2014-28729 Reso I
RESOLUTION NO. 2014-28729
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ACCEPTING THE WRITTEN
RECOMMENDATION OF THE CITY MANAGER (AS SET FORTH IN THE
CITY COMMISSION MEMORANDUM ACCOMPANYING THIS
RESOLUTION) AND WAIVING, BY 5/7T" VOTE, THE COMPETITIVE
BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST
INTEREST OF THE CITY, AND APPROVING, IN SUBSTANTIAL FORM, THE
ATTACHED AGREEMENT BETWEEN THE CITY AND LIVING ARTS
TRUST, INC. D/B/A O CINEMA FOR THE OPERATION, MANAGEMENT,
MAINTENANCE, AND PROMOTION OF A PORTION OF THE BYRON
CARLYLE THEATER, SUBJECT TO FINAL NEGOTIATION OF SAME
BETWEEN THE CITY ADMINISTRATION AND O CINEMA, AND SUBJECT
TO LEGAL REVIEW AND FORM APPROVAL OF THE FINAL NEGOTIATED
AGREEMENT BY THE CITY ATTORNEY'S OFFICE; SAID AGREEMENT
HAVING AN INITIAL TERM OF FIVE (5) YEARS AND ONE MONTH,
COMMENCING RETROACTIVELY ON OCTOBER 1, 2014, AND ENDING,ON
OCTOBER 31, 2019, WITH AN OPTION TO EXTEND THE AGREEMENT
FOR UP TO FIVE (5) ADDITIONAL YEARS (IN EITHER ONE YEAR OR
MULTI-YEAR INCREMENTS, AS DETERMINED BY THE CITY), AT THE
CITY'S SOLE`DISCRETION.
WHEREAS, on April 13, 2011, the Mayor and Commission adopted Resolution No. 2011-
27648, approving a Management Agreement between the City and Stage Door Theater for the
Byron Carlyle Theater., which had an initial term of five (5) years, commencing on May 1, 2011
(Commencement Date)and ending on April 30, 2016 (Expiration Date); and
WHEREAS, Stage Door Theatre terminated its management agreement with the City for
the Byron Carlyle Theater, effective June 1, 2014, due to the unexpected death of its founder and
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resident, David Torres; and
WHEREAS, Mayor Levine and Commissioner Malakoff placed discussion items on the July
23, 2014 City Commission agenda to consider O Cinema as a prospective operator for the Byron
Carlyle Theater and, following discussion, the City Commission unanimously approved a motion
directing City staff to negotiate an agreement with O Cinema to be brought back for consideration;
and
WHEREAS, the Mayor's Blue Ribbon Panel on North Beach, at their meeting held on July
24, 2014, unanimously adopted a motion supporting O Cinema's use of the Byron Carlyle Theater;
and
WHEREAS, O Cinema is a proven operator, with two other theater locations in Miami-Dade
County, Florida; and
WHEREAS, as set forth in the attached City Commission memorandum accompanying this
Resolution, and as required pursuant to Section 2-367(e) of the City Code, the City Manager is
recommending the waiver, by 5/7th vote, of the competitive bidding requirement, as being in the
best interest of the City.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, hereby accept the written recommendation of the
City Manager.(as set forth in the City Commission Memorandum accompanying this Resolution)
and waive, by 5/7 1h vote, the competitive bidding requirement, finding such waiver to be in the
best interest of the City, and approve, in substantial form, the attached agreement between the
City and Living Arts Trust, Inc. d/b/a O Cinema for the operation, management, maintenance and
promotion of a portion of the Byron Carlyle Theater, subject to final negotiation of same between
the City Administration and O Cinema, and subject to legal review and form approval of the final
negotiated agreement by the City Attorney's Office; said agreement having an initial term of five (5)
years and one (1) month, commencing retroactively on October 1, 2014, and ending on October
31, 2019, with an option to extend the agreement for up to five (5) additional years (in either one
year or multi-year increments, as determined by the City), at the City's sole discretion.
PASSED and ADOPTED this l0 day of Y-e f�ein 2014.
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MANAGEMENT AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
LIVING ARTS TRUST, INC. D/B/A O CINEMA
FOR THE MANAGEMENT AND OPERATION OF A PORTION OF THE
BYRON-CARLYLE THEATER
THIS AGREEMENT, is made and executed as of this day of (adkr, 2014
(Effective Date), by and between the CITY OF MIAMI BEACH, a municipal corporation
organized and existing under the laws of the State of Florida, whose address is 1700
Convention Center Drive, Miami Beach, Florida 33139 (City), and the LIVING ARTS TRUST,
INC. D/B/A O CINEMA, a Florida not-for-profit corporation, whose principal address is 2401
Swanson Ave, Miami, Florida 33133 (O Cinema).
BACKGROUND
City is the owner of the Byron Carlyle Theater (the "Theater"), located at 500 71St Street,
Miami Beach, Florida 33141, including that portion of the Theater that is subject to the
Agreement (the "Facility"). The proportionate use of the Theater between the City and O Cinema
is more particularly described and depicted in Exhibit"A" attached hereto and made a part
hereof. The use of the Facility under this Agreement shall not include the use of the Common
Area, as also depicted in Exhibit"A" hereto.
O Cinema is a Florida not-for-profit 501(c)(3) corporation that showcases first-run
independent, foreign, art, and family films with locations in Miami's Wynwood Arts District and
the Village of Miami Shores.
At its regular meeting on July 23, 2014, the Mayor and City Commission directed the
City Administration to negotiate an agreement with O Cinema for the principal purpose of
operating and maintaining the Facility as a Motion Picture Theater, as such term is defined
herein and in the City's Land Development Regulations, as same may be amended from time to
time.
On September 10, 2014, the City Commission adopted Resolution No. 2014-28729,
waiving, by 5/7th vote, the competitive bidding requirement, and authorizing the Mayor and City
Clerk to execute a final agreement upon conclusion of successful negotiations with O Cinema.
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NOW THEREFORE, recognizing the aforestated recitals as true and correct and
incorporating herein, and in consideration of the mutual covenants and conditions herein
contained, it is agreed by the parties hereto as follows:
SECTION 1. DEFINITIONS.
For purposes of this Agreement, the following terms have the meanings referred to in this
Section 1:
"City" -- as defined in the first paragraph of this Agreement.
"City Commission" --the governing and legislative body of the City.
"City Manager" -- the chief executive officer of the City or such person (the City
Manager's designee) as may from time to time be authorized in writing by such administrative
official to act for him/her with respect to any or all matters pertaining to this Agreement. The City
Manager's designee shall be the Director of Tourism, Culture, and Economic Development.
"Commencement Date" -- as defined in Section 2.
"Contract Year' — each one year period during the Term of the Agreement, beginning
October 1St and ending on September 30th, except that the last year of the Initial Term and any
Renewal Term, if granted by the City, at its sole discretion, shall be extended by one month,
ending on October 31.
"Effective Date"—the date as defined in the first paragraph of this Agreement.
"Event" — a single screening of a film or motion picture at the Facility, involving a
scheduled beginning and ending time, typically all within the same day(or, for an evening Event,
typically commencing in the evening and concluding no later than 3:00 a.m. of the succeeding
day, unless otherwise approved in writing by the City Manager). With respect to a "Run" (as
such term is hereafter defined), each screening of a film or motion picture within the Run shall
constitute an Event.
"Event Expenses" -- any and all expenses incurred or payments made by O Cinema in
connection with the occurrence of an Event at the Facility, including, but not limited to, costs for
staffing (including ushers, ticket takers, security, and clean-ups).
"Expiration Date" -- as defined in Section 2.
"Facility" — the portion of the Theater, as defined in the Background Section of this
Agreement, which is depicted in Exhibit "A" hereto, and which constitutes approximately 72% of
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the Theater space. The Facility shall not include the area marked as Common Area (as also
depicted in Exhibit"A" hereto).
"Fiscal Year" -- each City fiscal year during the Term of this Agreement, beginning on
October 1St and ending on September 30tH
"Governmental Requirements" -- all laws, ordinances, rules, regulations, statutes,
policies and procedures (including administrative guidelines), and other legal requirements of
any governmental body or authority or any agency thereof (including, without limitation, federal,
State, County, and City).
Motion Picture Theater — shall have the meaning prescribed in Section 114-1 of the
City's Land Development Regulations, as same may be amended from time to time.
"Net Concession Revenues" — shall mean all Concession Revenues, as defined in the
"Operating Revenues" herein, less the costs of the concession.goods.
"Net Operating Loss/Profit" -- with respect to a Fiscal Year, the excess, if any, of
Operating Expenses for such Fiscal Year over Operating Revenues for such Fiscal Year, in the
case of a loss, and the excess, if any, of Operating Revenues for such Fiscal Year over
Operating Expenses for such Fiscal Year, in the case of a profit.
"Net Ticket Revenues" — shall mean the total Ticket Revenues, as defined in the
"Operating Revenues" herein, less the costs of the film distributor fees.
"O Cinema" -- as defined in the first paragraph of this Agreement.
"Operating Expenses" -- any and all expenses and expenditures of whatever kind or
nature incurred, by O Cinema in promoting, operating, maintaining, insuring and managing the
Facility, including, but not limited to: distributor fees, costs of concession goods, employee
compensation; employee benefits, if any; supplies, materials and parts costs; costs of any
interns and independent contractors; advertising costs; all costs of maintaining the Facility as
required by this Agreement; marketing and public relations costs and commissions; janitorial
and cleaning expenses; dues and membership costs; amounts, expended to procure and
maintain permits and licenses; sales taxes imposed upon ticket sales; professional fees directly
relating to the operation of the Facility; printing costs; Event Expenses; postage and freight
costs; equipment rental costs; computer equipment leases and line charges; telephone and
telecommunications services; artist and talent fees, costs, and expenses, show settlement
charges; security expenses; the cost of employee uniforms, safety and medical expenses;
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exterminator and waste disposal costs; costs relating to the maintenance of signage; the costs
associated with compliance with Governmental Requirements; Shared Utilities (to be split based
on the Proportionate Use of the Facility between O Cinema and the City, as set forth in Section
20.1); and all premiums for insurance carried by O Cinema pursuant to Section 14. Operating
Expenses shall not, however, include any costs of litigation between City and O Cinema, or any
other costs that are specified in this Agreement as costs to.be paid by City. All Operating
Expenses shall be determined in accordance with generally accepted accounting principles
consistently applied and recognized on a full accrual basis.
"Operating Revenues" -- any and all revenues of every kind or nature derived from
promoting, operating and managing the Facility, including, but not limited to revenues from
merchandise sales, equipment rentals, food service and concession revenues (collectively
"Concession Revenues"); provided however, that if such revenues are collected in the first
instance by, and retained by, the concessionaire, only the amount of such revenues paid by the
concessionaire to O Cinema shall be included as Concession Revenues); all box office
revenues, inclusive of ticket sales (collectively "Ticket Revenues"); commissions or other
revenues from decoration and set-up, security, and other subcontractors (however, if such
revenues are collected in the first instance by and retained by such subcontractors, only the
amount of such revenues paid by such contractors to O Cinema shall be included as Operating
Revenues); miscellaneous operating revenues; revenues generated from separate agreements
with O Cinema pertaining to the Facility; sponsorship revenues; interest revenues; rentals, and
advertising sales; all as determined in accordance with generally accepted accounting principles
and recognized on a full accrual basis; Operating Revenues shall not, however, include any
revenue from valet parking or any other parking charges with respect to the Facility or Events
and shall not include any revenues from name-in-title rights (i.e., the right to name the exterior
or interior of the Facility or any portion thereof, except as set forth in subsection 8.3.1 hereof),
and any signage related thereto), all of which are specifically reserved to the City.
"Proportionate Use"—The Proportionate Use of the Theater by the City or O Cinema, as
more particularly delineated in the attached Exhibit "A", with the City using 28% of the Theater
and O Cinema using 72% of the Theater.
"Run" -- A sequence of screenings, on consecutive days, of the same film or motion
picture (i.e. of the same Event).
"Term" -- as defined in Section 2; provided, however, if this Agreement is extended for a
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Renewal Term, all references to "Term" contained herein shall also include the Renewal Term.
SECTION 2. TERM.
2.1 Initial Term. This Agreement shall be for an initial term of five (5) years and
one month, commencing retroactively on October 1, 2014 (Commencement Date), and ending
on October 31, 2019 (Expiration Date), unless earlier terminated pursuant to the provisions of
this Agreement.
2.2 Renewal Term(s). At its sole option and discretion, the City may extend this
Agreement for up to five (5) additional one (1) year terms, and/or multi-year terms, but in no
event to exceed five (5) years in total (each such one year term, or multi-year term, as the case
may be, a Renewal Term), by providing O Cinema with not less than 365 days prior written
notice prior to the Expiration Date, or not less than ninety (90) days written notice prior to the
expiration date of a Renewal Term, as the case may be.
2.2.1 Notwithstanding anything in this Section 2, in the event O Cinema decides
not to renew the Agreement, it shall provide the City Manager with written notice of its
intent not to renew at least 365 days prior to the Expiration Date, or ninety (90) days
written notice prior to the expiration date of the then current Renewal Term, as the case
may be.
SECTION 3. BYRON CARLYLE THEATER FACILITY.
The Facility subject to this Agreement shall be those facilities and spaces more
specifically defined herein and described in the attached Exhibit "A". Subject to the terms of
this Agreement, O Cinema shall have the primary use and sole occupation of the Facility and
shall be responsible for its management, operation, promotion, and maintenance, as further set
forth herein.
SECTION 4. OPERATION AND MANAGEMENT OF THE BYRON CARLYLE.
4.1 General Scope. City hereby engages O Cinema to operate, manage, maintain,
promote and market the Facility during the Term, as a Motion Picture Theater, as defined herein,
showcasing first-run independent, foreign, art, and family films, upon the terms and conditions
hereinafter set forth.
4.2 Manager of the Facility. O Cinema accepts the engagement and agrees to
operate, manage, maintain, promote and market the Facility as a Motion Picture Theater, in a
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manner consistent with other comparable first class Motion Picture Theaters in Miami-Dade
County. For purposes of this Agreement, the term "comparable first-class Motion Picture
Theaters" shall include the Coral Gables Art Cinema, located at 260 Aragon Avenue, Coral
Gables, Florida; the Bill Cosford Cinema, located at 5030 Brunson Drive, Memorial Building,
Coral Gables, Florida; and the other O Cinema theaters, located in Wynwood, at 90 NW 291h
.Street, Miami, Florida, and Miami Shores, at 9806 NE 2"d Avenue (hereinafter the "Comparable
Facilities").
Subject to the terms of this Agreement, O Cinema shall be, as agent for the City, the sole
and exclusive manager of the City to operate, manage, maintain, promote and market the
Facility during the Term. In such capacity, except as otherwise expressly reserved under this
Agreement to the City, and/or except for such matters as are subject to the approval of the City
or City Manager, and further subject to Subsections 4.2.1, 4.2.2, and 4.2.3 hereof, O Cinema
shall have exclusive authority and responsibility over the management and operation of the
Facility and all activities therein.
4.2.1 Permitted Uses. O Cinema shall use the Facility solely and exclusively for
the following purposes:
a) Primary Use as a Motion Picture Theater. The Facility shall be used primarily
as venue for O Cinema's not for profit motion picture presentation company and
showcase independent, foreign, art, family films, or such other films as keeping with
those typically shown at O Cinema's other locations.
b) Secondary (Ancillary) Uses. In addition to the Primary Use as a Motion
Picture Theater, O Cinema may also use the Facility, from time to time, as/for:
i) live theatrical entertainment venue; provided that the Facility, or any
part thereof, will not be used as an adult entertainment establishment (as defined
in Section 142-1271 of the City's Land Development Regulations, as same may
be amended); as a dance hall; or as an entertainment establishment (as defined
in Section 114-5 of the City's Land Development Regulations, as same may be
amended);
ii) private rentals for individual and group events and receptions; and
iii) corporate events and receptions.
c) Food and Beverage Concession. O Cinema shall have the right to operate or,
subject to the City Manager's prior written approval, have a third party concessionaire
operate: a fully stocked beverage concession with a concession menu offering regular
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movie theater fare with an "art house twist," including reasonably priced beer and wine,
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artisan cookies, cupcakes and chocolate ganache goodies. Pursuant to Resolution No.
2014-28790 , the aforementioned permission to sell beer and wine for consumption
within the Facility ("Beer and Wine Privileges") is limited and hereby granted only for 0
Cinema, for so long as 0 Cinema (under its current ownership) shall continue to manage
and operate the Facility during the Term of this Agreement, and shall not extend to any
other operator (including any successors and/or assigns of 0 Cinema). Any change in
ownership including, without limitation, a successor or assign of 0 Cinema, shall be
required to secure the prior written consent from the City of Miami Beach Commission in
order to continue to maintain these Beer and Wine Privileges. 0 Cinema's Beer and
Wine Privileges are further subject to 0 Cinema securing the requisite authorization to
sell the alcohol for consumption pursuant to Section 6-4(a)(4) of the City Code, as may
be amended, which includes, without limitation, compliance with the following criteria:
the sale of alcohol for consumption off the premises is prohibited;
ii. a Minor Control Plan, setting forth hours of operation and alcohol
sales, alcohol service and monitoring procedures, food service, and staff training
must be approved by the City Manager or designee prior to issuance of a license
for alcohol sales or consumption;
iii. the Facility must have designated alcohol beverage consumption
areas;
iv. no "Happy Hour" type of reduced price alcohol beverage
promotion shall be allowed;
v. 0 Cinema shall obtain the requisite state licenses;
vi. 0 Cinema shall collect and remit resort taxes to the City, as
required pursuant to Section 102-306 of the City Code; and
vii. 0 Cinema shall not be permitted to operate between the hours of
3:00 a.m. and 8:00 a.m.
d) "Film-Centric" Merchandising Shop. 0 Cinema shall have the right
to operate or, subject to the City Manager's prior written approval, have a third party
operate, a "film-centric" merchandise shop offering for sale film related T-shirts and other
film memorabilia.
Failure to comply with the provisions of Section 4.2.1 shall be deemed to be a
default under this Agreement.
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4.2.2 Prohibited Uses. It is understood and agreed that the Facility shall be
used by O Cinema during the Term only for the Permitted Uses in subsection 4.2.1, and
for no other purposes or uses whatsoever. Notwithstanding anything contained in
subsection 4.2.1, or any other term or condition of this Agreement: (1) O Cinema will not
make or permit any use of the Facility that, directly or indirectly, is forbidden by any
Governmental Requirement, or that may be dangerous to life, limb or property; (2) O
Cinema shall not present for observation by patrons motion pictures, films, or video
media, distinguished or characterized by an emphasis on matter depicting, describing or
relating to sexual conduct or specified anatomical areas ("Adult Motion Picture Theater");
provided, however, that O Cinema shall be permitted to show films of an adult nature
with strong sexual content provided that such films are reasonably considered of the
type of film that are shown in independent art cinemas in Comparable Facilities; (3) O
Cinema shall not sell books, magazines, periodicals or other printed matter;
photographs, films, motion pictures, videocassettes, slides or other visual
representations; recordings, other audio matter; and novelties or devices; which have as
their primary or dominant theme subject matter depicting, exhibiting, illustrating,
describing or relating to sexual conduct or specified anatomical areas ("Adult Materials");
and (4) O Cinema may not commit waste on the Facility, use the Facility for any illegal
purpose, commit a nuisance on the Facility, or allow any toxic, hazardous or dangerous
substance to be brought into the Facility or stored therein (other than small quantities of
materials customarily used in the operation of a live theatrical performance venue, which
shall be used and stored in compliance with applicable law). In the event that O Cinema
uses the Facility for any purposes not expressly permitted herein, then the City through
its City Manager may declare this Agreement in default and, in addition to all other
remedies available to City, restrain such improper use by injunction or other legal action,
with or without notice to O Cinema.
4.2.3 Cessation/Suspension of Approved Use(s) and/or Business Activity(ies).
Notwithstanding anything contained in this Agreement, and except for the Permitted
Uses expressly set forth in subsection 4.2.1, in the event that another particular use(s)
and/or business activity(ies) has been approved by the City Manager, and the City
Manager thereafter, upon reasonable inquiry, determines that the continuation of such
use(s) and/or activity(ies) is, or may be, inconsistent, contrary to, and/or detrimental to
the Permitted Uses set forth in this Agreement, and/or to the health, safety and/or
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welfare of the residents of and visitors to the City of Miami Beach, then the City
Manager, upon thirty (30) days prior written notice to O Cinema of same, may revoke,
suspend, and/or otherwise disallow the objectionable uses(s) and/or business
activity(ies), and O Cinema shall immediately cease and desist in providing, and/or
continuing with, said use(s) and/or business activity(ies) within the time period and in the
manner prescribed in the City's notice. In the alternative, the City Manager and/or his
designee may allow O Cinema to continue with the subject use(s), or business
activity(ies), subject to such additional guidelines, as may be determined and
established by the City Manager, in his/her sole and reasonable discretion and
judgment.
4.2.4 Annual Benchmarks. Every year, throughout the Term of the Agreement,
O Cinema shall achieve the following benchmarks:
• operate a minimum of 5-days a week, 48 weeks a year schedule;
• present no less than 500 Events throughout the year;
• serve an anticipated 10,000 visitors per year;
increase attendance by 5% annually over prior years;
highlight and market O Cinema Miami Beach as part of O Cinema's
annual marketing budget, which budget shall not be less than $50K;
• provide Miami Beach residents with discounted-quality cinematic offerings
(10% discount) at least 12 times per year, for a minimum of one film
screening per month.
SECTION 5. SCOPE OF SERVICES.
5.1 General. O Cinema shall perform and furnish management services, personnel,
and systems and materials, as are appropriate or necessary to operate, manage, maintain, and
promote the Facility in a manner consistent with the operations, management, maintenance and
promotion of Comparable Facilities.
5.2 Required Number of Events; Continuous Operation; Conclusion of Events. In
order to ensure the continuous operation of the Facility for its Primary Use as a Motion Picture
Theater, O Cinema shall cause at least 500 Events to be held at the Facility for each Contract
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Year (and proportionately for any partial Contract Year) during the Term. The aforesaid 500
Events shall be calculated by counting each separate Event in a Run.
Notwithstanding the preceding paragraph, O Cinema shall cause the Facility to be open
continuously on a year round basis, provided, however, that all Events and all other uses shall
conclude no later than 3:00 a.m. unless otherwise approved by the City Manager.
Booking Policies. The City and O Cinema agree and acknowledge that the Facility must
primarily be used by O Cinema as a Motion Picture Theater, but that O Cinema may also, from
time to time, as a Secondary/Ancillary Use, as provided in subsection 4.2.1, rent the Facility to
third party presenters consistent with the terms of this Agreement; and consistent with similar
uses at Comparable Facilities (including, without limitation the Wynwood and Miami Shores O
Cinemas). Notwithstanding the preceding, or any other term or condition of this Agreement,
the City Manager shall have the right to prohibit such Secondary/Ancillary Uses from occurring
at the Facility, upon the City Manager's reasonable determination that such use might present
unreasonable safety concerns, or violate (or otherwise not comply with) Governmental
Requirements. Notice of any such determination shall be sent by written notice to O Cinema
within thirty (30) days after the City Manager has received the quarterly booking report from O
Cinema that specifies the potential Event.
5.3 Specific Services. Without limiting the generality of the foregoing, O Cinema
shall perform all of the following services, in a manner consistent with the management and
operation of the other Comparable Facilities:
5.3.1 employ, supervise, and direct all employees and personnel consistent
with the provisions of this Agreement. All employees shall be employees of O Cinema,
and not of City. O Cinema shall be solely responsible for assuring that the Facility is
adequately staffed with competent, qualified personnel to fulfill its responsibilities under
this Agreement;
5.3.2 administer relationships with all third parties for the use, maintenance,
operation and promotion of the Facility, and enforce contractual agreements concerning
any such third party relationships;
5.3.3 negotiate, execute in its name as agent for the City, deliver, and
administer any and all contracts in connection with the management, maintenance,
promotion and operation of the Facility; provided that if any such contract has a term that
extends beyond the remaining Term, such contract shall provide that it is automatically
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assigned to City as of the expiration or termination date of this Agreement and that the
City Manager may terminate any such agreement at any time, without cause and/or
liability to the City, upon not less than ten (10) days written notice.
5.3.4 Except as otherwise provided in this Agreement, O Cinema shall have the
sole authority to approve the scheduling of any Event and other uses (i.e. the
Secondary/Ancillary Uses) to be held at the Facility, subject to the limitations and
requirements of this Agreement;
5.3.5 maintain the Facility (including, without limitation, all structural
components thereof and all electrical, HVAC, life safety, mechanical, plumbing and other
systems and equipment) in a good and clean condition consistent with the Comparable
Facilities and in compliance with all Governmental Requirements, ordinary wear and
tear, and casualty loss excepted. Maintenance responsibility shall include, without
limitation, preventative and any and all other maintenance and as required in
Exhibit"B" to this Agreement (entitled "City of Miami Beach Minimum Specifications for
Maintenance of the Miami Beach Byron Carlyle Theater'). O Cinema shall maintain in
full force and effect service contracts with qualified and licensed service providers with
respect to HVAC, roof and elevator systems unless O Cinema warrants and represents
to City Manager, in writing, that O Cinema has sufficient trained and qualified employees
(in each case with not less than one year's experience) to maintain such systems and
that any warranties will not be voided as a result thereof.
O Cinema shall keep on-site maintenance manuals and records reflecting all of O
Cinema's maintenance activities, all of which shall be available for inspection by the City
Manager upon request. O Cinema shall submit to the City Manager or his authorized
designee periodic (not less than quarterly) reports specifying all maintenance work
performed during such period, which reports shall be used by the City's Property
Management Division (or its consultant) as part of an annual City maintenance
inspection and review.
O Cinema warrants and represents to City that, prior to the Effective Date, O
Cinema inspected the Facility, and O Cinema hereby accepts the Facility "as-is, where-is
and with all faults". The aforementioned notwithstanding, the City has identified a variety
of repairs needed to the Facility which it has agreed to address prior to and within 6
months of the Commencement Date of this Agreement. Those repairs are listed in
Exhibit "E". In addition, the City shall ensure that all equipment, bathroom, plumbing,
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HVAC, fire extinguishers, fire alarms, and smoke detectors are in working order and that
the Theater is up to applicable codes before Commencement Date of this Agreement;
5.3.6 rent, lease, or purchase all equipment and -maintenance supplies
necessary or appropriate for the operation and maintenance of the Facility;
5.3.7 establish and adjust prices, rates and rate schedules for the aforesaid
contracts, and any other commitments relating to the Facility, to be negotiated by O
Cinema in the course of its management, operation, maintenance and promotion of the
Facility, subject to written approval by the City Manager. The initial prices and rates and
rate schedules for the rental of the Facility, set forth in the attached Exhibit "F" have been
approved by the City Manager. Any subsequent change to the rates and rate schedule,
shall be submitted to the City Manager for his/her review and approval (which
review/approval shall not be unreasonably withheld, conditioned or delayed) prior to O
Cinema's implementation of same;
5.3.8 pay when due, on behalf of the City, all Operating Expenses from O
Cinema's own funds;
5.3.9 after consultation with the City Manager and the City Attorney, and subject
to approval by the City Attorney or his designee, institute as agent for the City, the costs
of which shall be included as Operating Expenses, such legal actions or proceedings
necessary or appropriate in connection with the operation of the Facility (using legal
counsel approved by the City Attorney), including, without limitation, to collect charges,
rents or other revenues due to the City or to cancel, terminate or sue for damages under,
any license, use, advertisement or concession agreement for the breach thereof or
default thereunder by any licensee, user, advertiser, or concessionaire at the Facility;
institute on O Cinema's own behalf (and not as agent for City) without consultation or
approval of the City, the costs of which shall be included as Operating Expenses, such
legal actions or proceedings necessary or appropriate in connection with the operation of
the Facility, including, without limitation, to collect charges, rents or other revenues due
to the City or O Cinema or to cancel, terminate or sue for damages under, any license,
use, advertisement or concession agreement for the breach thereof or default
thereunder by any licensee, user, advertiser, or concessionaire at the Facility;
5.3.10 maintain a master set of all Event and other uses (including, without
limitation, the Secondary/Ancillary Uses) records, booking records and schedules for the
Facility(which shall be available for inspection by the City Manager upon request);
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5.3.11 provide day-to-day administrative services in support of its management
activities to ensure that the Facility shall be operated, managed, and maintained and
promoted in a first class manner consistent with the Comparable Facilities including, but
not limited to, acquisition of services, equipment, supplies and facilities; maintenance
and property management; personnel management; record-keeping; collections and
billing; and similar services;
5.3.12 engage in advertising, solicitation, and promotional activities necessary to
effectively market and promote the Facility. In connection with its activities under the
terms of this Agreement, O Cinema will be permitted to use the logo and brand identity
of the City of Miami Beach, and of the Facility, as approved by the City Manager;
5.3.13 act as a collection agent for the City on sales taxes from operation of the
Facility and remit to the State of Florida such sales taxes;
5.3.14 Except as otherwise approved by the City Manager, O Cinema shall not
license or allow the use of any portion of the Facility, except as permitted for the
Secondary/Ancillary Uses and, in such cases, only for short-term users (i.e., less than
thirty (30) consecutive days). O Cinema shall require that all users of the Facility provide
certificates of insurance evidencing appropriate insurance and any other insurance
required by the applicable license, use or occupancy agreement. Copies of these
certificates shall be furnished to the City Manager prior to any Event or other use. Such
insurance shall be kept in force at all times by all licensees, users, lessees and
concessionaires. All liability policies shall name the City and O Cinema as additional
insureds. O Cinema shall also require all users of the Facility to execute (among the
terms of the license or occupancy agreement) an agreement to indemnify, defend 'and
hold harmless the City. The City has approved O Cinema's proposed standard license or
occupancy agreement, as attached as Exhibit "C" hereto;
5.3.15 Resident Ticket Program. O Cinema shall operate a discount ticket
program available only to City of Miami Beach residents (meaning individuals who
permanently reside in the City of Miami Beach), by which a ten percent (10%) discount
off of the full face value pricing shall be made available to such City of Miami Beach
residents ("Resident Tickets")for a minimum of one film screening per month. O Cinema
reserves the right to require proof of City residency including, but not limited to,
government photo ID, utility bill, school ID or other similarly credible indicia of residency.
For these purposes, the foregoing Resident Tickets shall be subject to the following
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rules: 1)All tickets shall be sold on a first come, first served basis and shall be available
at the Facility box office; 2) The type and location of seating for all tickets shall be
determined by O Cinema, in its sole discretion, but shall include a full range of all ticket
prices; and 3) O Cinema shall have the right to promulgate additional reasonable rules
concerning such sales so long as same are consistent with the terms hereof to assure
the efficient operation of the program and compliance with these terms and conditions;
5.3.16 O Cinema shall participate, at minimum once per month, in the Golden
Ticket and Culture Shock programs offered by Miami-Dade County.
SECTION 6. COMPENSATION TO THE CITY FOR USE OF THE FACILITY(USE FEE).
6.1 Base Use Fee/Percentage Base Use Fee/Minimum Guaranteed Base Use Fee.
For the Term of the Agreement, O Cinema shall pay City an annual Base Use Fee/Percentage
Base Use Fee/Minimum Guaranteed Base Use Fee for the right to use the Facility as follows:
a) During the first three (3) Contract Years, in consideration for O Cinema's
investments of equipment, staffing, marketing and improvement, O Cinema shall pay the
City a Base Use Fee, in the amount of$2,500.00 per year;
b) Commencing with the fourth (4th) Contract Year, O Cinema shall pay the
City a Base Use Fee in the amount of 10% of all Net .Ticket Revenues and Net
Concession Revenues (both as defined herein), generated from the Facility
("Percentage Base Use Fee"); however said Percentage Base Use Fee shall not be less
than $5,000.00 per year(Minimum Guaranteed Base Use Fee); and
c), - During the remainder of the Initial Term, commencing with the fifth (5th)
Contract Year and every Contract Year thereafter (including any Renewals Term, if
granted at the City's sole discretion), the Percentage Base Use Fee shall be increased
by 1% per year, but not to exceed 20% of total Net Ticket Revenues and Net Concession
Revenues over the total Term of the Agreement. The Percentage Base Use Fee paid
under this Subsection 6.1(c) shall not be less than the Minimum Guaranteed Base Use
Fee.
All payments are payable quarterly, as of the first day of the months of January, April,
July and October of each Contract Year. without demand, commencing on the Commencement
Date. The Base Use Fee shall be paid on a quarterly basis, except with respect to the
payment for the first quarter, which will be due upon execution of the Agreement. The
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Percentage Base Use Fee shall be payable quarterly, within thirty days from the end of each
quarter. Commencing during the fourth (4th) Contract Year, if the total amount of the
Percentage Base Use Fee paid during a particular Contract Year is less than the Minimum
Guaranteed Base Use Fee, 0 Cinema shall pay said shortage to the City within sixty days from
the end of each Contract Year. The Base Use Fee, Percentage Base Use Fee, Minimum
Guaranteed Base Use Fee (and all other amounts due hereunder) shall be paid to City in legal
tender of the United States of America at the following address: Tourism, -Culture, and
Economic Development Department, 1700 Convention Center Drive, Miami Beach, Florida
33139; or at such other place that City may from time to time designate by notice in writing..
• 6.2 Additional Fees and Charge. In addition to the Base Use Fee, Percentage Base
Use fee and Minimum Guaranteed Base Use Fee as set forth in subsection 6.1, 0 Cinema shall
also be responsible for payment of the following Additional Fees and Charges:
6.2.2 Taxes; Imposition. 0 Cinema shall be responsible for all property tax
payments, taxes and impositions. The parties anticipate that the Byron Carlyle Theater
is tax exempt; however, in the event that any property tax payment (or any other tax
and/or imposition) is required in connection with the Facility, or in connection with 0
Cinema's use of the Facility, 0 Cinema has the right to terminate this agreement without
penalty by providing 90 days notice to the city at which point the city shall be solely
responsible for such payment(s).
6.2.3 Operating Expenses. 0 Cinema shall pay all costs and expenses related
to Operating Expenses. 0 Cinema hereby irrevocably and unconditionally guarantees to
the City that Operating Revenues shall at all times be sufficient to pay as and when due
all Operating Expenses and any and all other amounts that 0 Cinema is obligated to pay
pursuant to this Agreement, and further covenants and agrees that if at any time there
are insufficient Operating Revenues to pay all of the foregoing amounts, as and when
required, 0 Cinema shall immediately pay the difference from 0 Cinema's own funds.
This obligation is absolute and unconditional and shall even apply if Operating Revenues
are reduced or limited by facts or circumstances not contemplated by the parties or for
reasons beyond the parties' control. The provisions of this Section 6.2.3 shall survive
any termination or expiration of this Agreement.
6.2.4 Establishment and Use of Capital Fund; Contributions. The City shall be
responsible for all major repairs and all capital improvements. To help defray the cost of
certain major capital repairs and replacements to the Facility (including, without
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limitation, all structural components thereof, and all HVAC, life safety, mechanical or
other systems, plumbing and sewer lines, roof, etc.), beginning with the fourth year of
the Agreement, 0 Cinema shall make annual contributions to a fund (the "Capital Fund")
to be held and disbursed by City, at the sole and reasonable discretion of the City
Manager and his/her designee.
The annual contribution shall be Two Thousand Five Hundred Dollars ($
2,500.00) for each Contract Year commencing with the fourth Contract Year throughout
the Term. Contributions to the Capital Fund shall be made in equal monthly installments,
in the amount of $208.33 with the 12th installment being $208.37, commencing on the
Commencement Date, and shall be due on or before the first day of each calendar
month thereafter throughout the Term.
Nothing in this Section 6.2.4 shall limit 0 Cinema's obligation to maintain the
Facility as required by this Agreement. The Capital Fund is intended only to address
specific major capital repairs and improvements and such items are not all-inclusive.
Additional work and additional funds will be required.
Notwithstanding the preceding paragraph, or this subsection 6.2.4, 0 Cinema
shall not be responsible for paying for major capital improvements or infrastructure within
the Facility.
6.2.5 Sales Tax. 0 Cinema shall pay and include any and all additional sums
for applicable sales and use tax, now or hereafter prescribed by State, federal or local
law, concurrent with and to the extent any sales tax is imposed in connection with any
payment due hereunder by 0 Cinema.
SECTION 7—INTENTIONALLY OMITTED
SECTION 8 -RIGHTS RESERVED TO CITY
8.1 Rights of Entry. Representatives, contractors and employees of the City shalt
have the right to enter all portions of the Facility to inspect same, to observe the performance of
0 Cinema of its obligations under this Agreement, to install, remove, adjust, repair, replace or
otherwise handle any equipment, utility lines, or other matters in, on, or about the Facility, or to
do any act or thing which the City may be obligated or have the right to do under this
Agreement. Nothing contained in this subparagraph is intended or shall be construed to limit
any other rights of the City under this Agreement. The City shall not unreasonably interfere with
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any other rights of the City under this Agreement. The City shall not unreasonably interfere with
the activities of O Cinema hereunder, and the City's actions shall be conducted such that
disruption of O Cinema's work shall be kept to a minimum and there shall be no disruption of
any Event by City (the City's actions in its proprietary capacity of the foregoing, shall not
diminish any rights of City in its governmental capacity). Nothing in this subsection shall be
construed to impose upon the City any independent obligation to make repairs, replacements,
alterations, additions or improvements or perform any maintenance or create any independent
liability for any failure to do so.
8.2 Valet Parking. City reserves to itself and its contractors and designees (i) all
rights to provide valet parking to the Facility, and (ii) all proceeds from the valet parking
operations. City and its contractors and designees shall have the right to use the driveway
entrance and areas located outside the entrance to the Facility for the valet parking operations,
and O Cinema shall not interfere with valet parking operations. O Cinema may pre-purchase
parking controlled by the City or pre-purchase valet parking. The City Manager shall have the
authority to negotiate and enter into such agreements with respect thereto, as the City Manager
deems acceptable.
If the City exercises its right to provide valet parking to the Facility, then O Cinema shall
have no right to provide valet parking or to contract with other parties for valet parking with
respect to the Facility. However, if the City chooses not to offer valet parking services at the
Facility, then O Cinema shall have first right of refusal to provide valet parking or to contract with
a third party for valet parking at the Facility, at O Cinema's sole cost and expense. The City will
have six (6) months of the Commencement Date to exercise this right.
8.3 Signage. O Cinema shall provide, at its sole expense and responsibility, any
required signs at the Facility. All signage shall be approved by the City, and shall be in
accordance with all applicable Municipal, County, State and Federal laws and regulations. Any
signage shall be subject to the prior approval of the City as to size, shape and placement of
same.
O Cinema shall own and retain all ownership rights to the name "0 Cinema Miami
Beach;" provided, however, that, throughout the Term (or other duration) of this Agreement, O
Cinema does hereby grant, permit, and consent to the City's right to use (and/or reproduce) the
"O Cinema Miami Beach" name, at no charge, for purposes consistent with the intent and
stated uses of the Agreement including, without limitation, for the purpose of identifying and
promoting the Facility, and/or for such other public purposes as the City Manager, in his sole
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and reasonable discretion, may deem necessary. In the event that this Agreement is
terminated and/or otherwise expires, then the City shall discontinue the use of the name "O
Cinema Miami Beach" for the Facility, effective contemporaneous with the date that O Cinema
ceases to manage.and operate the Facility.
8.3.1 Interior Naming Rights; Interior Signage. O Cinema shall be entitled to all
non-permanent interior signage (i.e. signage having a total duration not to exceed twelve
consecutive (12) months), including, without limitation, temporary banners (and all
proceeds derived therefrom shall be Operating Revenue); provided, however, that the
names affixed thereon (including, without limitation, any sponsorship names) are subject
to the City Manager's prior written approval, which shall not unreasonably be withheld,
conditioned or delayed. In no event may any such signage include the names of any
company selling the following types of products ("Prohibited Names"): guns, tobacco or
sexual products. All other naming rights, including, without limitation, any
revenues derived therefrom, shall be owned and controlled exclusively by the City.
8.3.2 General Requirements. All signage (whether interior, exterior, permanent
and/or temporary) shall comply with all applicable Governmental Requirements, and
shall be maintained by O Cinema in good condition.
SECTION 9. NON-FUNDING BY CITY.
9.1 City shall have no obligation to provide funds for the payment of Operating
Expenses.
9.2 City will have no funding or other payment obligations with respect to the Facility
or its Operating Expenses or its operations-other than the costs which the City has specifically
agreed to pay under the terms of this Agreement. Additionally, O Cinema and City have entered
into this Agreement with the expectation and belief that as of the Effective Date, no
governmental body will impose any ad valorem taxes upon the Facility nor any sales, income,
excise or other taxes. Notwithstanding the preceding sentence, the City makes no
representation to O Cinema — either express or implied — that any or all of such taxes may or
may not be imposed at any time during the Term of this Agreement.
SECTION 10. RECEIPTS AND DISBURSEMENTS.
10.1 O Cinema shall establish and maintain in one or more depositories, one or more
operating, payroll and other bank accounts for the operation and management of the Facility, as
.O Cinema shall determine. All Operating Revenues collected by O Cinema from the operation
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of the Facility shall be deposited into the accounts and all Operating Expenses shall be paid by
O Cinema as agent for the City from the accounts. Any amounts remaining in the operating
accounts upon expiration or termination of this Agreement for any reason, after payment of all
other amounts that O Cinema is required to pay under this Agreement through the date of
expiration or termination, shall be promptly paid to O Cinema.
SECTION 11.ALTERATIONS, MAINTENANCE,AND REPAIRS.
11.1 O Cinema shall not make any additions, improvements, or alterations
(collectively "Alterations") to the Facility without the City Manager's prior written consent. The
costs of all Alterations made by O Cinema shall be borne solely by O Cinema from its own funds
and shall not constitute Operating Expenses. The City Manager shall not unreasonably
withhold, condition or delay his/her consent to any Alterations except that the City Manager may
withhold consent, in his/her sole and absolute discretion, with respect to any Alterations that
change the structural elements or life-saving systems or that affect the exterior of the Facility;
Notwithstanding anything to the contrary, however, O Cinema shall not under any circumstances
be permitted to make any Alterations that: (i) adversely affect the structural portions of the
Facility, or (ii) fail to comply with any applicable Governmental Requirements; or (iii) interfere in
any material manner with the proper functioning of any mechanical, electrical-, plumbing, HVAC,
life safety or other systems, facilities or equipment of the Facility.
Except as required pursuant to Section 5.3.4, it is understood by the parties hereto that
the O Cinema shall not be responsible, nor required to pay for, any other costs related to capital
improvements or infrastructure (i.e. including, but not limited to, plumbing and sewer lines, major
electrical, structural, HVAC, roof, etc.) with regard to the Facility.
11.2 O Cinema shall obtain all required permits for Alterations performed by, through
or under O Cinema and shall perform or cause to be performed such Alterations in compliance
with all Governmental Requirements. Under no circumstances shall O Cinema make any
Alterations which incorporate any Hazardous Substances including, without limitation, asbestos-
containing construction materials, into the Facility. Any request for City Manager's consent to
any proposed Alterations by, through or under O Cinema shall be made in writing and shall
contain plans or other written materials describing the work in detail reasonably satisfactory to
City Manager, provided that architectural plans shall not be required unless required for the
issuance of a building permit. City Manager shall provide or deny consent within twenty (20)
business days following receipt of O Cinema's written request, the failure to provide or deny
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consent within such twenty (20) business day period shall be deemed a consent. Should the
work proposed by O Cinema and consented to by City Manager modify the basic floor plan of
the Facility and the building permit therefor require architectural plans, then O Cinema shall, at
its expense, furnish City with as-built drawings and CAD disks for such work. Unless City
Manager otherwise agrees in writing, all Alterations made or affixed to the Facility (excluding
moveable trade fixtures, equipment, personal property and furniture) (including without
limitation, all upgrades constructed pursuant to subparagraph (b)), shall become the property of
City and shall be surrendered with the Facility at the expiration or termination of this Agreement.
With respect to Alterations costing in excess of $200,000 City Manager may require O Cinema
to obtain a payment bond for the work.
11.3 Maintenance. The O Cinema shall, at its sole cost and expense, have sole
responsibility for basic maintenance to be performed on a regular basis on all facilities,
improvements, and facilities and utilities infrastructure equipment at the Facility. Any and all
repairs or replacement of the same (not covered by a service contract as set forth in Subsection
5.3.4) is the responsibility of the City. O Cinema shall, at its sole cost and expense, and to the
satisfaction of the City, keep and maintain the Facility, and all improvements thereon, in good,
clean, and sanitary order. O Cinema shall, at its sole cost and expense, have the sole
responsibility for maintaining the grounds of the Byron Carlyle Theater. To that end, the parties
herein acknowledge, and O Cinema herein agrees to be bound by, the minimum maintenance
standards set forth in Exhibit "B" to this Agreement, entitled "City of Miami Beach Minimum
Specifications for Maintenance of the Miami Beach Byron Carlyle Theater." It is further
understood that O Cinema shall provide the City with a quarterly maintenance report, in a format
to be approved by the City Manager.
11.4 Personal Property. A list of City owned personal property included in the
Agreement for use by O Cinema during the Term hereof is attached and incorporated herein as
Exhibit "D". O Cinema hereby accepts such equipment in its "as-is" condition, and without any
warranty(ies), whether express or implied, by the City. O Cinema shall maintain all City owned
equipment and, at its sole cost and expense, acquire and maintain all replacement and such
other equipment as may be necessary to maintain the Facility in a condition which satisfies
those maintenance standards set forth in Exhibit "B", but shall not have an obligation to improve
the condition of the personal property beyond the "as-is" condition in which it was accepted, all
i
of which shall be noted on the inventory. O Cinema shall have the right, at the initial inventory
and at any point thereafter, to decline the use and responsibility for any personal property not
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useful for its operation of the Facility, and may turn such personal property over to the City in the
condition in which it was accepted. The City shall have the right to periodically take an
inventory of any or all City-owned equipment at the Facility.
SECTION 12. RECORDS,AUDITS AND REPORTS.
12.1 Records and Audits.
12.1.1 O Cinema shall keep full and accurate accounting books and records
relating to all Operating Revenues and Operating Expenses, all in accordance with
generally accepted accounting principles. O Cinema shall give the City's authorized
representatives access to such books and records during reasonable business hours
and upon reasonable advance notice. All books and records shall be made available on-
site at the Facility or electronically. O Cinema shall keep and preserve for at least three
(3) years following each Fiscal Year, or for as long as such records are required to be
retained pursuant to Florida Public Records Law (whichever is longer), all sales slips,
rental agreements, purchase order, sales books, credit card invoices, bank books or
duplicate deposit slips, and other evidence of Operating Revenues and Operating
Expenses for such period. In addition, on or before 120 days following each Fiscal Year,
O Cinema shall furnish to the City a line item (i.e., by categories) statement of Operating
Costs and Operating Revenues (and profit or loss) for the Facility for the preceding
Fiscal Year, and including the number of tickets sold and Events and other uses held,
prepared in accordance with generally accepted accounting principles certified as
accurate by O Cinema's Chief Accounting Officer or Chief Financial Officer
12.1.2 The City Manager shall have the right at any time, and from time to time,
to cause independent auditors or the City's own accountants or auditors to audit all of
the books of O Cinema relating to Operating Revenues, Operating Expenses, tickets
and Events and other uses including, without limitation, cash register tapes, credit card
invoices, duplicate deposit tapes, and invoices. No costs incurred by the City in
conducting such audit shall be considered an Operating Expense.
12.1.3 Annual Plan Commencing upon October 1, 2015, O Cinema shall
provide to the City on or before June 1s' of each year, an annual management plan,
which shall include the annual operating budget for the then current Fiscal Year also.
The annual plan shall include information regarding O Cinema's anticipated operations
for such Fiscal Year, including planned operating and maintenance activities, anticipated
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capital improvements and capital equipment purchases and an anticipated budget
therefore, anticipated Events and other uses at the Facility (to the extent known at such
time), and planned equipment and furnishings purchases. O Cinema shall have the right
from time to time to make any changes it deems necessary or appropriate to any such
annual plan so long as the annual plan is consistent with O Cinema's fulfillment of its
obligations hereunder. Upon the request of the City Manager or his designee, O Cinema
shall provide such additional documentation and information as the City deems
necessary, in order to substantiate compliance with the Benchmarks set forth in
Subsection 4.2.4.
12.1.4 Programmatic Plan.
Accompanying the O Cinema's proposed annual plan above shall be the Facility
Programmatic Plan for the next fiscal year, detailing the then-known activities (events
and other uses) planned, and the number of residents and visitors anticipated to be
impacted.
12.2 Major Capital Repairs.
Accompanying O Cinema's proposed annual plan shall be a detailed list of then-known major
capital repairs anticipated for the Facility.
SECTION 13. INDEMNIFICATION.
13.1 Indemnification O Cinema shall indemnify, hold harmless and defend (with
counsel approved by the.City Attorney) the City, its officers, agents, servants and employees
from and against any and all claims, liabilities,.demands, causes of action, costs and expenses
(including reasonable attorneys' fees at trial and all levels of appeal) of whatsoever kind or
nature ("Claims") arising out of (i) error, omission or negligent act or willful misconduct of 0-
Cinema, its agents, servants, contractors, or employees; (ii) any default by O Cinema under this
Agreement; or (iii) any other claim arising, directly or indirectly, from the operation or
management of the Facility or any Event held therein or rental or use of the Facility; provided
that there is expressly excluded from the foregoing obligations any Claims to the extent resulting
from the gross negligence or willful misconduct of the City, its officers, agents (excluding O
Cinema), contractors (excluding O Cinema) and employees or the use of the Facility by the City,
its officers, agents (excluding O Cinema), and employees, pursuant to Section 16 hereof.
13.2 In addition, O Cinema shall indemnify, hold harmless and defend the City, its
officers, agents, servants and employees, from and against any claim, demand or cause of
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action of whatever kind or nature arising out of any misconduct of O Cinema not included in the
paragraph in the subsection above and for which the City, its officers agents, servants or
employees, are alleged to be liable. This subsection shall not apply, however, to any such
liability as may be the result of the gross negligence or willful misconduct of the City, its officers,
agents, servants or employees.
13.3 The provisions of this Section 13 shall survive expiration or termination of this
Agreement.
SECTION 14. INSURANCE REQUIREMENTS.
O Cinema shall maintain, at O Cinema's sole cost and expense, the following types of insurance
coverage at all times throughout the Term of this Agreement:
14.1. General liability insurance with not less than the following
limits:
General aggregate $2,000,000
Products (completed operation
aggregate) $2,000,000
Personal and advertising (injury) $1,000,000
(Per occurrence) $1,000,000
Fire damage $ 100,000
Medical Expense $ 5,000
Liquor Liability (aggregate) $2,000,000
(Per occurrence) $1,000,000
14.2 Workers Compensation Insurance shall be required under the Laws of the State
of Florida.
14.3 Fire Insurance for the Theater shall be the responsibility of the City.
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days written notice to City and then subject
to the prior written approval of the City's Risk Manager. O Cinema shall provide the City with a
Certificate of Insurance for each such policy, which shall name the City 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's Insurance Guide (latest edition) rating acceptable to the
City's Risk Manager, and any replacement or substitute company shall also be subject to the
23
approval of the City's Risk Manager. Should O Cinema 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 O Cinema to City, plus ten percent (10%) of the amount of premiums paid to
compensate City for its administrative costs. If O Cinema does not 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.
14.4 O Cinema shall be the named insured under all such policies. The City shall be
an additional insured under the insurance policies described in subsections 14.1 and 14.5,
hereof, as its interests may appear, and all such insurance policies shall contain a provision
covering the indemnification liabilities hereunder.
14.5 Builder's Risk. O Cinema shall also carry Builder's Risk Insurance during any
period of construction of Alterations or any other period of construction by, through or under O
Cinema.
14.6- The terms of insurance policies referred to in Section 14 shall preclude
subrogation claims against O Cinema, the City and their respective officers, employees and
agents.
SECTION 15. OWNERSHIP OF ASSETS.
15.1 Ownership. The ownership of the Facility and all buildings and real estate, all
existing (and replacements thereof) technical and office equipment and facilities, furniture,
displays, fixtures, vehicles and similar tangible property located at the Facility at the time of the
commencement of this Agreement shall remain with the City. Any and all technical and office
equipment and facilities, furniture, displays, fixtures, vehicles and similar tangible property
purchased by O Cinema for use at the Facility shall remain property of O Cinema. Ownership of
and title to all intellectual property rights of whatsoever value held in the City's name shall
remain in the name of the City. The ownership of data processing programs and software owned
by the City shall remain with the City, and the ownership of data processing programs and
software owned by O Cinema shall remain with O Cinema. O Cinema shall not take or use, for
its own purposes, customer lists or similar materials developed by the City for the use of the
Facility, unless prior written consent is granted by the City Manager. Ownership of equipment,
furnishings, materials, or fixtures not considered to be real property purchased by O Cinema
24
with Operating Revenues for use at and for the Facility shall vest in the City automatically and
immediately upon purchase or acquisition, except for those items which by the terms of this
Agreement shall remain the property of O Cinema. The assets of the City, as described herein,
shall not be pledged, liened, encumbered or otherwise alienated or assigned. Notwithstanding
anything to the contrary contained in this Agreement, any personalty, furnishings, and movable
equipment that is not a fixture and is not integral to the operation of the Facility purchased by O
Cinema and used at the Facility shall be the sole property of O Cinema.
SECTION 16. USE BY THE CITY
The City shall have the right to use the Facility, or any part thereof, year round, subject to
availability, and so long as the City's use does not interfere with any previously scheduled Event
or other use, for the benefit of the community for such purposes including, but not limited to,
public meetings, community meetings, workshops, City-sponsored special events, and any
other purposes, as deemed necessary by the City Manager, in his sole and absolute discretion,
without the payment of any rental or use fee, except the direct out-of-pocket expenses incurred
in connection with such use shall be paid by the City. City use of the Facility shall not be
competitive with, nor conflict with, Events or other uses booked by O Cinema, and shall be
booked in advance with a minimum of 30 days' notice.
SECTION 17. ASSIGNMENT/SUBLET.
O Cinema may not voluntarily or by operation of law, assign, encumber, pledge or
otherwise transfer all or any part of O Cinema's interest in this Agreement or subcontract its
management duties hereunder without the City's prior written consent, which may be granted or
withheld in City's sole and absolute discretion. Any attempt by O Cinema to assign all or any
part of its interest and any attempt to'subcontract its management duties hereunder without first
having obtained City's prior written approval shall be void and of no force or effect. In the event
of any assignment, transfer, encumbrance or subcontract, O Cinema shall nevertheless remain
liable for all obligations hereunder and the transferee shall be jointly and severally liable for all
obligations thereafter arising under this Agreement. O Cinema specifically recognizes that City
selected O Cinema to be the manager of the Facility as a result of the City's evaluation of O
Cinema's specific qualifications and experience in operating similar first class facilities.
17.1 The provisions of subsection 17.1 above shall not prevent O Cinema in the
performance of its management duties hereunder to grant concessions and rental agreements
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for Events and entering into a concessions agreement for the concession operations at the
Facility.
SECTION 18. SECURITY.
O Cinema shall provide reasonable security to protect the Facility and its equipment,
materials and facilities, including any City 'equipment, furnishings, and fixtures used by O
Cinema, and shall be solely responsible to the City for any loss or damage to any City
equipment, furnishings, and fixtures so used by O Cinema.
SECTION 19. PERMITS; LICENSES; TAXES; APPLICABLE LAWS.
O Cinema agrees to obtain and pay for all permits and licenses necessary for the
conduct of its business and agrees to comply with all laws governing the responsibility of an
employer with respect to persons employed by O Cinema. O Cinema shall also be solely
responsible for payment of any and all taxes levied on the Facility and its operations. In
addition, O Cinema shall comply with all rules, regulations and laws of the City; Miami-Dade
County; the State of Florida; and the U.S. Government now in force or hereafter to be adopted.
SECTION 20. UTILITIES; RESPONSIBILITY FOR TAXES AND ASSESSMENTS.
20.1 Utilities. O Cinema shall be solely responsible for and shall pay (whether to the
City or directly to the utility) before delinquency, of all charges for utilities used at the Facility. O
Cinema shall pay its share of the utility bills for the Theater, based upon its Proportionate Use
(72%) of the Theater, including without limitation, water, electricity, gas, heating, cooling, and
sewer, charges (Shared Utilities).
20.2 Procedure If Taxes Assessed.
O Cinema agrees to, and shall pay before delinquency, all taxes and assessments of
any kind assessed or levied, whether upon O Cinema or the Facility, by reason of this
Agreement or by reason of any use(s) and/or activity(ies) of O Cinema upon or in connection
with the Facility. The parties acknowledge that O Cinema's operation and use of the Facility is
for public purposes, and therefore anticipate that, as of the Effective Date, no ad valorem taxes
should be assessed by the Miami-Dade County Tax Appraiser. If, however, taxes are assessed
by the Property Tax Appraiser, O Cinema has the right to terminate this agreement without
penalty by providing 90 days.notice to the city at which point he city shall be solely responsible
for such payment(s).
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SECTION 21 FORCE MAJEURE.
21.1 No party will be liable or responsible to the other party for any delay,
damage, loss, failure, or inability to perform caused by "Force Majeure" if notice is
provided to the other party within ten (10) days of date on which such party gains actual
knowledge of the event of "Force Majeure" that such party is unable to perform. The
term "Force Majeure" as used in this Agreement means the following: an act of God,
strike, war, public rioting, lightning, fire, storm, flood, explosions, epidemics, landslides,
lightening storms, earthquakes, floods, storms, washouts, civil disturbances, explosions,
and any other cause whether of the kinds specifically enumerated above or otherwise
which is not reasonably within the control of the party whose performance is to be
excused and which by the exercise of due diligence could not be reasonably prevented
or overcome (it being acknowledged that under no circumstances shall a failure to pay
amounts due and payable hereunder be excusable due to a Force Majeure).
.21.2 Neither party hereto shall be under any obligation to supply any service or
services if and to the extent and during any period that the supplying of any such service
or services or the provision of any component necessary therefore shall be prohibited or
rationed by any Governmental Requirements.
21.3 In the event of substantial damage to or destruction, of the Facility by
reason of fire, storm or other casualty or any eminent domain action or other regulatory
action that, in either case, shall render a substantial part of the Facility inoperable for a
period of at least ninety (90) days or in O Cinema's or the City's reasonable opinion the
Facility can no longer be operated in a reasonably profitable manner as a result of the
damages or action for a period of at least ninety(90) days from the happening of the fire,
other casualty or regulatory action, either party may terminate this Agreement upon
written notice to the other. Upon any such termination, the provisions of Section 31 shall
apply; and provided City shall receive the entire amount of all insurance proceeds or.
eminent domain award as applicable.
SECTION 22. INSPECTION.
O Cinema agrees that the Facility may be inspected at any time upon reasonable notice
by authorized representatives of the City, or by any other State, County, Federal or municipal
officer or agency having responsibilities for inspections of such operations and/or Facility. O
Cinema agrees to undertake immediately the correction of any deficiency cited by such
27
inspectors on the Facility, which is properly the responsibility of O Cinema pursuant to this
Agreement.
SECTION 23. WAIVER OF INTERFERENCE.
O Cinema hereby waives all claims for compensation for loss or damage sustained by
reasons of any interference with its operation and management of the Facility by any public
agency or official as a result of their enforcement of any laws or ordinances or of any of the
rights reserved to the City herein. Any such interference shall not relieve O Cinema from any
obligation hereunder.
SECTION 24. NO LIENS.
O Cinema agrees that it will not suffer, or through its actions or anyone under its control
or supervision, cause to be filed upon the Facility any lien or encumbrance of any kind. In the
event any lien is filed, the O Cinema agrees to cause such lien to be discharged within ten (10)
days therefrom, and in accordance with the applicable law and policy. If this is not
accomplished, the City may automatically terminate this Agreement, without further notice to O
Cinema.
SECTION 25. O CINEMA EMPLOYEES.
25.1 The City and O Cinema recognize that in the performance of this Agreement, it
shall be necessary for O Cinema to retain qualified individuals to effectuate and optimize O
Cinema's management and operation of the Facility. O Cinema shall select, train, and employ at
the Facility such number of employees as is necessary or appropriate for O Cinema to satisfy its
responsibilities hereunder. O Cinema shall recruit employees consistent with standards
employed at the Comparable -Facilities, and O Cinema shall have authority to hire, terminate
and discipline any and all personnel employed by O Cinema working at the Facility. Any such
personnel, whether employees, agents, independent contractors, volunteers, and/or other,
employed, retained, or otherwise engaged by O Cinema for such purpose(s), shall not be
deemed to be agents, employees, partners, joint ventures, or associates of the City, and shall
not obtain any rights or benefits under the civil service or pension ordinances of the City or any
rights generally afforded classified or unclassified employees of the City; further they shall not
be deemed entitled to the Florida Worker's Compensation benefits as employees of the City.
Additionally, O Cinema, and/or its employees shall never have been convicted of any offense
involving moral turpitude or felony. Failure to comply with this subsection shall constitute cause
28
for termination of this Agreement.
25.2 O Cinema shall assign to the Facility a competent full-time staff member
experienced in the operations of similar facilities, who will be located full time on-site during the
Term. The full-time staff member will be supervised by a general manager who is experienced
in operating and managing similar facilities. From time to time.the staff member may provide
assistance in connection with consulting and/or management services provided by O Cinema at
other facilities managed, owned or leased by O Cinema so long as such assistance does not
affect in any material respect the responsibilities and duties of the staff member to the Facility.
Prior to O Cinema's appointment of the staff member, O Cinema shall consult with the City
Manager with respect to the qualifications of the staff member proposed by O Cinema. The staff
member shall be accessible to the City Manager at all reasonable times to discuss the
management, operation, and maintenance of the Facility. "Accessible" shall mean available
either in person, by telephone, and/or e-mail during business and/or operation hours and within
a reasonable time frame during non-business hours in the event of emergency. The City
Manager may also request that the staff member be replaced and O Cinema shall duly consider
all such requests but shall not be obligated to replace the staff member.
SECTION 26. NO IMPROPER USE.
O Cinema will not use, nor suffer or permit any person to use in any manner whatsoever,
the Facility 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. O Cinema shall not use the Facility for any unlawful purpose and shall
comply with all laws, permitting, and licensing requirements now in force or hereafter adopted,
applicable to the Facility or the activities, uses, and/or business(es) conducted on the Facility. O
Cinema agrees not to knowingly use the Facility for, or to permit operation of any offensive or
dangerous activity, nuisance or anything against public policy. Any criminal activity in the
Facility knowingly caused by or knowingly permitted by O Cinema shall result in
automatic termination of this Agreement. Except as may result from acts of force majeure, O
Cinema agrees that it will not allow the Facility to become unoccupied or vacant. O Cinema
shall take appropriate precautions to prevent fire on the Facility, maintaining existing fire
detection devices and extinguishing equipment at all times. Fire detection devices and
extinguishing equipment to be provided and maintained by the City.
29
SECTION 27. NO DANGEROUS MATERIALS.
O Cinema agrees not to use or permit in the Facility the storage of illuminating oils, oil
lamps, turpentine, gasoline (except for small containers [5 gallons or less] for machinery),
benzine, naphtha, or other similar substances, or explosives or any kind, or any substance or
thing prohibited in the standard policies of fire insurance companies in the State of Florida.
SECTION 28. NO CLAIM AGAINST CITY OFFICERS, EMPLOYEES,
INDIVIDUALS.
It is expressly understood and agreed by and between the parties hereto that all
individuals, employees, officers, and agents of the City are acting in a representative capacity
and not for their own benefit; and that neither O Cinema nor any occupant shall have any claim
against them or any of them as individuals in any event whatsoever in conjunction with any acts
or duties which are reasonably related to the performance of their duties.
SECTION 29. DEFAULT AND TERMINATION.
O Cinema's Defaults. The occurrence of any one or more of the following events shall
constitute an Event of Default by O Cinema:
29.1.2.1 the failure by O Cinema to make any payment required to be
made by O Cinema as and when due, which continues for more than ten (10) days after
written notice from City;
29.1.2.2 the failure or inability by O Cinema to observe or perform any of
the covenants or provisions of this Agreement to be observed or performed by O
Cinema, which continues for more than thirty (30) days after written notice from City
Manager; provided, however, if the nature of the failure is such that more than such
period is reasonably required for its cure, then O Cinema shall not be deemed to have
committed an Event of Default if O Cinema commences the cure within such period and
thereafter diligently pursues the cure to completion and actually completes the cure
within an additional sixty (60) day period;
29.1.2.3 the assignment, encumbrance, pledge, or transfer of this
Agreement, whether voluntarily or by operation of law, or any subcontract of O Cinema's
duties hereunder, which continues for more than fifteen (15) business days after written
notice thereof from City Manager;
30
29.1.2.4 (i) the making by O Cinema of any general assignment for the
benefit of creditors; (ii) the filing by or against O Cinema of a petition to have O Cinema
adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts discharged or
a petition for reorganization or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against O Cinema, the same is dismissed within
sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of O Cinema's assets located at the Facility or of O Cinema's interest in
this Agreement, if possession is not restored to O Cinema within sixty (60) days; or (iv)
the attachment, execution or other judicial seizure of substantially all of O Cinema's
assets located at the Facility or of O Cinema's interest in this Agreement, where the
seizure is not discharged within sixty(60) days.
29.2 .City's Remedies.
29.2.1 If an Event of Default by O Cinema occurs, then in addition to any other
remedies available to City, City may exercise any or all of the following remedies:
a) terminate this Agreement by written notice to O Cinema, in which
case this Agreement shall terminate and O Cinema shall immediately surrender
possession of the Facility to City. Upon termination, City shall be entitled to
recover from O Cinema: (i) Operating Expenses that remain unpaid through the
date of termination; (ii) all other amounts that O Cinema is required to pay under
this Agreement through the date of termination;
b) seek specific performance of any of O Cinema's obligations
hereunder or seek injunctive relief; and/or
C) exercise any other remedies available at law or in equity.
29.2.2 The various rights and remedies reserved to City in this Agreement or
otherwise shall be cumulative and, except as otherwise provided by Florida law,
City may pursue any or all of its rights and remedies at the same time.
29.3 O Cinema's Remedies. If an Event of Default by City occurs, then O Cinema
may exercise either of the following remedies:
29.3.1 O Cinema may terminate this Agreement by written notice to City, in
which case this Agreement shall terminate and O Cinema shall immediately surrender
possession of the Facility to City. Upon' termination, O Cinema shall be entitled to
it
31
i
recover from City all amounts owed by City to O Cinema as of the termination date and
the provisions of Section 31 shall apply; or
29.4 Late Payments. Any payment owed to City or O Cinema under this Agreement
including, without limitation, any other payment owed to City or O Cinema under this Agreement
that is not received by City or O Cinema within ten (10) days following notice of such amount
being due shall bear interest at the rate of eighteen percent (18%) per annum ("Default Rate")
or the highest allowable rate under Florida Law, whichever is less from the date due until fully
paid.
29.5 IN THE EVENT THAT O CINEMA CEASES TO BE A NOT-FOR-PROFIT
CORPORATION, THIS AGREEMENT SHALL BE AUTOMATICALLY TERMINATED.
29.6 Termination for Convenience by City. Notwithstanding the City's rights to
terminate the Agreement for cause, the City also reserves and retains the right, at its sole
option and discretion, to terminate this Agreement, without cause and without penalty, with
regard to O Cinema's rights and responsibilities with respect to the operation, management,
maintenance, promotion and marketing of the Facility, upon three hundred sixty-five (365)
days prior written notice to O Cinema.
29.7 Effect of Termination. In the event this Agreement expires or is terminated for
any reason: (1)All Operating Expenses and all other obligations for the period up to the date of
expiration or termination shall be paid using funds on deposit in the account(s) described in
subsection 10.1 and to the extent such funds are not sufficient, O Cinema shall pay all such
amounts from its own funds; (2) After all amounts referenced in subparagraph (1) have been
paid, O Cinema may retain all remaining Operating Revenues (if any). Upon the expiration of
this Agreement or a termination for any reason, all further obligations of the parties hereunder
shall terminate except for the obligations which for all periods up to the date of expiration or
termination and such other obligations as are stated to survive or be performed after such
expiration or termination. All of the foregoing reimbursement and the payment obligations are
to be made within thirty (30) days after the termination date. The provisions of this Subsection
29.7 regarding the above reimbursement and payment obligations of the City shall survive the
termination of this Agreement.
29.8 Surrender of Facility. Upon termination or expiration of this Agreement O
Cinema shall surrender and vacate the Facility upon the effective date of such termination (or
expiration). The Facility and all equipment and furnishings shall be returned to the City in a
32
good and clean condition consistent with other similar first class facilities and in compliance
with all Governmental Requirements, ordinary wear and tear, and casualty loss excepted.
SECTIONS 30 AND 31. INTENTIONALLY DELETED.
SECTION 32. NOTICES.
All notices from the City to O Cinema shall be deemed duly served if mailed by
registered or certified mail to O Cinema at the following address:
Living Arts Trust, Inc. d/b/a O Cinema
2401 Swanson Avenue
Miami Florida 33133
Attention: Kareem Tabsch, Secretary
All notices from O Cinema to the City shall be deemed duly served if mailed by registered or
certified mail to the following addresses:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Max Sklar,
Tourism, Culture, and Economic Development Director
O Cinema and-the City may change the above mailing addresses at any time upon giving the
other party written notification. All notice under this Agreement must be in writing.
SECTION 33. NO DISCRIMINATION.
The O Cinema agrees that there shall be no discrimination as to race, color, national
origin, religion, sex, intersexuality, gender identity, sexual orientation, marital and familial status,
age or disability in the operations referred to by this Agreement; and further, there shall be no
discrimination regarding any use, service, maintenance or operation of the Facility. All facilities
33
located on the Facility shall be made available to the public, subject to the right of O Cinema to
establish and enforce reasonable rules and regulations to provide for the safety, orderly
operation and security of the facilities.
33.1 No Discrimination in Employment; Affirmative Action. In connection with the
performance of work under this Agreement, O Cinema shall not refuse to hire, discharge, refuse
to promote or demote, or to discriminate in matters of compensation against, any person
otherwise. qualified, solely because of race, color, national origin, religion, sex, intersexuality,
gender identity, sexual orientation, marital and familial status, and age or disability.
SECTION 35. Intentionally Omitted.
SECTION 36. 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 of action for money damages due to an alleged breach by the City of
this Agreement, so that its liability for any such breach never exceeds the sum of$50,000. O
Cinema hereby expresses his willingness to enter into this Agreement with O Cinema's recovery
from the City for any damage action for breach of contract to be limited to a maximum amount of
$50,000, less the amount of all funds actually paid by the City to O Cinema pursuant to this
Agreement.
Accordingly, and notwithstanding any other term or condition of this Agreement, O
Cinema hereby agrees that the City shall not be liable to the O Cinema for damages in an
amount in excess of$50,000, which amount shall be reduced by the amount actually paid by
the City to O Cinema pursuant to this Agreement, for any action or claim 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
Section 768.28, Florida Statutes.
SECTION 37. NOT A LEASE.
It is expressly understood and agreed that no part, parcel, building, structure, equipment
or space is leased to O Cinema; that this Agreement is a management agreement and not a
lease; and that O Cinema's right to operate and manage the Facility shall continue only so long
as the O Cinema complies with the undertakings, provisions, agreements, stipulations and
34
conditions of this Agreement.
SECTION 38. MISCELLANEOUS
38.1 Governing Law/Venue/Waiver of Jury Trial. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Florida, both substantive and
remedial, without regard to principals of conflict of laws. The exclusive venue for any litigation
arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S.
District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS
AGREEMENT, CITY AND O CINEMA EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY
HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF,
THIS AGREEMENT.
38.2 No Partnership or Joint Venture. Nothing herein contained is intended or shall be
construed in any way to create or establish the relationship of partners or a joint venture
between the City and O Cinema. None of the officers, agents or employees of O Cinema shall
be or be deemed to be employees of the City for any purpose whatsoever.
38.3 Entire Agreement. This Agreement and all Exhibits attached hereto contain the
entire agreement between the parties with respect to the subject matter hereof and supersedes
all prior agreements, understandings, proposals or other expressions of intent with respect
thereto. The Exhibits attached hereto are incorporated into and made a part of this Agreement.
No other agreements, representations, warranties or other matters, whether oral or written, will
be deemed to bind the parties hereto with respect to the subject matter hereof.
38.4 Written Amendments. This Agreement shall not be altered, modified or amended
in whole or in part, except in writing executed by each of the parties hereto. The City Manager
shall have authority, on behalf of the City, to execute any amendments to the Agreement.
38.5 Binding Upon Successors and Assigns; No Third-Party Beneficiaries.
38.5.1 This Agreement and the rights and obligations set forth herein shall inure
to the benefit of, and be binding upon, the parties hereto and each of their respective
permitted successors and permitted assigns.
38.5.2 This Agreement shall not be construed as giving any person, other than
the parties hereto and their successors and permitted assigns, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any of the provisions
herein contained, this Agreement and all provisions and conditions hereof being
35
intended to be, and being, for the sole and exclusive benefit of such parties and their
successors and permitted assigns and for the benefit of no other person or entity.
38.6 Section Headings and Defined Terms. The headings contained herein are for
reference purposes only and shall not in any way affect the meaning and interpretation of this
Agreement. The terms defined herein and in any agreement executed in connection herewith
include the plural as well as the singular and the singular as well as the plural, and the use of
masculine pronouns shall include the feminine and neuter. Except as otherwise indicated, all
agreements defined herein refer to the same as from time to time amended or supplemented or
the terms thereof waived or modified in accordance herewith and therewith.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original copy of this Agreement, and all of which, when taken together, shall be
deemed to constitute but one and the same agreement.
38.7 Severability. The invalidity or unenforceability of any particular provision, or part
of any provision, of this Agreement shall not affect the other provisions or parts hereof, and this
Agreement shall be construed in all respects as if such invalid or unenforceable provisions or
parts were omitted.
38.8 Non-Waiver. A failure by either party to take any action with respect to any
default or violation by the other of any of the terms, covenants, or'conditions of this Agreement
shall not in any respect limit, prejudice, diminish, or constitute a waiver of any rights of such
party to act with respect to any prior, contemporaneous, or subsequent violation or default or
with respect to any continuation or repetition of the original violation or default.
38.9 Certain Representations and Warranties.
38.9.1 The City represents, warrants, and covenants to O Cinema the following:
(i) City has full legal right, power and authority to enter into and perform its obligations
hereunder; and (ii) this Agreement has been duly executed and delivered by the City and
constitutes a valid and binding obligation of the City, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally or by general equitable
principles.
38.9.2 O Cinema represents and warrants to the City the following: (i) O Cinema
has full legal right, power and authority to enter into and perform its obligations
hereunder, and (ii) this Agreement has been duly executed and delivered by O Cinema
36
and constitutes a valid and binding obligation of O Cinema, enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally or by general equitable
principles.
38.10 Governing Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of Florida, without giving effect to otherwise
applicable principles of conflicts of law. .
39. CINEMA'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
Pursuant to Section 119.0701 of the Florida Statutes, if O CINEMA meets the definition of
"Contractor" as defined in Section 119.0701(1)(a), the Concessionaire shall:
a) Keep and maintain public records that ordinarily and necessarily would be required by
the public agency in order to perform the service;
b) Provide the public with access to public records on the same terms and conditions that
the public agency would provide the records and at a cost that does not exceed the cost
provided in this chapter or as otherwise provided by law;
c) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law; and
d) Meet all requirements for retaining public records and transfer to the City, at no City cost,
all public records created, received, maintained and/or directly related to the
performance of this Agreement that are in possession of O CINEMA upon termination of
this Agreement. Upon termination of this Agreement, the Concessionaire shall destroy
any duplicate public records that are exempt or confidential and exempt from public
records disclosure requirements. All records stored electronically must be provided to
the City in a format that is compatible with the information technology systems of the
City.
For purposes of this Article, the term "public records" shall mean all documents, papers, letters,
maps, books, tapes, photographs, films, sound recordings, data processing software, or other
material, 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.
O CINEMA's failure to comply with the public records disclosure requirement set forth in Section
119.0701 of the Florida Statutes shall be a breach of this Agreement.
In the event O CINEMA does not comply with the public records disclosure requirement set forth
in Section 119.0701 of the Florida Statutes, the City may, at the City's sole discretion, avail itself
of the remedies set forth under this Agreement and available at law.
37
i
40. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE
FOOD SERVICE ARTICLES.
Pursuant to Section 82-7 of the City Code, as may be amended from time to time, effective
August 2, 2014, the City has prohibited the use of expanded polystyrene food service articles by
City Contractors, in connection with any City contract, lease, concession agreement or Special
event permit. Additionally, pursuant to Section 82-385 of the City Code, as may be amended
from time to time, no polystyrene food service articles will be allowed in the right-of-way, and no
polystyrene food service articles can be provided to sidewalk café patrons.
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded
polystyrene is more particularly defined as 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.
O Cinema agrees not to sell, use, provide food in, or offer the use of expanded polystyrene food
service articles at the Facility or in connection with this Agreement. 0 Cinema shall ensure that
all vendors operating in the Facility abide by the restrictions contained in this Section 40. 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 0 Cinema or its vendors.
41. COCA-COLA:The City has entered into an agreement with Coca-Cola
Bottling, effective September 1, 2011 —September 1, 2021, to be the exclusive provider of
non-alcoholic beverages and coffee products. 0 Cinema shall only sell Coca-Cola
beverages as listed in the attached Exhibit"G" and as may be updated from time to time.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
38
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed; all as of this day and year first written above.
Attest: CITY OF MIAMI BEACH
a
OPT
I 012-q
R fael E. Granado, C y C rk F*i p Levine, Ma i
:INCORP ORATED: ,
�CH 26
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
aG Ob-�PP' , 2014, by Philip Levine, Mayor, and Rafael E. Granado, City Clerk, on
behalf of the CITY OF MIAMI BEACH, known to me to be the persons described in and who
executed the foregoing instrument, and acknowledged to and before me that they executed said
instrument for the purposes therein expressed.
WITNESS my hand and official seal, this day of aC ,�-e r- , 2014.
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
LIMA CARDILLO
MY COMMISSION#FF 155322
Y
Bonded Thru Notary August
ubblic Underwriters
APPROVED AS TO
FORM & LANGUAGE
4XECUTION
Cy
3 Attorney �� Date
9
Attest: ivi g Arts Trust, n d/ / O Cinema
Print Name: Kar em absch, Co- rector •
Print Name:
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument' was acknowledged before me this day of
- Q)pe r , 2014, by Kareem Tabsch, as Co-Director on behalf of Living Arts Trust,
Inc. d/b/a O Cinema, known to me to be the persons described in and who executed the
foregoing instrument, and acknowledged to and before me that they executed said instrument
for the purposes therein expressed.
WITNESS my hand and official seal, this �1 day of CSC.�c6e r , 2014.
�.•�� a NATASMA OIAZ
Notary Public, State of F ida at Large
Notary public-state of Florida Commission No.: F F
' My Comm.Expires Apr 15,2017 My Commission Expires:
Commission#*FF 006496 (� C5:) O
40
EXHIBIT"A"
LEGAL DESCRIPTION OF THE FACILITY
Site Plan for Facility
LEGAL DESCRIPTION
A portion of the land occupied by Byron Carlyle Theater, more particularly described as
follows:
Lots 11, and 12, TOGETHER WITH: the east 15 feet of lots 1 and 2, all in Block 14,
NORMANDY BEACH SOUTH, recorded in Plat Book 21, at Page 54, Public Records of
Miami-Dade County, Florida, containing 14,092 square feet more or less.
As more particularly delineated as the portion of the Theater being managed and operated by
"O Cinema" under this Agreement, in the attached site plan.
41
In
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EXHIBIT"B"
CITY OF MIAMI BEACH
MINIMUM MAINTENANCE SPECIFICATIONS
FOR MAINTENANCE OF THE MIAMI BEACH
BYRON CARLYLE THEATER
These minimum operating and maintenance standards are intended to be considered as a
whole and intended to provide an overall standard for the Facility. Individual discrepancies, as
well as deviations, from any individual standard shall not be considered a default of the
Agreement; it is the intention of the parties that this Exhibit is merely a guide and that O' Cinema
is only expected to use good faith efforts to endeavor to meet the standards set forth herein. In
the event of a conflict between the terms or conditions of the Agreement and the terms or
conditions of this Exhibit, the terms and conditions of the Agreement shall control.
PERSONNEL
1. O' Cinema shall have the sole responsibility to recruit and employ a full-time general
manager and any necessary administrative and accounting personnel that are
responsible for the overall management and operation of the Facility.
2. O' Cinema shall have the sole responsibility to recruit and employ sufficient
personnel to maintain the following functions: general security; janitorial, housekeeping
and cleaning for both event and non-event cleanup; maintenance for electrical systems,
plumbing; and air conditioner operation; painting and general overall maintenance of the
Facility to ensure that the Facility is being maintained consistent with other similar first
class facilities operated by O' Cinema.
3. O' Cinema shall have the sole responsibility to recruit and employ personnel as it
deems necessary for the staging and coordinating of Events and productions.
4. O' Cinema shall maintain personnel policies that assure employment practices do not
discriminate on the basis of race, color, religion, military status, marital status,-physical
or mental disability, national origin, age, gender, or sexual preference.
GENERAL SECURITY
1. O' Cinema shall provide for the overall security of the Facility, including during non-
event hours.
EMERGENCY PROCEDURES
1. O' Cinema shall assign an employee and a backup employee to act as an
Emergency Liaison to the City. This individual will be required to use good faith efforts to
attend any and all meetings, held by the City, that deal with emergency situations, such
as extreme weather events, terrorist acts, etc. The Liaison will serve as the point of
contact during any emergency crisis.
2. O' Cinema shall develop and implement a Hurricane Preparedness Procedure, a copy of
which shall be provided to the City.
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JANITORIAL, CLEANING AND HOUSEKEEPING
1. The Facility shall be reasonably clean at all times. This includes general cleaning
during non-event times, as well as during Events.
2. Restrooms are to be cleaned during Events and on a periodic basis during non-event
times to assure that they are in a functional and reasonably sanitary condition.
3. Garbage and trash shall be removed on an as-needed basis. Trash receptacles
shall be stationed throughout the Facility.
4. O' Cinema shall maintain compactor, garbage areas, waste areas, recycling areas,
and dumpster areas reasonably clean and debris free in order to comply with applicable
codes.
5. Carpets shall be vacuumed and cleaned on an as-needed basis.
6. Flooring shall be cleaned and polished on an as needed basis.
7. Windows shall be maintained in a reasonably clean condition and cleaned on an as
needed basis.
8. Treatment for pests and rodents (except termites) shall occur on a quarterly basis as
needed to prevent infestation or as required by applicable code.
9. Entrance doors and mirrors shall be maintained in a reasonably clean condition and
cleaned on an as needed basis.
LANDSCAPING
1. Indoor landscaping shall be maintained in accordance with specifications of the type
of plant and should be watered and fertilized as the type of plant demands.
2. Indoor landscaping should be reasonably insect-free.
EQUIPMENT MAINTENANCE AND GENERAL MAINTENANCE
1. Equipment shall be maintained in a good and workmanlike manner in order to maintain
in full force and effect all dealer's and manufacturer's warranties. O' Cinema shall
develop an annual schedule for equipment inspection and preventative maintenance.
2. Upon termination, cancellation, and/or expiration of the Agreement, O' Cinema shall
provide all records maintained in accordance with Section 5.3.4. All existing warranties
that are transferable will be transferred to the City.
43
3. O' Cinema shall post and maintain, as required by any applicable governmental code
and/or regulation, any and all required professional licenses, certifications, and/or
permits.
4. O' Cinema shall maintain and inspect all building safety systems including but not
limited to: smoke, fire, and CO detector systems, backup generator operation,
emergency battery backup functions, emergency lighting, emergency egress, special
needs and blackout preparedness equipment. All building safety systems shall be
tested on at least an annual basis or as required by federal, state or local codes and
regulations, and maintained in operating condition at all times.
5. O' Cinema shall develop and implement a plan for inspection and maintenance for the
Facility's HVAC systems. This shall include inspection of all HVAC controls on a
quarterly basis to verify proper setting and operation as well as any adjustments and/or
maintenance that may be appropriate, including, but not limited to filter replacement,
blower and/or heat exchanger, proper operation of air intakes/vents, fan units, ducts, etc.
6. O' Cinema has the sole responsibility of maintaining the paint on the interior of the
Facility.
44
EXHIBIT"C"
O CINEMA STANDARD AGREEMENT
0
CINEMA
VENUE RENTAL AGREEMENT
THIS RENTAL AGREEMENT made this ** day of 2014_ ** by and between
hereinafter referred to as "RENTER" and Living Arts,Trust, Inc. d/b/a 0
Cinema hereinafter referred to as "0 Cinema" The Duration of this lease is for the specified show times and dates as
follow:
EVENT DATE &TIME
0 Cinema grants unto"RENTER"the use and occupancy of 0 Cinema(Venue),upon the following terms and conditions for the
sole purpose of:
EVENT TYPE
1. Rent: "RENTER" shall pay rent to 0 Cinema without demand, together with any and all sales, use and state taxes
arising or accruing during the term of the Leasehold, plus the percentages and other charges as set forth below on the following
basis:
"RENTER"hereby covenants and agrees to pay the following minimum rentals:
TOTAL FEE
50% deposit due no later than th , 2014.
Balance due no later than .10 business days prior to start of event
"RENTER"is subject to the terms and conditions of this LEASEAGREEMENT. These Rental Documents comprise"RENTER's"
r I responsibility for
obli ation to rent 0 Cinema and are in full force and effect Burin the rental period. "Renter" accepts sole
9 9 P P
compliance with the terms set forth in this contract.
An executed Lease Agreement must be returned to both parties by or contract will be
automatically cancelled.
By signing this contract,"RENTER"takes full responsibility and obligation for all rental monies and additional
charges incurred for film screening/event. "RENTER" is fully responsible for full rental of any cancellation for
the above-mentioned date. This shall be presented by way of an addendum to this contract and must be
signed by both parties.
In the event "RENTER" has not completely vacated the premises and returned said premises by the
contracted termination time, 0 Cinema may assess additional rent at the prevailing daily rental rate for each
day or portion thereof beyond the contracted evacuation time.
Renter acknowledges that no outside food or beverage may be brought in to the premise to be sold,
distributed,given away,displayed or served.
2. Premises and Equipment:
45
a) This Agreement grants unto "RENTER" the full use of the auditorium, all seats, lobby and entryways.
"RENTER" shall take the premises as they are at the time of occupancy by 0 Cinema. In the event
"RENTER" finds it necessary to remove or change the location of any stage rigging, settings, curtain or
equipment, the changes shall be made by "RENTER" at"RENTER's" expense; provided, however, that no
removals or changes shall be made without prior written consent of 0 Cinema. "RENTER"further agrees to
replace and restore all said stage riggings, settings, curtains or equipment to the former location and
condition in which "RENTER"found them. 0 Cinema furthermore agrees to provide use of the house video
projection equipment and playback system (any playback other than Blu Ray, laptop or DCP is not available
and alternatives must be provided by "RENTER") for "RENTER". These equipments will be permanently
housed at The 0 Cinema for the duration of this lease.
b) "RENTER" agrees to pay costs of repair and replacement and all damages of whatever origin or nature
which may occur during the term of this agreement in order to restore the leased premises or other parts of
the 0 Cinema's premises affected by the event to a condition equal to that at the time this agreement
became effective.
"RENTER" shall not injure, mar, or in any manner deface the premises or any equipment contained therein and shall
not cause or permit anything to be done whereby the said premises or equipment therein shall be in any manner
injured marred or defaced. "RENTER" further agrees it will not tape items, drive or permit to be driven nails,
hooks,tracks,or screws into.any part of said building or equipment contained therein and will not make or allow to
be made any alterations of any kind to said building or equipment contained therein.
3. Services: The 0 Cinema shall furnish air conditioning during show hours only(to be turned on 1 hour prior to first film
to allow proper time for cooling, house lights, public address system and water by means of the appliances installed for ordinary
purposes, but for no other purposes. Interruptions, delays or failures in furnishing any of the same caused by anything beyond
control of the 0 Cinema shall not be chargeable to 0 Cinema. 0 Cinema will provide one daily cleaning of all public spaces prior
to "RENTER's"daily usage of the space.All personnel required by"RENTER" during their use of 0 Cinema, will be solely the
responsibility of"RENTER".
4. Indemnification Clause: "RENTER" agrees that it will indemnify, hold and save 0 Cinema and The City of Miami
Beach (the "City"), their officers, agents, contractors and employees whole and harmless and who at the City or 0 Cinema's
option defend same, from and against all claims, demands, actions, damages, loss, cost, liabilities, expenses and judgments of
any nature recovered from or asserted against the City or 0 Cinema on account of injury or damage to person or property to the
extent that any such damage or injury may be incident to, arise out of, or be caused, either proximately or remotely, wholly or in
part, by an act, omission, negligence or misconduct on the part of the City or 0 Cinema or any of its agents, servants,
employees, contractors, patrons, guests, licensees or invitee or of any other person entering upon the Premises leased
hereunder with the express or implied invitation or permission of"RENTER", or when any such injury or damage is the result,
proximate or remote, of the violation by "RENTER" or any of its agents, servants, employees, contractors, patrons, guests,
licensees or invitee of any law, ordinance or governmental order of any kind, or when any such injury or damage may in any
other way arise from or out of the occupancy or use by"RENTER", its agents,servants,employees,contractors, patrons,guests,
licensees or invitee of the Premises leased hereunder.
5. Ordinances and Regulations: "RENTER" will comply with all laws, ordinances and regulations adopted or
established by federal, state or local governmental agencies or bodies; and by all facility rules and regulations as provided by 0
Cinema, and "RENTER" will require that its agents and employees likewise comply. "RENTER" agrees that at all times it will
conduct its activities with full regard for public safety and will observe and abide by all applicable regulations and requests by
duly authorized governmental agencies responsible for public safety and by 0 Cinema to assure such safety. The "RENTER"
further agrees that all portions of sidewalks, entries, doors, passages, vestibules, halls, corridors, stairways, passageways, and
all ways of access to public utilities of the premises shall be kept unobstructed by "RENTER" and shall not be used for any
purpose other than ingress or egress to and from the premises by"RENTER", its staff,and patron. "RENTER"also shall not use
or store or permit to be used or stored in or on any part of the Leased premises any substances or thing prohibited by law,
ordinance,or standard policies of fire insurance companies operating in the State of Florida,without the permission of 0 Cinema.
Illuminating oils, candles, oil lamps, turpentine, benzene, naphtha,or other similar substances or explosives of any kind shall not
46
be placed in or on the licensed premises. It is further agreed that no inflammable materials,such as bunting,tissue paper,crepe
paper,etc.,will be permitted to be used as decorations and decorative materials unless they are treated with flame-proofing and
are approved by the 0 Cinema.
6. Powers to Vacate Premises: 0 Cinema shall retain the right to cause interruption of any performance in the interest
of public safety, and to likewise cause the termination of such performance when in the judgment of 0 Cinema such action is
necessary in the interest of public safety. Should it become necessary in the judgment of 0 Cinema to evacuate the premises
because of a bomb threat or for other reasons of public safety, 0 Cinema will retain possession of the premises, for sufficient
time to complete presentation of its activity without additional rental charge. If it is not possible to complete presentation of the
activity, rental shall be forfeited,prorated,or adjusted.
0 Cinema reserves the rights to make such announcements as are deemed necessary at any time in the interest of public safety.
"RENTER" agrees that it will cooperate with the delivery of such announcements for public safety, including but not limited to,
announcements to require patrons to leave their seats or to leave the premises. 0 Cinema reserves the right to eject or cause to
be ejected from the premises any person or persons causing a disturbance, and neither 0 Cinema nor any of its officers, agents
or employees shall be liable to the"RENTER"for any damages that may be sustained by"RENTER"through the exercise by 0
Cinema of such right.
7. Default and 0 Cinema's Remedies: Full compliance with all terms of this lease and failure to provide payment in the
requested time frame shall constitute the immediate cancellation and nullification of this lease.
8. Insurance: As additional consideration over and above the rental payments made by"RENTER" herein, "RENTER"
shall, at its own expense, comply with all of the following insurance requirements of the 0 Cinema. It is agreed by the parties
that the "RENTER" shall not occupy the premises until proof of the following insurance coverage has been furnished to the 0
Cinema.
a) Commercial general liability insurance,on an occurrence form, in the amount of One Million($1,000,000.00)
Dollars per occurrence for bodily injury, death, property damage, and personal injury. The policy must
include coverage for premises operations, blanket contractual liability (to cover indemnification section),
products, completed operations and independent contractors. If the user's activities involve the sale of
alcohol, then liquor liability in the same amount is also required. These policies must name the 0 Cinema
and City of Miami Beach,as additional insureds.
d) It is understood and agreed that all coverage's provided by the "RENTER" are primary to any insurance or
self-insurance program the 0 Cinema has for this Facility and the"RENTER" and their insurance shall have
no right of recovery or subrogation against the 0 Cinema.
e) All policies must be issued by companies assigned a rating of A:X or better, per Best's Key Rating Guide,
latest edition.
g) Evidence of the required insurance policies must be provided to 0 Cinema by submission of an original
certificate of insurance(proof of additionally insured certificate)thirty(30)days prior to the commencement of
the lease period.
h) Alternate coverage to satisfy these requirements is subject to prior approval of the 0 Cinema.
9. Administrative Charges: In the event any check, bank draft or negotiable instrument given for any money payment
hereunder shall be dishonored at any time, for any reason whatsoever not attributable to 0 Cinema, 0 Cinema shall be entitled,
in addition to any other remedy that may be available to make an administrative charge of Twenty($20.00)Dollars for each such
check.
10. Miscellaneous:
47
(a) All legal proceedings arising from this lease shall be in the courts situated in Miami-Dade County, Florida.
(b) If any section, subsection, clause or provision of this Lease is held invalid, the remainder shall not be
affected by such invalidity. .
(c) This Lease may only be altered, changed or amended, by an instrument in writing signed by both parties
hereto.
(d) No waiver of any covenant or condition of this Lease by either party shall be deemed to imply or constitute a
further waiver of the same covenant or condition or any other covenant or condition of this Lease.
(e) This Lease contains and embodies the entire agreement of the parties hereto and no representations,
inducements or agreements oral or otherwise, between the parties not contained and embodied herein shall
be of any force and effect.
(f) In any conflict between the Lease and other written provisions the lease shall prevail.
(h) All federal, state, and local laws and/or regulations related to copyright, trademarks, etc. must be complied
with by"RENTER". Further, "RENTER" agrees to save and completely hold harmless 0 Cinema, and to pay
all costs related to any violation of the above.
14 Other Terms and Conditions: Any and all other terms of conditions shall be made by way of an addendum to this
lease. Said addendum must be signed and executed by both parties in order to be valid.
By:
Date: Signature
Co-Director, "0 Cinema"
By:
Date: Signature
Print Name- "RENTER"
Complete RENTER information:
Name: Address:
Email: City State Zip Code:
l
48
EXHIBIT"D"
CITY OF MIAMI BEACH OWNED.PROPERTY INCLUDED IN THE AGREEMENT
GIVI Office
Deck and chair
1 File cabinet
1 tall cabinet with Box office safe, and Misc. office supplies
1 shelve unite with ADA Infrareds hearing units
1 Fax Machine ( No City Labels, Purchased by Byron Theatre)
1 Dell Computer and Monitor and mouse #31253 CMB
Telephone
Copy Room
1 HP Laser jet printer( No Labels, Purchased by Byron Theatre)
1 Canon Image Class D320 Printer ( No Labels, Purchased by Byron Theatre)
Crew Room
1 Microwave
1 Coffee maker
TD Office
Desk and Chair
1 Small shelve unit
1 Dell Computer and Monitor and mouse#31254 CMB
Misc. office supplies.
,,Telephone
Storage Room
Misc. Theatrical Hardware Tape, Lamps, Gel and so on.
1 Upright Piano
1 Piano Bench
Concession Area
1 Freezer unit
1 Price board
Stage
Floor.-Wenger Versalite staging, black painted cover
Stage height: 2'-8"
Front of Stage to 1st Row of Seats:6'
Truss height: 18'-8" (bottom)
Stage Depth: PL to BS Wall: 29'Total stage depth: 30'
Proscenium: 34'wide x 13'-6"tall
Wings: Distance from on stage leg to off stage wall: 8'-6"
Approx. 6' between legs
Soft goods: 1 grand curtain with valance
4 per side black velour legs (Legs: 6'-3"width)
5 borders (5' height)
Upstage Black traveler
white seamless cyclorama.
49
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Rigging:
Line Item @(DS Edge) Note
-----------------------------------------------------------------------
1 Grand teaser 1' -4" Dark Blue colored
2 Main Curtain 2' - 0" Dark Blue, manual SL pull
3 Electric 1 3' -9" Motorized (Trim 17'-9")
4 Black Border 7' -0" Dead Hung (Trim 13'-7")
5 Electric 2 9' -7" Motorized (Trim 17'-9")
6 Black Border 13' -5" Dead Hung (Trim 13'-7")
7 Electric 3 16' -3" Motorized (Trim 17'-9"
8 Black Border 19' -6" Dead Hung (Trim 13'-7")
9 Electric 4 23' -7" Motorized (Trim 17'-9") DEAD HUNG AT THIS TIME
10 Black Border 25' -9" Dead Hung (Trim 13'-7")
11 Black Scrim 26' - 11" Dead Hung
12 Electric 5 28' -6" Motorized (Trim 17'-9") DEAD HUNG AT THIS TIME
13 Black traveler 28' -6" control SL
14 Cyclorama 30' -0" Dead Hung
Lighting Inventory:
Altman 6X16 1 K FEL 1 KW 7.5 x 7.5 15
Altman 6X12 EHG 750 7.5 x 7.5 19
Altman 6X9 EHG 750 7.5 x 7.5 22
ETC Source Four Parnel HPL 575 7.50 x 7.50 20
Altman Sky Cyc 3 cell HTP 1000 16 x 15.5 6
Accessories:
8-501b boom bases
8- 10' pipes for booms
18 251b. Sandbags, s
le
addle-st Y
40-25' SPG cable
40- 10' SPG cable
12 -5' SPG cable
24- 12"side arms
40-SPG Twofers
8 - Pattern holders
Control:
96-2.4k ETC SensorPlus dimmer/circuits
ETC Express 250 (version 1.02)w/color monitor
Sound inventory:
House Speakers:
Left and Right mains (JBL MP215 15" 2 WAY SPEAKER)
Stage Monitors:
2 Community 12"Two Way Wedges
Control:
Mackie SR24-4-2 VLZ Pro Mixing Console
1 DENON DNC 615 CD Player
Accessories:
50
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Selection of microphones including SM 57 SM 58
24 channel snake (SR)
Porta-Com headset system, sound/light/SL, SR
Cinema equipment
Screen dimensions
14X30
35mm equipment
Projector
(1)Kinoton PK60D
Three lens turret for 1.66/1.85/2.35 Scope format.*???
(1)Strong Highlight II Type 72000-01
Watts????
(1) Christie Autowind 3 three deck film platter& makeup table.
Audio rack
1 —Smart TCX624A Time-phase correction Electronic Crossover
1 Dolby CP65D Processor .
Speakers
3—Stage speakers set up for 3 way reproduction; Low to mid range via
Smart crossover and mid to high range via passive crossover(1.2KHZ).
Bass= Dual 15 inch woofer. Mid = 12 inch horn loaded.
High = horn loaded.
JBL 4639
Horn—JBL 125-3000-01
1 —Su bwoofer,dual 15 inch. JBL 4642A.
(1) 35mm film splicer
Video Projectors
1 Proxima Desktop 9290
OTHER
4 Easels
1 8 Stanchions
11 Red Ropes
4 Curved Serving Tables
3 6ft. Tables
2 8ft. Tables
2 6ft. Ladders
2 10ft Ladders
1 10ft. Wooden Ladder
1 14ft.A Ladder with Extension
51
1 Geni Lift S/N: 0900023421
1 Carpet Cleaner
2 Vacuums (934) (943)
3 Sets of pickups and brooms
2 Dust Mops
1 Cement Push Broom
2 Push Brooms
1 Mop bucket and ringer
2 Mops
1 Large Trash Bin on wheels
82 Red Chairs
12 Black Chairs
2 Locker Units (3 each)
1 Small Fridge
1 Maintenance Cart
Assorted Cleaning supplies and paint.
52
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EXHIBIT"E"
BYRON CARLYLE THEATER
CITY OF MIAMI BEACH
FACILITY REPAIRS LIST
1. The building exterior pressure cleaned and water proofed.
2. Roof leaks were repaired.
3. The HVAC system inspected and serviced including the replacement of;
a. 23 grilles.
b. 46 collars
c. 150' of flex duct
d. 23 volume dampers.
4. All Electrical components tested and replacements are listed below:
e. 1. 32 emergency lights replaced
f. 2. 7 exit/emergency combos replaced
g. 3. 23 exit lights replaced
h. 4. 20 MR 15 lamps replaced
i. 5. 6 MR11 Lamps replaced.
j. 6. 17 500W lamps replaced in the theater
k. 7. 4 new 1'x4' fluorescent fixtures in men's restroom
I. 8. 3 new floats and wiring to repair lift station
5. Plumbing inspection and repair of lift station and replaced:
m. 2 flush valves
n. 2 faucets
o. 4 float switches for the lift station.
6. The hallway painted as well as 10 different office spaces and three restrooms.
7. Replacement of ceiling tiles and ceiling grids.
8. All doors were inspected and adjusted for proper operation.
9. A comprehensive pest control system was completed.
10. Fire Alarm Systems Annual Test & Inspection
11. Fire Alarm Systems deficiencies were correction
12. Fire Sprinklers and Backflow Preventer Annual Test & Inspection.
13. Fire Sprinkler and Backflow Preventer Deficiencies Correction
14. Pressure Washing, Housekeeping and Floor Care
53
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EXHIBIT"F"
O CINEMA RATE SCHEDULE
® CINEMA MIAMI BEACH
Venue Rental Rates
RATES Commercial Non-Profit Individual Artist
Three Hour $1,250.00 $1,000.00 $750.00
Rental
(Mon thru
Thurs)
Three Hour $1,875.00 $1,500.00 $1,125.00
Rental
(Fri, Sat or Sun)
Weekly $8,000.00 $6,000.00 Same as
(Fri thru Sun or commercial
Fri thru Thurs)
Additional Costs
O Cinema staff will be on hand to assist in general operation of the facility. However,
should you need additional help with the execution of your event or require the use of
35mm projection the following fees will apply:
Additional Staff @ $25.00 per hour per employee.
Use of 35mm projector & projectionist - $250.00 per evening
Food & Beverage
O Cinema provides on-site concession items for purchase by your guests. Our
concession will always remain open for guests at all events. However, in addition to our
items available for purchase you may choose to bring in your own food or beverage to
provide to your guests. If so, the cost for doing so is $300.00 per three-hour period. O
Cinema can also create custom concession packages for your guest.
Cleaning Fee
$150.00 cleaning fee is required per rental/per night
Box Office
O Cinema staff can run the box office sales for your event during your rental for the
following rate per three-hour period.
$100.00
54
EXHIBIT«G,,
COCA-COLA PRODUCT:LIST
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2014 Product List
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20az f3oz3les12Apet ease_ _ _) Mountain Blast XXX(Blueberry Pomegranate
Coca-Cola Ctaaaic Fruit Punch Power C.(Dragon Fruit)
Coke Zero Lemon Umo Focus(Kiwi Strawberry)
Vanilla Coke Orange Essential(Orange)
Cherry Coke Strawberry Lemonade Enorgy(Tropical Citrus)
Cherry Coke Zero Grape hlulti•V(Lemonade)
Diet Coke Roviw(Fruit Punch j
Caffeine Fred Dim Coke Defense(Raspberry Apple
Diet Coke wl Lima Fruit Punch(Red) Aftention
Sprite Grope(purplo) VW Z@r0 IZERO Calories aor so►viriol
Sprite Zero Mixed Barry(Blue) 20 oz fig=2410aso
Mello yello Squeezed(Lemonade)
Bargs Root Boer 00000 XXX(Bluaberry Pomegranate)
Pibb Xtra FUZE* Go Go(Mixed Bony)
Soagram's Ginger Ale ••... '°•°•~ Glow
Fanta Orange 7(61 1a ixrr"Cann_ MegaC(GrapeRsbony)
Fonts Orange Zero Svawberry Melon Rise(Orange)
Fanta Grape Poach Mango 1122,Gok 124 cnm.
Fanta Strawberry Tropical Punch XXX XXX Zero
Minute Maid Lemonade Cranberry Raspberry Power C. squeezed:era
Minute(Maid Pink Lemonade Blue Raspberry Revive Rise Zero
Minute Maid Fruit Punch Acai Barry Pomegrandto
Fuze Sweet Tea Banana Coloda
Fuze Lemon Tea 8oz GLASS Bottles
Fuze Diet Tea X111 24 oar L xn 12 per nso -f -
Fuze Strawberry Too tttei 24 nnicass Coca-Cola Classic Cappuehino - 0
Full 7hro1'Be Diet Cake ' Lattoe Macchiato
Slack(original) Sprite Mochaccino _
20oi Bottle 241caao Blue Agave Caffo
J30ml 241caso- - - 16or.12"par:case
12oz (.SUter)4case 241ease Red Barry ON N,-,1@
12oz 8ottlosl24 eaao •1'r9
1L 12 par case NOS, 12orCarra 24/easo __ _ _,
_ 1Goa Cis 24fuso__ r Coca-Cola Classic Fresco wl Black Cherry
jQa'sanl Plovers I Original(Orange Mango) Coke Zero Barg s Root Beer
20-k-24 baMeA-
Ompo Caffeine Free Classic Diet Barq'a Root Beer
Lemon 1 z.Can 12langn Vanilla Coke Pibb Xtra
Strawberry Charged Citrus Cherry Coke Pibb Zero
Sugar Free Cherry Cake Zero Minute Maid Lemonade
Qdsa 6i-QfOpS _aMA-] Loaded Cherry Plot Coko Minute Maid Pink Lemonade
�k Diet Coko wl Splenda Minute Maid Fruit Punch
Svawborry Kiwi MONSTER Caffeine Free diet Cake f'A Maid Uto Lemonade
Mixed Barry 16oz Cans 241case ® Diet Coke wl Ums Fanata Orange
Pineapple Coconut OriginalCroen Tab Fanta Strawberry
Pink Lemonade Lo Carb-Bluo Sprite Fanta Grape
Grape Assault-Red Sprite Zaro(Diet) Fanta Orange Zero
Cherry Pomegrante Khoos-orango Frosca Seagram's Ginger Ale
MART_WATER e_C Absolute Zero-BluelPurplo Fresco wl Peach Saarimm's Diet Ginger Ala
20oz Bottles 241case Absolute Ultra-White ; r
750 ML SporbC2p 241Case 1S.2oz Gno 241cii _
1.0 L 121caso Rchab-Hall Tea Half Lemonado
1.5 L 121caso -j Rehab-Orangeade - .It
Rehab-Groman en Tea
ZieO 6ito Ut Alli f. Rehab-Rao Red Tea Poae0 Taos 23oz Cans 12 case
14oz PET Nd.Choc.Pineapple 121case Caddy Shack(half&halt)
11.2oz Tatra Ntl 121ca5e MonsferJava Toxas Tea(sweet tea)
1.0 L Ntl,Chat 121wso 15m Cans 12reaso Mq<tiyr taR Pink Lemonade
Mean Bean Razzloborry(raspberry)
Loco Mow Snowborry(white berry)
.1f4bOMt falasEic 214 ease Vanilla Light Georgia Peach
100%Orange Juice Toffee Groan Tea
100%Apple Juice Kona Blend Sweet Lemon
100%Cranberry Apple Raspberry Irish Blend
100%Cranberry Grape
100%Ruby Rod Grapefruit Alonxrcr MuaeM - Gold Peak Tea 18.Sor Bottfo 121caso
100%Strawberry Possionfruit 16az.Cans 121ease c6' Sweet
Tropical Blond Chccalate ` Lemon
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Condensed Title: COMMISSION ITEM SUMMARY
A Resolution Waiving, By 5/7,n Vote, The Competitive Bidding Requirement And Approving And Authorizing
The Mayor And City Clerk To Execute An Agreement Between The City And Living Arts Trust, Inc. D.B.A. O
Cinema For The Operation And Management Of A Portion Of The Byron Carlyle Theater; Said Agreement
Having An Initial Term Of Five (5) Years, Commencing On October 1, 2014, And Ending On September 30,
2019, With An Option To Extend The Agreement For Up To Five (5) Additional Years (In Either One Year Or
Multi-Year Increments, As Determined By The City), At The City's Sole Discretion.
Key Intended Outcome Supported:
Maximize Miami Beach as a Brand Destination and Improve Alliance with Key Business Sectors, Namely
Hospitality, Arts and International Business with a Focus on Enhanced Culture, Entertainment and Tourism.
Supporting Data(Surveys, Environmental Scan, etc.) N/A
Item Summary/Recommendation:
On April 13, 2011, the Mayor and Commission adopted Resolution No. 2011-27648, approving a Management
Agreement between the City and Stage Door Theater for the Byron Carlyle Theater. The Agreement had an
initial term of five(5) years, commencing on May 1, 2011 (Commencement Date) and ending on April 30, 2016
(Expiration Date). The City has the option of renewing the Agreement, at its sole discretion, and provided that
Stage Door is in good standing, free of default, and has met its annual benchmarks, for up to five (5) years.
Under the Agreement the facility must only be used as a live theatrical entertainment venue and public
auditorium, and must operate on a year-round basis. Stage Door Theatre terminated its management
agreement with the City for the Byron Carlyle Theater, effective June 1, 2014, due to the unexpected death of
its founder and president, David Torres.
Mayor Levine and Commissioner Malakoff both placed discussion items on the July 23, 2014 City Commission
agenda to consider O Cinema as a tenant for the Byron Carlyle Theater. Following discussion the City
Commission unanimously approved a motion directing City staff to negotiate an agreement with O Cinema to
be brought back for consideration. Mayor's Blue Ribbon Panel on North Beach at their meeting held on July
24, 2014 unanimously adopted a motion supporting O Cinema's use of the Byron Carlyle Theater.
The attached draft management agreement reflects the agreed upon terms negotiated by the City and O
Cinema. These terms are summarized in the attached memorandum. The Administration recommends that
the Mayor and City Commission of the City of Miami Beach, Florida adopt the Resolution waiving, by 5/7th
vote, the competitive bidding requirement and approving and authorizing the Mayor And City Clerk to execute
an agreement between the City and Living Arts Trust, Inc. D.B.A. O Cinema for the operation and
management of a portion of the Byron Carlyle Theater; said agreement having an initial term of five (5) years,
commencing on October 1, 2014, and ending on September 30, 2019, with an option to extend the agreement
for up to five (5) additional years(in either one year or multi-year increments, as determined by the city), at the
city's sole discretion.
Advisory Board Recommendation:
Mayor's Blue Ribbon Panel on North Beach at their meeting held on July 24, 2014 unanimously adopted a
motion supporting O Cinema's use of the Byron Carlyle Theater.
Financial Information:
Source of Amount Account
Funds: 1 N/A
Financial Impact Summary: O Cinema will pay $5,000 annually for the first 3 years. Commencing with the 4
year, the Use Fee will be 10% of all net ticket and concession revenues generated; with annual increases
thereafter of 1% per year, but not to exceed 20%. O Cinema has also agreed to an annual contribution of $
2,500 for each Contract Year commencing with the 4th year. O Cinema shall be solely responsible for and shall
pay 69% of all charges for utilities used at the Facility.
City Clerk's Office Legislative Tracking:
Max Sklar, ext. 6116
Sign-Offs:
De artme Dire(,, or, Assistant City na er City Mpna er
MAS. KGB
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T:\AGENDA\2014\Sbrptembe D\O Cinema Agreement for Byron-Summ.doc
AGENDA ITEM (f 7 r AM I B EAC H DATE _� _
MIAMI BEA
City of Miami Beath, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members of the City C mission
FROM: Jimmy L. Morales, City Manager
r
DATE: September 10, 2014
SUBJECT: A RESOLUTION OF THE MAYO AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ACCEPTING THE WRITTEN
RECOMMENDATION OF THE CITY MANAGER (AS SET FORTH IN THE
CITY COMMISSION MEMORANDUM ACCOMPANYING THIS
RESOLUTION) AND WAIVING, BY 5/7T" VOTE, THE COMPETITIVE
BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST
INTEREST OF THE CITY, AND APPROVING, IN SUBSTANTIAL FORM, THE
ATTACHED AGREEMENT BETWEEN THE CITY AND LIVING ARTS
TRUST, INC. D/B/A O CINEMA FOR THE OPERATION AND MANAGEMENT
OF A PORTION OF THE BYRON CARLYLE THEATER, SUBJECT TO FINAL
NEGOTIATION OF SAME BETWEEN THE CITY ADMINISTRATION AND O
CINEMA, AND SUBJECT TO LEGAL REVIEW AND FORM APPROVAL OF
THE FINAL NEGOTIATED AGREEMENT BY THE CITY ATTORNEY'S
OFFICE; SAID AGREEMENT HAVING AN INITIAL TERM OF FIVE (5)
YEARS, COMMENCING ON OCTOBER 1, 20149 AND ENDING ON
SEPTEMBER 30, 2019, WITH AN OPTION TO EXTEND THE AGREEMENT
FOR UP TO FIVE (5) ADDITIONAL YEARS (IN EITHER ONE YEAR OR
MULTI-YEAR INCREMENTS, AS DETERMINED BY THE CITY), AT THE
CITY'S SOLE DISCRETION.
ADMINISTRATION RECOMMENDATION
O Cinema is a proven operator, with two other theater locations in Miami-Dade County, Florida
and, pursuant to Section 2-367(e) of the City Code, the City Manager is recommending the
waiver, by 5/7th vote, of the competitive bidding requirement, as being in the best interest of
the City.
KEY INTENDED OUTCOME SUPPORTED
Maximize Miami Beach as a Brand Destination and Diversify Business Base in Miami Beach.
ANALYSIS
The Byron Carlyle Theater Complex (the "Theater"), located at 500 71St Street, between Byron
Avenue and Carlyle Avenue, originally opened in December 1968 as twin cinemas hosting
first-run movies in the heart of North Beach. A total of 994 seats were originally built, with the
large auditorium having a capacity of 590 seats. In the mid-1970s, the Theater was re-
developed into a multiplex cinema; the larger auditorium to the west was subdivided into five
(5) smaller theaters. The Theater continued to operate until it was sold by its owner, Wometco
Enterprises, when the City of Miami Beach purchased it in 2001, for$1.7 million.
O Cinema Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
September 10, 2014
Page 2
Phase I of the renovation of the Theater ($1.7 million) was completed by the City's Property
Management Division during approximately 16 months of design and construction for the
Theater on the eastern portion of the complex. The total seating capacity for the renovated
Theater is 304, with 158 seats in the orchestra level, and 138 seats in the mezzanine level, in
addition to eight ADA seats. Please see the attached Exhibit A for property details.
The western portion of the complex and certain back stage needs of the Theater were not
incorporated into the renovation due to space limitations and the need to not exceed 50% of
the value of the structure in renovation costs that would have required the whole structure to
be brought up to current code standards. These standards include the need to elevate the
floor to meet FEMA Flood Elevation requirements. Any new improvements done to the
western portion of the complex would also require the structure to comply with the current
Florida Building Code.
On April 13, 2011, the Mayor and Commission adopted Resolution No. 2011-27648, approving
a Management Agreement between the City and Stage Door Theater for the Byron Carlyle
Theater. The Agreement had an initial term of five (5) years, commencing on May 1, 2011
(Commencement Date) and ending on April 30, 2016 (Expiration Date). The City has the
option of renewing the Agreement, at its sole discretion, and provided that Stage Door is in
good standing, free of default, and has met its annual benchmarks, for up to five (5) years.
Under the Agreement the facility must only be used as a live theatrical entertainment venue
and public auditorium, and must operate on a year-round basis. Stage Door Theatre
terminated its management agreement with the City for the Byron Carlyle Theater, effective
June 1, 2014, due to the unexpected death of its founder and president, David Torres.
LONG RANGE PLANNING
Long range planning efforts with the community in North Beach have identified the number
one goal of developing a vibrant commercial district with shopping, restaurants, culture and
entertainment to serve the needs of North Beach residents. The area bounded by 72 Street,
Collins Avenue, 69 Street and Indian Creek Drive/Dickens Avenue was selected to be the
"Town Center" due to its centralized location, high density CD-3 zoning and relatively
pedestrian-friendly streets (compare 71 Street with one lane of traffic in each direction to
Collins Ave with three lanes of one-way traffic or Normandy Village with 6 lanes of traffic). Two
retail market reviews have demonstrated the capacity of the population to support several
hundred thousand square feet of new retail development. Yet with no existing base of quality
retail stores to build from, it has been recognized that significant planning and public
investment would be required to attract the desired mix of private investment.
The North Beach Town Center Plan, adopted July 2007, identifies a wide range of strategies
to attract new development to the Town Center. The most important of the strategies identified
included the assemblage of one or two sites large enough to provide the critical mass of
activity necessary to serve as anchors to support smaller site development in the district; to
program the Byron Carlyle Theater and the North Beach Bandshell as cultural anchors to
bookend both sides of the district; and to provide convenient public parking to lower the cost of
development.
The Byron Carlyle Theater property was identified as an important piece of the Town Center
redevelopment strategy because of the location, size, public ownership and potential to
provide a cultural anchor. Undoubtedly, cultural facilities are proven magnets for economic
revitalization, both for the business community and for residential development by making the
community more attractive. Indeed, the purchase and renovation of the theater was intended
for economic development purposes, as well as to assist local talent by providing a venue for
O Cinema Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
September 10, 2014
Page 3
rehearsal, performances, office space, and to ensure that once established the arts would be
able to remain in a rejuvenated North Beach. However, for the Byron Carlyle Theater to
succeed in this role, a few of the other supporting elements of the plan should be underway.
In considering these uses, it is important to also consider what the desired short-term and long
term use of the site should be. Long term uses of the Byron are being considered by the
Mayor's Blue Ribbon Panel on North Beach and are part of the North Beach Revitalization
Plan that staff is preparing. Both the Panel and staff have been considering the need for a
commercial anchor and civic use needs, as well as the development potential available on the
site beyond what is utilized by the existing building. The Byron Carlyle Theater property was
also identified as an important piece of the Town Center redevelopment strategy because of
the location, size, public ownership and potential to provide a cultural anchor. Indeed, the
purchase and renovation of the theater was intended for economic development purposes, as
well as to assist the local talent by providing a venue for rehearsal, performances, office
space, and to ensure that once established, the arts would be able to remain in a rejuvenated
North Beach. However, for the Byron Carlyle Theater to succeed in this role, other supporting
elements of the plan would need to be in place. Nonetheless, there continues to be much
discussion regarding the use of the Byron Carlyle and its role in the revitalization of the 71St
Street corridor.
Mayor Levine and Commissioner Malakoff both placed discussion items on the July 23, 2014
City Commission agenda to consider O Cinema as a tenant for the Byron Carlyle Theater.
Following discussion the City Commission unanimously approved a motion directing City staff
to negotiate an agreement with O Cinema to be brought back for consideration. Mayor's Blue
Ribbon Panel on North Beach at their meeting held on July 24, 2014 unanimously adopted a
motion supporting O Cinema's use of the Byron Carlyle Theater. O Cinema is a proven
operator, with two other theater locations in Miami-Dade County, Florida and has the capacity
and experience to successfully operate the Byron Carlyle Theater. Pursuant to Section 2-367
of the City code, the City Manager is recommending the waiver, by 5/7th vote, of the
competitive bidding requirement, as being in the best interest of the City, in connection with
execution of a management agreement between the City and Living Arts Trust, Inc. d/b/a O
Cinema for the operation and management of a portion of the Byron Carlyle Theater.
MANAGEMENT AGREEMENT
The following are the agreed upon terms negotiated by the City and O Cinema:
Initial Term: This Agreement shall be for an initial term of five (5) years,
commencing on October 1, 2014 (Commencement Date), and
ending on the September 30, 2019 (Expiration Date), unless
earlier terminated pursuant to the provisions of the Agreement
Renewal Term: The City has the option of renewing the Agreement, at its sole
discretion, and provided that O Cinema is in good standing, free
of default, and has met its annual benchmarks, for up to five (5)
years. The option to renew may be exercised in five (5) one (1)
year terms, or in multi-year terms (as the City determines), by
providing at least 365 days notice to O Cinema.
In the event O Cinema decides not to renew the Agreement, it
shall also provide the City with at least 365 days notice prior to
the expiration of the initial term.
O Cinema Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
September 10, 2014
Page 4
Scope of Services: O Cinema accepts the engagement and agrees to operate,
manage, maintain, promote and market the Facility in a manner
consistent with other similar first class facilities. Subject to the
terms of this Agreement, O Cinema shall be, as agent for the
City, the sole and exclusive manager of the City to operate,
manage, maintain, promote and market the Facility during the
Term.
O Cinema shall use the Facility solely and exclusively as a venue
for its not-for-profit motion picture presentation company. The
Facility shall be used primarily as venue for first-run independent,
foreign, art, and family films. The venue may also be used as a
live theatrical entertainment venue and public auditorium, or any
combination thereof, and for such ancillary uses as are
customarily related to such primary use, including, without
limitation, broadcasting, recording, filming, private parties or
functions, food and beverage concessions, in each case in
conjunction with an Event or rental function then being held; and
sale of merchandise related to any Event then being held. The
Facility does not include dedicated parking for the building.
Patrons of Events may park in public parking lots and garages if
and to the extent available, upon paying the applicable parking
charges.
Required Number of Events: In order to ensure the continuous operation of the Facility, and
commencing on the October 1, 2014 O Cinema shall cause at
least 500 Events to be held at the Facility for each Contract Year
(a n d proportionately f r a n
Y P artial Contract Year) during the
Term. The aforesaid 500 Events shall be calculated by counting
each separate Event in a Run.
O Cinema shall cause the Facility to be open on a year round
basis, subject to closures for reasonable periods for rehearsal,
set design, repairs, maintenance and alterations. All Events and
all uses shall conclude prior to 3:00 a.m. unless otherwise
approved by the City Manager, in writing; provided, however, that
O Cinema's employees and/or contractors may be permitted to
remain at the Facility beyond 3:00 am in the event that same is
necessary for purposes of taking down and/or dismantling a
production, cleaning the Facility after a performance, etc., so long
as O Cinema's activities at the Facility during this time do not
disrupt and/or negatively impact the surrounding neighborhood.
Public Benefits Program:
Resident Ticket Program:
O Cinema shall operate a discount ticket program available only
to City of Miami Beach residents (meaning individuals who
permanently reside in the City of Miami Beach), by which a ten
percent (10%) discount off of the full face value pricing shall be
made available to such City of Miami Beach residents ("Resident
Tickets") for a minimum of one film screening per month.
O Cinema Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
September 10, 2014
Page 5
Senior/Student Tickets:
O Cinema shall participate at minimum once per month in the
Golden Ticket and Culture Shock programs offered by Miami-
Dade County
Complimentary Tickets:
Pursuant to City Resolution No. 2014- 28638, City shall be
entitled to receive fourteen (14) complimentary tickets per quarter
(every 3 months) for any regular film screening at the Facility that
is open to the general public, including those presented or
promoted by O Cinema and including third party rentals subject
to the provisions of this Agreement. Tickets will be used by the
City for deserving non-profit organizations and/or groups on a
rotating basis. The list of deserving organizations and/or groups
eligible to receive tickets shall include the following categories:
• Non-profit {legally established tax-exempt) agencies who
serve residents of the City of Miami Beach, for distribution to
individuals served by the agency;
• Local educational institutions for use by deserving students;
and
• Senior citizen, disabled persons, and disadvantaged youth
who: are residents of the City; do not have the financial ability
to purchase tickets; and, participate in any City-sponsored
program.
Base Use Fee: For the Term of the Agreement, O Cinema shall pay City an
annual Use Fee for the right to use the Facility as follows:
1. In the amount of$2,500 annually for the first three (3) years in
consideration for O Cinema's investments of equipment,
staffing, marketing and improvements;
2. Commencing with the fourth (4) year, O Cinema will provide
the city payment for use in the form of 10% of all net ticket
and concession revenues generated from O Cinema Miami
Beach, but not less than $5,000, (net to be understood as
after cost of concession goods and film distributor payments);
and
3. An annual increase of 1% per year for every year thereafter
but not to exceed 20% of total revenues across the life of the
Agreement or subsequent renewal options.
Operating Expenses: O Cinema shall pay all costs and expenses related to Operating
Expenses.
Capital Fund: To help defray the cost of certain major capital repairs and
replacements to the Facility, Stage Door shall make annual
contributions to a Capital Fund to be held and disbursed by City.
The annual contribution shall be Two Thousand Five Hundred
Dollars ($ 2,500) for each Contract Year commencing with the
fourth year throughout the Term.
O Cinema Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
September 10, 2014
Page 6
Valet Parking: City reserves to itself and its contractors and designees (i) all
rights to provide valet parking to the Facility, and (ii) all proceeds
from the valet parking operations. Stage Door may pre-purchase
parking controlled by the City or pre-purchase valet parking. The
City Manager shall have the authority to negotiate and enter into
such agreements with respect thereto, as the City Manager
deems acceptable.
If the City exercises its right to provide valet parking to the
Facility, then O Cinema shall have no right to provide valet
parking or to contract with other parties for valet parking with
respect to the Facility. However, if the City chooses not to offer
valet parking services at the Facility, then O Cinema shall have
first right of refusal to provide valet parking or to contract with a
third party for valet parking at the Facility, at O Cinema's sole
cost and expense. The City will have six (6) months of the
Commencement Date to exercise this right.
Exterior Signage: O Cinema shall provide, at its sole expense and responsibility,
any required signs at the Facility. All signage shall be approved
by the City, and shall be in accordance with all applicable
Municipal, County, State and Federal laws and regulations. Any
signage shall be subject to the prior approval of the City as to
size, shape and placement of same.
O Cinema shall own and retain all ownership rights to the name
"O Cinema Miami Beach;" provided, however, that, throughout
the Term (or other duration) of this Agreement, O Cinema does
hereby grant, permit, and consent to the City's right to use
(and/or reproduce) the "O Cinema Miami Beach" name, at no
charge, for purposes consistent with the intent and stated uses
of the Agreement including, without limitation, for the purpose of
identifying and promoting the Facility, and/or for such other
public purposes as the City Manager, in his/her sole and
reasonable discretion, may deem necessary. In the event that
this Agreement is terminated and/or otherwise expires, then the
City shall discontinue the use of the name "O Cinema Miami
Beach" for the Facility, effective contemporaneous with the date
that O Cinema ceases to manage and operate the Facility.
Notwithstanding the preceding paragraph, the City Commission's
consent and approval shall be required if O Cinema seeks to
change the name of the Facility to anything other than "O
Cinema Miami Beach," and any such name change must be
approved by a 5/7 vote of the City Commission.
Interior Signage: O Cinema shall be entitled to all permanent (meaning for a
specific area such as a VIP lounge together with a duration in
excess of twelve (12) months) interior signage (and all proceeds
derived therefrom shall be Operating Revenues); provided,
however, that the names affixed thereon (including, without
limitation, any sponsorship names) are subject to the City
O Cinema Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
September 10, 2014
Page 7
Manager's prior written approval, which shall not unreasonably
be withheld, conditioned or delayed. In no event may any such
signage include the names of any company selling the following
types of products ("Prohibited Names"): guns, tobacco or sexual
products.
Nothing contained herein shall preclude O Cinema from allowing
sponsors from using temporary banners and temporary signage
within the Facility with respect to any Event, so long as the
banners and signage do not include any Prohibited Names.
Annual Plan: Commencing upon October 1, 2015, O Cinema shall provide to
the City on or before June 1 St of each year, an annual
management plan, which shall include the annual operating
budget for the then current Fiscal Year but may not have a
complete booking plan or event schedule. The annual plan shall
include information regarding O Cinema's anticipated operations
for such Fiscal Year, including planned operating and
maintenance activities, anticipated capital improvements and
capital equipment purchases and an anticipated budget
therefore, anticipated Events at the Facility (to the extent known
at such time), and planned equipment and furnishings
purchases. O Cinema shall have the right from time to time to
make any changes it deems necessary or appropriate to any
such annual plan so long as the annual plan is consistent with O
Cinema's fulfillment of its obligations hereunder.
Use by City: The City shall have the right to use the Facility, or any part
thereof, subject to availability, for the benefit of the community
for such purposes including, but not limited to, meetings, City-
sponsored special events, Sleepless Night (or a successor
event), receptions, and other purposes, as deemed necessary by
the City Manager, in his/her sole and absolute discretion, without
the payment of any rental or use fee, except the direct out-of-
pocket expenses incurred in connection with such uses shall be
paid by the City. City uses of the Facility shall not be competitive
with, nor conflict with, film screenings, special events, or Events
booked or sponsored by O Cinema, and shall be booked in
advance upon reasonable notice.
Utilities: O Cinema shall be solely responsible for and shall pay (whether
to the City or directly to the utility) before delinquency, 69% of all
charges for utilities used at the Facility (including, without
limitation, water, electricity, gas, heating, cooling, telephone,
sewer).
Maintenance: The O Cinema shall, at its sole cost and expense, have sole
responsibility for basic maintenance to be performed on a regular
basis on all facilities, improvements, and facilities and utilities
infrastructure equipment at the Facility. Any and all repairs or
replacement of the same is the responsibility of the City. O
Cinema shall, at its sole cost and expense, and to the satisfaction
O Cinema Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
September 10, 2014
Page 8
of the City, keep and maintain the Facility, and all improvements
thereon, in good, clean, and sanitary order. O Cinema shall, at
its sole cost and expense, have the sole responsibility for
maintaining the grounds of the Byron Carlyle Theater. To that
end, the parties herein acknowledge, and O Cinema herein
agrees to be bound by, the minimum maintenance standards set
forth in Exhibit "C" to this Agreement, entitled "City of Miami
Beach Minimum Specifications for Maintenance of the Miami
Beach Byron Carlyle Theater." It is further understood that O
Cinema shall provide the City with a quarterly maintenance
report, in a format to be approved by the City Manager.
Termination for Convenience: The City reserves and retains the right, at its sole option and
discretion, to terminate this Agreement, without cause and
without penalty, with regard to O Cinema's rights and
responsibilities with respect to the operation, management,
maintenance, promotion and marketing of the Facility, upon three
hundred sixty-five (365) days prior written notice to O Cinema.
ADMINISTRATION RECOMMENDATION
The City Manager recommends that the Mayor and City Commission of the City of Miami
Beach, Florida adopt the Resolution waiving, by 5/7th vote, the competitive bidding
requirement and approving and authorizing the Mayor And City Clerk to execute an
agreement between the City and Living Arts Trust, Inc. D.B.A. O Cinema for the operation and
management of a portion of the Byron Carlyle Theater; said agreement having an initial term
of five (5) years, commencing on October 1, 2014, and ending on September 30, 2019, with
an option to extend the agreement for up to five (5) additional years (in either one year or
multi-year increments, as determined by the city), at the city's sole discretion.
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