2016-29569 Reso RESOLUTION NO. 2016-29569
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
5/7TH 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 MIAMI THEATER HUB, INC. ("MIAMI NEW DRAMA") FOR THE
OPERATION, MANAGEMENT, MAINTENANCE, AND PROMOTION OF THE
COLONY THEATRE; SAID AGREEMENT AUTHORIZING ANNUAL FUNDING
IN THE AMOUNT OF $170,000.00, SUBJECT TO ANNUAL BUDGET
APPROPRIATION; HAVING AN INITIAL TERM OF TWO (2) YEARS,
COMMENCING ON OCTOBER 1, 2016, AND ENDING, ON OCTOBER 31, 2018,
WITH AN OPTION TO EXTEND THE AGREEMENT, AT THE CITY' S SOLE
DISCRETION, FOR UP TO ONE (1) ADDITIONAL FIVE (5) YEAR TERM, AND
ONE (1)ADDITIONAL THREE(3)YEAR TERM.
WHEREAS, at the April 13, 2016 City Commission meeting, Vice-Mayor Micky Steinberg,
Commissioner Michael Grieco, and Commissioner Joy Malakoff sponsored a referral to both the
Cultural Arts Council (CAC) and the Finance and Citywide Projects Committee (Finance
Committee) to consider having Miami New Drama manage the Colony Theater as a pilot program;
and
WHEREAS, the City of Miami Beach is committed to promoting the cultural arts, and is
home to an internationally recognized ballet company, orchestra, art fair and museums; and
WHEREAS, live theater programming is the missing component of the well-rounded cultural
personality that sets the City of Miami Beach apart from the rest of the region; and
WHEREAS, in assessing the need for quality live theater, the CAC has strongly
recommended that the management of the Colony be transferred to a professional resident theater
company that would present a specific number of its own extended-run productions each year,
while still making the theater available and affordable to its current non-profit users; and
WHEREAS, Miami New Drama, a newly founded not-for-profit 501(c)3 corporation, is a
theater production company committed to theatrical excellence and theater-making as a means of
social engagement, cultural conversation, and human interaction. The company presents world-
class relevant work by American, Latin American, and international artists designed for the
intersections of Miami Beach's multicultural 21st century audience; and
WHEREAS, Miami New Drama's inaugural production, The Golem of Havana, was the
highest grossing theater show in recent history in the Greater Miami area, and demonstrates the
transformative potential of having a professional resident theater company at the Colony Theater;
and
WHEREAS, along with secured international, national, and local partnerships, Miami New
Drama has earned the support of the Miami Beach Chamber of Commerce, which passed a
resolution urging the City Commission to approve an agreement, even if on a trial basis, to
authorize Miami New Drama to operate within the Colony Theater and to develop a full season
which will improve the usage of the Colony Theater, for the benefit of residents, tourists, and
businesses alike; and
WHEREAS, on May 12, 2016, Miami New Drama's Producing Artistic Director, Mr.Michel
Hausmann, presented Miami New Drama's vision to the members of the CAC, who voted
unanimously in favor of the company's proposal to oversee the artistic direction and operation of
the Colony Theater beginning FY 2016-2017; and
WHEREAS, the Finance Committee met on May 20, 2016 and recommended support of
the proposal, directed the Administration to negotiate a management agreement that would include
options for City funding; and requested that staff return to the Finance Committee with a draft of
the agreement for review and consideration; and
WHEREAS, on June 8, 2016, the City Commission accepted the recommendation of the
Finance Committee, and staff negotiated a draft Management Agreement with Miami New Drama;
and
WHEREAS, on July 22, 2016, Finance Committee recommended to move forward with the
Management Agreement for the Colony Theatre with the following changes:
1. The City annual contribution should be adjusted to $170,000 annually (with the Cultural
Affairs Endowment as an alternate funding source to cover an additional $70,000, should
no other source be identified);
2. The City to cover utility costs at the Colony Theatre; and
WHEREAS, the Administration has modified the Management Agreement to reflect the
Finance Committee's recommendation from July 22, 2016, and recommends the City provide
Miami New Drama with a contribution toward utilities equal to the amount incurred in the current
fiscal year, which are projected to be $80,000, with all costs in excess of $80,000 to be the
responsibility of Miami New Drama; and
WHEREAS, the Management Agreement is attached as Exhibit A to the Commission
Memorandum accompanying this Resolution; and
WHEREAS, the Strategic and Operational Plan presented by Miami New Drama is
attached as Exhibit B to the Commission Memorandum accompanying this Resolution and, as
noted in the budget proposal; and
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA accept the written recommendation
of the City Manager (as set forth in the City Commission memorandum accompanying this
Resolution) and waiving, by 5/7th vote, the competitive bidding requirement, finding such waiver to
be in the best interest of the city, and approving, in substantial form, the attached agreement
between the City and Miami Theater Hub, Inc ("Miami New Drama") for the operation,
management, maintenance, and promotion of the Colony Theatre; said agreement authorizing
annual funding in the amount of $170,000.00, subject to annual budget appropriation; having an
initial term of two (2) years, commencing on October 1, 2016, and ending on October 31, 2018,
with an option to extend the agreement at the City's sole discretion for up to one (1) additional five
(5) year term, and one (1) additional three (3) year term.
PASSED and ADOPTED this 14th day of September, 2016.
ATTEST:
Phili 6 �� - . ayor
atfzJi 2 (,,
Rafael E. Granado, City lerk / y
:14•,��A1 �`_• ,
APPROVED AS TO
I,1!CCrr'I i �p�AJ-n: 3A_ FORM&LANGUAGE
I &FOR EXECUTION
"��,••. `\> Tom.
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aty Attorney (4 Datew
Resolutions - R7 H
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: September 14, 2016
SUBJECT: 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 5/7TH
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
MIAMI THEATER HUB, INC. ("MIAMI NEW DRAMA") FOR THE OPERATION,
MANAGEMENT, MAINTENANCE, AND PROMOTION OF THE COLONY
THEATRE; SAID AGREEMENT AUTHORIZING ANNUAL FUNDING IN THE
M NT OF $170,000.00, SUBJECT TO ANNUAL OU O SU JEC O AN UAL BUDGET APPROPRIATION;
HAVING AN INITIAL TERM OF TWO (2) YEARS, COMMENCING ON OCTOBER
1, 2016, AND ENDING, ON OCTOBER 31, 2018, WITH AN OPTION TO EXTEND
THE AGREEMENT, AT THE CITY'S SOLE DISCRETION, FOR UP TO ONE (1)
ADDITIONAL FIVE (5)YEAR TERM,AND ONE (1)ADDITIONAL THREE (3)YEAR
TERM.
RECOMMENDATION
City Administration recommends in favor of terms and conditions of the proposed Management
Agreement and recommends the Mayor and City Commission adopt the attached resolution.
ANALYSIS
BACKGROUND
The CAC has long lamented the dearth of live drama in Miami Beach. The City is home to the
region's major ballet company, orchestra, art fair and museum; live theater is the missing
component of the well-rounded cultural personality that sets Miami Beach apart from the rest of
the region. In assessing the need for theater, the CAC has strongly recommended that the
management of the Colony be transferred to a professional resident theater company that would
present a specific number of its own extended-run productions each year, while still making the
theater available and affordable to its current stable of non-profit users. Given time to cultivate
an audience, the Colony's resident company could become the leading regional theater of the
area, filling the gap in our current cultural landscape. South Florida has not had a nationally-
respected regional theater since the closing of the Coconut Grove Playhouse many years ago.
Page 1439 of 2277
•
Global Spectrum took over management of the City's theaters on October 1, 2008. Since that
time, they have made improvements to operations, marketing, customer service, and capital.
However, the Colony Theater is operational for only 30% of the year, with regular event
attendance operating below 40%. The facility is currently operated as a rental venue with little
artistic oversight or curatorial method and has operated at a loss ranging from $30,000 to
$100,000 for the last several fiscal years.
Miami New Drama's inaugural production, The Golem of Havana, presented an alternative to
what the Colony Theater could be by producing the following results:
• More than 6500 people attended the show in its extended 5 week run breaking
every record for past productions at The Colony Theater
• 40% of the performances were completely sold out
• Average capacity was well over 70%
• The show garnered national attention and received rave reviews from The Miami
Herald, The Huffington Post and Florida Theater on Stage, among others.
• Grossed over$250,000
• The highest grossing theater show in Miami's recent history
Under the direction of multiple-award winning director and playwright Moises Kauffman and
Michel Hausmann, Miami New Drama is a newly founded not-for-profit 501(c)3 presenting and
producing organization committed to theatrical excellence and theater-making as a means of
social engagement, cultural conversation and human interaction. The company presents world-
class relevant work by American, Latin American and international artists designed for the
intersections of Miami Beach's multicultural 21st century audience. By sharing work where
cultures dialogue and communities intersect, Miami New Drama aims to reach audiences as
diverse as the city itself.
Miami New Drama's productions include an eclectic mix of original plays, musicals, classics and
world premieres, including work commissioned specifically for Miami New Drama. These
productions will utilize a mix of the best local, national and international talent to incubate work
from scratch. Actors, directors and designers culled from the Miami community and beyond will
create work that reflects the best of Miami Beach, while highlighting some of the best theatrical
talent in the world.
ANALYSIS
At the December 9, 2015 Commission meeting, Commissioners Steinberg and Malakoff
referred a discussion of how to incentivize local theater in Miami Beach to both the Cultural Arts
Council (CAC) and the Finance and Citywide Projects Committee (FCPC). This discussion was
prompted by the announcement of a major new professional theater company, Miami New
Drama, under the direction of multiple-award winning director and playwright Moises Kauffman
and Michel Hausmann, and the challenges faced by its month-long run of The Golem of
Havana, which opened at the Colony Theater on January 16, 2016. The subject was discussed
at length by the CAC at its meeting on January 7, 2016. Since this time, Miami New Drama has
worked diligently with staff to develop a comprehensive strategic and operational plan that would
allow for a presenting and producing organization to manage the Colony Theater.
Page 1440 of 2277
At the April 13, 2016 City Commission meeting, Commissioners Steinberg, Grieco, and
Malakoff sponsored another referral to both the CAC and FCPC to consider having Miami New
Drama manage the Colony Theater as a pilot program. On May 12, 2016, Mr. Hausmann
presented Miami New Drama's vision to the members of the CAC, who voted unanimously in
favor of the organization's proposal to oversee the artistic direction and operation of the Colony
Theater beginning FY 16-17. The Finance and Citywide Projects Committee (FCPC) met on
May 20, 2016 and recommended in support of the proposal, directed staff to negotiate a
Management Agreement that would include options for City funding and to return to the FCPC
with a draft of the agreement for review and consideration. On June 8, 2016, the City
Commission accepted the recommendation of the FCPC and staff negotiated a draft
Management Agreement with Miami New Drama.
The following key terms and conditions were presented to the FCPC on July 22, 2016:
• The City of Miami Beach shall provide funding to Miami New Drama in the amount
of $100,000 in quarterly installments, payable within fifteen (15)days following the end of
each Quarter
• The agreement shall be for an initial term of two (2) years, commencing on October
1, 2016 and ending on September 30, 2018. At its sole option and discretion, the City
may extend this agreement for up to one (1) additional five (5) year term, and one (1)
additional two (2) years and 364 day term.
• Miami New Drama will honor event rentals which have been booked prior to the date
of the execution of this Agreement and receive from the City all revenues from the
agreements. Miami New Drama shall also honor any rent waivers that have been
approved by Resolution of the Mayor and City Commission.
• Miami New Drama shall cause at least 75 events at the facility for each contract
year, serving more than 30,000 visitors per year
• Miami New Drama shall provide day-to-day operational and administrative services
in support of its management activities to ensure that the facility shall be operated,
managed and maintained in a first class manner, including but not limited to, acquisition of
services, equipment, supplies and facilities; maintenance and property management;
security; personnel management; record-keeping; collections and billing; and promotional
activities, including but not limited to public relations, social media and paid marketing
outreach.
• Miami New Drama shall provide quarterly reports to the City detailing event records
and programmatic plans, marketing and promotional activities, maintenance and capital
work, and operational/administrative budgets.
• The City remains responsible for maintenance of the major building systems (i.e.
HVAC, roof, plumbing, electrical, and elevator) and for long term building capital
improvements.
• Miami New Drama shall be responsible for the purchase of any equipment related
to the venue that needs to be replaced due to normal wear and tear.
On July 22, 2016, The FCPC recommended to move forward with the MIND Management
Agreement for the Colony Theatre with the following changes:
1 . The City annual contribution should be adjusted to $170,000 annually and
recommended using the Cultural Affairs Endowment as an alternate funding source to
cover the additional $70,000, should no other source be identified.
2. The City to cover utility costs at the Colony Theatre.
Page 1441 of 2277
The Administration has modified the Management Agreement to reflect this directive. However,
with regard to the utility costs the Administration recommends the City provide MIND with a
contribution toward utilities equal to the amount incurred in the current fiscal year, which are
projected to be $80,000. All costs above $80,000 would be the responsibility of MIND. This
will provide MIND with an incentive to manage utility usage. Staff has discussed the utility
contribution with MIND and they have agreed to the Administration's recommendation. Further,
the Office of Management and Budget has identified that the $170,000 as well as the $80,000
for utilities can be funded from the Colony Fund. Additional terms and conditions can be found
in the attached draft Management Agreement (Exhibit A).
Also attached is the Strategic and Operational Plan presented by Miami New Drama (Exhibit B)
which provides the following:
• Company Overview
• Budgets
• Staff
• Maintenance
• Affiliations
• Management Support Documents
• Grant Support
• Public Relations/Marketing Plan
CONCLUSION
The CAC recommended that the management of the Colony be transferred to Miami New
Drama as a "pilot program." Miami New Drama will act as the resident professional theater
company, producing its own shows while continuing to make the theater available to its nonprofit
users, benefitting our residents and visitors while also promoting Miami Beach as an
international cultural destination. City Administration recommends in favor of terms and
conditions of the proposed Management Agreement.
KEY INTENDED OUTCOMES SUPPORTED
Improve Alliance With Key Business Sectors, Namely Hospitality, Arts, & International Business With
A Focus On Enhanced Culture, Entertainment, &Tourism
FINANCIAL INFORMATION
The City contribution to MIND will be $170,000 annually, plus the City is to cover utility costs at
the Colony Theatre. The Administration recommends the utility contribution be capped at
$80,000 annually.
Amount 1 170,000 Account 1 011.0383
Amount 2 90,000 Account 2 011.0383.000314 011.0383.000317
011.0383.000318
Total 260,000
Legislative Tracking
Page 1442 of 2277
Tourism, Culture, and Economic Development
Sponsor
Commissioners Steinberg, Malakoff, Vice-Mayor Grieco, & co-sponsor Commissioner Arriola
ATTACHMENTS:
Description
D MIND Colony Reso
D DRAFT MIND Colony Agreement
Page 1443 of 2277
MANAGEMENT AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH,FLORIDA
AND
MIAMI THEATER HUB, INC D/B/A MIAMI NEW DRAMA
FOR THE MANAGEMENT OF THE COLONY THEATRE
THIS AGREEMENT, is made and executed as of this day of , 2016 flEffective Date-1), by
and between the CITY OF MIAMI BEACH [the "CITY"], a ,4••q:$;T;cipal corporation organized and
existing under the laws of the State of Florida, whose addres I0 Convention Center Drive, Miami
Beach, Florida 33139—, and MIAMI THEATER HU :/A MIAMI NEW DRAMA*
ILM1ND"}}, a Florida not-for-profit corporation,wh•ln ncipal ad•i f/' 169 East Flagler Street, PH,
Miami,FL 33131-. '40,11,Fe '
dL IA
r n,a,a
BACKGROUND '
City is the owner of the Colon e _e ` .tr- -.- ill a ti e• , locates at 1040 Lincoln
�
Road, Miami Beach, Florida 33139„ a is more ,, cularly described and depicted in
Exhibit"A"attached hereto and made a pa eof .cility • `i, o "Colon Theatre")-11.
it/�l�V r .y ,l • n l,il,. !!�,; ,1�,' r�l 111 „i lu, 9,l�1�'.
MIND is a Florida n.k7 1-profit ( '9'"= )3) arts . 'ion whi -eks to showcase South Florida as
theater destination while same =$e increase , ational awareness and cultural exchange through
f
the present. i • /, ter pla l b //`d ypi cludi t not limited to musicals, drama, classics and
1 n 4 ,,,lif J1 r4 G;' gpl > >
r.' r� r!„
world •7'9,1,,i) "es as w- las ork c• ', ,issione• �� •ca y for MIND.
1f ( ll xl� �ijrfr, "l/411, ! ,�l�Y
,1�
At the Deco/41.'; 9, 2015 Co a" ;sion g'g, Commissioners Steinberg and Malakoff referred fora
/
discussion of i .ves for ;', • local theater in Miami Beach to both the Cultural Arts
!gibCouncil(CAC)and tan ce N4,/,itywide Projects Committee(FCPC).
At Pit;'
�,
The subject was discussed at ferigth by the CAC at its meeting on January 7,2016. Since this time, Miami
New Drama has worked diligently with staff to develop a comprehensive strategic and operational plan
that would allow for a presenting and producing organization to manage the COLONY.
At the April 13, 2016 City Commission meeting, Commissioners Steinberg, Grieco; and Malakoff
sponsored another referral to both the CAC and FCPC to consider having Miami New Drama manage the
COLONY as a pilot program.
1
Page 1447 of 2277
On May 12, 2016, Michel Hausmann on behalf of Miami New Drama presented MINA
Drama's vision to the members of the CAC, who voted unanimously in favor of the organization's
proposal to oversee the artistic direction and operation of the Colony Theatre beginning Fiscal Year 2016-
2017.
The FCPC met on May 20, 2016 to consider the pilot program. The FCPC recommended in support of
the proposal, directed staff to negotiate a Management Agreeme s t would include options for City
p
funding and to return to the FCPC with a draft of the agreeme• 'ew and consideration.
On June 8, 2016, the City Commission adop esolution 2016-29429 accepting the
recommendation of the Finance and Citywide ' ' s Committee, dir the Aadministration to
negotiate a management agreement with M 1 Ilt ! .. . - , to become the
,ui vnr'rm
resident company and venue manager for the Colony_ a n'e a % t program. 14,
r , rir
After negotiating with the City Admini 'o CPC rec. . ered the financial terms on July 22,
r,r
2016 and recommended inc ing the Ci ontri.. > , . $171, nually, along with making a
contribution towards
On the City .ted Re %, ion No. approving an agreement with
MIND f. . e F.
d/ll r
lrlr
Citysires to enga u IND, la
desires MIND desires to accept the engagement, to provide
management series for the Faci on the terms and conditions set forth herein.
NOW THI ' ' , o izing the aforestated recitals as true and correct and incorporating
herein, and in consideration - mutual covenants and conditions herein contained, it is agreed by the
parties hereto as follows:
SECTION 1. SECTION 1. Definitions.
For purposes of this Agreement, the following terms have the meanings referred to in this
Section 1:
I2
Page 1448 of 2277
"Affiliate" -- an entity that directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, a specified entity. For purposes of this
definition, "control" means ownership of equity securities or other ownership interests which represent
more than_51%of the voting power in the controlled entity.
"City" -- as defined in the first paragraph of this Agreement.
"City Commission" --the governing and legislative 'ya of the City.
irPA '!!!
MIPrP :�-"
"City Manager" -- the chief executive officer ,,,„4 ity or such person as may from time
l�D,x"tk,v1UV cu kr
'Yd1'd'IIYGtgI(M9
to time be authorized in writing by such administrative • •i '' °to act ,',;..in/her with respect to any or all
, /)� lGl/gtlHAUP
matters pertaining to this Agreement. The Ci M
`ti gz, deli u ee for , -es of this A l reement shall
( 14�1I77:
be Max Sklar,the Director of the Tourism,Culture conomic Development ' rtment.
"
"Commencement Date" as defined m
"Contract Year" -- each '4 each ' riod October 1st, and ending September
30th.
"Effec '�V. 'd, ��%�h.rovided ''fR ��'I �� i�,�a
Effec /,, - ///u//, has been approved by the City
Commission and exec By City d MIND, ': date as defined in the first paragraph of this t�
�i ly.
Agreement. //
Eve. "Sho all uses n sive a scheduled beginning and ending time,
typically +thin the sam- Wi sect to "Series" (as such term is hereafter defined/LT-each
Performance w e Series sh. A ;, nstitute'.n Event or Show.
"Ev .enses" any and all expenses incurred or payments made by MIND in
connection with the occu . Event at the Facility, including, but not limited to, costs for staffing
(including production managers and other Event staff)and costs relating to set-up and clean-up within the
facility.
"Expiration Date" --as defined in Section 2
"Facility" -- as defined in the Background Section of this Agreement and as depicted in
Exhibit A hereto.
"Facility Rentals" -- temporary use of the Facility at specific interval of time pre-
3
Page 1449 of 2277
determined and agreed upon by MIND.
"Fiscal Year"-- each one year period beginning October 1st and ending 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 municipal).
rl'11]711,1!,+
"Net Operation Loss/Profit" -- with respect -"IV; scal Year, the excess, if any, of
rM r 2 m
Operating Expenses for such Fiscal Year over Operating '�x+%d 'e'y�, such Fiscal Year, in the case of a
' ni+ryz.
��l�a
loss, and the excess, if any, Operating Revenues fo , iscal Yea Operating Expenses for such
> Y, P g rr/"=
"ANN"�rp�
7f llANgrp
Fiscal Year,in the case of a profit.
"Operating Expenses" -- any an• , xpenses . •d expendi •f whatever kind or
y� .ri 11 rin
•
nature incurred, directly or indirectl t,;, MIND in p r operating, mainta %g, insuring and
managing the Facility, including, but n• • employ • pensation and related expenses (e.g.,
base salaries, bonuses, severance and ca ,ow ,%" , employ- efits and related costs, supplies,
materials, utilities, costs • , eg " ems and i ;•endent • tors, �9 "" sing, all costs of maintaining
the Facility as requi this -ement, nd , •,,,relations costs and commissions,
janitorial and cleaning -nses, • processor osts, dues, subscriptions and membership costs,
amounts expe •ell to proc., • •• • •ermi •d licenses, sales taxes imposed upon rentals,
professi• .. elate the op- + •f r ; Facility, printing and stationery costs, Event
Expen , •ostage and fr= osts, =•ment rent.• .. osts, computer equipment leases and line charges,
telephone <- h and teleco .catio" -rvices, artist and talent fees, costs, and expenses, show
settlement cha _ ecurity expe travel .Y•d entertainment expenses in accordance with MIND-City
traveleefaial polio. •e cost of " •loyee uniforms, safety and medical expenses, exterminator costs,
costs relating to the •, =en. ,•f signage inventory and systems, the cost of compliance with
Governmental Requiremen dremiums for insurance carried by MIND pursuant to Section 14,and all
other costs of operating the Facility. Operating Expenses shall not, however, include any costs of
litigation between City and MIND, 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
operating,managing or promoting the Facility, including,but not limited to: ticket sales, concession fees,
( 4
Page 1450 of 2277
rentals, revenues from merchandise sales, advertising sales, equipment rentals, box office revenues, food
service and concession revenues (however, 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 the
Facility shall be included as Operating 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 the
Facility shall be included as Operating Revenues), miscellaneous operating revenues, revenues generated
from separate agreements with MIND Affiliates, including but no ed to rentals and co-producers of
events, -pertaining to the Facility, and interest revenues, all ned in accordance with generally
accepted accounting principles and recognized on a full a • For the sake of clarity, the parties
acknowledge that to the extent that revenues from they sa e of tic', •r Events at the Facility are
negotiated e: . •-. ' T -- .° , .. . • revenues of the pro "Tlr l ,and/or performer of each
such Event, such sale of tickets will not be consi• "' Operating Revenues, ',he Facility rental fee
would be considered Operating Revenues. To the extent 71 t t collects such'11 :t sale revenue on
behalf of a promoter and/or performer;:,i-S, p , ,cket sale re`"E ,;- . all be the source of'funds from which
�+I�IGI, i l llri
MIND collects the rental charges and oth v .r l.bursemen��ed by the promoter and/or performer
for use of the Facility, which such charg , nd ements ' Operating Revenues hereunder.
Operating Revenues sh. ver, inch. any - va parking or any other parking
charges with respect t. . „ Facility •- ents an. include + ''`revenues from sponsorships, all of
which are specifically res- o Ci• : - •ewal Te • ' ,-as defined in Section 2.
02.t,„ I art- —Octo - 1s`,April 1s`02.t,„ and July ls`of each Fiscal Year.
,,,;;; "Series" A '��� nce ents which may or may not involve the same production
4, Y Y p
elements,but c'.''ai$ characterize 7 a unify ' theme and schedule.
"MIND"--a / „ ned in t VV st paragraph of this Agreement.
SECTION 2. - _ e • _, ` ,VERM.
1.1.
47272.1. 2.1 Initial Term. This Agreement shall be for an initial term of two (2) years,
commencing on October 1, 2016 (Commencement Date), and ending on the September 30,
2018 (Expiration Date) (the "Initial Term"), unless earlier terminated pursuant to the
provisions of this Agreement.
5
Page 1451 of 2277
2.2. 2.2 Renewal Term(s). At its sole option and discretion, the City may extend
this Agreement for up to one(1) additional five (5)year terms, and one (1)additional two(2)
years and 364 day term, (a Renewal Term),by providing MIND with not less than 365 days
prior written notice prior to the Expiration Date.
1.3.
1.1.
446,71".
1.5.2.3. 2.2.1 Notwithstanding anything in this Sec % in the event before the end of the
Initial Term or any of the Renewal Terms-, not to renew the Agreement, it
shall provide the City Manager with wri 4"1/i .tice of its i "'s not to renew at least 365 days
prior to the Expiration Date. f
P p Ugtr. �
SECTION 2.SECTION 3. SECTION 3. COLD ` 1', FACILIT
The Facility subject to this Agree �� 1 be those fa` 4 ` and spaces more specifically described
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in Exhibit C. 1% ��„�
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SECTION 3.SECTIO %�,,� "� • • � �1 t ; � I I MANAGEMENT OF THE
COLO <
I . Ge.-ral Sco•e. I_ages 'Ili, �;;D to operate, manage, maintain, promote and
,cili : the she*n t `-rms and conditions hereinafter set forth.
4. ., Mana l er o acilit IND accent ,, the engagement and agrees to operate, manage,
mote and ma '” e Fa n a manner consistent with other similar facilities. Subject
i � niit
to i,- crms of this �a ement, ' I P shall be, as agent for the City, the sole and exclusive
mans:«ate¢ the City ;scperate, manage, maintain, promote and market the Facility during
the Term. s ch .'ity, except as otherwise expressly reserved under this Agreement to
the City, and/: /qa pt for such matters as are subject to the approval of the City or City
Manager, MIND shall have exclusive authority over the management and operation of the
Facility and all activities therein, subject to subsections 4.3,4.4 and 4.5 hereof.
4.3. Permitted Uses. MIND shall use the Facility solely and exclusivelyprimarily as a
republic auditorium for its not-for-profit cultural presentation company. The Facility
shall be used primarily as venue for top-quality cultural entertainment,which may include
live performances or pre-recorded presentations.Notwithstanding the foregoing and
( 6
Page 1452 of 2277
pursuant to Section 5.4 of this Agreement„ the venueFacility 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, summer and winter
children's theater camps , in each case in conjunction with an Event or rental function then
being held; and sale of merchandise related t--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, paying the applicable parking
charges._Such uses shall include only the folio ,> '"-rformance venue, Events facility,
Rehearsal space,MIND administrative office i o"i"p/q, chandise related to an Event then
n nix .
being held, Private parties and/or functio. onjunction r3°i,..- an Event then being held,
pniR�/nab
As an ancillary use, third party rents s`.v occur from time e; Facility for film/
television/ .hotoora.hie/audio .rodif.' . The sale of food an. R! rasa concessions
shall not be permitted by MIND as said s- ,l ;� -s i• ! °
,eetion with t .ws or Events is
$r,,ll)U/) lf..r`�i�� Al1�ti0r'!
being provided by Segafr. + ore particul.. cribed in subsection .4(n).
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4.4. —No other uses/shall be e s d wit. i� �a prior �n�/� q approval of the City Manager,
,/lift/�ll rrll ., p ryl�flr7rl it 4rl;r$r) ' "Ofil
which app =� granted t ithh -r so lr•iscretion. Any such other use
a � � lrr�l^r' ldj,,
which th'', •% Manag /;.proves � s, 1� ever, b-`'` 1,��".ccordance with (i) the Articles of
Incorporatiou /s other er docum,, of MIND; (ii) all laws and regulations applicable
-.rofit Governmental Requirements; and (iv) all ad
alorem '' n; pt • prope apter 196,Florida Statutes.
4.5. •bited Uses derst. nd agreed that the Facility shall be used by MIND during
the - only for th .ted purposes in subsection 4.3, and for no other purposes or uses
whatsoe .shout " " press written permission of the City Manager. Notwithstanding
anything co .ubsection 4.3, or any other term or condition of this Agreement: (1)
MIND will not . . e 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; and
(2) MIND 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 and production venue,
which shall be used and stored in compliance with applicable law). In the event that MIND
1 7
Page 1453 of 2277
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 MIND.
4.6. 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, 4.3 and in the eve s M <i,-t another particular use(s) and/or
business activity(ies) has(ve) been approved by ty Manager, and the City Manager
thereafter, upon reasonable inquiry, determi• ." ontinuation of such use(s) and/or
f,U+r hl 1111' ra.
activity(ies) is(are), or may be, inconsist /+�,`,r,ontrary to, •r detrimental to the Permitted
Uses set forth in this Agreement, an, UA'the health, safety welfare of the residents
" url�l
ran,rl i
of and visitors to the City of Miami`" '� h, then the City Mana pon thirty (30) days
prior written notice to MIND of same, m ""/'r,;,vok •end, and/or . r • ise disallow the
objectionable uses(s) an• •less activity , .' d MIND shall immediately cease and
desist in providing, and/or .d f i" , "" i ith, said .,'y and/or business activity(ies) within
the time period and in the er . ',•ed in ity, subject to such additional
guidelines ,etermine. • est , the ►�% Manager, in his/her sole and
r r >✓�e r�ll��/'ll /n�
reasonab Y ycretion W dgment ti
A„?
SECTION 4.
r,�lln"r l"l'i'il yjlll�.
SECTION
- • CTIO ! • . y •i F SERVICES.
5.1. eneral. MI , 1 per and furnish management services,personnel, and systems and
/'_" als, as are a• ' .riate .'° essary to operate, manage, supervise, maintain, promote
an. ',ff et the Facilit• a manner consistent with the operations,management,promotions
and mar of oth:4,,14 liar first-class facilities.
5.2. Required Numb'-'41of Events; Continuous Operation; Conclusion of Events. In order to
ensure the continuous operation of the Facility, and commencing on the October I, 2016
MIND shall cause at least 150 75 Events to be held at the Facility for each Contract Year
(and proportionately for any partial Contract Year) during the Term. The aforesaid 150
Events shall be calculated by counting each separate Event in a Series.
a. MIND shall cause the Facility to be available to open on a year round basis, subject to
closures for reasonable periods for rehearsal, set design, repairs, maintenance and
8
Page 1454 of 2277
I
alterations. All Events and all uses shall conclude prior to 2:00 a.m. unless otherwise
approved by the City Manager, in writing; provided, however, that MIND's employees
and/or contractors may be permitted to remain at the Facility beyond 2:00 a.m. 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 MIND's activities at the Facility
during this time do not disrupt and/or negatively impact the surrounding neighborhood. In
the event of such disruption, the City Manager and/or his/her designee shall have the right
to either strictly enforce the hours of operation, • ;,; ',•pose reasonable guidelines upon
MIND as a condition to keeping the Facility g, ' or the aforestated purposes (beyond
�
2:00 a.m.) Am "' ,
,Be
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6.1. /� i rerz"t /
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6.2. ", ,,;,,,,,
6375.3. —Booking Policies. ,,, and MIN ir''' . , ' e acknowledge Facility
and acknowled e"that the Facili
will be used by MIND f. /, u ,k,,/,„,,,;l d ente , I,,ent events, but that MIND may
also, from ti time, rent ', Fad ;,,,; •ird p •, •resenters consistent with the
terms he ''p`",', x( a as oth e, • em, MIND shall have the sole
authority ” N• 'rove ,chedultn_ '' ny Event in the Facility and Events requiring
or having co-, •o ' , ay re r, - to book any type or category of events for
, hats• consis ',- ordinances and regulations. MIND shall
',,,„0 have no obh_ , • to • , , any type ate o of Events (or specific Event)that are
'��/��9, Y Yp category ( P )
off
appropriate or F. ofita. ,s reasonably determined by MIND, or which may in
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any""> interfere • the day to day activities of area residents and businesses.
Notwit ; I ding preceding, or any other term or condition of this
Agreemen` 1,( ,r, ,,. Manager shall have the right to prohibit certain Events or
uses from occurring at the Facility, upon the City Manager's reasonable
determination that such Event or 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
MIND within thirty (30) days after the City Manager has received the quarterly
booking report from MIND that specifies the potential Event.
19
Page 1455 of 2277
a. -Attached hereto as Exhibit "F-" is a list of Events or rentals which have been booked
•
prior to the date of execution of this Agreement. MIND shall honor all such bookings and
shall receive from City, or its agents, all revenues from the agreements that have already
been paid and shall receive all remaining revenues under the agreements. MIND shall
also honor any rent waivers that have been approved by Resolution of the Mayor and City
Commission of the City.
6:1.5.4. Specific Services. Without limiting the generality of the;foregoing, MIND shall perform all
of the following services, all without the necessity orst obtaining City's approval (except
where otherwise expressly required in this A va nd all of which shall be performed
jr://4
by MIND in a manner consistent with the :gemen ro operation of other similar first
class facilities:_employ, supervise, and direct all employee-7, 17 personnel consistent with
the provisions of this Agreement. Alr employees and/or subcoritors shall be employees
•
and/or subcontractors of MIND, its Affiliates or th' :rties, and no City. MIND shall
11 ,
be solely responsible for,, 'ng that the �a� �';� `s adequately sta =with competent,
qualified personnel t• its res•'• , '��bilities under this Agreement;
a. administe • . u ips with .,third p.,, •r the ,day to day maintenance and
operat the F. . " initiate pate ,71)and all negotiations, renewals and
extensio '` ting to h third p., ;,relationships, and enforce contractual agreements
-ruing a. relatio ',,/.4 •s;
b. �,'egotiate, exec �� in its �1��as agent for the City, deliver and administer any and all
es, occup. , agreements, sponsorship agreements (excluding name-in-title
agre- •ts), renta ,4p eements, booking commitments, concession agreements (excluding
food an e oneessions and valet parking agreements), supplier agreements,
service contr. , ; ncluding, without limitation, contracts for cleaning, decorating and set-
up, general maintenance stage equipment,-staffing and personnel needs, including guards
and ushers, telephone, extermination and other services which are necessary or
appropriate, and all other contracts and agreements in connection with the management,
maintenance, promotion and operation of the Facility; provided that (1) if any such
license, agreement, commitment or contract has a term that extends beyond the remaining
Term, such license, agreement, commitment or contract shall provide that it is
automatically assigned to City as of the expiration or termination date of this Agreement
10
Page 1456 of 2277
and that the City Manager may terminate any such agreement without payment thereafter
at any time upon not less than ten (10) days written notice; (2) MIND shall have the sole
authority to approve the scheduling of any Event to be held at the Facility, subject to the
limitations and requirements of this Agreement; and(3) any contract entered into between
MIND and a subsidiary and/or Affiliate company shall be at terms and for prices
customarily charged by such subsidiary and/or Affiliate company for comparable goods
and services elsewhere at rates that are competitive within the industry;
�iwmFwrr�un
c. maintain the Facility (excluding all stn =: ' . •nents thereof and all electrical,
HVAC, life safety, mechanical, plum• iy�9, e evator °31 ,her systems and equipment),
which shall be maintained by the re,// a good and clean', , tion consistent with other
l R/i
similar first class facilities and i _, pliance with all Goy ental Requirements,
ordinary wear and tear, and casualty ex+ Maintenan •onsibility shall
include, without limi . ' eventative y and all other maintenance and as
required in Exhibit"C" -ement (e' ,',; • "City of Miami Beach Minimum
Specifications for Maintena' �'- •f the "
p � )and ID shall keep on-site maintenance
manuals
eflecting �� •f M h/ enan, .' ctivities, all of which shall be
availa• ' ` •r inspec by the /, .ger upo r o uest. MIND shall submit to City
f J/
Manager • •is (I ess than • /m erly) reports specifying all maintenance work
ed d 'itch r -/y shall be used by the City's Tourism, Culture
and • /, -'c De •ment D • ,�h y- (or its consultant) as part of an annual City
maintenance>:x.. i` inspection and review.
•rmat and content of repo /`hall be agreed upon by both parties.
d. rent, lease, or purchase all equipment and maintenance supplies necessary or appropriate
for the day-to-day operation and maintenance of the Facility;
eve. establish and adjust prices, rates and rate schedules for the aforesaid licenses, agreements
and contracts, and any other commitments relating to the Facility to be negotiated by
11
Page 1457 of 2277
I
MIND in the course of its management, operation, booking and promotion of the Facility;
provided, however, that MIND shall, on or before the Commencement Date, submit its
proposed initial rates and rate schedule to the City Manager for his/her review and written
approval (which review/approval shall not be unreasonably withheld, conditioned or
delayed). and, tThereafter MIND shall consult with the City Manager about any
adjustments to the rates and rate schedules at the Facility to be made by MIND, and
similarly secure the City Manager's written approval (which review/approval shall not be
unreasonably withheld, conditioned or delayed) pxipr,to MIND's implementation-of
li nl/K
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same; ,l/,xlm
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�1(ilGNh/ 1i1L1I1971�'l'a,
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f. pay when due, all Operating Expenses fro"m IND's o z ' , ids;
n',
1/ �l/„l llil��;�
1
g. after consultation with the City Manage l'', ,'' the ” N• ttorney,an. ect to approval by
the City Attorney or his``/f ,1;ee,institute a- , for the City, the costs of which shall be
included as Operating a `/ '1,such lega ~'Lions or proceedings necessary or
i, tr �i /
appropriate in connection wt" 4,i e operatt of the Facility (using legal counsel approved
� 2
11, ; l//4,// 94,/,, 4g / 111>>
by the , � p t! , , includ < with,. m / .n, t 'collect charges, rents or other
40$,° r , /4 04,
reventt �j e to the ,,`s((o� r to can �J , mate or ,.r damages under, any license,use,
yi advertise " `,, ,'+r cone ii,il on agreem as or the breach thereof or default thereunder by any
�� t; user, r� ,y essio ' a�- at the Facility; institute on MIND s-a-own
o"kir, behal �:i'' r'.t as � s=- for City`s 4 `. t consultation or approval of the City, the costs of
��10 which which s //,/ i�•nclu• '�;t s Operating Expenses, such legal actions or proceedings
G$ -cessary or app P..riate i j,/,.nnection with the operation of the Facility, including,
'0:,,t limitation, ollect charges, rents or other revenues due to the City or MIND or
to ca ', i��termin /'or sue for damages under, any license, use, advertisement or
concessio/1�/�,p. ,,:„,',,,,f it for the breach thereof or default thereunder by any licensee, user,
advertiser, or cl 'cessionaire at the Facility;
b.h. maintain a master set of all Event records, booking records and schedules for the Facility
(which shall be available for inspection by the City Manager upon request);
i. provide day-to-day administrative services in support of its management activities to
12
Page 1458 of 2277
ensure that the Facility shall be operated, managed, and maintained and performed in a
first class manner consistent with similar first class 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;
e j. engage in advertising, solicitation, and promotional:activities necessary to effectively
market the Facility and Events, and manage rel rr . "®vial media platforms for the Facility.
Any marketing materials created for the F. a.'roved in writing b the Cit
Manager, in advance of being imple ,airs d, and wil in the exclusive property of
l ,
MIND. In connection with its .• s under the terms )„--this Agreement, MIND is
f„„44444
required to use the logo and brand 1, of the Ci of Miami h, and of the Facility,
rtammir
as approved by the City Manager; 9 „,
k. act as a collection agent t on sales �. `-�. as required from for -profit facility
rentals of the Facility and re -¢ o the N ; a Florist: ,4 . sales taxes;
r r
1. comply wi City ements;
'1,„`,4, Except as o "se at -d by the City Manager, MIND shall not license or allow the
! d' - of any ports f the . to other than short-term users (i.e., less than sixty (60)
c• utive days). T1D shall require that all users of the Facility provide certificates of
&ls�
insur n-' viden appropriate insurance and any other insurance required by the
'rr�lll„
applicable,4,1 se or occupancy agreement. Copies of these certificates shall be
furnished to t' ` ity Manager prior to any Event or 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 MIND as additional insureds. MIND 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. MIND standard license or
occupancy agreement shall, at a minimum, include the insurance and indemnity
requirements contained herein; shall further be subject to the prior review and approval of
13
Page 1459 of 2277
the City Manager and City Attorney's Office; and – if and when approved – shall be
attached as Exhibit"D"hereto.
n. MIND acknowledges the City has entered into a Lease with Colony Theater Café, Inc,
Segafredo)("Segafredo)for the 769 sgsq.Aft. restaurant/cafe space,296 sgsq..Aft.
in the Colony Theatre lobby for use of the food and beverage concession and storage area,
and 306 setsq.ffft. adjacent to the Colony Theatre building for a dumpster/storage area(the
"Segafredo Lease").—MIND also acknowledges egafredo owns and maintains a
liquor license in connection with€er-th- : - -: Segafredo Lease. In exchange for
operating the Concession stand in the Col, - obby, Segafredo is responsible to
pay 50% of the water consumption of o ony The. 'Ming on a monthly basis, as
invoiced by the City, and may us strooms in the Th lobby at all times except
for when a Sshow is in progress. ,A eement is subject to •afredo Lease or any
other subsequent leases which the Ci e o in connec 'th the food and
beverage concessions a ony Theater.
SECTION 7.SECTION ! • ..' `MP / TO THE CITY FOR USE OF THE
FACI (USE F 4-
X6.1. Base Use Fe. +r the of the A _ ,.r ent, MIND shall pay City an annual Use Fee for
wk
• use ■ •. s:
in the t • .00 ann. n consideration for MIND's investments of
programmin, ` ng, eting and improvements.
e:b.
All p. -nts ar: able annually, commencing on the Commencement Date and
thereafter . day of each Contract Year. If the Commencement Date occurs on a
day other than •e first day of a calendar month, the first Contract Year shall include the
partial month on which the Commencement Date occurs and the following twelve (12)
calendar months. The 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.
1 14
Page 1460 of 2277
7.2.6.2. Additional Fees and Charge. In addition to the Base Use Fee as set forth in subsection 6.1,
MIND shall also be responsible for payment of the following Additional Fees and Charges:
7.3.6.3. Operating Expenses. MIND shall pay all costs and expenses related to Operating Expenses.
MIND 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 MIND is obligated to__payu 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 w o; MIND shall immediately pay the
difference from MIND's own funds. Thi / gation is a ' ` ute and unconditional and shall
1�, 10
even apply if Operating Revenues t ,seduced or limited bw cts or circumstances not
contemplated by the parties or for rea "6; s eyond the parties'con x,,, he provisions of this
section 6 shall survive any termination or Jeic,b.4 do 0 ,/ is Agreement
6.4. Notwithstanding subsecti l 1 , /IND shall hot be responsible for paying for capital
improvements or infrastrue Xw1 hi . e Facility
j i'ttt l q-7476.5. Sales Sales Tax , �E ' ay and i de ditiol sums for applicable sales and
use tax,rro' .r hereafter, escribed � � federa 'dl1Ocal law, concurrent with and to the
'1/nn t extent any sa t x is i "?6.ed in cone'`��, n with any payment due hereunder by MIND.
fiit ,r
only
4/l '1'ifi l/t 7/
• CTIO
e , '9 ;,TONALLY OMITTED
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110t0, nii0100
SECTION 9. ION 8. Ft • .° yh' GHTS RESERVED TO CITY
8.1. Rig t f Entry. Rep. ntatives, contractors and employees of the City shall have the right
",err y
to enter portions 6 the Facility to inspect same, to observe the performance of MIND of
its obligatio a t�.l. .: t �s Agreement, to install, remove, adjust, repair, replace or otherwise
handle any equip ent,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 the
activities of MIND hereunder, and the City's actions shall be conducted such that disruption
of MIND 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
15
Page 1461 of 2277
rights of City in its governmental capacity).
Signage. The following provisions shall govern the name-in-title rights, interior naming
rights, and the related signage rights with respect to the Facility:
—Exterior Marquee messaging will be controlled by MIND and will list events taking place
within the Facility. MIND shall include City requested public information messages, at no
cost to the City, where such public information mes�zau;%r do not unduly limit or interfere
Ju
with the Facility's event messaging.
MIND shall provide, at its sole expel • response."';„,, any required signs within the
Facility.All signage shall be approv a e City Manager, . 'all be in accordance with
all applicable Municipal, County, Sta • Federal laws and re. s.Any signage shall
be subject to the prior approval of the Ci sal size, shape . . -<,.cement of same.
of ,,,j
template for ongoing the r ment of approving each use.
Notwithstanding the prece• .ara. le City 009 ssion's consent and approval,
> f lr � q J��f, , . ,it.ya;.
in the Cit i �, r bsolute • Y ,etion ' - -" -quir "� if MIND seeks to change the
name of." acility hing of "Colon x-atre", and any such name change
must be app 9, by a 5 , ote of the �'� Commission.
8.3 �. � - � • ►r--, Ri s terior Si�ti%s 1 � shall be entitled to all permanent(meaning
or a specific . .uch " IP lounge together with a duration in excess of twelve (12)
hs) interior (an. u,','roceeds derived therefrom shall be Operating Revenues);
pro however, '44, the names affixed thereon (including, without limitation, any
sponsor lames) bject to the City Manager's prior written approval, which shall not
be unreason. i eld, conditioned or delayed. In no event may any such signage
include the nam"'4 of any company selling the following types of products ("Prohibited
Names"): guns, tobacco or sexual products.
Nothing contained herein shall preclude MIND 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.
9.2.8.4. General Requirements. All signage (whether interior, exterior,permanent and/or temporary)
16
Page 1462 of 2277
shall comply with all applicable Governmental Requirements, and shall be maintained by
MIND in good condition.
SECTION 18.SECTION 9. SECTION 9. LIMITED FUNDING BY CITY.
9.1. During the first Contract Year of the initial term of this Agreement (From October 1,
2016 through September 30, 2017), the City shall provide funding to MIND, in the amount
of $-1044170,000.00 ("City's Contribution(s)"), payable in quarterly installments within
fifteen (15) days following the end of each Quarter, wine first payment, in the amount of
54225,5000.00, due4ue October_15, 2016; $4 00.00 due on January 15, 2017,
$4225,5800.00 due on April 15,2017, and $4,424.47'11'4,,/,1, due on July 15,2017. MIND shall
submit an invoice for each payment of such City's /' 'a't bution and also submit the
corresponding reports due for that ***far Quarter. The its sole discretion, may
l K L
condition payment of the City upon/4VND providing the rer i e reports under this
Agreement, including, without limitation, re•,4'` , -t forth in Se "r s� 5 and 12 of this
9�l"` llNlipll/n
Agreement. Thereafter, s` � �. funding av /(`',, , y and at the City's so e option, the City
J I, ' g
shall provide a City Con'1,;`) t ,'/,j'// an amo 1u9/Aq $17080,000.00 annually, payable
l/
quarterly in the amount of$41//-;,0.00' ;�,, /p/ fifteen a days following the end of each
Quarter, d a�, y/s+ � ce of the x �', ial T/y'�`�� ''0�/k; �� Ren' .4.1 Terms (should said Renewal
l 1 � J�//f� �jJ�)l
1 u!
Terms b ..ted, at th' /, e option ty),towa a>j'e operation of the Facility.
31/ t°'l
9.2. /�Janua ,'% `,t,��o E a 'ng balance of the Initial Term and any Renewal
/thb$a � k�, �,rriilln
�i l' erms s �� � aid �t al Term ;� x .n ed at the sole option of the City), subject to
toy, nding avail. ' ;,,. an: rU�,,the City's sole option, the City will also contribute a
�/,/`v.ursement no exce-, .80,000.00 dollars annually ("City's Additional Utility
Con'' ion(s)"), p "le quarterly along with the City's Contribution, for only to the
followin c4i, ity cos,;; '. lectrical, water, sewer, and storm water. MIND must provide the
City copies ell is for the Facility along with proof of payments in order to receive a
reimbursement. the City's option and for its convenience, the City may make equal
quarterly reimbursements in the amount of $20,000.00 of the City's Additional Utility
Contribution with an annual true-up, if necessary,made on the October 1st of each year.
9.3. Any references to City's annual cContributions, City's Additional Utility Contribution(s),
payments, or reimbursements are based on full Contract Yyear and subject to budgetary
funding approvals for said the Fiscal Year covering said Contract Year. As such, , and as
such in any event which creates a shortened contract year, such as a default or termination
17
Page 1463 of 2277
for convenience, shall be prorated accordingly.
9.4. —Except as set forth in this Section 9, and other costs which the City has expressly agreed to
pay under the terms of this Agreement, the City will have no other funding or other payment
obligations with respect to the Facility or its Operating Expenses or its operations.
Additionally, MIND 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 •. _. er taxes. Notwithstanding the
mii n1i79pP
aiitr lrlrnui
1?r�r� ur
preceding sentence, the City makes no repres ..; to MIND, —either expressed or
itiTlied;implied that any or all of such taxes f, of be imposed at any time during
the Term of the Agreement.
a0
s .
da;
10.1.9_5.Community Benefit Fund. The Corn ■ Benefit Fund at the Gleason Theater was
established by Resolution No. 83-17447 t•. :avid . ted show t to senior citizen
and student residents. Its "-d by a $1.51i arge on each ticket sold. The fund's
purpose was further defi• i a elution " -20454 to "present and promote
performances,programs, show- • ent- -nt at re prices or free admission for the
residents • -ach." , Feb % �'�� 016, e City Commission adopted
Resoluti• -,o. 2016-. 7, whic • a rent :`-er grant program for the Colony
r��
Theatre throigh the us ` >f the Co is e>"ity Benefit Fund. The rental fee waiver grant
• 4, for the . . cr,.- • to incentivize live theater in Miami Beach.
.nts er no. "rofit th- - s al fees for up to four days per week, and are
.vailable only = ive ' atic productions. Dance, music, stand-up comedy, cabaret,
sque and film` . -enings of eligible for this grant. Grants will be administered by
the •sm Cultur d Economic Development Department following review and
recomm. on by iami Beach Cultural Arts Council.
a. MIND agrees • continue to honor the Community Benefit Fund rent waiver grant
program: : • . - • ,. -. . •• for twelve(12)Events per Contractoalendar Xyear.
MIND agrees that the rental charge for each of the 12 rentals paid by the City under this
program shall be fixed at for the entire Term. The City reserves the right to
discontinue such rent waiver grant program in the event that revenues become inadequate
to subsidize the program,or for any reason in the City's sole and absolute discretion.
18
Page 1464 of 2277
SECTION 11.SECTION 10. SECTION 10. RECEIPTS AND DISBURSEMENTS
11.1.10.1. MIND 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 MIND shall determine. All Operating Revenues collected by MIND from the operation of
the Facility shall be deposited into the accounts and all Operating Expenses shall be paid by
MIND 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
i is Agreement Agreement other amounts that MIND is required to pay ��� q,�� g b Bement including
any portion of the City's Contribution or h?i . 4 =onal Utility Contribution paid to
MIND in excess of the prorated amount @s•ugh the_dat `"-" : . termination, shall
be promptly paid to MIND. Notwit•, F O ng the foregoing, Agreement is terminated
by the City for cause, any excess o`Il' •rorated amounts, whi ,.ere paid to MIND in
connection with the City's Contribution • ' 's l'h ional Utility c".14 . 'bution, shall be
paid to the City.
SECTION 12.SECTION 1 e ` ,;ENANCE AND REPAIRS.
12.1.11.1. MIN a . 1 not ,e any . imp .ts, or alternations (collectively
"Alteration°> o the F. ty withou City Manager's prior written consent. Any The
• , !cludin1 1 n1 an, ture ca•ital re.airs of all Alterations made by
J6,1,4,04,41,4 At off
10 11'1'1' b
1 b " -ly by I' r • own funds and shall not constitute Operating
Expenses, u othe agreed t• •y the City nunder the category —of Capital
/�«« •rovements of,' •inten ��,'
f � The City Manager shall not unreasonably withhold,
co y � ; •n or delay ii0,er consent to any Alterations except that the City Manager may
withho ', sent,sent, in ;,; er sole and absolute discretion, with respect to any Alterations that
change th- a ements or life-saving systems or that affect the exterior of the
Facility; Notwi �& ding anything to the contrary, however, MIND shall not under any
circumstances be permitted to make any Alterations that: (i) 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.
11.2. - : . ..' : . .. : Notwithstanding the maintenance responsibilities as set forth
in Section 5.4 and Section 11, it is understood by the parties hereto that MIND shall not be
19
Page 1465 of 2277
responsible, nor required to pay for;cun_y other costs related to Ceapital_-I+mprovements�-ef
infrastructure, and its related scheduled maintenance defined as (i.e. including, but not
limited to, plumbing and sewer lines, major electrical, structural, storm• HVAC, roof, slab
any and all fire safety equipment and fixtures, and exterior restoration (collectively "Capital
hmprovements") ete—±with regard to the Facility. City is specifically not responsible for any
glazing including exterior windows, interior paint, drywall, doors, locks, fixtures such as
lighting and plumbing fixtures, any ten- ablesnon-durables, utility meters, tile, decorative
elements, and Alterations as defined in Section 11. i er desirable to or approved for
MIND. �llrl�RlR�pry
dlHIIU1011/IVIANIIU71'
F(4tlCNl/IRVII/l//lA
f,J!f 11 /l.'lIUNRNINNI
lid Y 'uI�OLTIII'-
d
"eY7iE:r' R7 8
a. MIND warrants and represents to C / s at, prior ' Effective Date, MIND has
ROO
lal�lnv
inspected the Facility, and MIND �� ,s accepts the Facile /, is,where-is and with all
ill
faults" and except where required I<</;/r y s,rules, and regulation", e City; Miami-Dade
lr/ lAr,, 1/RUmv
County; the State of Florida; and the �/ co nt now in fo , '/bar hereafter to be
adopted, is under no ElY'Yy �< , .n to impro
or make any Capi al Improvements.
Before the commenceme r� / ,,• s agreem y�;/, he City shall ensure all equipment,
�„
bathroom, plumbing, HVA � U a ext rs, fire 14 equipment and fixtures, are in
ri/Fj rl. y(r1,
rdl i. l
working o /� ��,sa , zs� t the buil:, a is U.r see Co.Vw�lr.
%11.3. MIND , obtain •uired p
Altera p erformed by, through or under
40, ,
MIND and s �':;,serfo f cause to i •°; rformed such Alterations in compliance with all
ntal R., ;, o-r no umstances shall MIND make any Alterations
I ,
hich i s W- a. ate ... azardou ' „, ances including, without limitation, asbestos-
ontaining con 'on •.ls, into the Facility. Any request for City Manager's consent
• proposed At, �4 tions b ough or under MIND shall be made in writing and shall
con .- Mans or othe 7 itten materials describing the work in detail reasonably satisfactory
to City .er, pr. J d that architectural plans shall not be required unless required for
frof
the issuance I g permit. City Manager shall provide or deny consent within twenty
(20)business da '..ollowing receipt of MIND written request, the failure to provide or deny
consent within such twenty(20) business day period shall be deemed a consent. Should the
work proposed by MIND and consented to by City Manager modify the basic floor plan of
the Facility and the building permit therefeftherefore require architectural plans, then MIND
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)
20
Page 1466 of 2277
(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 MIND to obtain a payment bond for the work
11.4. Maintenance. Except as provided for in Section 11.2, MIND shall, at its sole cost and
expense, have sole responsibility for basic maintena.y,,ike be performed on a regular basis
on all facilities, improvements, and facilities k'r" les infrastructure equipment at the
Facility. Any and all repairs or replacement .> h �ut, is the responsibility of the City.
Y,µ"JNIP ldkGNf t
MIND shall, at its sole cost and expe. / ,nd to the . action of the City, keep and
maintain the Facility, and all improvb thereon, in good, and sanitary order. The
•
grounds of the Colony. To that end, th ies . acknowle• d MIND herein
agrees to be bound by, the' a . ',urn mainten. ;/ f .ndards set forth in exhibit "C" to this
Agreement, entitled "City o / •a , .,ch Minim.; ysecifications for Maintenance of the
Colony." It is further unde ;7% th. �„ �A �'•D sha / m vide the City with a quarterly
maintenan b b 9�" format to;ah ,.ppr. r City ager.
l ll�ll
12.2.1 ..1 Pro, -own „-rsonal property included in the Agreement for
� i •se by 'ng � erm here ,,,a ed and incorporated herein as Exhibition "E".
II D hereby •is su ipment in its "as-is"condition, and without any warranty(ies)
- at its sole • and a ,e, acquire and maintain all replacement and such other
equ .. " .t as may b- essary to maintain the Facility in a condition which satisfies those
mainten tandar, =t forth in Exhibit "C", but shall not have an obligation to improve
the conditio sonal property beyond the "as-is" condition in which it was accepted,
all of which sh."" .e noted on the inventory. MIND shall have the right, at the initial
inventory and at any point thereafter, to decline the use and responsibility for any personal
property not 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 13.SECTION 12. SECTION 12. RECORDS,AUDITS AND REPORTS.
21
Page 1467 of 2277
12.1. Records and Audits. MIND 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. MIND shall give the City 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. MIND 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 ; ""Nn „invoices, bank books or duplicate
MIX/1
deposit slips, and other evidence of Operating ' s and Operating Expenses for such
o�n��nF+sn,y ann
�yrri,i+iNUUU����.��
period. In addition, on or before 120 days fo - iscal Year, MIND shall furnish to
the City a line item (i.e., by categor��i tatement o ''; 'Aserating Costs and Operating
1 siiL' lGIPB�lz
Revenues (and profit or loss) for the,' ;�" for the precedin H' al Year, and including the
number of tickets sold and Events .repared in accordant .,', generally accepted
accounting principles certified as accurat • ��� r Chief Accou Officer or Chief
/Gl�(l�r
Financial Officer./
F ,
12.2. The City Manager shall hay: ! y tim- €,• from time to time, to cause
independei,,y , ' , the City sr au.' /ors to audit all of the books of
MIND r to Op- ,g Reven v r -rating e- ses, tickets and Events including,
without limn I cas# gister tape '!';edit card invoices, duplicate deposit tapes, and
No co - Ci , conducting such audit shall be considered an
�•eratin_ se.
al Plan. Co - Bing , October 1, 2016, MIND shall provide to the City on or
be • e 1st of e• year, an annual management plan, which shall include the annual
operatin +!et for hen current Fiscal Year but may not have a complete booking plan
or event sch- annual plan shall include information regarding MIND'S anticipated
operations for s I 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. MIND 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 MIND'S fulfillment of its obligations hereunder.
SECTION 14.
22
Page 1468 of 2277
12.4. Programmatic Plan. Accompanying MIND's proposed annual budget shall be the Facility
Programmatic Plan for the next fiscal year, detailing the then-known activities planned, and
the number of residents and visitors anticipated to be impacted.
12.5. Major Capital Repairs. Accompanying MIND's proposed annual budget shall be a detailed
list of then-known major capital repairs anticipated for the Facility, which remain the sole
responsibility of the City.
12.6. MIND shall submit to the City, every Quarter, w 'een (15) days from the end of each
Quarter, commencing with the January, 20 t . detailed report ("Programmatic
„Ni, 1P
Quarterly Report") setting forth the folio 'nformatio
a. Event Records and Programmatic '
i. A listing of Events hosted during ' -vio er, includin_ • ber of attendees
and the charge to i for the even .
ii. The Events scheduled or anti -d for the upcoming Quarter
iii. iii °. The number of Facili , ..ls, an harge for said Facility Rentals,
inel Quarter g4 Upc' _ er.
b. :. Mar ±g and Pr. Activi
i. —• led pl •d budget r ating marketing and promotional efforts
mar' materials,including social media campaigns,
paid e u etin: each . c relations that ensure both the Miami Beach
commu i d So. orida residents in general are aware of programs taking place
at the Facih 11 mat- should have proper use of City of Miami Beach logo and
shall be subjec the prior written approval of the City Manager.
c. c. M nance and Capital
i. All maintenance work performed during the previous Quarter,
including t
ii. ii. All maintenance work anticipated for the upcoming Quarter,
including cost
d. —{l. Staffing and Administration
i.
i-.---A detailed plan and budget illustrating staffing
SECTION 15
SECTTION46 SECTION 13. SECTION 13.INDEMNIFICATION.
23
Page 1469 of 2277
16.1.13.1. MIND 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)errors, omission or negligent act or willful misconduct of MIND, its agents,
servants, contractors, or employees; (ii) any default by MIND under this Agreement; MIND
shall indemnify, hold harmless and defend (with counsel approved by the City Attorney) the
City, its officers, agents, servants under this Agreed or (iii) any other claim arising,
directly or indirectly, from the operation or man 4 nt of the Facility or any Event held
therein or rental or use of the Facility; provi '•,are is expressly excluded from the
foregoing obligations any Claims to the a „�$. resulting "_ e gross negligence or willful
misconduct of the City, its officerr i ' nts (excluding ,' contractors (excluding
t 1 r� rnr,rir®
MIND) and employees or the use of migacility by the City, its .°;;� rs, agents (excluding
��lr �%i Y'4�llr ,ni r
MIND), and employees,pursuant to Secti.4 a her
r <t
16.2.13.2. In addition, MIND sha ` k�a� hold h. and defend the City, its officers,
agents, servants and employee• x om a+ ill'" .Wnyst any demand or cause of action of
b < h, 11/br �, l
whatever l .;K e arisin ,' t of q di;p li, duct*l of MIND not included in the
paragraph r,�'( the subs-� ' • above ,x`which th' //City, its officers agents, servants or
employees, . eged e e liable. i /,: subsection shall not apply, however, to any such
4,;14;;,,,,,,c,,„, ma . '' Z r $ os • - t li ence or willful misconduct of the City,
f, f � «r may y4'1�r � � �' �1;y,- g h'>
u/ .fficers, � serva r y� employ i it
16.3.13 %� e provision this s .en 13 shall survive expiration or termination of this
Agr
SECTION 17.SECTION l k ;>;t,��„�L �0 •r ._•. INSURANCE REQUIREMENTS.
17.1.14.1. Before begi g any work and throughout the term of the Agreement(including renewal
periods),MIND shall, at its sole cost and expense, comply with all insurance requirements of
the City. It is agreed by the parties that MIND shall not occupy the Demised Premises until
proof of the following insurance coverage have been reviewed and approved by the City's
Risk Manager. All insurance policies required below shall be issued by companies
authorized to do business under the laws of the State of Florida. Provider shall indicate that
insurance coverage has been obtained which meets the requirements as outlined below by
24
Page 1470 of 2277
submitting original certificates of insurance to the City's Risk Manager and Asset Manager
respectively:
a. Worker's Compensation for all employees of the provider as required by Florida Statute
440 and Employer's Liability coverage in accordance with the Florida Statutory
requirements.
b. Commercial General Liability on a comprehensi is in an amount not less than
$1,000,000 combined single limit per occurre bodily injury and property damage
and $2,000,000 aggregate. City of Miami ' e shown as an additional insured
with respect to this coverage.
i. Additionally Mind will be insred fo the following co -
,
Products(complet- "' •-ration aggregate) 2,000,000
Personal and advertis. $ ;•0,000
(Pero< e) $ 1,i0,000
Fire dam $ 100,000
Medical E $ 5,000
c. Intents Omitte
d. A x , pro,- ' uran 'tten at a minimum of eighty (80%) percent
of rep . it co . e and . ement cost endorsement, covering all leasehold
improvemen talle• e Demised Premises by or on behalf of MIND and including
:thout limitati• I of I 's personal property in the Demised Premises (including,
t limitation, entory, trade fixtures, floor coverings, furniture, and other property
remo by M ' I I der the provisions of this Agreement).
e. Intentionally • tted
f. The insurance coverage required shall include those classifications, as listed in standard
liability insurance manuals,which most nearly reflect the operations of the provider.
g. Any insurance coverage required above must include a waiver of subrogation in favor of
the City.
25
Page 1471 of 2277
h. The company must be rated no less than "B+" as to management, and no less than"Class
VII" as to financial strength, by the latest edition of Best's Insurance Guide,published by
A.M. Best Company, Oldwick,New Jersey,or its equivalent, subject to the approval of the
City Risk Management Division.
CERTIFICATE HOLDER MUST READ:
ii�iinu(mmm
re a iuiup
lllU f l:n
CITY OF MIAM � H
1700 CONVENTI• 4 DRIVE
3rd FLOOR O ri , OF REA TATE
M ACH,FL33139 71:
Via:, a
17.2.14.2. Compliance with the foregoing requir s s .t relieve the or of his liability
and obligation under this 2/// .r under any I -ction of this Agreement.
Nf�
1 i11 �9
o iri rl
17.3.14.3. City reserves the right to im ' ad• easonas urance requirements as the City
may deem •� n accord., l'
y � wit• ,� ache,-
I14.4. The policie nsuranc ferred to a shall not be subject to cancellation or changing
•e excep (30 s written notice to City and then subject to the
I '• .pro . the Ci . , ger._Should MIND fail to obtain, maintain or
renew the po : of in ,ce referre. . above, in the required amounts, the City may, at
ole discretion, ; ain su, ;- urance, and any sums expended by City in obtaining said
i s e, shall be :id by • D to City, plus ten percent (10%) of the amount of
premi 1, 'aid to c• nsate City for its administrative costs. If MIND does not repay
City's exp-'. s in fifteen (15) days of demand, the total sum owed shall accrue
interest at the .' twelve percent (12%) until paid, and such failure shall be deemed an
event of default hereunder.
-1-7-4-14.5. 11.3 Fire and Property Insurance for the Facility shall be the responsibility of the City.
SECTION 14.SECTION 15. SECTION 15.OWNERSHIP OF ASSETS.
-1-84-15.1. 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,
26
Page 1472 of 2277
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 MIND for use at the facility shall remain property of MIND.
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 M I. , "th MIND's separate funds,shall
remain with MIND. MIND shall- be granted p on to use and have access to prior;
customer lists or similar materials developed 'n` . *r the use of the Facility during the
Term of this Agreement; however,MIND not take, . own purposes, Customer lists
or similar materials developed by t• A , for the use of th ility, unless prior written
consent is granted by the City Manag. "'`"ownership of equipmen , ''shings,materials,or
fixtures not considered to be real property 'as- I with I , -ng Revenues for
use at and for the Faci vest in the , automatically and immediately upon
purchase or acquisition„ - 811111'-- - -- ----- . - - • .- -
- - - _ . .._ .! *f the described herein shall not be
pledged, ii,h •ered or • - • ass -'„-d. Notwithstanding anything
to the c. contai. in this - nt, any . anality, furnishings, and movable
equipment ■• - not a e and ar- _= t integral to the operation of the Facility purchased
. •d us: •• I be sole property of MIND.Ownership of and title
o all in - .1 pr. rights • 'ever value related marketing and promotional
• .terials, desi. log. ial media profiles, and web pages will remain the exclusive
-rty of MIND.
SECTION 19.SECTI• S ION 16. USE BY THE CITY
19.1.16.1. The City .e right to use the Facility,or any part thereof,subject to availability,
for the benefit o e community for such purposes including, but not limited to, meetings,
City-sponsored special events, 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 that the direct out-of-pocket expenses incurred in connection with such uses
shall be paid by the City.
SECTION 244SECTION 17. SECTION 17. ASSIGNMENT/SUBLET.
27
Page 1473 of 2277
2-01-17.1. Except as otherwise specifically provided in this Section 17, MIND may not voluntarily
or by operation of law, assign, encumber, pledge or otherwise transfer all or any part of
MIND'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 MIND 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, MIND sha %"h; ertheless remain liable for all
obligations hereunder and the transferee shal '' , •intly and severally liable for all
obligations thereafter arising under this Agre-=; (_specifically recognizes that City
selected MIND to be the manager of t•, lity as a t of the City's evaluation of
MIND's specific qualifications an. ence in operatin. , t filar first class facilities.
20.2.17.2. The provisions of subsection 17.1 abo� all . vent MIND performance of
its management duties he', o grant lice concessions and ren .1 agreements for
Events and entering into . • agreem- sr the concession operations at the
Facility. Notwithstanding the egoi ' I sh. „ be permitted to grant licenses,
concession eements snne od
•r beverage services.
SECT SECTION 1. i N 18. SE. s TY.
21.1.18 '■ shall . sec. to protect the Facility and its equipment,
terials .- cilih •,eluding equipment, furnishings, and fixtures used by
, and s ,e so -sponsible to the City for any loss or damage to any City
�ment,furnis i and i s so used by MIND.
SECTION 22.SECTI• S ION 19. PERMITS; LICENSES; TAXES; APPLICABLE
LAWS.
22.1.19.1. MIND agree • obtain and pay for all permits and licenses necessary for the conduct of
its business, including a liquor or beer and wine license for the Facility, and agrees to
comply with all laws governing the responsibility of an employer with respect to persons
employed by MIND. MIND shall also be solely responsible for payment of any and all taxes
levied on the Facility and its operations. In addition, MIND 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.
I 28
Page 1474 of 2277
SECTION 23.SECTION 20. SECTION 20. UTILITIES; RESPONSIBILITY FOR TAXES AND
ASSESSMENTS.
20.1. Utilities. MIND shall be solely responsible for and shall pay (whether to the City or directly
to the utility) before delinquency, of all charges for all water and sewer, and electricity
utilities used at the Facility.
23.1.20.2. Procedure If Taxes Assessed. MIND agrees to, � .hall pay before delinquency, all
✓tk�rflYYllUiL
taxes and assessments of any kind assessed or 1ev ' «fF";3"ether upon MIND or the Facility, by
l�am(p/llu{ui
1/97/MI/D(J!f(!(llllll/�l/ill
reason of this Agreement or by reason of any °vr tth. activity(ies) of MIND upon or in
��IlUlllrr' �l9
connection with the Facility. The parties acknowledge th Fti; I D's operation and use of the
Facility is for public purposes, and .crefore anticipate that, the Effective Date, no ad
!
valorem taxes should be assessed by 4dil 1,„'iami Dade County Fax aiser. If, however, ad
l �h
valorem taxes are assessed by the Prope '' , A. 'per, MIND has ', 'ght to terminate
x g'�
this Agreement without` .y providin vs notice to the City at which point the
City shall be solely respon',i e h payme As such unless the .arties a•ree
�l� .,
otherwise, if MIND fails tot <�% ate " �°1,?, �eement .y for any such ad valorem tax
il�
assessmen , .11 have t scion - this ^ a eement, without any penalty,
u.on .ro +• MIND '• thin 3 wn otice.
. _ - 21. •RC �q, • JEURE.
No p. 1 be or resp., - • the other party for any delay, damage, loss,
y allure, or inab !! o pe'" caused by "Force Majeure" if notice is provided to the other
.4 g, within ten ( ! .ys o on which such party gains actual knowledge of the event
of`` Majeure" uch party is unable to perform. The term"Force Majeure" as used
in this •' `° . ent nv the following: an act of God, strike, war,public rioting, lightning,
fire, storm, +sions, epidemics, landslides,lighteningli htnin storms,earthquakes,
floods, storms, . outs, 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).
I 29
Page 1475 of 2277
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.
21.2.21.3. 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 a period of at least ninety (90)
days or in MIND's reasonable opinion the Facility; an no longer be operated in a reasonably
profitable manner as a result of the damages or fe i nh for a period of at least ninety(90)days
.r.
from the happening of the fire, other �sualty or re• U;,; .ry action, either party may
' rl r w° rii��uan '
terminate this Agreement upon written leg#+''ce to the other. f ny such termination, the
provisions of Section 31 shall apply; ., , ovided City shall recei ;`" a entire amount of all
insurance proceeds or eminent domain awards ap e.
1141 ya v 4i,�����jJ�1,
SECTION 25.SECTION 22. • °" PECTIO
25.1.22.1. MIND agrees that the Faci .ected at'f ny time upon reasonable notice by
bt , �(/
authorized; 1 ,i.` I i .,es of the' , or i.. ,,; 4 one'-r State(County, Federal or municipal
officer or''"': ncy haven_, ponsibili ' » nspectio` I''f such operations and/or Facility.
f %r
• - t �1 1 23. ! �d"^ Al"'py OF INTERFERENCE.
r r!,rltb-- l7fll4r . , ,1 1 - '
ilr f rm ..1.,, e 7 �__. 2!•�
47 Ir °� MINO'* by w � .,all clai i f,�compensation for loss or damage sustained by
' /J�,, easons of any 'm�"r eren" l.,r`' h its operation and management of the Facility by any public
1
�1/0 cy or official . �� esult .� ` ir enforcement of any laws or ordinances or of any of the
���� 9
righ"' erved to th herein. Any such interference shall not relieve MIND from any
obligati."G? , eunder '
"1
J
SEC 7.SECTION 24. � ._ e • -•. NO LIENS.
27.1.24.1. MIND 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 MIND 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 MIND.
30
Page 1476 of 2277
SECTION 28.SECTION 25. SECTION 25. MIND EMPLOYEES, MANAGERS AND BOARD
OF DIRECTORS.
25.1. The City and MIND recognize that in the performance of this Agreement, it shall be
necessary for MIND to retain qualified individuals to effectuate and optimize MIND's
management and operation of the Facility. MIND shall select, train and employ at the
Facility such number of employees as is necessary to appropriate for MIND to satisfy its
responsibilities hereunder. MIND shall recruit - consistent with standards
employed at comparable first class facilities, y D shall have authority to hire,
terminate and discipline any and all persona•r °�, •��, /,,,.y MIND working at the Facility.
Any such personnel,whether employees '.is, indepen,N
, ontractors, volunteers, and/or
/111 r a p yllU1
other, employed, retained, or othe �v.aged by MIND fo %, purpose(s), shall not be
//
deemed to be agents, employees, par' n oint ventures, or asso of the City, and shall
not obtain any rights or benefits under th- se r pension or. ��, es of the City or
any rights generally affo �nr sifted or un• ed employees of the ity; further they
shall not be deemed entitle. ,f , '1; Worker 11�r,/3 • pensation benefits as employees of
the City. Additionally, MIND, dn;f,or it t • ees sh ver have been convicted of any
it � l
offense inV felo c /'
.ly with this subsection shall•constitut e for to t tion oft ,#/#,#xi?s went,
28.1.25 '• hall a • a co ent staff member experienced in the operations
•f 'ties, � will be fr.,.`,`_'��%� •n site with regular and posted hours during the
erm. The s • -mbe be supervised by a general manager who is experienced in
.ting and ma _ semi . •cilities. The staff member shall be accessible to the City
Ma. at all reaso." e times to discuss the management, operation, and maintenance of
the Faci
SECTION 29.SECTION 26. . _ ! • -:. NO IMPROPER USE.
29.1.26.1. MIND 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. MIND 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
31
Page 1477 of 2277
the Facility. MIND 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 MIND shall result in
automatic termination of this Agreement. Except as may result from acts of force majeure,
MIND agrees that it will not allow the Facility to become unoccupied or vacant. MIND
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 maintain-k nnn�;(, ,; ,<the City.
N„/N(/
In'N R/IGU:
n
u10.
�TION-30.SECTION 27. SECTION 27. NO DAN�'r ' �r” TERIALS.
27.1. MIND agrees not to use or permit in the ity the sto/. •f illuminating oils, oil lamps,
turpentine, gasoline (except for smal iners [5 gallons or for machinery), benzene,
naphtha, or other similar substances, plosives or any kind, substance or thing
prohibited in the standard policies of fire i H' �cell r . ies in the Florida.
SECTSECTION 28. _ - ! CLAI - GAINST CITY OFFICERS,
EMPLOYEES,INDIVIDU
r r;,
r r�� r rlr/ � r �l '4,l�ii�
-28.1. It is e, - �// /�/-rstood .'k,d%,a e ��s, be the parties hereto that all
individu ( -mployee- 'icers, a„y rr , its of th- are acting in a representative
capacity ant or the I benefit, + that neither MIND nor any occupant shall have
gains . . - as 'viduals in any event whatsoever in conjunction
th any . dune ch are re. ,„ elated to the performance of their duties.
SECTION 32.y TION 29. TIO DEFAULT AND TERMINATION.
29.1. II' Defaults. .ccurrence of any one or more of the events listed in sub-paragraphs
29.1.1 t 29A.- 11 constitute an Event of Default by MIND.
29.1.1 The fail •y MIND to make any payment required to be made by MIND as and
when due,which continues for more than ten(10)days after written notice from City;
SECTION 33.
29.1.2 The failure or inability by MIND to observe or perform any of the covenants or
provisions of this Agreement to be observed or performed by MIND, other than as
specified in other subparagraphs of this subsection 29.1, which continues for more
than thirty (30) days after written notice from City Manager; provided, however, if
32
Page 1478 of 2277
I
the nature of the failure is such that more than such period is reasonably required for
its cure, then MIND shall not be deemed to have committed an Event of Default if
MIND commences the cure within such period and thereafter diligently pursues the
cure to completion and actually completes the cure within a period not to exceed an
additional sixty(60) day period;
29.1.3 Except as permitted pursuant to Section 17 of this Agreement, the assignment,
encumbrance, pledge, or transfer of this A., r ent, whether voluntarily or by
operation of law, or any subcontract of M r;' „F.��`d uties hereunder,which continues for
more than fifteen(15)business days a% ,,;§.,•tire thereof from City Manager;
»fix
"a.
I 29.1.4 (i) The making by MIND of neral assignment . ',e benefit of creditors; (ii)
n:a�2tiu.
the filing by or against M 1 . petition to have M nary, . udged a Chapter by
'/111,1, j
, .
operation of law, or any Code ,,, "'�.. -bts dischar• v , 'r a petition for
reorganization or `, A ent under a relating to bankrup cy (unless, in the
case of a petition fib, t,.. 4 D, the r ,is dismissed within sixty (60) days);
it li N
(iii) the appointment o , stee"'. �`il,,-,-fiver to / .ossession of substantially all of
111(4 M �:k �. t y- sated at Faci �, I I '�%interest in this Agreement, if
p. -sion is n ` <-stored t• within s (60) days; or (iv) the attachment,
exec << ,,,-,•r oth ' ��dicial sei ',.' f substantially all of MIND's assets located at the
',- flit o - t in t greement, where the seizure is not discharged
� / p7- g
hid �d`,1 ��1,1 t�f�l jJ y 1 yl 'v r b'
,j,�R Wt /i xty t pil,�.ays. M ✓/ ai ure to qualify as a not-for profit organization
ipursuant r,o echo'" c)3 of the Internal Revenue Code of 1986.
� �t
29 ' (#1,4/4,, q
29.2 Cit R�-"'“i,',:'es. If .` �fivent of Default by MIND occurs, then in addition to any other
//
remedies a '.'1't', e,11//,;',,, , City may exercise the following remedies:
I29.3 City may terminate this Agreement by written notice to MIND, in which case this Agreement
shall terminate and MIND shall immediately surrender possession of the Facility to City.
Upon termination, City shall be entitled to recover from MIND: (1) Operating Expenses that
remain unpaid through the date of termination;(2)all other amounts that MIND is required to
pay under this Agreement through the date of termination.
30
33
Page 1479 of 2277
29.4 City may seek specific performance of any of MIND's obligations hereunder or seek
injunctive relief;
29.5 City may exercise any other remedies available at law or in equity.
29.6 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. >>xm
29.7 MIND's Remedies. If an Event of Default by '^" � •`' en MIND may exercise either of
the following remedies: rtr, /,"
mor
29.7.1 MIND may terminate this At '0' ..ent by written notice t., .4, in which case this
Agreement shall terminate and M -hal °" ' ` diately surre •ossession of the
Facility to City. ' I nation, i, , tall be entitled to recover from City all
amounts owed by • r „11 as of th 0•. ination date and the provisions of
Section 31 shall apply;
29.7.2 L. y'ayments." y pa i� °•ed to or MIND under this Agreement
inclu• witho mitation, a, ther payment owed to City or MIND under this
�•eem- . . .ved ' - 'ty or MIND within ten (10) days following
n. suc s 'unt bem_ • 1 bear interest at the rate of eighteen percent
4-5118°0 ann 'r the highest rate allowed by Florida law, whichever is less
("Default '4':, ' from '0.to due until fully paid.
30.129.8 IN EVE' THAT MIND CEASES TO BE A NOT-FOR-PROFIT
CORPORA AGREEMENT SHALL BE AUTOMATICALLY TERMINATED.
3430 SECTION 30. [INTENTIONALLY DELETED]
32
3-331 SECTION 31. TERMINATION.
33.131.1 Termination for Convenience by City. 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 MIND's rights and responsibilities with respect to the operation, management,
I 34
Page 1480 of 2277
maintenance, promotion and marketing of the Facility, upon cightccntwelve months (124)
prior written notice to MIND.
31.2 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, MIND shall pay all such
amounts from its own funds; (2)After all amounts ref. i F ed in subparagraph(1) have been
paid, MIND may retain all remaining Operating : ,G s es (if any). Upon the expiration of
this Agreement or a termination for any reaso bligations of the parties hereunder
shall terminate except for the obligations or all pe ,up to the date of expiration or
termination and such other obligatio, e stated to survi be performed after such
expiration or termination. All of the •ing reimbursement an. - payment obligations
are to be made within thi (30) days . e t tion date. rovisions of this
Section regarding the abo x sement am ent obligations of the ity shall survive
the termination of this Agree• r t. �gllll'
33.231.3 Surren• ;' . Upon 'na �> , atio this Agreement MIND shall
surrender vacate th. ' cility up• ective • f such termination (or expiration).
The Facility .11 eq ' ent and , ings shall be returned to the City in a good and
s.tion c simi first class facilities and in compliance with all
a ovenam ' quir- s,ordin. and tear,and casualty loss excepted.
1 3432 - NOTI
All notices e City to • shall be deemed duly served if mailed by registered or certified
mail to MIND at the 'ng ad' .
Drama
169 East Flagler Street.PH
Miami,FL 33131
All notices from MIND to the City shall be deemed duly served if mailed to:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach,Florida 33139
35
Page 1481 of 2277
With copies to:
City of Miami Beach
1700 1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Max Sklar,Tourism, Culture,and Economic Development Director
MIND 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.
35
36 SECTION 33. NO DISCRIMINATION.
33 ,lug
33.1 The—MIND agrees that there shall s'y' 'discrimination as to color, national origin,
religion, sex, intersexuality, gender ides' sexual o tation, ma i d familialf status,
age or disability in the ope ens referred to i -ement; and fur i °. ,there shall be no
discrimination regarding . ervice, mas < ice or operation of the Facility. All
facilities located on the Facil ha ltt j .de avail. o the public, subject to the right of
MIND to esta• d enforce onab and r ons to provide for the safety,
;✓
4/1
orderly orderly op s 'ty of th
36.1
min. , �� - t irmative Action. In connection with the
performanc- •rk his Agree" MIND shall not refuse to hire, discharge, refuse
•romote or •t� )e, or criminate in matters of compensation against, any person
4i
o . ,.a se qualified, y beca..%'''of race, color, national origin,religion, sex, intersexuality,
gende +tity, sexua ' . entation,marital and familial status, age or disability.
,
4-734 SECTION 34 1 IN ALLY DELETED47
4835 SECTION 35. EQUAL BENEFITS FOR DOMESTIC PARTNERS
This Agreement is subject to, and MIND shall be required to comply throughout the Term hereof
with, the requirements of Section 2-373 of the City Code entitled, "Requirement for city
contractors to provide equal benefits for domestic partners" (as same may be amended from time
to time).
36
Page 1482 of 2277
The Agreement is deemed to be a"covered contract," as defined in Section 2-373(a)(6) of the City Code,
and shall require MIND to provide its employees working pursuant to this Agreement (whether working
within the City of Miami Beach city limits, or within the United States, but outside the City limits,if such
employees are directly performing work pursuant to this Agreement) "Equal Benefits" (as defined in
Section 2-373(a)(8) of the City Code) to its employees with spouses and its employees with "domestic
partners" (as defined in Section 2-373(a)(7) of the City Code). F e by MIND to comply with the
requirements of Section 2-373 of the City Code (as same m �"„r °9b. ended from time to time) shall be
»fir
deemed to be a material breach of this Agreement which . ° r -rmination of the Agreement, with
rr� �rrrnrr„
all monies due or to become due under the A eem ; rats, be returne• ; the City. The City may also
�
" ' ' breach. Failure 'i ply with Section 2-373
/��
pursue any and all remedies at law or in equity <
may also subject MIND to debarment, in accors``'": " with the procedures y subject p p e� d in Sections 2-397
through 2-406 of the City Code. r,,
�l Gl xirli l} ",t
36 SECTION 36. LIMITATION r ,l TY.
38.1 ` ' `
j l lr lfjil r rr ' 9cr
The City desire ' � * this Agr gent o •om:��`e City can place a limit on its
/
N r r rl�$ ,�i4 ,ji„l� ilrr. —
ty any oney sue to . eged breach by the City of this
liability for an cau action � + one da,
Agreement, so that its ha,"!'"" for . '"'�%% ch breach % �-r exceeds the sum of$4425,000. MIND hereby
ex p resses r aa;.ss to • -emerf '
% 'th MIND's recovery from the City for any
damag„,, %�.s for bre.st, '/ ontr be limit 6�/"l r aximum amount of$425,000., 1c the am nt
. ...
Accordingly, �f ” g any gr hereby
�'�1��otwit� ��dm an other term or condition of this A Bement MIND hereb
rG a �'
agrees that the City shall n��y' � ; o e to the MIND for damages in an amount in excess of$25,000, which
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.
3937 SECTION 37. NOT A LEASE.
I 37
Page 1483 of 2277
It is expressly understood and agreed that no part,parcel, building, structure, equipment or space is leased
to MIND; that this Agreement is a management agreement and not a lease; and that MIND's right to
operate and manage the Facility shall continue only so long as the MIND complies with the undertakings,
provisions, agreements, stipulations and conditions of this Agreement.
4838 SECTION 38. MISCELLANEOUS
38.1 Venue/Waiver of Jury Trial. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida, b0,14,71 ubstantive and remedial, without
regard to principals of conflict of laws. The excl -nue for any litigation arising out of
this Agreement shall be Miami-Dade County, a, state court, and the U.S. District
Court, Southern District of Florida, if �'%jti •eral cou ENTERING INTO THIS
AGREEMENT, CITY AND MIND , ISSLY WAIVE A GHTS EITHER PARTY
MAY HAVE TO A TRIAL BY JUR ,'!� ANY CIVIL LITIGA RELATED TO, OR
ARISING OUT OF,THIS AGREEMENT ���
,E ru
38.2 No Partnershi• or Joint Ven herein c W, .ed is intended or shall be construed
in any way to create or estabh e re s m • of p ∎ or a joint venture between the
City and M R . .e f the o age U . •yee '4 MIND shall be or be deemed
to be em•' s of the k. for any p. hatsoev=
38.3 - eemen _ •t an• Exhibits attached hereto contain the entire
greemen -en ` ies wi t o the subject matter hereof and supersedes all
g '� rior agreemen •ders gs, proposals or other expressions of intent with respect
��NIt
Cher o.The Exhibi ached • are incorporated into and made a part of this Agreement.
No • i agreements, +resentations, warranties or other matters, whether oral or written,
will be • to bi parties hereto with respect to the subject matter hereof.
40.1 Written Amendm`"'°'"'s. This Agreement shall not be altered, modified or amended in whole or
in part, except in writing executed by each of the parties hereto.
38.4
10.2 Binding Upon Successors and Assigns;No Third-Party Beneficiaries.
'11 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
Page 1484 of 2277
38.5
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 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. "°""'
l
�i/pltlkgr u
,'�IhYNOl1/HNONfNM!!
7 !/
l//ll Up//�Ulb9vyy/f1,
11.138.6 Section Headings and Defined Terms. T .• / ontained herein are for reference
purposes only and shall not in any w "ect the a_ and interpretation of this
Agreement. The terms defined herei' any agreement e -d in connection herewith
�w
include the plural as well as the singu •. • the singular as well as~thplural, and the use of
masculine pronouns shall include the femi •d ". Except as otli � rise indicated, all
f.A�ll l r rye,; /l
agreements defined herein • the same as time to time amended or supplemented
or the terms thereof wai • =f+dified in ° . ordance herewith and therewith.
r �
This Agree -xecuted i / o or a rp. ;each of which shall be deemed
an origin. • of this ement, 1 i which, � `taken together, shall be deemed to
constitute but . d th• ` I e agreem /'
11.2 . • °'` •enfo sility of any particular provision,or part of any
f r `•rovision, • Ay : ' - It shall -c the other provisions or parts hereof, and this
170',' : eement sha ons i + all respects as if such invalid or unenforceable provisions or
JJl
/!P
• VV -. ere omitted.
11.338.8 /, aiver. A ., e by either party to take any action with respect to any default or
glop
violation /''; +e oth- any of the terms, covenants, or conditions of this Agreement shall
not in any res, ,prejudice, diminish, or constitute a waiver of any rights of such party
to act with respec``''o any prior, contemporaneous, or subsequent violation or default or with
respect to any continuation or repetition of the original violation or default.
41-438.9 Certain Representations and Warranties.
11.1.138.9.1 The City represents,warrants,and covenants to MIND 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
I 39
Page 1485 of 2277
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.
11.4.238.9.2 MIND represents and warrants to the City the following: (i) MIND 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 MIND
and constitutes a valid and binding obligation of MIND, enforceable in accordance
with its terms, except as such enforceabi ,,, %' ay be limited by bankruptcy,
UI Nl/J(lIIf�H)
insolvency, reorganization or similar law �/ Ong creditors' rights generally or by
i/rsr t/pr
lllpllll
H✓<si i NR HShWi t'rrfa mHHx
1genera equitable principles.
is
x.;.
IH1Ps
aiw fiUHlH
38.10 Governing Law. This Agreement will be ,hz' rued by an."°, " 'strued in accordance with the
internal laws of the State of Florida, m t giving effect to : ' ise applicable principles
of conflicts of law. H
Ill ?/4/ft,. l
d! rh�f11p� l/llrl ilG
4239 MIND'S COMPLIANCE WI "` s *;' DA PUB t' CORDS LAW
tip,iar�� '
39.1 Pursuant to Section 119.0 W .` lorida. Stites, if MIND meets the definition of
"Contractor" ll lll,r �ir';i rtlir"i� nll,1, ,/
a
Contractor as defined in Secti "bH 19 0 J ,the �,ssionaire shall:
11r1/,' ///,, f
12.1.1 /liJill
r,.
12.1.239.1.1 ' d maintain records that ordinarily and necessarily would
equir- •cy i 'er to perform the service;
• w ,., - the pus cess to public records on the same terms and
conditi.. at th- is agency would provide the records and at a cost that does
not exceed ost pr. s.• in this chapter or as otherwise provided by law;
e that public records that are exempt or confidential and exempt
, ublic r .s disclosure requirements are not disclosed except as authorized by
law;
'12.1.539.1.4 eet 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 MIND 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
40
Page 1486 of 2277
I
stored electronically must be provided to the City in a format that is compatible with
the information technology systems of the City.
I42.239.2 For purposes of this- SectionArticle,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. , ,,.
I 12.339.3 MIND failure to comply with the publ.• - closure requirement set forth in
Section 119.0701 of the Florida Statutes s• se a breach a -; Agreement.
I12.439.4 In the event MIND does not co •. •th the public records , .sure requirement set
forth in Section 119.0701 of the Florida . -s, may, at the 's sole discretion,
avail itself of the remedies • under this ent and available at law.
43
4440 PROHIBITIONS REGARDING ` • OF E DED POLYSTYRENE FOOD
SERVICE ARTI
UllliiA
Pursuant to Section 82- •- a e, as ma - amended from time to time, effective August 2,
2014,the Ci • ohibite a ed pol ene food service articles by City Contractors,in
connec •, • .Al • ontr. " -ase, co•- • a... = ment or Special event permit. Additionally,
purs . • ection 82-38 •e Ci e, as may . amended from time to time, no polystyrene food
service . a- will be allow• • the of-way, and no polystyrene food service articles can be
1 provided to side• afe patrons
45
40.1 MIND agrees.to e extent permitted under this Agreement,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. MIND 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, defined as follows.-used for prepackaged food that have
been filled and sealed prior to receipt by the MIND or its vendors.
41
Page 1487 of 2277
15.1.110.1.1 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).
45.1.240.1.2 Expanded polystyrene food s articles means plates, bowls, cups,
containers, lids, trays, coolers, ice .■ 1 similar articles that consist of
expanded polystyrene.
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4641 COCA-COLA:
The City has entered into an agree• -nt with Coca , s g, effective :,; ber 1, 2011 —
September 1, 2021, to be the exclusiv- ;, of non-alc• beverages and coffee products. MIND
shall only sell Coca-Cola beverages as hs hed Exh . "and as may be updated from time
to time.
[REMAIN P " E L LY : ]
I 42
Page 1488 of 2277
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
Rafael Granado,City Clerk Philip Levine, '�/ ?a"�
d�Irm%!HNn..
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STATE OF FLORIDA
SS:
COMTY OF MIAMI-DARE )
The foregoing instrument , knowledge, --fore - ,,-'/�f 2014, by
Mayor Philip Levine . ado, CI Jerk -sign- respectively, on behalf of the
CITY OF NIIAMI B kno ,+.e to be /, des 'n and who executed the foregoing
instrument, and ackno ted to a ', '.efore m- , they execu -d said instrument for the purposes
therein expressed.
WITNE • cial .is f , 20164.
Notary Public, State o •da a _e
Commission No.:
My Commission Expires:
I 43
Page 1489 of 2277
Attest: Miami New Drama
Secretary Executive Director
Print Name Print Name
lA im to
1/atf,
ii?Mi'Gill.
<Yiy7',M/0;:
V41,.
_;renal
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STATE OF FLORIDA ) IMHklfraaH',
) SS: /lI(,WlltlN/U.
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COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowled s e o his of , 2014, by
in behalf o - Rh � dation, ; known to me to be the persons
described in and who e •oregoing h ,w • e a AI owl- ed to and before me that they
executed said instrum- the p -s therei
I WITNESS my hand and seal, da ,20164.
Notary c, State of Fl. :t Lar=
Commiss o.:
My Commis xpires:
144
Page 1490 of 2277
EXHIBIT A
LEGAL DESCRIPTION OF THE FACILITY
TO BE UPDATED UPON COMPLETION OF A SURVEY.
LEGAL DESCRIPTION
EXHIBIT B
ANNUAL BENCHMARKS
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• MIND will operate a minimum of 75 new events per year, �' acility
• These 150+events will serve an anticipated 30,000+ er year
• In addition to_their own produced events, MIND ate with other cultural and quality
presenting organizations to develop consistent e - ." the 1 ,
• MIND will create and implement consisten , eting mate including but not limited to
public relations, social media campaigns :aid marketing o I ,h to ensure that both the
Miami Beach community and South Fl• residents in general are of programs taking
place at the Facility. A detailed plan and : -t illustrati t marketing rfi� s will be submitted
quarterly
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145
Page 1491 of 2277
EXHIBIT C
CITY OF MIAMI BEACH
MINIMUM MAINTENANCE SPECIFICATIONS
FOR MAINTENANCE OF THE COLONY THEATRE
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 MIND 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 to and conditions of the Agreement
shall control. ""
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PERSONNEL ,/l
MIND shall have the sole responsibility to recruit and oy -time general manager and any
necessary administrative and accounting personnel ,- responsib the overall management and
operation of the Facility. rr ,,,„,if
MIND shall have the sole responsibility to rec . - d employ sufficient :' '' a el to maintain the
following functions: general and event security;janit. house 9` „ng and clea W , or both event and
non-event cleanup; painting and gener. •verall mainteif acility to ens ;?- t the Facility is
being maintained consistent with other'., first class fa operated by MIND.
The City shall have the sole responsib • •tenance �,�il pital systems, electrical systems,
I plumbing;and air conditioner operation;
MIND shall have the � ity to re ” ,r • • / onne as it deems necessary for the
staging and coordinat t Events •roductio
MIND shall maintain perso •oli•+ . ; , assure e •yment practices do not discriminate on the basis
of race, co milit• atus, ical or mental disability, national origin, age,
gender, . . a
GENE'i `SECURITY
MIND shall provide for the ovef secure e Facility, including during non-event hours.
EMERGENCY P ' DURES
MIND shall assign an • ` •yee backup employee to act as an Emergency Liaison to the City. This
individual will be require. •od faith efforts to attend any and all meetings, held by the City, that
deal with emergency situatio. ch as extreme weather events,terrorist acts,etc. The Liaison will serve
as the point of contact during any emergency crisis.
MIND shall develop and implement a Hurricane Preparedness Procedure, a copy of which shall be
provided to the City.
JANITORIAL,CLEANING AND HOUSEKEEPING
The Facility shall be reasonably clean and stocked with supplies (i.e. toilet paper, soap, etc.) at all times.
This includes general cleaning during non-event times,as well as during Events.
46
Page 1492 of 2277
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.
MIND shall have the responsibility for Sanitation and Waste as it relates to emptying of the dumpster and
servicing trash receptacles within the park area. The dumpster will be serviced at current service levels.
At MIND's responsibility, treatment for pests and rodents (except termites) shall occur on a quarterly
basis as needed to prevent infestation or as required by applicable code.
Flooring shall be cleaned and polished on an as needed basis.
shall be maintained in a reasonably clean condition ed on an as needed basis.
Entrance doors and mirrors shall be maintained in a re. • y condition and cleaned on an as
needed basis.
LANDSCAPING
The City shall maintain all exterior landscaping
EXTERIOR LIGHTING
The Facility shall remain illuminated after dark. ID shall maintain a exterior lighting,
except for neon lighting.
EQUIPMENT MAINTENANCE AND GE ' NAN
Equipment shall be main . good an•` . - kmanl • •er in r to maintain in full force and
affect all dealer's and • . arrantie i' 1 •• an annual schedule for equipment
inspection and preven " - mainten.
Upon termination, cancel . an• - , •iration • •e Agreement, MIND shall provide all records
maintained ' . •ce All ting warranties that are transferable will be
transferr- -
MIND Si •ost and main re• by any applicable governmental code and/or regulation, any
and all req •rofessional h r -s,ce ions,and/or permits.
The City shall mai• . •d inspe 1 building safety systems including but not limited to: smoke, fire,
and CO detector syste •ac •erator operation, emergency battery backup functions, emergency
lighting, emergency egr- needs and blackout preparedness equipment. All building safety
systems shall be tested on . st an annual basis or as required by federal, state or local codes and
regulations,and maintained in operating condition at all times.
The City 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.
MIND has the sole responsibility of maintaining the paint on the interior of the Facility.
I 47
Page 1493 of 2277
EXHIBIT D
MIND STANDARD AGREEMENT
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Page 1494 of 2277
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EXHIBIT E
CITY OF MIAMI BEACH OWNED PROPERTY INCLUDED IN THE AGREEMENT
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Page 1495 of 2277
EXHIBIT F
LIST OF CONTRACTED EVENTS
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Page 1496 of 2277