringer program shall be available with a minimum distribution of
neck ringers
• Touring Program: Bottler will bring the Open Happiness Tour, or such other promotional touring
program offered by Bottler, to the City based on availability.
O Bottler to develop and implement at least five (5) strategic marketing partnerships with the
Account and the Boater's other sponsorship partners during the Term of the Agreement. Such
strategic marketing partnerships may include, but. are not limited to, cross promotion, product,
tickets, etc., with other brands or products currently under a sponsorship or other
promotional/marketing agreement with the Bottler.
e Lebron James Event/celebrity event;value:$45,000 based on availability, or equivalent value
City acknowledges the intent of the Bottler to develop a joint marketing logo incorporating the
Bottler's mark and the City's mark. Bottler shall obtain approval from the City, in writing, of the joint
logo for use in promotion of the Agreement, including, but not limited to, its use in all commercial,
marketing, media advertisements, web sites and promotional products.
A party's use of the other party's marks in promotions, on products and signage, shall be first
approved by the other party in writing, and all uses of a party's marks shalt be acknowledged as
that party's intellectual property and include appropriate trademark notices.
The parties agree to perform those additional marketing activities, as the parties may mutually agree
upon to drive traffic to the Facilities and to increase Product sales.City agrees to provide Bottler with ;s
reasonable marketing assets inventory(e.g.,to be used with a My Coke Rewards national
consumer sweepstakes, or other such similar sweepstakes)for mutually agreed upon promotions
each year during the Term to promote Bottler Products and City. ;
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exhibit 4 to Term Sheet
RECYCLING PARTNERSHIP
Bottler shall be designated the official"Recycling Partner"of City.
Bottler shall provide, at its cost, the following services/products(value of$15,000-$25,000):
, • Assess, consult and offer a Recycling Program Plan for bottle/can recycling initiatives
• • Propose messaging strategy for the City's bottle/can recycling initiatives (within 90 days after
execution of Agreement)
• Provide Temporary recycling bins for special events(minimum of 30)to City at Bother's cost;
• Provide Recycling bins for placement in Facilities or agreed upon-public areas(minimum of 15)
to City at Bottler's cost;design subject to review and approval of City;
• Place reverse vending machines (crushers) in vending banks in the Facilities; minimum of five
(5) crushers placed during the first five Agreement Years of the Term, at Bottler's cost.
• Use of Recycling Educational Vehicle (REV,) or other Education Recycling material, at City
events; scheduled at least one time every 18 months during the Term.
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Exhibit-54e-Ter- t-Sheet
VENDING PROGRAM
Bottler shall place, at their cost, all vending machines in agreed upon locations pursuant to the
following:
1) Bottler shall provide to City within 90 days after execution of Agreement the proposed
equipment plan for the Agreement Term; to include the machine allocation plan by type (e.g.
• interactive vendingmachines, glass front etc.) and location; equipment replacement schedule;
• and vend front replacement and schedule for existing vending machines that need the vend
front replaced.All equipment shall be UL energy star rated. •
2) Bottler shall install vending machines within 180 days after the proposed equipment plan has
been approved by all parties. Both parties agree that the installation of vending machines shall
be completed within 180 days after the proposed equipment plan has been approved by all
parties. Agreement execution. The already approved beach thematic vend fronts will be used
unless other mutually agreed upon vend fronts have been selected and approved, and if beach
thematic vend fronts are available. The vend fronts shall include advertising panels for use by
the City, as approved by Bottler, provided that the vending machines are equipped with
advertising panel(s). Bottler shall pay all costs for the production and installation of the City
vend front advertising panels.A minimum of two(2) and a maximum of four(4) City vend panel
ads shall be produced/installed each Agreement Year.
3) Bottler shall provide within 90 days after execution of Agreement the proposed credit card
reader installation plan and schedule. All credit card reader installation shall be completed
within Agreement Year One.
4) City shall provide ail electrical power necessary to operate the vending machines,and City shall
pay up to $200 for the cost of any electrical modifications or connections necessary to
accommodate any new vending machine placement, upon mutual agreement of the proposed
location for the placement of the vending machine.
5) All vending machines remain the property of the Bottler.
6) Bottler shall provide a product list to the City to be included in the vending program. Any
changes to the Product list shall be provided to the Account prior to Product placement in a !
vending machine. Bottler shall work with the City's Parks and Recreation Department to identify
the appropriate vending products for inclusion in vending machines located in any City park.
The City's Park and Recreation Department shall provide approval, in writing, of the Products to
be sold in the vending machines placed in City parks.
7) Bottler shall maintain vending machines reasonably well-stocked with Products.
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• Exhibit 6 to-Term Sheet
INITIAL PRICE SCHEDULE*
Package Price per case
20 oz. CSD $17.85
12 oz. CSD $9.46
15.2 oz: MMJTG $23.36
12 oz. DASANI® $8.88
1 liter CSD $16.29
20 oz. DASANI® $10.82
20 oz. vitaminwater® $27.00
8 oz. CSD $16.00
20 oz. NESTEA®/
Minute Maid®Refreshment $17.85
20 oz. POWERADE® $19.00
16 oz. Monster® $34.00
2 liter CSD. $12.35
16.9 Honest Tea® $12.60
500 ml Gold Peak® $13.99
8 oz. aluminum bottle $16.48
Post-Mix Price per gallon
5 gallon BIB CSD and NCB $12.24
2.5 gallon BIB CSD and NCB $12.78
5 gallon BIB Unsweet NESTEA® $11.82
2.5 gallon BIB Unsweet NESTEA® $12.40
5 gallon BIB Premium NCB $12.75
2.5 gallon BIB Premium NCB . ..$13.30
5 gallon BIB Frozen Dispensed $13.88
2.5 gallon BIB Frozen Dispensed $14.26
Cups
24 ounce $52.89 per 1,200
Lids
24 ounce $34.55 per 2,000
CO2
20 lb.cylinder $25.00 per cylinder(plus$75.00 deposit)
*All prices are per standard physical case and exclusive of taxes,deposits,handling fees,and recycling fees.
Georgia 64 Oz Brew: Price per Case and package size: (Prices effective for the period:1/1!2012-
313112012)(All coffee is priced FOB to Distributor,prices do not include any distributor markup.)
Product Package Small Filters Large Filters
(Frac)
Dark Roast 100, 2.75 oz $110.38 $110.38 l€
Light Roast 128,2.25 oz $117.87 $117.87
Decaf 75,2.00 oz $67.95 $67.95
Organic 75,2.75 oz $110.10 $110.10
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Exhibit 7 to Tom-Sheet
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MAINTENANCE &SERVICE
During the Term, Bottler will loan to Account, pursuant to the terms of Bottiers equipment
placement agreements, at no cost, that Beverage equipment reasonably required and as mutually
agreed upon to dispense Beverages at the Facilities.
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Bottler agrees that all equipment shall be new or in "like new"condition and that it shall operate and
manage the equipment, services and facilities offered in a first-class manner. Bottler shall provide
City with the Maintenance Flan and Schedule for all Bottler equipment within 90 days of execution
of Agreement, to include the Bottler's plan and schedule for servicing the City.
Bottler shall provide throughout the Term of this Agreement, at Bottler's expense, all repairs,
replacements arid technical services necessary to maintain and preserve the Bottler's equipment in .•
a decent, safe, healthy and sanitary condition satisfactory to City and in compliance with applicable
laws.
Bottler warrants that it shall correct all mechanical problems with vending machines no later than
four(4) business days after notice and no later than twenty-four(24)hours after notice for all other
dispensing equipment.
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Acts of vandalism to Bothers equipment will be reported to Bottler immediately and addressed
within four (4) business days. If the vending machine is repairable, the vending machine will be
repaired within four (4) business days. If the vending machine is not repairable, vending machine
will be condemned and swapped within seven(7)business days.
' Bottler is the only party allowed to make repairs on Bottler-owned equipment. •
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All vending machines shall display a "service hotline" sticker to expedite calls. A toll free C1-800")
number shall be provided and a 24-four hour per day, seven days a week continuously operating •
telephone answering service shall be provided.
A reimbursement fund in the amount adequate to handle all necessary refunds between service
calls shall be made available to City at designated location(s) mutually agreed-upon by City and
Bottler. Each person requesting a refund shall complete a form which shall be maintained by the
City and provided to the Bottler as required. The reimbursement fund shall be checked by the
Bottler no less than once a month and replenished as needed. Information on refunds shall be
provided on each machine.
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Exhibit,8
The term "Special Promotional Events" ("Event") shall mean and is limited to the following:
concerts; theatrical or comedic performances; conventions; trade shows; religious events; athletic
events; or other special events occurring at a Facility that meet the following requirements: (i) they
are sponsored by a manufacturer,distributor, or marketer of Competitive Products under a master
sponsorship agreement with the. owner 'or operator of the subject Event (including, without
limitation, a concert or theatrical production company, or a.trade show or convention production
company, but NOT including,in any instance the City or its affiliates or,agents); (ii) they are
conducted on a national or regional multi market basis;(iii)they are NCAA collegiate championship
athletic events; and, (iv) the event sponsorship agreement reeved to in subsection (i) above
requires on-site temporary signa9e for.Competitive Products.
The term "Special Promotional Events Exceptions'shall refer to those exceptions granted under the
Agreement, for each,Agreement year, to permit the following fifteen(15) Special Promotional Events
at the following Facilities: (I).four(4)events at the Miami Beach Golf Club; (ll) four(4) events at the
Normandy Shores Golf Club(The Miami Beach,'Golf Club and Normandy Shores Golf Club may also
be referred to collectively herein as "Golf Courses");(iii three (3) events at the Miami Beach
Convention Center("Convention Center"); and (iv) our(4) City Approved major Sponsorship Public
Special Events (as defined below) ;provided, however,that?he number[imitation for City Approved
Major Sponsorship Public Special Events shall be revisited and reviewed by the parties, in good
faith, at the conclusion of the third Agreement Year.
a. Golf Courses and Convention Center/Special Promotional Events Exception. In any
Agreement Year, temporary signage (such as, but not limited to,banners) for Competitive
Products may be displayed at each of the Golf Courses during up to four (4) Special
Promotional Events, and during up to three (3) Special Promotional Events at the
Convention Center ; PROVIDED, HOWEVER, that: (i) Sponsor's Beverage availability,
marketing, advertising, promotional, and other .rights under this Agreement will not
otherwise be affected during.any such Event(ii)Competitive Products may be distributed at
no cost, but no Competitive Products will be sold or'otherwise made available during the
Event(except,as permitted'' in this exception); (iii) no blockage:of any signage or other
trademark/service mark display Sponsor may have at the Facility will occur during the
Event,except for incidental blockage due to the construction and/or placement of a person,
stage or other structure necessary to and actually used during the Event; or, in the case of
NCAA championship events, religious events or political conventions where no advertising
is allowed and all advertisers are treated equal with all signage covered in the seated area
of the Facility; (iv)all temporary signage for Competitive Products will be promptly removed
from the Facility upon the conclusion of the Event; and (v) at no time will the Competitive
Products make any statements, or use any temporary signage, that uses the
trademarks/service marks of the City of Miami Beach, South Beach, Golf Courses or the
Convention Center, nor in any way associate these Competitive Products with the City of
Miami Beach, "South Beach," the Golf Courses, or the Convention Center. The Special
Promotional Events at the Golf Clubs and the Convention Center must occur over a period
of no more than twenty-four (24) hours. The twenty-four hours does not include set up or
tear down time required, or NCAA Championship events or political conventions which may
exceed the aforestated time limitation. The Convention Center may use the three one day
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i,u ie day — Lweniy-four tie• - %g -ga e in eac •greemen Year during the Term.
Aggregate,.as used in this paragraph, shall mean the total of twenty-four hours multiplied by
the total number of Special Promotional Events permitted, as provided for herein. For
example purposes only, the Miami Beach Convention Center are provided three Special
Promotional Event Exceptions per Agreement Year. As such, the three Special Promotional
' Events may occur in the Miami Beach Convention Center for.a total of 72 hours in an
Agreement year(24 hours x 3 events=72 hours/year).
b. City Approved Major Sponsorship Public Special Events/Special Promotional Events
Exception. In any Agreement Year, temporary signage (such as, but not limited to,
banners) for Competitive Products may be displayed during up to four (4) Special
Promotional Events for City Approved Major Sponsorship Public Special Events. The term
"City Approved Major Sponsorship Public Special Event" shall refer to a City-approved
public event (i.e. where public access is allowed either via no cost or via pre-purchased
ticket) held on City property, and permitted pursuant to the City's approved Special Event
Permit process, as same may be amended from time to time during the Term of this
Agreement (for example purposes only, this may include, but not be limited to events such
as Super Bowl Pepsi Jam and Red Bull Illume); and may also include an event sponsored
by a manufacturer, distributor or marketer of Competitive ,Products pursuant to a
sponsorship agreement with the owner, operator or promoter of the event; an event
conducted on a national or regional multi-market basis; and/or an event where a
Competitive Product is the naming, presenting, title, brought to you by, or other primary
sponsor of the Event. Temporary signage for Competitive.Products at City Approved Major
Sponsorship Public Events may be displayed as an Event "naming sponsor", Event
"presented by" sponsor, Event"brought to you by sponsor, or as a sponsor represented as
a "Cold' or "Platinum" (or such other equivalent) sponsor of the Event; PROVIDED,
HOWEVER, that: (i) Secnsor's Beverage availability, marketing, advertising, promotional,
and other rights under this Agreement will not otherwise be affected during any such Event;
(ii) no blockage of any signage or other trademark/service mark display Sponsor may have
at the Facility will occur during the Event, except for incidental blockage due to the
construction and/or placement of a person, stage or other structure necessary to and
actually used during the Event; or, in the case of NCAA championship events, religious
events or political conventions where no advertising is allowed and ail advertisers are
treated equal with allsignage covered in the seated area of the Facility; and (iii) all 1
temporary signage for Competitive Products will be promptly removed from the Facility upon 1
the conclusion of the Event. At no time will the Competitive Products make any statements i
or use any temporary signage that uses the trademarks/service marks of the City of Miami E
Beach, "South Beach,"or the Facilities, or in any way associate these Competitive Products
with the City of Miami Beach Facilities. Notwithstanding the above, Competitive Products
may be distributed, sampled or made available during a City Approved Major Sponsorship E
Public Special Event for which there is a Special Promotional Events Exception. Such
distribution, sampling or availability shall occur ONLY within the approved site plan for the i
event. However, should concession service (sales) for any non-alcoholic beverage other
i
. than Products be required or necessary for the event, and there are no existing concessions , t'
at the location of the City Approved Major Sponsorship Public Special Event for which there
is a Special Promotional Events Exception, the City Manager shall submit a letter to
Sponsor requesting that Sponsor grant a waiver to permit such sale at the Event; outlining a
the details of the exception and the business reasons for the request and such request shall i
require Sponsor's prior written approval. Sponsor reserves the right to not approve the E,
limited waiver for this purpose. Sponsor will notify the City Manager of whether the request '.
for waiver will be approved within twenty (20) business days of Sponsor receiving the City
Ma o,g A _
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i he Spec'rah roirlut oust Evei it €xueptiui i fur d City Appro,c •• • • •
Special Event must occur over a period of no more than seventy-two, (72) hours.The
seventy-two hours does not include set up or tear down time required, or NCAA
Championship events or political conventions which may exceed the 'aforestated time
limitation. The seventy=twohours may be used in the aggregate in each Agreement Year
during the Term Aggregate, as used in this paragraph,shall mean the total of seventy-two
hours multiplied by the total number of Special.Promotional Events Exceptions, as provided
for herein. As such, the four Special Promotional Events may occur on public property for a
total of 288 hours in an Agreement year(72 hours x 4 events=288 hours/year).
c. Other permitted Exceptions. Exhibitors at Conventions ortrade shows,or third party exhibitor
set ups et Facilities shall have the right to-serve Competitive Products`within their booth
provided that sameis limited to.the duration of the corresponding event and, provided further,
that the Competitive Products are not marketed, advertised or promoted in association with
the City of Miami Beach and/or the Facilities;and their respective trademarks. For example
purposes only a Cadillac;booth at the Auto Show in the Convention Center would be
allowed to give away bottled water with the Cadillac Logo. Notwithstanding, Sponsor's
Products would,continue to be the only Products allowed to be sold, distributed or sampled
at the Facility's concession operations.
d. Competitive Beverages may also be permitted to be distributed, at no cost, at third party
events that are not affiliated With the City, but where the City has permitted the event
through the issuance of a City of Miami,Beach Special Events Permit, subject to the City's
notification to Sponsor prior to-the event and, provided further, that the third party event
operator is not a manufacturer, distributor or seller of a Competitive Product that the
Competitive Products are not marketed,advertised or promoted in association with the City
of Miami Beach or the Facilities, and their respective trademarks; that no Competitive
Products will be sold during such event; and that the distribution of the Competitive Product
is limited to Special Event Permit Area (as such term is defined in the City's Special Event
Permit Guidelines, as same may be amended form time to time through the Term of this
Agreement). For example purposes only: a third party event contemplated under this
paragraph might include, but not be limited to, a walkathon or marathon where one of the
event sponsors might request to be permitted to distribute free bottled water to the event
participants. Notwithstanding the above, Sponsor shall have first right of refusal to provide
donated Beverages through a sponsorship agreement to the non-profit events, permitted by
the City through the issuance of a City of Miami Beach Special Everts.Permit, known as the
White Party, Winter Party and Miami.Beach Pride (based_on the level of non-alcoholic
Beverages, provided for the White'Party, Winter Party and.Miami Beach Pride events in
2012.) for the sale of.these`Beverages by`hese three (3) events as part:of their annual
charity fundraisers: If Sponsor elects to participate;'Sponsor will notify the organizer six (6)
months prior to start'date of White Party, Winter Party and Miami:Beach Pride events. if at
any time during the.Term the Sponsor cannot or does not.provide donated non-alcoholic
Beverages through a •sponsorship,agreement to these three (3) non-profit events for this
purpose, these three (3) eventsshall be permitted to secure Competitive Products for use
and sale consistent with the use and sale of non-alcoholic Beverages in the 2012 White
Party,Winter Party and Miami Beach Pride events. 0
Per Section 9 ofTermSheet, No Competitive Products may be sold, dispensed,sampled or served
anywhere at the Facilities, or on the City's public rights-of-ways, unless otherwise expressly spelled
out in the Agreement.
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Exhibit B—Amendment No. 1 to MVD Pilot Agreement
'Naso 2°19$-30330
AMENDMENT NO. 1
TO VAN DAALEN TENNIS, LLC ONE(1)YEAR PILOT
AGREEMENT TO PROVIDE PROGRAMMING AT THE
CITY'S MIAMI BEACH TENNIS CENTER nn
This Amendment No. 1 ("Amendment") to the Agreement, dated 17 by
and between the City of Miami Beach, Florida, a municipal corporation organized and existing
under the laws of the State of Florida, having its principal place of business at 1700 Convention
Center Drive, Miami Beach, Florida 33139 (the "City"), and Van Daalen Tennis, LLC, a Florida
limited liability company, having,its principal place,of business at 15051 Royal Oaks Lane, Apt.
1604, North Miami, Florida 33181 ("CONTRACTOR"), is entered into this 20> day of
JL4,rk , 2018.
RECITALS
WHEREAS, on July 26, 2017, the Mayor and City Commission adopted Resolution
Number 2017-29936, accepting the written recommendation of the City Manager and waiving,
by 5/7' vote, the competitive bidding requirement, finding such waiver to be in the best interest
of the City; and approving, in substantial form, a one (1) year pilot agreement between,the City
and Van Daalen Tennis, LLC for programming at the City's Miami Beach Tennis Center;and
WHEREAS, on August30, 2017, the City and CONTRACTOR executed the Van Daalen
Tennis, LLC. One.(1) Year Pilot Agreement (the "Agreement") to Provide Programming at the
City's North Shore Tennis Center now known as Miami Beach Tennis Center(the"Center"); and
WHEREAS, on April 1.1, 2018, the City Commission adopted Resolution No. 2018-
30279, changing the name from North Shore Tennis Center to Miami Beach Tennis Center; and
WHEREAS, CONTRACTOR has requested approval of a term extension of sixmonths
from the completion of the scheduled construction projects at the Miami Beach Tennis Center
and has agreed to pay the City the total sum of $500.00 ("Education Compact Fund
Contribution")to fund the City's educational initiatives; and
WHEREAS, on June 6, 2018, the Mayor and City Commission adopted Resolution No.
2018-30330, accepting the recommendation of the Finance and Citywide Projects Committee,
at its May 18, 2018 meeting, approving Amendment No. 1 to the Agreement, said Amendment,
in material part, (1) acknowledging the term extension of six months at the completion of the
scheduled construction projects at the Miami Beach Tennis Center for Van Daalen Tennis, LLC;.
(2) acknowledging the Contractors education compact fund contribution, in an amount of
$500.00; (3) providing for the addition-of-language related to identifying the Center as the Miami
Beach Tennis Center (3) adding language addressing light fees and club baskets; (4) adding
language regarding payment to CONTRACTOR for the City's summer sports specialty camp;
(5) updating the tennis software provider; and (6) providing the City with utilization of courts for
City produced tennis related special events and/or City sponsored special events.
NOW THEREFORE, in consideration of the mutual promises and conditions contained
herein, and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the City and.Contractor hereby agree to amend.the Agreement as follows:
Page 1 of 5
1. ABOVE RECITALS.
The above recitals are true and correct and are incorporated as part of this Amendment.
2. MODIFICATIONS.
The Agreement is hereby amended (deleted items st ck through and inserted items
underlined)as follows:
(a) Subsection 2.1 of the Agreement is hereby deleted in its entirety and replaced with the
following:
2.1 The City owns and operates that certain recreational facility commonly known
as the Miami Beach Tennis Center, located at 501 72"d Street, Miami Beach,
Florida 33141 (the"Center").
(b) Subsection 6.4.2 of the Agreement is hereby amended to read as follows:
CONTRACTOR agrees to provide free instructional lessons to after-school and
summer camp participants, to be mutually agreed upon by the parties. Use of
courts pursuant to the immediately preceding sentence shall be deemed to be
the utilization of courts for public usage. Additionally, in connection with the
Parks and Recreation Department's summer sports specialty camp program,
CONTRACTOR agrees to provide two instructors, who will provide tennis
classes for the participants enrolled in the summer sports specialty camp, for
one week during the scheduled summer sports specialty camp, for a total of ten
(10) hours, typically between the hours of 9:30 am and 12:00 pm, for the total
fee of$850.00. CONTRACTOR and City shall reach an agreement with respect
to the dates, times and locations for the summer sports specialty camp.
(c) Subsection 7.1 of the Agreement is hereby amended to read as follows:
7.1 The CONTRACTOR must comply with the fee schedule for professional tennis
instruction that offers the tennis patron a choice in instructor level and hourly fee
commensurate with the instructor's level, as agreed upon and listed in Exhibit"A"
(to be provided by the CONTRACTOR) attached hereto. Any change of this said
fee and instructor levels shall be approved by the City prior to implementation of
fees.
CONTRACTOR shall also comply with the City's established fees for hourly
tennis court play, annual permits and other specialized play. CONTRACTOR will
provide a club basket available for use on a first come first serve basis for
members and resident nonmembers. The club basket will be for a fee of$10.00
per hour for members and $20.00 per hour plus court fees for resident
nonmembers. Usage of the club basket will be limited to no more than 2 players
on a court.
If the play time of a tennis court user (for a lesson, clinic, etc.) is interrupted
due to weather resulting in less than 30 minutes of play, the user will be
entitled to a reimbursement/pay-out/raincheck. If there is a weather
interruption, but the play time exceeded 30 minutes, it will be at the discretion
Page 2 of 5
of the CONTRACTOR as to whether or not to offer a reimbursement/Pay-
out/raincheck. Furthermore, light fees will only be charged to non-members.
Those purchasing memberships will not be required to pay light fees.
(d) Subsection 7.6 of the Agreement is hereby deleted in its entirety and replaced with the
following:
7.6 The CONTRACTOR shall utilize RecTrac, the City's current recreation
software system, for the purposes of trackina reservations, financials,
memberships, concessions, merchandise, etc. The CONTRACTOR shall
have Tennis Module rights to the Miami Beach Tennis Center computer
software system. Additionally, phone and in-person reservations must be
provided for by the CONTRACTOR all of which must be cross referenced to
avoid overbookings, no-shows, and adherence to prioritization and
utilization of courts for public usage by restricting lesson/clinic/programming
courts during peak hours. All revenue collected at the Center must go
through the City's secured systems.
(e) Subsection 14.2 of the Agreement is hereby deleted in its entirety and replaced with the
following:
14.2 City Special Events.
Notwithstanding Subsection 14.1 above, and in the event that the
City, at its sole discretion, deems that it would be in the best interest
of the City, the City reserves the right to utilize the Center for City
produced tennis relatedspecial events and/or other City sponsored
special events productions such as local and international tennis
tournaments. In such cases, the City will coordinate with the
CONTRACTOR to cooperatively produce such events.
CONTRACTOR agrees that the number of courts utilized shall be
determined by the City and that events will be held during the
Center's operating hours. CONTRACTOR shall retain any income
related to the special event and/or production as it pertains to food
and beverage concessions, stringing and merchandise sales.
CONTRACTOR agrees that facility usage for events may include
use of: locker rooms, activity rooms and office space, umpire chairs,
umbrellas, coolers, scoreboards, net-sticks and the like. If
negotiations between the City and the CONTRACTOR prove to be
unsuccessful, the CONTRACTOR shall cease and desist operations
during the term of, and in the area of, the special event and/or
production.
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the Agreement shall remain
unchanged and in full force and effect. In the event there is a conflict between the provisions of
this Amendment and the Agreement, the provisions of this Amendment shall govern.
Page 3 of 5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their appropriate officials, as of the date first entered above.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
Page 4 of 5
FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Raf I E. Gr nado, City Clerk Dan Gelber, Mayor
Lal I
Date �C
FOR CONTRACTOR: aNOORPI �Dtpan�Daalen Tennis, LLC
ATTEST:
By:
I Director of Programming
6DSCiamAA _ i IPC f Martin Van Daalen
Print Na a and Title gettici
t. ett,. Print Name
i g_
Date
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
Page 5of5 � �.. C
City Allikrney Date
Exhibit C - Draft Amendment No. 2 to MVD Pilot Agreement
AMENDMENT NO. 2
TO VAN DAALEN TENNIS, LLC ONE (1) YEAR PILOT
AGREEMENT TO PROVIDE PROGRAMMING AT THE
CITY'S MIAMI BEACH TENNIS CENTER
This Amendment No. 2 ("Amendment") to the Agreement, dated August 30, 2017, to
provide Programming at the City's Miami Beach Tennis Center, by and between the City of
Miami Beach, Florida, a municipal corporation organized and existing under the laws of the
State of Florida, having its principal place of business at 1700 Convention Center Drive, Miami
Beach, Florida 33139 (the "City"), and Van Daalen Tennis, LLC,Xk a,,, Florida limited liability
company, having its principal place of business at 15051 Royal Oaks Lane, Apt. 1604, North
( ) day of
Miami, Florida 33181 "CONTRACTOR" , is entered into this f`f� ,
2019. '` r4
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RECITALS A '=ap kft
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WHEREAS, on July 26, 2017, the Mayor and City Commission adopted,Resolution
Number 2017-29936, accepting the written recommendation of the City Manageri,:and waiving,
by 517th vote, the competitive'bidding requirement, finding such waiver to be in the best interest
of the City; and approving, in substantial form, a one (1),,year,ypilo.t agreement between the City
and Van Daalen Tennis, LLC ("CONTRACTOR"), for programming at the City's "Miami Beach
s p t 5
Tennis Center" (the "Center"); and �.0!^ �t< ', X
_t#ri nt, Ydt is '1:0,,,,--,"'`
WHEREAS, on August 30, 2017, the City,,and CONTRACTOR executed the One (1)
Year Pilot Agreement(the "Agreement"); and;, a�X '< ,t, ,`'
Y
WHEREAS, on April 1�1,==20018, the City Commission adopted Resolution No. 2018-
30279, changing the name from AN Orth Shore Tennis Center"to the "Miami Beach Tennis
Center"; and ` '' ;�� �`
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WHEREAS, on Junee'`6,,201'8, the,Mayor and City Commission adopted Resolution No.
2018-30330,0`accepting�the recommendatioNl'of�the Finance and Citywide Projects Committee,
at its May,18, 2018 meeting, approving Amendment No. 1 to the Agreement, said Amendment,
in material part: (1) acknowledging�the,term extension of six months at the completion of the
scheduled construction projects at the°Miami Beach Tennis Center for Van Daalen Tennis, LLC.
and the Contractors education compact fund contribution, in an amount of $500.00; (2)
providing for"the,,,addition of `language related to identifying the center as the Miami. Beach
Tennis Center'; and (3) adding language: (i) addressing light fees and club baskets (ii)
addressing paymentknto CONTRACTOR for the City's summer sports specialty camp; (iii)
updating the tennis software provider; and (iv) providing the City with utilization of courts for City
produced tennis related`''special events and/or City sponsored special events (The Agreement
and Amendment No' 1 to the Agreement shall be collectively referred to herein as the
"Agreement"); and
WHEREAS, on April 10, 2019, the Mayor and City Commission adopted Resolution No.
approving, in substantial form, Amendment No. 2 to the One Year Pilot
Agreement (Agreement); said approved amendment, in material part; increasing the
CONTRACTOR'S annual programming fee and management fee from $500,000.00 to an
amount not to exceed $750,000.00 per year of the term of the Agreement; and, further,
authorizing the Mayor and City Clerk to execute the amendment.
Page 1 of 4
r ,
NOW THEREFORE, in consideration of the mutual promises and conditions contained
herein, and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the City and CONTRACTOR hereby agree to amend the Agreement as follows:
1. ABOVE RECITALS.
The above recitals are true and correct and are incorporated as part of this Amendment.
2. MODIFICATIONS. is4r#`+';,,,:
The Agreement is hereby amended (deleted items struck''through and inserted items
underlined) as follows:
Subsection 4.1 of the Agreement is hereby amended to"'r`ead as follows ,
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4.1 The fees to participate in -0 A — . r . - • - ---• '4
3{3a
Miami Beach Tennis Center Programs are rset forth;in Attachment#rt`A"
hereto, which is incorporated herein by. reference. In° consideration of
Services to be provided, City shall pay CONTRACTOR a programming fee
equal to 70% of the total monthly gross programmr�evenues collected by
the City and a management fee equal i g�to 21% of the;total monthly gross
programming revenues collected' by, he, City, with thek,City� retaining the
remainder of the total monthlyr,Agross programing revenues collected.
Additionally, the City shall retain 190% ofi.;tl Vmempership fees and court
fees collected.
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The CONTRACTOR's annual programming fee and management fee shall
not exceed $500,000 $750,000 per year during the term, or a pro-rata
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thereof, during r ,tithe Holdover Term. The City shall provide payment to
CONTRACTOR by3thet15th�ofrthe=month r'`
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y4ay of an;`example,`"assuming that the gross programming revenues for one month
r "equal $100,000, the CONTRACTOR'S programming fee and management fee would
calculated as follows:
CONTRACTOR receives a programming fee of 70% of the monthly gross
t;A programming revenues, in the amount of$70,000;
V"CONTRACTOR will receive a management fee of 21% of the monthly
'gross programming revenues, in the amount of$21,000; and
The City will receive the remaining $9,000 of the total monthly gross
programming revenues, plus 100% of all membership fees and court fees
collected during the month.
As referenced herein, "gross programming revenues" shall mean all income
received (less returns and refunds) by the City from clinics, tennis instruction,
camps, tournaments,academy, hospitality packages, food and beverage sales
and Pro Shop sales. The gross programming revenues shall not include income
received by the City for annual membership fees or hourly court fees.
Page 2 of 4
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the Agreement shall remain
unchanged and in full force and effect. In the event there is a conflict between the provisions of
this Amendment and the Agreement, the provisions of this Amendment shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their appropriate officials, as of the date first entered above. it
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. •
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FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Rafael E. Granado, City Clerk Dan Gelber, Mayor
Date
FOR CONTRACTOR: VAN DAALEN TENNIS, LLC
ATTEST:
By - -
a Director ofPogrmming
Martin Van Daalen
Print Name and Title -,Print Name
Date
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Page 4 of 4