2013-28368 Reso RESOLUTION NO. 2013 -28368
RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE TERMS OF A -LICENSE
AGREEMENT BETWEEN THE CITY AND DESTINATION BRANDS FOR AN
EXCLUSIVE MIAMI BEACH SUN CARE LINE, WHICH IS ATTACHED AS
EXHIBIT "A ", WITH SAID AGREEMENT HAVING AN INITIAL TERM OF FIVE
(5) YEARS; AND AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE THE FINAL AGREEMENT; PROVIDED, HOWEVER, THAT IN THE
EVENT THAT THE FINAL NEGOTIATED AGREEMENT INCLUDES ANY
TERM OR TERMS WHICH SUBSTANTIALLY DEVIATE FROM THE
APPROVED SUBSTANTIVE TERMS (AS REFERENCED IN THE ATTACHED
EXHIBIT "A "), OR CONTAIN NEW AND /OR ADDITIONAL TERMS WHICH, IN
THE CITY MANAGER AND CITY ATTORNEY'S OPINION, MATERIALLY
ALTER THE PROPOSED TRANSACTION, THEN REQUIRING THAT THE
FINAL NEGOTIATED AGREEMENT TO BE BROUGHT TO THE CITY
COMMISSION FOR ITS CONSIDERATION.
WHEREAS, the City has been actively pursuing opportunities to leverage its strong
brand presence by partnering with corporate entities in a manner that generates good publicity
and marketing for the City, while at the same time generating revenue or providing savings to
the City; and
WHEREAS, the City has been negotiating with BLIII Holdings, who acquired the North
America rights to Rayito de Sol and Tortulan brands, regarding a Miami Beach Licensing
Agreement; and
WHEREAS, BLIII Holdings is locally owned and locally operated by the Leon family, a
fourth generation Cuban American entrepreneurial family with experience in diverse industries
who entered into the sun care and skin care industries in 2011 by acquiring the North America
rights to Rayito de Sol and Tortulan brands, top - selling Latin American brands with over seventy
years of history and heritage; and
WHEREAS, Rayito De Sol was established over 70 years ago in Argentina as a family
run business and is the #1 sun care brand in Argentina and is the #1 selling bronzing sunscreen
in Brasil; and
WHEREAS, BLlll Holdings proposes the creation of an entirely new brand and line of
sun care products that leverage key elements of Miami Beach to bring the Miami Beach Brand
to the global consumer with unique, high quality products that represent Miami Beach; and
WHEREAS, BLIII Holdings formed a company by the name of Destination Brands, which
is a wholly owned subsidiary of BLIII Holdings for the purpose of developing, manufacturing,
marketing and distributing the Miami Beach sun care Line as the exclusive and official sun and
skin care brand of the City; and
WHEREAS, the Finance and Citywide Projects Committee (FCWPC) considered this
proposal at their May 13, 2013, July 8, 2013, and at the August 21, 2013 meetings and
ultimately expressed support for a sunscreen license agreement; and
COMMISSION ITEM SUMMARY
Condensed Title:
Resolution Approving A License Agreement Between The City And Destination Brands For An Exclusive Miami Beach Sun Care Line, Which is Attached As
Exhibit "A ", With Said Agreement Having An Initial Term Of Five (5) Years; And Authorizing The Mayor And City Clerk To Execute The Final Agreement;
Provided, However, That In The Event That The Final Negotiated Agreement Includes Any Term Or Terms Which Substantially Deviate From The Approved
Substantive Terms (As Referenced In The Attached 'Exhibit "A "), Or Contain New And /Or Additional Terms Which, In The City Manager And City Attorney's
Opinion, Materially Alter The Proposed Transaction, Then Requiring That The Final Negotiated Agreement To Be Brought To The City Commission For Its
Consideration.
Key Intended Outcome Supported:
Improve the City's Overall Financial Health and Maintain Overall Bond Rating; and Maximize Miami Beach as a Destination Brand.
Supporting Data (Surveys, Environmental Scan, etc.): N/A
Item Summa /Recommendation:
The City Administration has been pursuing a sunscreen license agreement since late 2012. The Administration has negotiating with BLIII Holdings, who
acquired the North America rights to Rayito de Sol and Tortulan brands, regarding a Miami Beach Licensing Agreement. BLIII proposes the creation of an
entirely new brand and line of sun care products that leverage key elements of Miami Beach. BLIII in partnership with the City of Miami Beach, would utilize its
network of domestic and international development and sales experts to bring the Miami Beach Brand to the global consumer with unique, high quality
products that represent Miami Beach. Products would be manufactured in Florida at state of the art facilities. BLIII has begun doing research on product
development including pricing, packaging, consumer focus groups, logo development, quality control, and distribution. During their research they have also
been able to put together sales forecasts, estimated costs, and their plans for successful market penetration. The results of their focus groups, research and
industry meetings were overwhelmingly positive and Destination BLIII remains very interested in moving forward with a contract for an exclusive sunscreen
licensing agreement with the City.
In exchange for the City's agreement to license the Miami Beach brand to BLIII /Destination Brands for the sole purpose of developing, manufacturing,
marketing and distributing the Miami Beach Sun Care Line as the exclusive and official sun and skin care brand of the City, the Administration and
BLIII /Destination Brands have negotiated the attached License Agreement (Exhibit 1), which proposed terms are summarized as follows:
• Initial term of five (5) years with Destination Brands, which is a wholly owned subsidiary of BLIII Holdings.
• Renewal terms of three (3) years each as follows:
• First renewal at the sole discretion of Destination Brands.
• Second renewal at the sole discretion of the City.
• Three (3) additional renewal terms mutually agreed upon by both parties.
• Public Benefits will include the following:
• Up to one percent (1 %) of proceeds of the sale of each product will go towards funding beach cleanups and sun protection education.
• A minimum of 500 units of sunscreen annually for the City's lifeguards.
• All photographic, video and other marketing and advertising footage must be real depictions of Miami Beach and take place in Miami Beach.
• City to have 40% representation on Advisory Board.
• Minimum annual marketing investment of ten percent (10 %) of gross revenue.
• City to have right to audit throughout the term of the Agreement and for a period of five (5) years after either termination or expiration of the
Agreement.
As you may recall, the City previously was negotiating royalty payments ranging from 25% - 75% on a tiered schedule based on Net Profit. However, as
negotiations proceeded the Administration and Destination Brands could not agree on the final definition of Net Profit and research revealed that standard
license agreements base royalty payments from Net Sales. As a result, negotiations resumed on a Net Sales basis and Destination Brands has agreed to pay
,City royalties as follows:
• 9% of Net Sales until sales reach $150,000
• 6% of Net Sales from $150,001 - $1,000,000 in sales
• 3% of Net Sales beyond $1,000,001.
• Net ales is defined as: Gross Sales less returns, quantity discounts (including unsalable, Coop, slotting /stocking fees), but no deduction made for other
discounts or uncollectable accounts. No costs incurred in the normal manufacture, sale, distribution or exploitation of the product shall be deductible from
any royalties.
• Royalty payments begin to accrue on January 1, 2015.
• In the event the City terminates the agreement, City agrees to not compete /license Miami Beach Logo in the sun care category for a period of 2 years
after the termination of the agreement.
• In addition, the City has the ability to terminate if net sales of the Goods fails to reach $150,000 by the end the first Term, with thirty (30) days written
notice to Licensor.
It is recommended that the Mayor and Commission approve the proposed License Agreement with Destination Brands.
Advisory Board Recommendation:
Finance and Citywide Projects Committee reviewed the proposal on May 13, 2013, July 8, 2013 and August 21, 3013 and expressed support for the license
agreement.
Financial Information:
Source of Funds: Amount Account Approved ,
NSP
Financial Impact Summary: Royalty payments would begin after 12 months of distribution.
City Clerk's Office Legislative Tracking:
Max Sklar, Ext. 6116
Si n -Offs
De rt Director Assists ity. Manager City Manager
IA MMMEACH A DA ITEM R DATE
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfi.gov
r.
COMMISSION MEMORANDUM
TO: Mayor Matti H. Bower and Members f the City Co mission
FROM: Jimmy L. Morales, City Manager
DATE: September 30, 2013
SUBJECT RESOLUTION OF THE MAYOR A D CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING THE TERMS OF A LICENSE AGREEMENT
BETWEEN THE CITY AND DESTINATION BRANDS FOR AN EXCLUSIVE MIAMI
BEACH SUN CARE LINE, WHICH IS ATTACHED AS EXHIBIT "A ", WITH SAID
AGREEMENT HAVING AN INITIAL TERM OF FIVE (5) YEARS; AND
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE FINAL
AGREEMENT; PROVIDED, HOWEVER, THAT �IN THE EVENT THAT THE FINAL
NEGOTIATED AGREEMENT INCLUDES ANY TERM OR TERMS WHICH
SUBSTANTIALLY DEVIATE FROM THE APPROVED SUBSTANTIVE TERMS (AS
REFERENCED IN THE ATTACHED EXHIBIT "A "), OR CONTAIN NEW AND /OR
ADDITIONAL TERMS WHICH, IN THE CITY MANAGER AND CITY ATTORNEY'S
OPINION, MATERIALLY ALTER THE PROPOSED TRANSACTION, THEN
REQUIRING THAT THE FINAL NEGOTIATED AGREEMENT TO BE BROUGHT TO
THE CITY COMMISSION FOR ITS CONSIDERATION.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
BACKGROUND
The City Administration has been pursuing a sunscreen license agreement since late 2012 and
has provided periodic updates to the Finance and Citywide Project Committee (FCWPC) at
several meetings throughout the 2013 calendar year. Initially those discussions focused on a
proposal from Energizer who initially was interested in pursuing a licensing agreement with the
City, but has since determine they are only interested in a sponsorship agreement with a flat
annual fee. Estimated total value of the proposed Exclusive Sunscreen Partnership with
Energizer over the term of the agreement was $ 1,500,000, inclusive of an annual sponsorship
fee ($150,000), marketing program to promote product and the City of Miami Beach brand.
However, once you subtract the Annual Commission fee to The Superlative Group (TSG) and
other negotiated benefits the net annual revenue to the City was approximately $115,000 or
$1,150,000 'over the ten (10) year term. Additionally, Energizer had negotiated additional
marketing benefits with an annual value in excess of $500,000. Although Energizer was not
ultimately interested in a license agreement with the City, they were also concerned with the
resources they would need to invest to develop and sell this brand.
Pursuant to the terms of the City's Agreement with TSG, TSG is entitled to 15% commission on
gross revenue between $0 - $250,000, and 12% commission on gross revenue generated
between $250,001 - $500,000 for the City by TSG. The potential revenue generated from this
proposed agreement combined with the gross revenue from the Coca -Cola agreement, entitles
TSG to 12% commission. TSG is also entitled to 10% commission on budgeted cost avoidance
measures as further defined in the agreement, which could be up to an additional $8,050 for
TSG annually.
City Commission Meeting
Official Sun Care License Agreement
September 30, 2013
Page 2 of 6
In April 2013, the City was directly approached by Rayito De Sol regarding their interest in an
exclusive licensing partnership and development of Miami Beach Sunscreen. The
Administration has negotiating with BLIII Holdings, who acquired the North America rights to
Rayito de Sol and Tortulan brands, regarding a Miami Beach Licensing Agreement.
PROPOSED LICENSING PARTNERSHIP — BLIII HOLDINGS
Rayito De Sol was established over 70 years ago in Argentina as a family run business. Today
Rayito De Sol is the #1 sun care brand in Argentina and is the #1 selling bronzing sunscreen in
Brasil. It has been available in over 10 other countries including Mexico, Venezuela, Ecuador
and Paraguay and recently expanded to offer its sunscreen, bronzer, and instant color
collections in the United States. Rayito De Sol products are currently available at ULTA, Kerr
Drug, Del Haize, ,H -E -B and Airport Newslink as well as their online store.
BLIII Holdings is locally owned and locally operated by the Leon family, a fourth generation
Cuban American entrepreneurial family with experience in diverse industries. BLIII entered into
the sun care and skin care industries in 2011 by acquiring the North America rights to Rayito de
Sol and Tortulan brands, top - selling Latin American brands with over seventy years of history
and heritage.
BLIII proposes the creation of an entirely new brand and line of sun care products that leverage
key elements of Miami Beach. BLIII in partnership with the City of Miami Beach, would utilize its
network of domestic and international development and sales experts to bring the Miami Beach
Brand to the global consumer with unique, high quality products that represent Miami Beach.
Products would be manufactured in Florida at state of the art facilities.
BLIII has begun doing research on product development including pricing, packaging, consumer
focus groups, logo development, quality control, and distribution. During their research they
have- also been able to put together sales forecasts, estimated costs, and their plans for
successful market penetration.
Based on an initial USA market launch and reaching an achievable market share within three to
five years, BLIII proposes a partnership agreement whereby net profits would be shared
between the City of Miami Beach and BLIII. BLIII estimates this distribution could be valued in
excess of $1 million USD annually by year's three to five of the venture.
BLIII believes that together with the City, they can position the Miami Beach Brand as a leader
in destination branding and products and help connect consumers all over the world,to -the City
of Miami Beach. Since the May FCWPC meeting, BLIII has continued their consumer focus
groups and research and also attended the ECRM trade show in July to gauge interest from
retailers for a potential Miami Beach Sun Care product line. The results of their focus groups,
research and industry meetings were overwhelmingly positive and BLIII remains very interested
in moving forward with a contract for an exclusive sunscreen licensing agreement with the City.
PRODUCT QUEST MANUFACTURING, LLC
Destination Brands has partnered with Product Quest Manufacturing, LLC (Product Quest) to
produce, package and fulfill orders for. the Miami Beach Sunscreen. Product Quest
manufactures over - the - counter sunscreen, health and beauty care products on a contract basis.
Its services include research and development, production, designing and packaging,
warehousing, fulfillment, and sales and marketing. The company offers drugs in the nasal and
City Commission Meeting
Official Sun Care License Agreement
September 30, 2013
Page 3 of 6
ear care categories, as well as beauty products, including skin lotions, cosmetics, and
. shampoos. It also markets and sells Scherer Labs branded healthcare products in the United
States and internationally. Product Quest was named by CVS as 2013 supplier of the year.
Product Quest was founded in 1996 by John Regan and is based in Daytona Beach, Florida.
More than 15 years later, Product Quest is a multi - million dollar operation with two locations
capable of producing more than 60 million units a year. They are also a fully licensed over -the-
counter (OTC) drug manufacturer with over 200 employees. Mr. Regan has more than 31 years
experience in managing manufacturing companies and launched his career with Hawaiian
Tropic in Daytona Beach, FL.
Product Quest services include private label and contract manufacturing. These services
include the following:
• Turnkey product development, manufacturing and shipping programs
• A la carte contract manufacturing services
• Full service research and development
• Full service graphics & packaging design
• Complete logistics & fulfillment support
Assistant City Manager Kathie Brooks and Tourism, Culture and Economic Development
Director Max Sklar, visited Product Quest facilities in Daytona Beach in July 2013. The
manufacturing facility in Daytona .Beach is 170,000 square feet with 17 production lines,
research and development and quality control regulatory labs. Based on the visit and
subsequent discussions with Product Quest the Administration feels confident that Product
Quest is the right partner for Destination Brands to contract with for the Miami Beach
Sunscreen.
PRODUCT
The exclusive and official sun and skin care brand of the City will be manufactured with salt
water, sea foam, sea kelp, sand, and other high quality products and sea elements representing
the Miami Beach brand. The initial product line will include a sport spray (SPF 50), Sunscreen
(SPF 30 and 15), Daily Sea Foam Wash, Daily Exfoliant, as s line of sunless tanning products.
Attached are images of the initial product line.
FINANCE AND CITYWIDE PROJECTS COMMITTEE
The FCWPC discussing the proposal at their May 13, 2013 meeting and expressed the
importance of having a high level of quality control and that all advertising promotes the Miami
Beach community in a positive light. The FCWPC passed a motion recommending, the
Administration proceed with the analysis and negotiations with BLIII and to bring this item back
to a future FCWPC meeting.
The FCWPC also discussed this at their July 8, 2013 meeting the Administration provided a
brief explanation of both the negotiation with Energizer, and then the negotiations with BLIII.
The Committee recommended only pursuing the licensing agreement with BLIII because the
Energizer proposal limited revenue to a maximum of $150,000 annually.
At the August 21, 2013 FCWPC the Administration provided an update and summary of the
proposed terms with BLIII. The Committee expressed support for a sunscreen license
City Commission Meeting ,
Official Sun Care License Agreement
September 30, 2013
Page 4 of 6
agreement, but requested to see the definition of Net Profit, which, at the time of the Committee
meeting, was still being negotiated between both parties. There was also a request to compare
this proposal against other similar agreements.
LICENSE AGREEMENTS
In a typical licensing agreement, the licensor grants the licensee the right to produce and sell
goods, apply a brand name or trademark, or use patented technology owned by the licensor. In.
exchange, the licensee usually submits to a series of conditions regarding the use of the
licensor's property and agrees to make royalty payments. A license under intellectual property
commonly has several components beyond the grant itself, including a term, territory, renewal
provisions, and other limitations deemed vital to the licensor.
In most cases, it is to the licensor's advantage to have a shorter rather than a longer term. If the
licensing arrangement is successful, a shorter term will give the licensor an opportunity to
negotiate a higher royalty rate before renewing the license agreement. As a compromise, the
- licensor and the licensee may agree to a short initial term with an automatic renewal if certain
sales or royalty targets are met, or, alternatively, to a longer term with an automatic termination
if specific sales or royalty targets are not met.
Industry norm for royalty rates can range from 2% to 20% of the licensee's net rsales. Rates will
vary depending on the type of licensed property, the type or types of licensed products to be
- manufactured, the current or anticipated demand for the licensed products, and the track record
of the licensor. Entertainment and sports properties and single event properties tend to "
command higher royalty rates than fashion, art_ and corporate trademark properties. Food
products tend to yield a lower rate due to the generally low profit margins in the food industry.
The royalty rate for any particular licensing deal will depend on a variety of factors, including:
• Consumer recognition of the licensed property
• Television, movie, publishing or other current or anticipated exposure .for the licensed
property
• The licensed products on which the licensee will be authorized, to use the property
• The territory and channels of distribution offered to the licensee
• The extent to which there are other supporting licenses in place
• The start date and term of the license
• Retailer interest in the licensed property and /or licensed products
Staff researched and reviewed agreements from private brands, as well as the City of New York
who is the leader in municipal licensing and has been able to use their best practices in
negotiations with BLIII.
SUMMARY OF NEGOTIATED TERMS WITH DESTINATION BRANDS / BLIII HOLDINGS
In exchange for the City's agreement to license the Miami Beach brand to BLIII /Destination
Brands for the sole purpose of developing, manufacturing, marketing and distributing the Miami
Beach Sun Care Line as the exclusive and official sun and skin care brand of the City, the
Administration and BLIII /Destination Brands have negotiated the attached License Agreement
(Exhibit 1), which proposed terms are summarized as follows:
• Initial term of five (5) years with Destination Brands, which is a wholly owned subsidiary
of BLIII Holdings.
City Commission Meeting
Official Sun Care License Agreement
September 30, 2013
Page 5 of 6
• Renewal terms of three (3) years each as follows:
o First renewal at the sole discretion of Destination Brands.
o Second renewal at the sole discretion of the City.
o Three (3) additional renewal terms mutually agreed upon by both parties.
• Intellectual Property: Royalty Payments will be for the Licensing of the Miami Beach
Logo (as represented in the typestyle /font) and for the designation as the worldwide,
exclusive and official sun care brand of the City of Miami Beach.
• Minimum annual marketing investment of ten percent (10 %) of net revenue.
• Destination Brands responsible for design, research, development, sales,
manufacturing, distribution, and account management.
.. • City of Miami Beach agrees to promote the designated brands at no cost through, its
government- access communication resources upon availability and provided such
promotion does not violate any federal, state and /or local laws or any other policies or
agreements.
• Public Benefits will include the following:
o Up to one percent (1%) of proceeds of the sale of each product will go towards
funding beach cleanups and sun protection education.
o A minimum of 500 units of sunscreen annually for the City's lifeguards.
• All. photographic, video and other marketing and advertising footage must be real
depictions of Miami Beach and take place in Miami Beach.
• City to have 40% representation on Advisory Board.
• City to have right to audit throughout the term of the Agreement and for a period of five
(5) years after either termination or expiration of the Agreement of all books and records
relating to the Agreement to verify accuracy thereof. All costs of City audits will be a
cost of the Agreement and must be paid by Destination Brands.
As you may recall, the City previously was negotiating royalty payments ranging from 25% -
75% on a tiered schedule based on Net Profit. However, as negotiations proceeded the
Administration and Destination Brands could not agree on a definition of Net Profit. Based on
the - research from standard license agreements the City and Destination Brands negotiated
royalty payments from Net Sales. Although the percentage of royalty payments is lower than
originally presented, this is better because the City will receive royalties before costs incurred in
the normal course of business are deducted.
As a result, negotiations resumed on a Net Sales basis and Destination ,Brands has agreed to
pay City royalties as follows:
o 9% of Net Sales until sales reach $150,000
o 6% of Net Sales from $150,001 - $1,000,000 in sales
o 3% of Net Sales beyond $1,000,001.
o Net Sales is defined as: Gross Sales less returns, quantity discounts (including
unsalable, Coop, slotting /stocking fees), but no deduction made for other
discounts or uncollectable accounts. No costs incurred in the normal
manufacture, sale, distribution or exploitation of the product shall be deductible
from any royalties.
o Royalty payments begin to accrue January 1, 2015.
o In the event the City terminates the agreement, City agrees to not
compete /license Miami Beach Logo in the sun care category for a period of 2
years after the termination of the agreement.
In addition, the City has the ability to terminate if net sales of the Goods fails to reach $150,000 by the
end the first Term, with thirty (30) days written notice to Licensor.
City Commission Meeting
Official Sun Care License Agreement
September 30, 2013
Page 6 of 6
Please note that the City and Destination Brands have commenced negotiations with the
Boucher Brothers with regard to the sale of the Miami Beach sun care product line. Section
16.5 of City's agreement with the Boucher Brothers does require the Boucher Bothers to sell
only the products under the City's exclusive endorsement and /or sponsorship agreement.
However, the City's desire is to work with the Boucher Brothers to sell the Miami Beach sun
care product at all of their concessions in Miami Beach (public and private) and at their
concession operations throughout the rest of the country. Therefore, the City and Destination
Brands have been negotiating mutually beneficial terms for Boucher Brothers. Those
negotiations are ongoing and have been very positive.
Destination Brands has already invested considerable funding in research and product
development in order to have the product ready to go to market in 2014, something Energizer
was not interested in doing.
CONCLUSION
An reviewing other municipal sponsorship or licensing agreements in place or that have been
negotiated in the past in other cities or public institutions, it is difficult to find a similar contract to
compare. For example, New York City has numerous license agreements for a variety of
trademarks they own, but there is no comparable agreement for a municipal sun care line and
this seems to be the first of its kind in the public sector.
The licensing proposal from Destination Brands offers the City the potential to achieve higher
net proceeds than the Energizer proposal while developing a Miami Beach branded sun care
line with broad distribution. This, in itself, has a tremendous value toward building the City's
brand and increase awareness of the destination.
Destination Brands continues negotiating with retailers, but is on a very tight timeline to
manufacture the product and fulfill orders in order to have the product to market by January
2014. In order to not jeopardize the business the Administration has finalized negotiations with
Destination Brands in order to have the attached license agreement ready for the City
Commission's consideration.
Therefore, the Administration recommends the Mayor and City Commission approve a license
agreement between the City and Destination Brands for an'exclusive Miami Beach sun care
line, with substantive terms described more specifically in Exhibit "A," with said Agreement
havin n initial term of five (5) years.
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Sklar, Max
From: Fernandez, Alex
Sent: Friday, September 27, 2013 9:58 AM
To: Morales, Jimmy; Smith, Jose; Granado, Rafael
Cc: Weithorn, Deede; Monserrat, Marcia; Moya Denham, Maria; Cardillo, Lilia; Sklar, Max
Subject: Sunscreen Licensing Agreement
Importance: High
Good morning:
Commissioner Weithorn would like to refer an item to the September 30th City Commission agenda regarding our municipal
marketing partnership for sunscreen licensing. This item was discussed during the August 21st, 2013 meeting of the Finance
Committee. The Committee was presented with Miami Beach branded sunscreen by BLIII Holdings, the North American rights holder
of Rayito de Sol, a top - selling Latin American brand distributed in North America. BLIII Holdings together with its partner, Product
Quest Manufacturing, is interested in developing a Miami Beach branded sun care line. In exchange for the City's agreement to
license the Miami Beach brand to BLIII, the Committee directed the Administration to finalize negotiating the terms on page three of
item 2F of the August 21st, 2013 Finance Committee agenda. These terms were to be presented at the regularly scheduled
September meeting of the City Commission which Commissioner Weithorn was unable to attend. To avoid further delays,
Commissioner Weithorn requests that the negotiated terms be presented for approval of the City Commission at the next City
Commission meeting scheduled for Monday, September 30th, 2013.
Please contact Commissioner Weithorn's office with any questions and /or concerns. Please accept this email in lieu of a
memorandum.
Alex J. Fernandez,
Commissioner Deede Weithorn's Office
Office of the Mayor & Commission
City of Miami Beach
1
EXHIBIT "A"
License Agreement
THIS AGREEMENT is made this day of , 2013 by and between
the City of Miami Beach, with a principal place of business at 1700 Convention
Center Dr., Miami Beach, FL 33139, ( "Licensor "); and Destination Brands
International, LLC, a Florida Limited Liability Company with a principal place of
business at 11501 S.W. 40th Street, 2nd Floor, Miami, FL 33165 ( "Licensee ").
WHEREAS Licensor has adopted and used the trademark "Miami Beach" and
Licensor intends to adopt the Marks M.B.: (the "Marks ") for non - medicated sun care
preparation - and skin i preparations with whichit has used the Marks since at Teast
as�early -as 192; and
WHEREAS Licensor owns a federal registration for the Mark for the above -
me4ioned goods; U.S.. Trademark Registration ,No. 4;204,713, which registration
was granted on Septemb and / Li owns (INSERT MARKS); and
I �l
WHEREAS the Marks, due to Licensor 's lon and widespread use and promotion of
the Marks and the goiods and, services /for which it ; is used,. has become well -known
and recognized /by the general public - and ass, ciated in the public mind with
Licensor; and
WHEREAS - Licensee desires to utili Marks upon and in connection with the
manufacture, sale and distribution of the goods hereinafter described:
NOW, THEREFORE, in consideration of the mutual promises herein contained, and
for good and valuable consideration, receipt of which is hereby acknowledged by the
parties, it is hereby agreed:
1. GRANT OF LICENSE:
(a) Goods. Upon the terms and conditions hereinafter set forth, Licensor hereby
grants to Licensee, and Licensee hereby accepts the right, license and privilege to
utilize the Marks upon and in connection with the manufacture, sale and
distribution of the following goods: non - medicated sun care preparations, non -
medicated skin care preparations (the Goods).
(b) Territory. The license hereby granted extends worldwide.
(c) Term. The term of the license hereby granted shall commence on the
day of 2013 and shall continue until the
day of 2018, unless sooner terminated in
accordance with the provisions hereof.
(d) Renewal: The License Agreement may be renewed as follows:
1. Licensee has the sole discretion to renew for one (1) additional
three (3) year term following the termination of the initial term.
2. Licensor has the sole discretion to renew for one (1). additional
three (3) year term following the termination of the first renewal term.
3. Following the second renewal term, the license may be renewed
for three (3) additional three (3) year terms upon mutual agreeable
terms.
2. TERMS OF PAYMENT:
(a) Rate. Licensee agrees to pay Licensor as royalty as follows:
1. A sum equal to nine percent (9 %) of net sales by Licensee or any of its
affiliated associated or subsidiary companies of the Goods covered by this
Agreement up to the first $150,000 of net, sales - '
2. A sum equal to six percent (6 %) of net sales by Licensee or any of its
affiliated, associated or subsidiary companies of the Goods covered by this
Agreement between $150,001 and $1,000,000 in net sales; and
�J
3. A sum equal to three percent (3 %) of net sales by Licensee or any of its
affiliated, associated or subsidiary companies of the Goods covered by this
Agreement above $1,000,001 of net sales.
4. The term "net sales" shall mean gross sales less quantity discounts
(including unsalable; coop, slotting and stocking fees) and returns, but no
deduction shall be made for cash or other discounts or uncollectible
accounts. No costs incurred in the manufacture, sale, distribution or
exploitation of the Goods shall be deducted from any royalty payable by
Licensee.
5. Royalty payments shall begin to accrue twelve (12) months from the
start of sales or January 1,2015 whichever is sooner.
(b) Periodic Statements. Within days after the initial shipment of
the Goods covered by this Agreement, and within 90 days of the end of each
calendar year Licensee shall furnish to Licensor complete statements certified to be
accurate by Licensee showing the number, description and gross sales price of the
Goods, as well as itemized deductions from gross sales price and net sales price of
the Goods distributed and /or sold by Licensee during the preceding calendar
quarter, together with any returns made during the preceding calendar quarter. For
this purpose, Licensee shall use the statement form attached hereto, copies of which
form may be obtained by Licensee from Licensor. Such statements shall be'
furnished to Licensor whether or not any of the Goods have been sold during the
preceding calendar quarter.
(d) Royalty Payments. Royalties shall be due within ninety (90) days following the
end of the calendar year in which they are earned, and payment shall accompany
the statements furnished as required above. The receipt or acceptance by Licensor
of any of the statements furnished pursuant to this Agreement or of any royalties
paid hereunder, or the cashing of any royalty checks paid hereunder shall not
preclude Licensor from questioning the correctness thereof at any time, and in the
event tliat -any inconsistencies or mistakes are discovered in suchFstatements or
payments; they shall immediately be rectihedland the appropriate payment -made
by�L" ensee'.\Payment sliall begin U.S. funds. Domestic taxes payable in the licensed
territory shall \bepayable by Licensee. 1
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3. EXCLUSIVITY: ! t
(a) The License granted he`r`ein shall be ex to Licensee - for use of the Marks in
connection with the Go ohs.
I '
(b) It is agreed that if Licensor conveys an off re tj Licensee to purchase any of the
Goods d in connection with a premium, giveaway or other promotional arrangement,
Licensee -shall have ten)days within (which to accep.t)or reject such an offer: An the
event that Licensee fails to accept such offer within the specified ten days, Licensor
shall have the right to enter into the proposed premium, giveaway or promotional
arrangement using the services of another manufacturer, provided, however, that in
such event Licensee shall have a three day period within which to meet the best
-offer of such manufacturer for the production of such Goods if the price of such
manufacturer is higher than the price offered to Licensee by Licensor. Licensee
agrees that it shall not, without the prior written consent of Licensor, (i) offer the
_ Goods as a premium in connection with any other product or service, or (ii) sell or
distribute the Goods in connection with another product or service which product or
service is a premium.
4. GOODWILL: Licensee recognizes the great value of the goodwill associated with
the Marks, and acknowledges that the Marks and all rights therein and the
goodwill appurtenant thereto belong exclusively to Licensor.
5. LICENSOR'S TITLE AND PROTECTION OF LICENSOR'S RIGHTS:
(a) Licensee agrees that it will not during the term of this Agreement, or thereafter,
attack the title or any rights of Licensor in and to the Marks or attack the validity
of this license. Licensor hereby agrees to indemnify Licensee and undertakes to hold
it- harmless against any claims or suits arising solely out of the use by Licensee of
the Marks as authorized in this Agreement, provided that prompt notice is given to
Licensor of any such claim or suit and provided, further, that Licensor shall have
the option to undertake and conduct the defense of any suit so brought and no
settlement of any such claim or suit may be made without the prior written consent
of Licensor.
(b) Licensee agrees to assist Licensor to the extent necessary in the procurement of
any registration for or to protect any of Licensor's rights to the Marks, and Licensor,
if it so desires may commence or prosecute any claims or suits in its own name or in
the name of Licensee or join Licensee as a party thereto. Licensee agrees to assign
the mark' Miami Beach, Federal Trademark Serial number 85904724 to Licensor
upon execution of this agreement. Licensee shall notify Licensor imv riting`of any
1 infringements or imitations -by others of the Marks on Goods. the same-as-or simila =r
to those covered by this Agreement which may come to Licensee's attention ' and
t.
Licensor shall have the sole right to determine whether or not any action shall be
taken on account of any such infringement` ,, or imitations. Licensee shall not
institute any suit or take—any/ action on/ account of an such infringements or
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imitations without first obtaining the written consent of the Licensor to do so.
6.. INDEMNIFICATION BY\ LICENSE N AND PRODUCT LIABILITY
INSURANCE:
(a). Licensee. hereby agrees to indemnify /Licensor and to defend Licensee
and /or Licensor against and holdJLicensor harmless for any claims, suits,_loss or
damage arising out of any allegedly unauthorized use of any trademarks, patent,
process, idea, method or device by Licensee in connection with the Goods covered by
this Agreement or any other alleged action by Licensee and also from any claims,
suits, loss or damage arising out of alleged defects.in the Goods.
(b) Licensee agrees that it will obtain, at its own expense, Commercial General
Liability on a comprehensive basis, including Personal Injury Liability and
Products /Completed Operations, in an amount not less than $5,000,000 combined
single limit per occurrence, for bodily injury and property damage. from a
recognized insurance company which has qualified to do business in the state of
Florida, providing adequate protection, at least in the amount' of $5,000,000, for
Licensor (as. well for Licensee) against any claims, suits, loss or damage arising out
of any alleged defects in the Goods. In addition, Licensee agrees that it will obtain
at its own expense Professional Liability Insurance in an amount not less than
$1,000,000 with the deductible per claim, if any, not to exceed 10 %, of the limit of
liability.
As proof of such insurance, a fully paid' certificate of insurance naming Licensor as
an insured party will be submitted to Licensor by Licensee for Licensor's prior
approval before any Goods is distributed or sold, and at the latest within thirty days
after the date first written above; any proposed change in certificates of insurance
shall be submitted to Licensor for its prior approval. Licensor shall be entitled to a
copy of the then existing certificate of insurance, which shall be furnished to
Licensor by Licensee.
(c) As used in the first two sentences of this paragraph 6, and for purposes of
determining liability to "Licensor," Licensor shall include the officers, directors,
agents and employees of the Licensor, or any of its subsidiaries or affiliates, any
person(s) the use of whose name may be licensed hereunder, the package producer
and the cast of any radio and /or television program whose name may be licensed
hereunder, and any producer of packaging or material pursuant to such license.
7. QUALITY OF MERCHANDISE:
(a); Licensee .agrees that the Goods covered by this Ai reement .shall be of high
standard and of such style, appearance and quality as to be adequate and suited to
their exploitation to the best advantage and to the protection and enhancement of
the Marks and the .goodwill pertaining thereto, that such Goods will be
manufactured, sold and distributed in accordance with all app ical ble federal!, state
and local laws, and that' the manufacture,. sale and distribution shall not ireflect
adversely upon the good name of Licensor or any of its programs or the Marks'.
(b) Licensee- shall, before selling or distributing any of the Goods, furnish to
Licensor -free of cost for its written approval a reasonable number of samples of each
Goods', its cartons, containers, packing and wrapping material. The quality and
style of such Goods as well as of any carton, container, packing or wrapping
material shall be subject to the approval of Licensor. Such approvals shall not be
unreasonably upheld.
(c) Annually, after Licensee has commenced selling the Goods and upon Licensor's
written request, Licensee shall furnish without cost to Licensor not more than Five
Hundred (500) additional random samples of each Goods being manufactured and
sold by Licensee hereunder, together with any cartons, containers, packing and
wrapping material used in connection therewith.
(d) Licensee shall contribute up to one percent (1 %) of proceeds of the sale of
each product towards funding beach cleanups and sun protection education.
8. LABELING:
(a) Licensee agrees that it will cause to appear on or within each Goods sold by it
under this license and on or within all advertising, promotional or display material
bearing the Marks, the symbol and any other notice desired by Licensor and, where
such Goods or advertising, promotional or display material bears the trademarks or
service Marks, appropriate statutory notice -of registration or application for
registration thereof. In the event that any Goods is marketed in a carton, container,
packing or wrapping material bearing the Marks, such notice shall also appear
upon that carton, container, packing or wrapping material. All proposed packaging
of the Goods bearing the Marks shall be submitted to Licensor for approval of the
appropriate use of the Marks and statutory notice. Such approval shall not be
unreasonably withheld. Approval by Licensor shall not constitute a waiver of
Licensor's rights or Licensee's duties under any provision of this Agreement.
(b) here icens aee grees to cooper: t f` lly and in good faith with Licensor for-the purpose
of securing and preserving Licensor's (or 1 ny' grantor of Licensors) rights in'and to
the Marks. In`the event there has! been no previous registration of the Marks land /or
Goods and /or any material relating thereto, , 'Licensee shall, at Licensor's request
and expense, coo peratte l in the effort to/ register such a copyright, trademarks or
service Marks 4n ithe !appropr a te class''in` the'name of Licensor. It is agreed that
nothing contained in this Ag\ eement shall be co ns, rued as . - An assignment or grant
to the Licensee of any right, title or interest in or to the Marks, it being understood
are reserved — by Licensor, except for the license
th j t fall rights i elati g } thereto
hereunder to Licensee of the right to use and utilize the Marks only as specifically
and expr se sly/providedj in this Agreement. Licensee hereby agrees that at the
termination or expiration of this Agreement Licensee will be deemed' -to have
assigned, transferred and conveyed to Licensor any rights, equities, goodwill, title
or other rights in and to the Marks which may have been obtained by Licensee or
which may have vested in Licensee in pursuance of any endeavors covered hereby,
and that Licensee will execute any instruments requested by Licensor to accomplish
or confirm the foregoing. Any such assignment, transfer or conveyance shall be
without other consideration than the mutual covenants and considerations of this
Agreement.
(c) Licensee hereby agrees that its every use of the Marks shall inure to the benefit
of Licensor and that Licensee shall not at any time acquire any rights in the Marks "
by virtue of any use it may make of the Marks.
9. PROMOTIONAL MATERIAL:
(a) Licensor agrees that Licensee's Goods shall be designated the worldwide,
exclusive and official sun care product of Licensor.
(b) In all cases where Licensee desires artwork involving Goods, which are the
subject of this license, the cost of such artwork and the time for the production
thereof shall be borne by Licensee. All artwork and designs involving the Marks, or
any reproduction thereof, shall, notwithstanding their invention or use by Licensee,
be and remain the property of Licensor and Licensor shall be entitled to use the
same and to license the use of the same by others.
(c) Licensor agrees to promote the Goods at no cost through its government
access communication resources upon availability, provided such promotion does
not violate any federal, state and /or local laws and policies and other said terms and
agreements. Licensor shall have the right, but shall not be under any obligation, to
use the Marks and /or the name of Licensee so as to give the Marks, Licensee,
Licensor and /or Licensor's programs full and favorable prominence and publicity.
(d) Licensee agrees not to offer for sale, advertise or publicize any of the
Goods hereunder on radio or television without prior written approval of Licensor
which- Licensor may grant or withhold in its unfettered discretion. Licensee agrees
that -any visual marketing,, including, but not limited to, photography, rdeo and
film must be real depictions of Miami Beach and take place :in Miami Beach
(e) Licensee agrees to. annual invest' a minimum of ten percent (10%) of net
revenue toward the marketing and promotion of the product.
10: DISTRIBUTION:
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(a) Licensee agrees that during the term of this license it will diligently and
continuous) manufacture distributeand sell the Goods covered b this Agreement
reement
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and that it will make and maintain adequate arrangements for the distribution of
the Goods.
(b) Licensee agrees to sell to Licensor such quantities of the Goods at as low a rate
and on as good terms as Licensee sells similar quantities of the Goods to the general
trade.
11. RECORDS:
(a) Licensee agrees to keep accurate books of account and records covering all
transactions relating to the license hereby granted, and Licensor and its duly
authorized representatives shall have the right at all reasonable hours of the day to
an examination of these books of account and records and of all other documents
and materials in the possession or under the control of Licensee with respect to the
subject matter and terms of this Agreement, and shall have free and full access
thereto for these purposes and for the purpose of making extracts therefrom.
Licensor, Licensee shall at its own expense furnish to Licensor a detailed audited
statement prepared annually by an independent certified public accountant
showing the number, description, gross sales price, itemized deductions from gross
sales price and net sale price of the Goods covered by this Agreement distributed
and /or sold by Licensee to the date of Licensor's demand. All books of account and
records shall be kept available for at least five (5) years after the termination of this
license.
(b) Public Records. Licensee, understands that the public shall have access al all
reasonable time to City contracts, subject to the provisions of Chapter 119, Florida
Statutes, and agrees to allow access by the City and the public to all documents
subject to disclosure under applicable law.
12. BANKRUPTCY, VIOLATION, ETC.:
(a) If Licensee shall not have commenced in good faith to manufacture and
distribute in substantial quantities all the Goods within three months after the date
of this Agreement or if at any time thereafter in any caleridlar ~month Licensee fails
to sell any of the Goods (or any class or category of the G in addition
to ;all other - remedies available to it hereunder, may terminate this license with
respect to any., Goods or class or category thereof which have not been manufactured
and distributed during such ,month, by giving written notice of termination to
Licensee. Such notice shall be effective when mailed by Lic ensor. _In addition, if net
sales of the Goods fails to reach $150,000. by the end the first Term, Licensor may
terminate this license, with thirty (30) days writteii,notice to IJ ne sor.
(b) If Licensee makes an assignment •for the benefit of 'its; creditors or if Licensee
discontinues its business, the license hereby granted shall jautomatically terminate
forthwitlfwithout any notice whatsoever being necessary. In the event this license
is so terminated, Licensee, its, representatives, tr-uste'es, J agents, administrator,
successors and /or assigns shall have no right to sell, exploit or in any way deal with
or in any Goods covered by this Agreement or any carton, container, packing or
wrapping material, advertising, promotional or display material pertaining thereto,
except with and under the special consent and instructions of Licensor in writing,
which instructions it shall be obligated to follow.
(c) If Licensee shall violate any of its other obligations under the terms of this
Agreement, Licensor shall have the right to terminate the license hereby granted
upon ten days' notice in writing, and such notice of termination shall become
effective unless Licensee shall completely remedy the violation within the ten -day
period and satisfy Licensor that such violation has been remedied.
(d) Termination of the license under the provisions of this paragraph shall be
without prejudice to any rights,, which Licensor may otherwise have against
Licensee. Upon the termination of this license, notwithstanding anything to the
contrary herein, all royalties on sales theretofore made shall become immediately
due and payable and no minimum royalties shall be repayable or avoidable.
13. FINAL STATEMENT UPON TERMINATION OR EXPIRATION: Sixty days
before the expiration of this license and, in the event of its termination, ten days
after receipt of notice of termination of the happening of the event which terminates
this Agreement where no notice is required, Licensee shall furnish to Licensor a
statement showing the number and description of Goods on hand or in process.
Licensor shall have the right to take a physical inventory to ascertain or verify such
inventory and statement, and refusal by Licensee to submit to - such physical
inventory by Licensor shall forfeit Licensee's right to dispose of such inventory with
Licensor retaining all legal and equitable rights Licensor may have in the
circumstances.
14. DISPOSAL OF STOCK UPON TERMINATION OR EXPIRATION: After
termination of the license under the provisions of paragraph 12, Licensee, except as
otherwise provided in this Agreement, may dispose of Goods which are on hand or
in process at the time notice of termination is received for a period of sixty days
after Mt ce�f termination, provided advances and royalties with respect to that
period-a- re paid and statements are furnished for that period in accordance- -with
paragraph 2 Notwithstanding anything to thelcontrary herein, Licensee shall not
manufacture, sell or dispose of any Goods /covered by this license after its expiration
or fits termination based on the failure of the Licensee to affix a notice of copyright,
trad mark or service Ima any other notice to the Goods, cartons,
containers, packing or wrapping material, advertising, promotional or display
� f' �
material, or if)the Licens ee has departed fromjt k e quality - arid style app ro ved by
Licensor pursuant to paragraph 7.
15� EFFECTYOF TERMINATION N': Upon and after the expiration
or � termination of this I license, all rights granted, to :Licensee hereunder shall
forthwith- revert to Licensor. License efwill refrainlr.6m further use of the Marks or
any further reference to it, direct or indirect, or use of any Marks deemed by
Licensor to. be similar to the Marks in connection with the manufacture, sale or
distribution of Licensee's products, except as provided in paragraph 15. Licensor
agrees that for a period of two (2) years from the termination date, it. shall not
license to others the use of the Marks in connection with the manufacture, sale or
distribution of the Goods.
16. LICENSOR'S REMEDIES:
(a) Licensee acknowledges that its failure (except as otherwise provided herein) to
commence in good faith to manufacture and distribute in substantial quantities any
one or more of the Goods within three months after the date of this Agreement and
to continue during the term hereof to diligently and continuously manufacture,
distribute and sell the Goods covered by this Agreement or any class or category
thereof will result in immediate damages to Licensor.
(b) Licensee acknowledges that its failure (except as otherwise provided herein) to
cease the manufacture, sale or distribution of the Goods or any class or category
}
thereof at the termination or expiration of this Agreement will result in immediate
and irremediable damage to Licensor and to the rights of any subsequent licensee.
Licensee acknowledges and admits that there is no adequate remedy at law for such
failure to cease manufacture, sale or distribution, and Licensee agrees that in the
event of such failure Licensor shall be entitled to equitable relief by way of
temporary and permanent injunctions and such other further relief as any court
with jurisdiction may deem just and proper.
(c) Resort to any remedies referred to herein shall not be construed as a waiver of
any other rights and remedies to which Licensor may be entitled under this
Agreement or ,otherwise.
17. EXCUSE FOR NONPERFORMANCE: Licensee shall be released from its
obligations hereunder and this license shall terminate in the event' that
governmental regulations or other causes arising out of a state of national
emergency or war or causes beyond the control of the parties render performance
impossible and the Licensee.so informs the Licensor in writing.of such - .causes -and
its' desire to so released. Iii such event, all royalties on sales theretofore made
shall become immediately due and payable . and no minimum royalties ( sliall be
repayable.
18# NONDISCRIMINATION: Licensee represents and warrants to the City that
Licensee does not and will not engage *.in discriminatory practices and that there
shall be no discrimination in connection•with Licensee's use of the Marks on account
of race, color, .sex, religion, age, handicap, marital status,, national origin, or 'sexual
orientation..
19.-CONFLICT OF INTEREST: Licensee is aware of the conflict of interest -laws of
the City of Miami Beach, Miami -Dade County, Florida (Miami -Dade County Code,
Section 2 -11.1 et, seq.) and of the State of Florida as set forth in the Florida
Statutes, and agrees that it will fully comply in all respects with the terms of said
laws and any future amendments thereto.
Licensee further covenants that no person or entity under its employ,
presently exercising any functions or responsibilities in connection with this
Agreement has any personal financial interest, direct or indirect, with the City.
Licensee covenants that, in the performance of this Agreement, no person or entity
having such conflicting interest shall be utilized in respect to services provided
hereunder. Any such conflict of interest(s) on the part of Licensee, its employees or
associated persons, or entities must be disclosed in writing to the City.
20, WAIVER OF JURY TRIAL: The parties hereby knowingly, irrevocably,
voluntarily and intentionally waive any right either may have to a trial by jury in
respect of any action, proceeding or counterclaim based on this License Agreement,
or arising out of, under or in connection with this License Agreement or any
amendment or modification of this License Agreement, or any other agreement
executed by and between the parties in connection with this License Agreement, or
any course of conduct, course of dealing, statements, (whether verbal or written) or
actions of any party hereto. This waiver of jury trial provision is material
inducement for the City and Licensee entering into this subject transaction.
21. ATTORNEYS' FEES: If it becomes necessary for the City or Licensee to enforce
their respective rights under this License Agreement or any part hereof through
litigation, Licensee and City agree that the prevailing party shall be entitled to
recover from the other party all costs and expenses of such litigation, including a
reasonable attorneys' fee and costs, for all trial and appellate proceedings.
22. NOTICES: All notices and statements to be given, and all payments to be made
hereunder, shall be given or made at the respective addresses below:
To Licensor:
City of Miami Beach
1700.Convention Center'Drive
Miami Beach,' 33139
Attn. Jimmy Morales,' City Manager
AND
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Jose Smith, City Attorney
AND
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida
Attn: Max Sklar, Tourism, Culture, & Economic Development Director
To Licensee:
Destination Brands International, LLC
11501 S.W. 40th Street, 2nd Floor,
Miami, FL 33165
Attn: Marcos Perez
Unless notification of a change of address is given in writing, and the date of
mailing shall be deemed the date the notice or statement is given.
23. NO JOINT VENTURE: Nothing herein contained shall be construed to place the
parties in the relationship of partners or joint venturers, and Licensee shall have no
power to obligate or bind Licensor in any manner whatsoever.
24. NO ASSIGNMENT OR SUBLICENSE BY LICENSEE: This Agreement and all
rights and duties hereunder are personal to Licensee and shall not, without the
written consent of Licensor, be assigned, mortgaged, sublicensed or otherwise
encumbered by Licensee or by operation of law. Licensor may assign the Marks, but
shall furnish written notice of assignment.
24. NO WAIVER: None of the terms of this Agreement can be waived or modified
except by an express agreement in writing signed by both parties. There are no
representations, promises, warranties, covenants or undertakings other than those
contained in this Agreement, which represent the entire understanding of the
parties -The failure offeither hereto tc enforce, or the delay by either party
enforcing,�any of its rights_under this Agreement shall not. be deem f d_a_ continuing
waiver or a modification thereof and either party may, within the time provided by
I f '� \ i I 1 t• t 1 t � ?
applicable law,, commence appropriate legal,pi, eedings to enforce any or all of such
rights. No person` firm, group or corporation other than Licensee and Licensor shall
be deemed to I ha ! hav acquired ,/ any rights by reason of anything contained in this
Agreement, except as ,provided -in paragraphs 6 an nd 20.
26 ENTIRE AGREEMENT: This Agr� ii ent } contains • the entire agreement
between the parties relating to the subject hereof, and all prior proposals,
discussions or writin are su erseded hereb . Th'terms of this License shall be
binding - Pon a / nd shall inure to" the benefit of he parties and their successors, heirs
and-assigns. U In U U
27. LIMITATION OF LIABILITY: The City desires to enter into this Agreement
only if in so doing the City can place a limit on its liability for any cause or action
for breach of this Agreement, so that its liability for any such breach never exceeds
the sum of $10,000.00. Licensee hereby expresses its willingness to enter in this
Agreement with a $10,000.00 limitation on recovery for any action for breach of
contract. Accordingly, the City shall not be liable to Licensee for damages to
Licensee.in an amount in excess of $10,000.00, 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 the limitation placed upon
the City's liability as set forth in Florida Statutes, Section 768.28.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed as of the day and year first written above.
City of Miami Beach
By
Matti Herrera Bower, Mayor
City Clerk
Destination Brands International, LLC
Mark Koondel, Member F
j
Dated:
Sep 27, 2013 10:55