Resolution 2019-30846 RESOLUTION NO. 2019-30846
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
517TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND APPROVING
AND AUTHORIZING THE CITY MANAGER TO EXECUTE A NEW
MANAGEMENT AGREEMENT WITH THE RHYTHM FOUNDATION, INC. FOR
THE MANAGEMENT OF THE CITY'S NORTH SHORE BAND SHELL, FOR A
PERIOD OF FIVE (5) YEARS, WITH TWO (2) SUCCESSIVE TWO (2) YEAR
RENEWAL OPTIONS, AT THE CITY'S OPTION, BASED UPON THE
ESSENTIAL TERMS SET FORTH IN THIS RESOLUTION, SUBJECT TO FINAL
NEGOTIATION OF THE AGREEMENT BY THE CITY ADMINISTRATION, AND
SUBJECT TO LEGAL REVIEW AND FORM APPROVAL BY THE CITY
ATTORNEY.
WHEREAS, on September 10, 2014, the Mayor and City Commission adopted
Resolution Number 2014-28722, accepting the written recommendation of the City Manager
pertaining to the ranking of proposals pursuant to ITN 2014-215-LR for Band Shell Management
Services and authorizing the Administration to enter into negotiations with The Rhythm
Foundation, Inc. as the top-ranking proposer; and
WHEREAS, on February 19, 2015, the City and The Rhythm Foundation, Inc. executed
the Management Agreement for the management of the North Shore Band Shell (the
"Agreement") for an initial term of two (2) years (which commenced retroactively on October 1,
2014) with three (3) additional one (1) year renewal terms; and
WHEREAS, on September 30, 2019, the Agreement is set to expire; and
WHEREAS, the Rhythm Foundation is a Florida, not-for-profit 501(c)3 arts organization
which seeks to increase international awareness and cultural exchange through the
presentation of live music and related media programming; and
WHEREAS, since entering into the Agreement, The Rhythm Foundation, Inc. has
cemented the Band Shell as an exciting cultural anchor in the North Beach area being voted as
the "Best Venue for Local Acts" in 2016 by the New Times; and
WHEREAS, the Rhythm Foundation, Inc. continues to present a well-rounded series of
concerts, free community and civic events, cultural programs, popular music and large
productions that welcomes the entire South Florida community to the Band Shell; and
WHEREAS, the Administration recommends keeping key components of the existing
Agreement that includes:
1. The City will continue to provide up to $45,000 annually toward the operation of
the facility (the "City's Annual Contribution");
2. The Rhythm Foundation, Inc. must program the facility at a minimum of 35
events annually, including programming for the City's monthly food truck events
and other City-sponsored events;
3. The Rhythm Foundation, Inc. must continue to use the House Sound System in
connection with any events held at the facility and, at all times, the sound levels
may not exceed 105dBC;
4. Facility Hours of Operation will continue to be from 10:00 am to 10:00 pm with
the City Manager having the discretion to extend the hours of operation on a
case by case basis to 11:00 pm on the weekends (Friday and Saturday); and
5. The Rhythm Foundation shall continue to provide surrounding condominiums
• with 30 days advance written notice when scheduled events will involve amplified
sound; and
WHEREAS, the Administration recommends incorporating the following changes in the
new Agreement:
1. An Initial Term of five years and two successive two-year Renewal Terms, at the
City's option;
2. Approval of extending the hours of operation up to 12:30 am on New Year's Eve;
3. Including annual CPI adjustment (not to exceed 3%) to the City's Annual
Contribution;
4. Any and all technical and office equipment and facilities, furniture, displays,
fixtures, vehicles and similar tangible property purchased by The Rhythm
Foundation through funds received from grants which were applied for solely by
the City or in partnership with the City for use at the facility, shall remain property
of the City; and
5. Including language regarding Free Charitable Use allowing for 2 occasions
during the term of the contract and any renewal term, for use of the North Shore
Band Shell by a qualified, charitable arts organization having been reviewed and
recommended by the City's Cultural Arts Council through the rental fee waiver
grant program funded by the Community Benefit Fund administered by the
Tourism and Culture Development Department for live arts and cultural
productions, including theater, dance, music, cabaret, opera, performance art,
multi-disciplinary works and film; and
WHEREAS, the City Manager recommends that the Mayor and City Commission waive
the formal competitive bidding requirement, by a 517th vote, as permitted under section 2-367(e)
of the City Code, as being in thebest interest of the City, and authorize the City Manager to
execute a new management agreement with The Rhythm Foundation, Inc, based upon the
essential terms of their existing agreement, with the modifications recommended by the
Administration herein.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby accept the written recommendation of the City Manager (as set forth in the
City Commission Memorandum accompanying this Resolution) and waive, by 517th vote, the
competitive bidding requirement, finding such waiver to be in the best interest of the City; and
approve and authorize the City Manager to execute a new Management Agreement with The
Rhythm Foundation, Inc. for the management of the City's North Shore Band Shell, for a period
of five (5) years, with two (2) successive two (2) year renewal options, at the City's option,
based upon the essential terms set forth in this Resolution, subject to final negotiation of the
agreement by the City Administration, and subject to legal review and form approval by the City
Attorney.
PASSED and ADOPTED this 5th day of June, 2019.
/20-----L--
Dan Gelber, Mayor
ATTEST:
/ c . t91t_tsi9
Rafael E. ranado, City Clerk
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IN[ORP ORMED s
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APPROVED AS TO
F&FOR XECUTIONE
(---
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-- I;` Date
City Attorney I,
Resolutions -C7 J
MIAMI BEAH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: June 5, 2019
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 AND AUTHORIZING THE CITY
MANAGER TO EXECUTE A NEW MANAGEMENT AGREEMENT WITH THE
RHYTHM FOUNDATION, INC. FOR THE MANAGEMENT OF THE CITY'S
NORTH SHORE BANDSHELL, FOR A PERIOD OF FIVE (5) YEARS, WITH
TWO (2) SUCCESSIVE TWO (2) YEAR RENEWAL OPTIONS, AT THE
CITY'S OPTION, BASED UPON THE ESSENTIAL TERMS SET FORTH IN
THIS RESOLUTION, SUBJECT TO FINAL NEGOTIATION OF THE
AGREEMENT BY THE CITY ADMINISTRATION, AND SUBJECT TO LEGAL
REVIEW AND FORM APPROVAL BY THE CITYATTORNEY.
RECOMMENDATION
CITY MANAGER'S RECOMMENDATION
The City Manager recommends that the Mayor and City Commission waive the formal
competitive bidding requirement, by a 5/7th vote, as permitted under section 2-367(e) of the
City Code, as being in the best interest of the City.
ANALYSIS.
On September 10, 2014, the Mayor and City Commission adopted Resolution Number 2014-
28722 (Exhibit A), accepting the written recommendation of the City Manager pertaining to the
ranking of proposals pursuant to ITN 2014-215-LR for Band Shell Management Services and
authorizing the Administration to enter into negotiations with The Rhythm Foundation, Inc. as the
top-ranking proposer.
On February 19, 2015, the City and The Rhythm Foundation executed the Management
Agreement for the management of the North Shore Band Shell (the "Agreement") for an initial
term of two (2) years (which commenced retroactively on October 1, 2014) with three (3)
additional one (1)year renewal terms (Exhibit B). The Agreement is set to expire on September
30, 2019.
Page 308 of 868
The Rhythm Foundation, Inc. is a Florida, not-for-profit 501(c)3 arts organization which seeks to
increase international awareness and cultural exchange through the presentation of live music
and related media programming. Since entering into the Agreement, The Rhythm Foundation
has cemented the Band Shell as an exciting cultural anchor in the North Beach area being voted
as the "Best Venue for Local Acts" in 2016 by the New Times. The Rhythm Foundation, Inc.
continues to present a well-rounded series of concerts, free community and civic events, cultural
programs, popular music and large productions that welcomes the entire South Florida
community to the Band Shell. Such events have included global, musical and cultural events
such as the Transatlantic Music Festival, Axis of Love, Global Cuba Fest, Seaside Sessions,
and the Afroroots Music Fest. Free, local community events have included the City's monthly
Food Trucks and Music Fest, Dance Band Nights, annual concerts by the Nautilus Middle
School Jazz Band and Miami Beach Senior High Rock Ensemble, and Parks and Recreation
events such as celebrations for Hispanic Heritage and Black History months. The Rhythm
Foundation has also been an instrumental partner with the City of Miami Beach in the success of
the increasingly popular Miami Beach Youth Music Festival now in its 3rd year with over 3,000
attendees supporting local youth music initiatives.
Key components of the existing Agreement that will be included in the new Agreement includes:
• The City will continue to provide up to $45,000.00 annually toward the operation of the
facility.
• The Rhythm Foundation, Inc. must program the facility at a minimum of 35 events
annually, including programming for the City's monthly food truck events and other City-
sponsored events.
• The Rhythm Foundation, Inc. must continue to use the House Sound System in
connection with any events held at the facility and, at all times, the sound levels may not
exceed 105dBC.
• Facility Hours of Operation will continue to be from 10:00 am to 10:00 pm with the City
Manager having the discretion to extend the hours of operation on a case by case basis to
11:00 pm on the weekends (Friday and Saturday).
• The Rhythm Foundation, Inc. shall continue to provide surrounding condominiums with 30
days advance written notice when scheduled events will involve amplified sound.
• Including language regarding Free Charitable Use allowing for 2 occasions during the
term of the contract and any renewal term, for use of the North Shore Band Shell by a
qualified, charitable arts organization having been reviewed and recommended by the
City's Cultural Arts Council through the rental fee waiver grant program funded by the
Community Benefit Fund administered by the Tourism and Culture Development
Department for live arts and cultural productions, including theater, dance, music, cabaret,
opera, performance art, multi-disciplinary works and film.
The Administration is recommending the following edits to the Agreement:
• An Initial Term of five (5)years and two (2)successive two (2)year renewal terms.
• Approval of extending the hours of operation up to 12:30 am on New Year's Eve.
• Including CPI language as it relates to adjusting the rate of the annual $45,000.00 City
contribution toward the operation of the facility.
• Any and all technical and office equipment and facilities, furniture, displays, fixtures,
vehicles and similar tangible property purchased by The Rhythm Foundation, Inc. through
funds received from grants which were applied for solely by the City or in partnership with
Page 309 of 868
the City for use at the facility, shall remain property of the City.
CONCLUSION
The Administration recommends accepting the written recommendation of the City Manager and
waiving, by 517th vote, the competitive bidding requirement, finding such waiver to be in the best
interest of the City; andapproving and authorizing the City Manager to execute a Management
Agreement between the City and The Rhythm Foundation, Inc. for management of the City's
North Shore Band Shell, for a period of five (5) years, with two (2) successive two (2) year
renewal options, subject to•final negotiation of the agreement by the City Administration, and
subject to legal review and form approval by the City Attorney; and further authorizing the Mayor
and City Clerk to execute the final agreement.
Legislative Tracking
Parks and Recreation
, ATTACHMENTS:
Description
❑ Exhibit A— Resolution No. 2014-28722
o Exhibit B —2015 Management Agreement Between the City and The Rhythm Foundation
o Exhibit C— Draft 2019 Management Agreement Between the City and The Rhythm Foundation
❑ Resolution
Page 310 of 868
RESOLUTION NO. 2014-28722
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
CITY MANAGER PERTAINING TO THE RANKING OF PROPOSALS,
PURSUANT INVITATION TO NEGOTIATE NO. 2014-215-LR (THE ITN), FOR
BAND SHELL MANAGEMENT SERVICES; AUTHORIZING THE
ADMINISTRATION TO ENTER INTO NEGOTIATIONS WITH THE RHYTHM
FOUNDATION, INC.; AND IF UNSUCCESSFUL IN NEGOTIATING AN
AGREEMENT WITH THE RHYTHM FOUNDATION, INC., AUTHORIZE THE
ADMINISTRATION TO NEGOTIATE WITH THE FANTASY THEATRE
FACTORY, INC. AND THE MARKET COMPANY, INC.; AND FURTHER
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN
AGREEMENT UPON CONCLUSION OF SUCCESSFUL NEGOTIATIONS BY
THE ADMINISTRATION.
c
WHEREAS, Invitation to Negotiate No. 2014-215-LR (the ITN) was issued on April 23,
2014, with an opening date of June 26, 2014; and
WHEREAS, a voluntary pre-proposal meeting was held on May 14, 2014; and
WHEREAS, the City received a total of three (3) proposals; and
WHEREAS, on August 18, 2014, the City Manager via Letter to Commission (LTC) No.
290-2014, appointed an Evaluation Committee (the "Committee"), consisting of the following
individuals:
• Cynthia Casanova, Parks Facilities Manager, Parks & Recreation Department
• Mark Milisits, Leasing Specialists, Tourism, Culture & Economic Development
• Charles Million, City of Miami Beach Cultural Arts Council
Alternates:
• Carlos DaCruz, Office Associate V, Parks & Recreation Department
WHEREAS, the Committee convened on August 21, 2014 to consider the proposals
received; and
WHEREAS, the Committee was provided an overview of the project; information relative
to the City's Cone of Silence Ordinance and the Government Sunshine Law; general information
on the scope of services, references, and a copy of each proposal; and engaged in a question
and answer session after the presentation of each proposer; and
• WHEREAS, the Committee was instructed to score and rank each proposal pursuant to
the evaluation criteria established in the ITN; and •
WHEREAS, the Committee's ranking was as follows: The Rhythm Foundation, Inc., as
the top-ranked firm; Fantasy Theatre Factory, Inc., second highest ranked; and The Market
Company, Inc., the third highest ranked; and
Page 311 of 868
WHEREAS, after reviewing all the submissions and the Evaluation Committee's
rankings, the City Manager exercised his due diligence and is recommending that the
Administration be authorized to enter into negotiations with The Rhythm Foundation, Inc.; and
further authorize the City Manager to execute an Agreement upon conclusion of successful
negotiations by the Administration. The Administration recommends that if successful
negotiations cannot be reached with The Rhythm Foundation, Inc., that the Mayor and City
Commission authorize the Administration to negotiate with the Fantasy Factory Theatre, Inc.
and The Market Company, Inc.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby accept the recommendation of the City Manager pertaining to the ranking
of proposals, pursuant to Invitation to Negotiate (ITN)) No. 2014-215-LR, for Band Shell
-,„Management Services; authorize the Administration to enter into negotiations with the top-
ranked proposer, The Rhythm Foundation, Inc.; and if unsuccessful in negotiating an agreement
with The Rhythm Foundation, Inc., authorize the Administration to negotiate with the Fantasy
Factory Theatre, Inc. and The Market Company, Inc.; and further authorize the Mayor and City
Clerk to execute an agreement upon conclusion of successful negotiations by the
Administration.
PASSED AND ADOPTED this /U day of S'p+4f+fhe(2014.
ATTEST:
•
P
Ra aeI E. Gr...;� '-"'-�^!' -r Philip Levi !1.r
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_ Cis iy
T:1AGE -�A 'L'4\ e•te .:7 {a\ •curgntN 2014-215-LR Band Shell Management Services-Resolution.doc
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NCQ C.,H-' 26 APPROVED AS TO
FORM & LANGUAGE
&FOR EXECUTION
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City Attorney f Dote
•
Page 312 of 868
COMMISSION ITEM SUMMARY
. Condensed Title:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Accepting The
Recommendation Of The City Manager Pertaining To The Ranking Of Proposals, Pursuant To Invitation to
Negotiate (ITN) No. 2014-215-LR, For Band Shell Management Services.
Key Intended Outcome Supported:
Supporting Data(Surveys, Environmental Scan, etc: N/A
Item Summary/Recommendation: '
On April 23, 2014, the City Commission approved the issuance of the ITN, which was issued on April 24,
2014, with an opening date of June 26, 2014. A pre-proposal conference was held on May 14, 2014. The
City received three(3)proposals from Fantasy Theatre Factory,Inc.,The Market Company and The Rhythm
Foundation.
On August 18, 2014, the City Manager appointed an Evaluation Committee (the "Committee"), which
convened on August 21,2014 to consider proposals received.The Committee was instructed to score and
rank each proposal pursuant to the evaluation criteria established in the RFQ.The results of the evaluation
committee process were presented to the City Manager for his recommendation to the City Commission.
While the ITN process allows for negotiations with multiple proposers,the results of the evaluation process
indicate that The Rhythm Foundation is overwhelmingly the most qualified proposer; therefore, after
reviewing the submissions and the Evaluation Committee's rankings of proposals received,the City Manager
recommends that the Mayor and the City Commission, pursuant to Invitation to Negotiate (ITN) No. 2014-
215-LR, for Band Shell Management Services, authorize the Administration to enter into negotiations with
The Rhythm Foundation; and further authorize the City Manager to execute an Agreement upon conclusion
of successful negotiations by the Administration. The Administration recommends that if successful
negotiations cannot be reached with The Rhythm Foundation,that the Mayor and City Commission authorize
the Administration to negotiate with the Fantasy Factory Theatre and The Market Company.
RECOMMENDATION
The Administration recommends that the Mayor and the City Commission,pursuant to Invitation to Negotiate
(ITN)) No. 2014-215-LR, for Band Shell Management Services, authorize the Administration to enter into
negotiations with The Rhythm Foundation;and further authorize the City Manager to execute an Agreement
upon conclusion of successful negotiations by the Administration. The Administration recommends that if
successful negotiations cannot be reached with The Rhythm Foundation, that the Mayor and City
Commission authorize the Administration to negotiate with the Fantasy Factory Theatre and The Market
Company.
RECOMMENDATION
Adopt the Resolution.
Advisory Board Recommendation:
Financial Information:
Source of
Amount Account
unds `® 1 $45,000 011-0950-000312 (FY 14/15)
°BPI Total $45,000
inancial Impact Summary: Listed expenditure is based on FY 14/15 anticipated approved budgeted
amounts.
City Clerk's Office Legislative Tracking:
Alex Denis, Extension 6641
Sign Offs:
artment Director Assist-Ai City M City M 4 nager
A`V.AO MS JR KGBe,?�. MT IA% JLM
TAG- A\2014\September 10\ITN 2014-215-L Band S °" Management Services-Sk�mary.doc
Page 313 of 868 AGENDA ITEM G 7M
Iv\IAtv\IBEACH 7 Dr1(I`111
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov
COMMISSIO MEMORANDUM
TO: Mayor Philip Levine and Members o'the City Corn 'ssion
FROM: Jimmy L. Morales, City Manager i
DATE: September 10, 2014
•
SUBJECT: A RESOLUTION OF THE. MAYO AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE CITY
MANAGER PERTAINING TO THE RANKING OF PROPOSALS, PURSUANT TO
INVITATION TO NEGOTIATE NO. 2014-215-LR (THE ITN), FOR BAND SHELL
MANAGEMENT SERVICES.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
FUNDING
Account No. 011-0950-000312 (FY 14/15) - $45,000
BACKGROUND
The City of Miami Beach is seeking a public or private (not-for-profit or for-profit) entity to
manage the North Beach Band Shell and activate the facility with year-round programming. The
successful proposer must program the facility a minimum of 35 events annually, including
programming for the monthly food truck events. Annual programming must include a
combination of free and paid ticketed events.
In exchange for these services, the City will provide,up to $45,000 annually toward the operation
of the facility, continue to provide day-to-day maintenance, as well fund all capital
improvements. The City is also budgeting for the purchase of a tent to cover the open air
portion of the band shell to be used to shade attendees from inclement weather.
Proposers were encouraged to submit proposals that will address the needs of the community
and provide both daytime and nighttime uses if possible. Collaborations in order to provide a
wide array of community offerings including, but not limited to, music, theater, dance, and other
performing arts were encouraged.
RFP PROCESS
On April 23, 2014, the City Commission approved the issuance of the ITN, which was issued on
April 24, 2014, with an opening date of June 26, 2014. A pre-proposal conference was held on
May 14, 2014. The City received three (3) proposals.
• Fantasy Theatre Factory, Inc.
• The Market Company
• The Rhythm Foundation
Page 314 of 868
Commission Memorandum—ITN 2014-215-LR Band Shell Management Services
September 10, 2014
Page 2
On August 18, 2014, the City Manager appointed an Evaluation Committee (the "Committee"),
consisting of the following individuals:
• Cynthia Casanova, Parks Facilities Manager, Parks & Recreation Department
• Mark Milisits, Leasing Specialists, Tourism, Culture & Economic Development
• Charles Million, City of Miami Beach Cultural Arts Council
Alternates:
• Carlos DaCruz, Office Associate V, Parks & Recreation Department
The Committee convened on August 21, 2014, to consider the proposal received. The
Committee was provided an overview of the project, information relative to the City's Cone of
Silence Ordinance and the Government Sunshine Law. The Committee was also provided
general information on the scope of services, references, and a copy of each proposal. The
Committee was instructed to score and rank the proposal pursuant to the evaluation criteria
established in the RFP.
The evaluation process resulted in the following:
ITN 2014-215-LR Band LOW
Shell Management Cynthia Mark Charles AGGREGATE Final
Services Casanova Ranking Milisits Ranking Million Ranking TOTALS Rankings
Fantasy Theatre
Factory,Inc. 75 2 80 2 82 2 6 2
The Market Company 45 3 67 3 74 3 9 3
The Rhythm
Foundation 98 1 95 1 95 1 3 1
In determining responsiveness and responsibility of the firms, the Department of Procurement
Management verified compliance with the minimum requirements established in the ITN, and
financial capacity as contained in the Dun & Bradstreet Supplier Qualifier Report.
The Rhythm Foundation, is a Miami-Beach based non-profit organization, established in 1988 to
promote international cultural exchange through the presentation of live music. Special focus is
given to those cultures of greatest interest to South Florida residents and visitors, allowing
better understanding between communities. The Rhythm Foundation has grown to become one
of the largest independent presenting organizations of its kind in the United States, with year-
round programming and a budget of over $1,000,000. They provide similar services to the
Hollywood Community Redevelopment Agency for the Hollywood ArtsPark Experience; the City
of Miami's Little Haiti Cultural Center for their Big Night in Little Haiti; and the City of Boca
Raton's for the Boca Brazilian Beat.
Fantasy Theatre Factory, Inc., is a non-for-profit professional theater and cultural arts institution
founded in 1978, and incorporated in 1982. Its primary mission is to make the arts and culture
more accessible to people of all cultures and backgrounds. Fantasy Theatre Factory produces
all street entertainers and specialty skills acts for the annual Art Deco Weekend festival; yearly
theatre for young audiences at schools, parks, museum and numerous other venues throughout
the City, as well as, Miami-Dade and Broward Counties.
Page 315 of 868
Commission Memorandum—ITN 2014-215-LR Band Shell Management Services
September 10, 2014
Page 3
The Market Company, has produced and managed the Lincoln Road Farmers Market since
1997. It also runs the Normandy Village Marketplace and Espanola Way Weekend Festival
which includes artistic presentations. The Market Company produces ten (10) additional
markets each year throughout Miami-Dade County.
MANAGER'S DUE DILIGENCE & RECOMMENDATION
While the ITN process allows for negotiations with multiple proposers, the results of the _
evaluation process indicate that The Rhythm Foundation is overwhelmingly the most qualified
proposer; therefore, after reviewing the submissions and the Evaluation Committee's rankings
of proposals received, the City Manager recommends that the Mayor and the City Commission,
pursuant to Invitation to Negotiate (ITN) No. 2014-215-LR, for Band Shell Management
Services, authorize the administration to enter into negotiations with The Rhythm Foundation;
and further authorize the City Manager to execute an Agreement upon conclusion of successful
negotiations by the Administration. The Administration recommends that if successful
negotiations cannot be reached with The Rhythm Foundation, that the Mayor and City
Commission authorize the Administration to negotiate with the Fantasy Factory Theatre and The
Market Company.
CONCLUSION
The Administration recommends that the Mayor and the City Commission, pursuant to Invitation
to Negotiate (ITN) No. 2014-215-LR, for Band Shell Management Services, authorize the
Administration to enter into negotiations with The Rhythm Foundation; and further authorize the
City Manager to execute an Agreement upon conclusion of successful negotiations by the
Administration. The Administration recommends that if successful negotiations cannot be
reached with The Rhythm Foundation, that the Mayor and City Commission authorize the
Administration to negotiate with the Fantasy Factory Theatre and The Market Company.
JLM/K B/MT/MS/AD
T:\AGENDA\2014\July\Procurement\ITQ 2014-215-LR Band Shell Management Services-Memo.doc
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Page 316 of 868
II l •
l`
MANAGEMENT AGREEMENT BETWEEN
I
� HE��T CITSI_OF MIAMI BEACH,FLORIDA'� .
• • •• AND
:M1', I Ili
'THE RHYTHM FOUNDATION,INC • •� •�
i FOR THE MANAGEMENT;OF.THE NORTH SHORE BAND SHELL ''
THIS`AGREEMENT,is'made and executed as of this / day of__ r 015 ("Effective
:: Date"),by and between the CITY OF MIAMI.BEACH, a municipal corporation org zed and existing : ,
under the•laws of the State of Florida,.whose•address is•1700 Convention• Center Drive, Miami Beach `�..
Florida'33139 (".City");.and THE R•HY•ThMV1 FOUNDATION,'INC: a Florida.not-for-profit corporation,
whose principal address is 407 LINCOLN.ROAD#6E,MIAMI BEACH,•FL 33139(".TRF")
Ir '
, ':!.:;,:';''..1:ri;''''!.•;:'..!!'!!...'.':•?:,i:..::.;::•:; 1..'.'-j..i::.'..:.,.':,..-:.,':,'..,•I.''',.'.:...-...'',::::'.,::,..;..'.:.,,;:.:..1::..:...:'...•...::..,.L:'.„:'.,.1i;':E;-:':;.':::::''..........,....,........-:....:.:::").'.::.-.:*:...-1!'.'.''.':-.''.'.:.:':.,.'':::.'.;1-:...''...''.,...!'..•.....:::':.::;.:!.-'.'.!:.:.:..;i':..'''.''''..::..'.•:'....'::.'''...:.''.... RECITALS
: HEREAS, City is the owner'of the North Shore Band Shell, located at 7275 Collins Avenue, .'
Miami Beach, Flonda 33141, and which is.more particularly..described and:depicted in.Exhibit,"A,"
attached hereto and made,a part hereof(the"Band Shell"•or the•'Facility"), and
I
I • WHEREAS, TRF is a'Flonda nofor
t- -profit (501(c)3)..artsorganization which seeks'to uicreasj.e•'
i,..;....::.::..........-.....i:,L.:::..,'....:::.....i.,.,!:..,..:.:....
international waareness.and-cultural exchange through the presentation'of live music,and related.mediaa
programming,and
WHEREAS, on April23,'2014, the City issued-Invitation to Negotiate No: 2014-215-LR for
Band Shell Management Services(the`ITN'.'); and :..... ..., ,..• .. •. ., —... :. .. .-..--.-.•"'.::.:.;'.'':!'.''Y'''....;..:f:1:.:"11;•'.',::•:'!':.'''..'':':.;..:;.:::-:':'''.'•::'.:::::1::':':1:'.,'':'"':'''.:.•,•::,:•:.iJ‘-.':'.;'::''.'...i'','':''''r:.!.!"•..'
WHEREAS,.on September:,10, 2014,•the City Commission adopted Resolutio•n No 2014-28722 .
authorizing the admuustration'to negotiate with TRF, as the.top-ranked proposer pursuant to the ITN, for
r
the management.and operation of the Facility,and _ .
WHEREAS, City desires•to engage TRF,'and TRF.desires to accept the engagement, to'provide
management services for the Facility on the terms and conditions set forth herein „
NOW THEREFORE recognizing the aforestated recitals as true•a•nd correct and incorporating 'I
herein,and m consideration of the mutual covenants and conditions herein contained,.it is agreed by the
a parties hereto as follows:
•
w�� ,• SECTION 1:•DEFINITIONS. • !
' ` ▪ For purposes:ofthis:.Agreement,,•the-followiiig `terms-have `the meanings referred to ui this :...,.-:1.-.,...:',.,:::‘,„,..,.,-......:•,,,:;..
Section 1:.
"Affiliate";-- an'entity.that directly or indirectly, through one or more intermediaries, controls or
i▪s 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 •.whichrepresent more than .,
51%of the voting power in the controlled entity. '
ag117�f8
.. : .
•
'i I :1 a
MANAGEMENT AGREE •MENT BET WEEN CITY AND TRF
FOR THE MGM
T OF THE NORTH•SHORE BAND.SHELL ..
1.::::!:::i:'!'''..711.: :•:!'N'''' .!::1"::•.::••'::.;::::-::::-.: "Ci '--as defined in the fir•st p• aragraph•of this Agreement:
"City Commission --the governing and legislative bodyof the C• ity
`' "City Manager" the chief executive officer:of the.City,:or such:person who shall be the.City
, ISI , �' , .•, , � ' ';•. ' �, .•. ;`.�: � � . •
II,
Manager's'designe ,as defined below and as may,from time to tune,be authorized m•venting by the City
Manager to act for bum/her 'with:respect.to any•or :all.matters 77 pertaining'to this`Agreement City
II' X11 . ' .. _ :
ManaB,7,...
er's;designee shall be the City's Parks•and Recreation Department Director t
' ' , "Commencement'Date"--as defined in Section 2.
' II "Contract Year" each• one year period beginning October 1st,,4.744...777,'....:;?)-
nd ending September 30th
I „ "Effective Date" 'provided that this Agreement has' been executed by City and TRF,'the date set
forth in the first paragraph of this Agreement`
"Event" ='all uses at theFacilitywhich•involve a•scheduled show with a beginning.and ending
tune, typically all within the same day. With respect to..,..a,..:.......„,:•:.:.:•........,:,-...
(as'such term is.hereafter defined")
' each show;within the Series shall constitute an Event
, "Event Expenses" any and all expenff ses•incurred or payments made by TRF•in connection with
the occurre•nce 'of an Event at:the Facility including, but not limited to,`costs for'staffing, and costs :
r r ;.I •
relating to set up and clean-up:
`Expiration Date• --as defined in Section 2 ;'
i `-Facility' as,defined in the Background Section'of tins Agreement,-and as depicted m Exhibit `
1
1 • 1
"B"•hereto
"Facility Rentals" temporary use of the Facility,at specific interval of time pre determined and
' agreed upon by TRF
.::,.:.!-,..,:l.•!.•:.!1., ..,:,•:.•;!!.':.:,.:,v,::......,•.;' "Fiscal Year" each City fiscal year beginning October 1st and ending September 30th ;,
"Governmental Requirements" all laws' ordinances rules regulations statutes policies and
procedures (including admuustrative guidelines),and otherlegal iequirements'of any governmental body,. . ,
I, 1 ,r or authority or any agency thereof(in• cluding,without lumtation federal, State,County,and City)
:, 1 ,: "Net Operation hoss/Profit" with•respect to a`Fiscal:Year,;the excess,.if any, of Operating '
�{I I I Expenses for such Fiscal Year over.Operati•
ng Revenues for such Fiscal Year,•in the ca•se of a:loss,and the
''I l� excess,if any,of Operating Revenues for such Fiscal Year.over Operating Expenses for such Fisc• al Year, ;
I e
f inthe case of a profit
Operating Ex•penses --• ,any and all expenses and expenditures of whatever kind or•nature
� •incurred directl or mdirectl =. plo F m o eratin mama mamtainin ,sand romotin the Facrht
:i' • I � Y Y� Y • p g, _ Wig, g P g; Y ,, '.
including,but not limited•to employee compensation, employee benefits; supplies,:materials, costs of
Ii II ,, , • , 1
, ,: any-independent.contractors,.advertising costs,•all:costs,of maintaining the Facility (as required by this
" J Agreement),marketing and public relations costs and commissions,janitor•ial and cleanin•g expenses,;dues
F 'and membership; costs, amounts expended to procure and maintain.r-rmits`and•licenses,.sales,.taxes
�. r imposed upon rentals,.professional:fees directly relating to the opera• tion of the Facility, printing costs,
I . .a..0.--6.::;, :i.....8..1'...°.:.3 •868
.. Page2 of 41:
'I {" i. •• MANAGEMENTAGREEMENT'BEIWEEN'CITYANDTRF
FOR
,: M
A , , THE GMT OFTHE NORTH SHORE BAND SHELL
('''..„•!'•'.i.:1"'il`...li„...'•.:„....:•,,'il::: "....,•';: :::::"
' Event Expenses, postage and freight costs, equipment rental costs, computer equipment leases and line
••••,..:•••••;,'„„•::-....•''.....';''..,',',''';.',"•'•;!''.''''i'...:".;.''.••:''::.
' charges,' telephone and telecommunications.services, artist and.talent fees, show settlement charges,
i security expenses,`travel and entertainment expenses in accordance with TRF's;norma ,, ,,:,..., :::....„...:,;.,,...,,„:„,.„„,
l policies, the.cost
•of employee uniforms, safety•and me•dical •. . ; ' - 'exterminator costs,costs relating to the maintenance`
'''''•!•:.'"''.:;i:i•,•:t.:::!::':'1.'::::•!:;"':::•;::::::::.:'''•'..:;:'!','"'",. of signage,"'costs associated with compliance•of Governmental Requirements, all•premiums for insurance
carried by TRF 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•TRF,or any costs that are specified in
' � this,Agreement as costs to be paid by City All Operating Expenses shall be determined ur accordance
with enerall acc" ted accountin rind les consistent) a lied and recognized on a full accrual basis
$ Y eP g P P Y PP Z
`Operating'Revenues -- any and •all revenues of every;kind.or••nature derived from operating,
' managtng or promoting_the Facility including;but not limited to concession fees,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••'..1..-)Y"•'.'.!'he �:
concessionaire, only the amount of such revenues paid by the concessionaire to TRF shall be included as
'' Operating Revenues), commissions.or other`revenues,from decoration"and set up,'security and other,
'''I ' subcontractors (However, if such re•v•enue•s are collected in the• •first instance;by�•and retained by.;such ,
subcontractors, only the amount of such revenues paid by.such contractors to TRF shall be included as i
Operating Revenues), revenues generated from separate agreements with TRF•Affiliates pertaining•
to the
' :: Facility, interentl... Venues, •.and any'•..other'miscellaneous operating revenues,, •all-:as determined m
accordance Iwith ,:enerall acc ted'accountin rind les consistentl a • lied°and reco zed on`a full :'
•'..,..."••;,:-.•':.....:':',,,,•;:,;•,..":..:::".".',:i.":".....,:::,..,!•'„,!,:.„.",,",i...."•',,::•:;.•
•, , ' g Y eP g P P Y PP � I
I: ' accrual basis For the sake of clarity,the:parties,•acknowledge•.that'revenues•from the sale of hekefs for
I'' Events;at;the F•acility• are• not,Operating"Revenues, but are in•stead revenues of the•promoter and/or
i' performer of each such Event =To the extent'that:TRF collect•s such ticket sale revenue on:behalf of a
promoter•and/or performer, 'such ticket sale revenue shall be the source of funds from which TRF collects
the rental charges and other event reimbursements owed by the promoter and/or•performer for use'of the
' I I Facility, which such charges and reimbursements are Operating Revenues hereunder Operating
�. Revenues shall also not include•any revenues from name-in-title rights(i.e the•right to•name the exterior
: br interior;of the:Facility or any portion thereof, except as set forth in subsection 8 3 hereof), and any
ti I signage related thereto,all of which are specifically reserved to the Ciry
' • "Proposal Documents"- shall•mean`City:of Miami Beach Invitation to Negotiate:No.'2014-215
LR for Band Shell Management Services,'together withjall amendments thereto, issued by the City(the
"ITN") and the' Consultant's ro osal in-...response 'thereto.. "•Pro osal" all of which are hereb
..: -.:,',..,•••:,.:..,••••••••:',"..7.....,:•,.....,,,;,••••••.!:::::•:::.,;::::-.iii;.'„..:•,
� ,
incorporated.and made a parthereof;,provided,however,.that in the'event of an express conflict between
the Proposal Documents ,and this Agreement, the following•.order.of•prece•dent shall prevail:, this
hli
Agreement;the TTN;and the Proposal. 4
.1:••I''-'....:.:',''''''''.::.--:.''''...';'''''''','''."1:...'1,:::":;''::';‘•:',:.'1.i','::...::':!':,:•!:•:;!:''.::::'•...!'..'''''''''.::•''''';'','!:'..''''''''
"Quarterly/Ouarter(s)'.'—October:1 ,January 1St,April lst•and July 1�`of each Fiscal Year'
� Pae 319 of 88.., ..., .. .. . ... .
Page 3 of41
I
1
ii i MANAGEMENT AGREEMENT BETWEEN CITY AND TRF..:.. �
i I ' I. FOR THE MGMT OF THE NORTH SHORE BAND SHELL
•
"Sens" =- a sequence of Events which may or may not involve the same production elements,
but can be"characterized by a unifying theme and sc• hedule..
"TRF" as defined in the•first paragraph of this Agreement
111 I� , �: :1 1
II ':..i.:..,.-.,...,....,..,....:....'.,:.,,,',
I' .SECTION 2. TERM • - - s
tial Term. : This`A Bement shall be for an initial term of two 2 ears, which"shall
!'.;'''..;'.::.;;;:....2,1.-:.:'..!''...:::;`.1,P. gr O.Y
1,-:,,..,:,;:j:•;:,,::•...:1„...::-.::.;
�, I be deemed to have commenced retroactively oil'Oc...'.!1..,........: ;:2ioer ,2014 (Commencement Date),and'which shall
end•on'September 30,-2016 (Expiration'Date),unless earliei,terminated pursuant to the provisions of flus
Agreement '
Iiii
i 2 2• Renewal'Term(s) At its sole..option'"an•
d discretion, the .City,,,.through its. City
;', Manager, may extend flus Agreement,#or.up to•two (3) additional one (1) year,terms, and/or multi=year:
I'� I' terms,but in no event to.exceed five(5).3.'-.........::
5)years in total,(each such•one year term,or multi=year term,aS the >
case ma be,a Renewal Term),:by.providing•TRF with not less than 365;days: nor written notice rior to '
:; the.Expiration Date, or..not less:.than•.ninety (90) days writte --notice-.prior'to the expiration date
of ;:
Renewal Term,as the case may be
2.2 1 Notwithstanding anything in this Section 2, in the evL. ent TRF:'decides not to:'
renew the Agreement, it shah provide the City Manager,with'written notice of its intent not'to:renew at
least 365;days prior to the Expiration Date,or ninety(90);days written notice prior to'the expiration date .;
of the then current Renewal Term,as the case maybe '
SECTION 3::NORTH SHORE BAND STIFLL' a
The Facility subject to this Agreement shall be those`facilities and spaces more specifically 'r
I 1 '� described in Exhibit"A :.
r
r
' SE•CTION 4. OPERATION AND:MANAGEMENT-OF THE BAND SHELL
4 14 General Scope. City.-hereby engages TRF'to°operate, manage, maintain, promote and'
, market,.the Facilityiduruig the Term,upon the terms and conditions hereinafter•set forth:
4:2 Manager of the Facility:. TRF• accepts.the engagement and agrees.to operate,manage,
�' I maintain,:promote and:market the:Facility);at a minimum, m a manner and quality consistent with the' ,
•
� ; -,,,;:::.;!.11.,;"•:!...!,!:!.;'...::',:•;.;IComparable Facilities defined in Sectio7.n 51•47.99............,Subject to the terms,of,this Agreement,TRF shall
'IIbe, as agent for;the City,'the sole and.....:.:'....:,.....•''."1-••eclusive manager ofr the City to operate, :manage, maintain,
:` W promote and market the.Facility during• the Term•.. In such capacity,•'except"as otherwise expressly r
ul reserved under this Agreement to the City, and/or except for such•matters as are subject to the approval of
the City:or City Manager,TRF shall have exclusive authority over.the.management and operation.of the
Facility
4:3 :.' : Permitted Uses TRF shall•use the Facility solely and•exclusively as•a venue for:its not
Page 320.of 868
Page4of41
7
MANAGEMENT• •AGREEMENTBETWEEN•CTTYANDTRF
' FOR THE MGMT OF THE NORTH SHORE BAND S HELL `;
•
r ; a for-profit;cultural presentation company. The Facility shall be used primarily as a•venue for'top-quality h
cultural enterta•mztenf The venue.may also be used as-alive theatrical entertainment venue and public
' - , auditorium; orany�combmation.thereof, and-'for-such ancillary_uses'-as�are customarily.related to•,such
1 primary use mcludmg, withoutlimitation, broadcasting, recording, filming, private•parties or functions, w
food and beverage concessions, m each case in conjunction with anEvent then being held, and sale of
i , 1:!..• ...,•;;;related-to 'any.Event.'•171........!)•
en being'.held. -TRF-shall be responsible-,for that any .
requisite•special event pernuts,`.which the City of Mianu Beach may•require for Events at the Facility,'areF
a properly secured Such r.uses shall include only the f•ollowing
•!•';':-!.
' .a Performance venue: ,� ` ':
,r
r • •• b'1 Events facility" -
a c:'Rehearsal space
k-.'• d TRF'administrative offices, r. r
. ' e:Food and beverage concession,
f`Sale of merchandise related to an Event then being held,
w''''.1.:''''':::'''''';':i1::'''"1:
, ' ' g.Private parties and/or functions in conjunctions with•an Event then being held, l
,',-:,,.,1,. 1::;:-..! h:Asan ancillary use,third'party rentals as may occur.from time to time,
i.Facility for film/television/photographic/audio productions; I
-The_Facility does not iIlclude'dedicated sparking.for the=building:. Patron ,•-• fEvents•may.park in public 1
:i.::•.'
arkin lots and ara es'if and to the extent available, u on a thea kcable arkm es No
I , ,P g g ge. P P,Ymg PP � P g! .. :.tar;-.:. g I I .
b other uses shall•be permitted wit•hout the•prior written approval of the City Manager,which•approval may
I be granted or withheld-•,...
n lis sole discretion.Any such other use which the City• Manager approves must,
,....;1•..,.:.:.,..,..„:,,,,.......-:::::::::.:::..........,::: .,•,.,:,.:...,...::,. .,.,
i •
however,"be_p-4 acc•ordance with`(i)the Ar77 ticlesof Incorporations and other charter documents-of TRF; (u) i
' '" I all ;laws and regulations applicable•"to not for-profit entities, (ui) "all applicable Governmental
Requirements,aril(iv)all ad valorem tax exempt uses of property under,Chapter 196,Flori•da Statutes !
J 4 4 Prohibited.Uses:,..It.is understood•.and agreed:'that•the•Facility shall•be used by TRF
..:::(1.7-1'P
rin the Tenn o°nl for the stated oses in Section`4:3•,'and for no other oses or uses whatsoever, ;n
g Y PmP
PSP
without express written permis•sion of the City •Manager Notwithstanding anything contained in Section r
L ''-'4..3 ::, or any other teen or condition of this-Agreement: .(1) TRF will not m•ake or permit any use of the
3Y -Facility-that, directly or indirectly, is forbidden`by any:Governmental Requirement, or that may be ' ;'1 .. 1;.
r, a dangerous to life, limb or property,•and (2) TRF• may not commit waste on the-'.,"'•'-•
ac�hty, use the Facility
'1.1...;'''''';'....'...11''''"::::'...:'..
; a for'any illegal puipose, commit'a'nuisance .....
the•Facilit•y, or allow any tof-- :,.:hazardous or dangerous ,,,
h. •
! ...':.!•'..:;:.:1,',:. :-'...;,i::substance to be brought'int•o the Facility or.stored'thereiri=(other than.small 1.quantities of materials
� ...:,.ii,,........,-,.............:..„:„.,..:
`'� '•customarily use•d In the operation of a live.theatrical performance,-and•production venue, which shallbe
....,........„.....1::::,,,...;........'....,...ii:H.:•.,.....:..:...„.,.....-:;!::,.............,....
used and stored in compliance with Governmental Requirements). In the event that TRF uses,the Facility
for any purposes.not expressly permitted herein;then the City,through its CityManager,may declare this
Agreement.m default and,-m addltion,to•all other remedies available to•City, restrain such impro •per use
.
• 1
•. A Page 321 of 868 .,
' ' Page 5 of 41
r MANAGEMENTAGREEMENTBETWEENCTTYANDTRF
• THE
•.".•''. MGMT OF THE NORTH SHORE BAND SHELL '
by injunction or otherlegal action,with or without notice to TRF.
°•.. 4.5 Operational Rules for Facility
I On December,17,-`2014, the••City of Miami Beach Commission passed Resolution No..2014- '
1 :
28874, attached as Exhibit "H'.'hereto; requiring certain operational guidelines for the Facility, including_,
f
;::::1..:':::'''''..::•1'.:.:':::;':::::''''::.''''''''' '''':
,.:-: �the following 1. _
4.5.1• •Amplified Sound and Live Entertainment: ••Tlier City will.lie installing'an audio
sound•system designed;to°maintain the-audio levels..at a.maximum'level of 105•dBC ("House Sound • :
System"): :TRF:will only be permitted to use such House Sound:System in connection with any.Events.. '
`•..` held at the Facility.and;'at all times,the sound levels may not exceed'105dBT.C.-Additionally,:1'N.E.shall be ...
res onsible for ensurin •that.users.of the Facility do not use tem ora sound a ui ment for an Event '
P g . ., . :... • Y P ry• q.�P. Y .
:'•.I..';• '' • , held at the Facility
4.5 2 .Facility Hours of Operation: 10:00 am to10:00 pm.;provided,however,that the
._ City Manager,shall have the discretion to extend the hours of.operation on:a case by case basis to. 1.1.:00...-... •:'. :•.,
': mon the'weekends rida y or Saturday).
: . : ; .. .. (F � y y). 'Any.extension of the hours of operation under this Subsection • ;. .
°.:.4:5.2'shall:be given in writing by the City Manager in advance`of the scheduled Event.• '
..-:-.........4. ..-...'•-... Cessation/Suspension' . of Approved Uses) and/or. •Business ActivitySies,- :.
•",'-'.••
' >'Notwithstandin• an contained in this A eement .and except for the Permitted Uses ex ressl set ;:
eP
forth in Section 4:3, and.in the event..that another:particular uses) and/or business activity(ies):•has(ve)
been approved by the....City.. Manager,and the City•Manager thereafter,'upon reasonable inquiry,determines
...-1"....... .':;..:..!:;':...'„,....:,.'...-i,:-.",.:::.......•,:,ii....T.::"...
:::::-:'1:''''''''''......-2:1:::"•:".....1.•.:.:.
, . ;" `that:the continuation of such use(s)and(or activity(ies)is(are),or.may be,inconsistent,contrary to, and/or.;
.':.::•1.:[:::'.•:....,.::...•••:.;::",:'.......-'1::.....::•':'...:1:.....::,1:...:'........,'::::.•;:.•:'•detri•mental•to.the:Permitted Uses set forth m`this Agreement, and/or to the health, safety and/or.welfare
•
;. of the residents of and visitors to:the City of Miami Beach,then the City•Manager,upon thirty(30)days ;` ' ':::
prior wntten notice to•TRF of same may•revoke,'suspend, and/or otherwise•disallow:the•objectionable
uses(s) and/or business activity(ies), and• TRF shall immediately.cease'and desist,m providing, and/or
• continuing with,':•said•use(s) and/or business• activity(ies).within the'time period and m.the manner
prescribed in the City,subject to such additional guidelines, as may be.determined and established by the
.,..,..!:,.......:.:,. ..,:,....,..::..,,:...,.....:E..,..:;. ..i.,....,,,,.,
City•Manager,in his/her.sole and reasonable discretion and ju•dgment:
.SECTION 5." SCOPE OF SERVICES:
5'''".:"..'''"'":".;.:' '....---- s'‘- •-• -• 1;.: Gen•eral: TRF:shall perform and furnish management servic..:•.,• :. ..... -........ .... • ....,.. . .... ... . .,.... ... ,., es,personnel,.. and systems •'
r
:!1''....!.: 1-..11-.1.•••!1';';::11;'111.:.:1:47.1.1.:.'Jk'and "materials, as are appropriate or necessary'.to operate,::manage, 'supervise, maintain, promote and
market the.Facility m a manner consistent•with the operations,management,p•romotions and marketing of
'' other similar first-class facilities such`as Daytona Beach Band Shell in Daytona•Beach; Florida;''and
AtsParkAmphitheater in Hollywood;Florida "Com arable Facilities' ,•
r ( P ��
T.
i • age
•: • : � P, '322 of 868•
• .•• .-
:
Page6of41
MANAGEMENTAGREEMENT BETWEEN Cf YAND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL!�
5.2 Required Number of Events; Reports; Continuous Operation; Conclusion of Events In
a order,to ensure the'contmuous operation of the Facility'and, commencin as of the Effective Date °:TRF °?
shall cause atr least 35 Events to be'.held at-the Facility:for each Contract Year during-the Term.. The
aforesaid 35 Events •
shall be calculated by counting'each separate Event in a Series.:
I 5.2 1 Annual Benchmarks
5:2.1.1•TRF shall operate.a minimum of 35 new.Events per year at"the Facility.'
(TheCity's Movie Nights;shall not count towards;the benchmark.) :These 35new Events shall take
precedence over any private rentals of the Facility.. Since TRF will not commence.to operate the Facility
I until 'after the Effective 'Date
!Of.'this Agreement(instead of October 1,.2014) and the`City.has been
operating the Facility and resentin "Eventsortothe
P .n . - Effective Date durin` the first ear of the Initial
g Y
Term(ending September 30,'2015), only, this benchmark shall be reduced to.21.new Events, instead of
35. -
I; : •. _;: 5.21:2'In addition to its own produced.Events,TRF shall collaborate with other
cultural and quality presenting organizations to develop consistent Events at the.Facility. •' ` •
5.2.1.3 TRF....Shall.: create •and: implement consistent .,`marketing• materials,
including,but not limited to, public relations, social media;campaigns,'and paid marketing outreach,"to
sure that both:ahe North`Beach community •and South Florida-residents..in•general are aware;of
programs taking.place at the:Facility.A.detailed plan and budget illustration marketing efforts`will be
submitted uarterl within fifteen(15) da s from:the end of each � •
- y Quarter;with the first
the January 2015 uarter on or before A nl'15.2015:
shall survey Event goers.and community.businesses to ensure that.
TRF's programming at the Facility continues to benefit North Beach.residents and"businesses,as well as
,Miami Beach residents as'a whole: Surve' 'questions shall beapproved in writin by the Cit Manager
in advance.The`overall sacti
tisfaon target shall.be90%. Surveys musbet conducted in a_format which is
auditable:;Additionally, on a monthlybasis, responses to:the survey questions"shall be provided'to the.::':: ..' : ;
City.Manager.
City, every Quarter, within fift
:2:1:5 TRF_shall submit:to the een (15) days
F from the end :'of,:each'..
Quarter; commencing with the January, 2015 •Quarter; a detailed :report ;
'''''' >.'::;`I, ("Programmatic.Quarterly Report")setting forth the followinginformation:
i.. . -The number. of'Events hosted during z.the. previous Quarter,
.including the charge to the public for the event,if any: •-.
ii: The number in attendance"at the Event.
iii. The number•of Facility Rentals and the charge.for said Facility
Rentals.
iv. A detailed Plan and budget illustrating the marketing efforts.'
'Page 323 of 868
Page 7 of 41
MANAGEMENT`AGREEMENT BECWEEN CH Y AND TRF
RTHE MGMT OF THE NORTH SHORE BAND SHELL !
'' v The Events scheduled or anticipated for the upcoming Quarter
5 3 TRF shall cause the Facilityto be-available to open on a year round basis, subject to
closures for reasonable.periods for'rehearsal;- set design,-repai•::s, maintenance and alterations ';All Even. .„....,.,:,,:.,..,,,..,...,,..-..i,,,.:::.,..:::,„:.....:„..,",„..,,,,,:,;,-_,...!:.:.„:_:.,,.,,.:..,:,:...:.,!,,,,,,..:,,
.,.';'-'.,•,:.::'il.,':!,.,.:!'',,i',,,::,..1!'!'„,',•'',1,,,:.,:.!':,;..,'..,',',.'.:-,:;::',..,•;!•:',.'.:;'.,E' ts
and all uses shall conclude prior to 10 00 p:m on weeknights;•and may be.extended to 11:00 p m on
�. � weekends (Friday and Saturday),.if approved in;advance by the City'Manager, m wntmg; provided, .
however, that TRF's employees and/or contractors~may be permitted to remain at the Facility beyond ;,... :,.:..0..,::.:,.:„,„.,„.,.,„„t1.,:
''''',•••!!ji'!';'',''''''':11.';',1:;''''.':-,:'.:''.i'.:! :.::::'-'.1'•;.:•!.:.':.::.•:::;:;';1,'::.;:.1110 00 pm on weekdays or 11 00 pm on weekends,however,no•later than midnight m the event that same
,:...;:...,,,i.,,,,.,.:.;....,....,,,.,....,,i,,,......,:y...,-....,..,,,:,,,,,,,..:.,..,,,..,.,!,,,::::...,,,,,,:!,,,,,.!.,,
is;necessary fon purposes of;taking down:arid/or'dismantling a production, cleaning the Facility after a ;,
r!,;:,,.:,.:,:„...„,,:,:::::.:,...:;': performance, etc 'so long as TRF's.'activities •at-the Facilityduring this time do not disrupt and/or
negatively impact the surrounding neighborhood In'the event•of such disruption,the City Manager shall
.,::' have the right to either strictly enforce the hours of op,eration,.or impose reasonable guidelines upon TRF I .;
'I. as'a•condition to•keeping the Facility:open far'the aforestated purposes(beyond 10 00:pm)TRF SHALL
PROVIDE SURROUNDING CONDOMINIUMS •WITH 30 DAYS ADVANCE•• WRITTEN
NOTICE:WHEN SCHEDULED EVENTS WILL INVOLVE AMPLLF11:D SOUND
5'''''''''''''''''':::''':''''l3-':', ooking Policies The City and TRF agree`;and-acknowledge that the Facility will be ,
pnrnanly used by TRF to provide.tQp qualitycultural .and entertainment to the City's residents and
.::::'''',:!!':.: I visitors, but that TRF may also, from•time to time,;rent.the Facilityto:thi•rd:party presenters consistent
with•the terms herein Except as otherwise provided herein,TRF shall have the sole authority to approve
' the schedulm of'an Event ui•the F.acih and Events re,uirin or.:havin :co= romotions and ma refuse ;.
I , g Y ty, q g g P Y
rto book any type or category of Events for any reason whatsoever, so long as,••the event is consistent•with ,
I Section 4 of this Agreement and applicable Governmental Requirements TRF shall have no obligation to
..,...:.:,.:: ,':::.......,:....:::::::::.,..„,'....„....,...,,',?:...,;.,',;.'.„,
n , , book any..type or,category.of Events (or•:specific Event) that.ares inappropriate or•unprofitable, as !'
..,j1:'.':'11.':h:;!l'I',� reasonably;determined by TRF,or.which may m any way interfere with the day to day;activities of area '�
a'' residents and businesses 'Notwithstanding the preceding, or:airy:other term or, `condition of;this
Agreement,the City Manager shall have the right to prohibit certain Events or uses from occurring
,';II at;the Facility u on the Ci Mana er's reasonable determination that'such Event'or use mi ht
I ? � P ty� g g
present unreasonable safety concerns, or:violate (or otherwise not comply with) Governmental'F
Re uirements Notice of an such determ nation shall be sent b written notice to TRF within t 30
q Y Y h�Y;( )
days after the City Manager has received••the Quarterly booking reportfrom TRF-that specifies the
otential
.�, P .. . Event ,.
5 5 Specific Services Without;limiting the generality of the•.foreg• oing,TRF,shall perform all
of''the following:;services, all without;'the necessity of'first obtaining City's`'approval (except-.,,,,..h•-:-ere
'" otherwise expressly required in this Agreement), and all of which shall be performed by TRF,"ata
', minimums m a manner consistent with the management*and operation of the Comparable Facilities
I � , 5:5 1 employ, supervise,.and.direct all employees and personnel,consistent with the
• ,
` • ti
, Page 324 of 868
' - Page8of41 -
F
.( • MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
".
THE MGMT OF THE NORTH SHORE BAND SHELL.•
, provisions of••this Agreement. All employees and/or subcontractors shall .be employees •and/or
subcontractors of TRF its Affiliates or third parties;and not of Ci TRF•shall be solely-responsible for
• :.assuring::that :the Facility;.is adequately:staffed .with: competent,• qualified personnel to. .fulfill :;its
=responsibilities under this Agreement; ,
5.5.2.': administer relationships,with :all third •parties .(including, without limitation,
entering into contracts and licenses for the food and beverage concessionaire at the Facility),for the use,
dayto.da maintenance and operation of the Facility,_initiate
y
and participate m any and.allnegotiati ,: •;
renewals•and extensions relating to such•third" relationshi p s; and enforce contractual agreements
concerning any such third party.relationships;
5:5.3 •negotiate,execute in its•name as agent for the City, deliver,and administer any and.,
:all licenses; occupancy agreements, s onsorshi• •a eements excludin name-in-title a eements rental
P P � g �•
agreements,:,hooking commitments concession: a�eements (excluding valet• `parking a�eements)
,
supplier agreements, service contracts•aril: set-uP. gene..r,a,l stage(including, without:limitation, contracts for cleaning, decorating
maintenance •equiPment; staffmg"aridpersonnel needs, mcluding guards
.;.
ushers, telephone, extermination and other services which'are necessary or appropriate, and all other
contracts:arid agreements:in connection with the mane ement maintenance promotion and operation of.
e acih rovided that (1) if an ..
;;..� ::.;;. :,•.� .�,• .;: P. .., • y such license;=agreement, comnutment or contract.has
•
extends beyond the remaining Term; such license,'agreement,commitment,or contract shall provide that si
it is automatically assigned to City.is'of the expiration or'termination date of this Agreement and that the
CityManager may terminate.any such agreement:without payment.thereafter at any time upon not less
than ten(10)'days written notice;(2)TRF shall have the'sole authority to approve the scheduling of any
• Event to be held at the Facility, .Subject to.the limitations'.:andreuirements of this Agreement, and 3
•any contract entered into between TRF 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; •
•5.5:4: : maintain• the Facilityexcludiri allstructural .components •thereof. and
maintenance and replacement-of all electrical HVAC;:;life safety, mechanical, plumbing.and°other'
•I systems and equipment)in.a good and clean condition consistent with other Comparable Facilities and in •
compliance with all Governmental Requirements,,ordinary•wear and tear, and casualty loss•excepted. •
Maintenance responsibility shall ;include, .without .limitation;• preventative and.any and all .other
.
tenance and as`re uired in Exhibit"B"to this"A•Agreement entitled"City� of Miami Beach Minimum
Specifications for Maintenance of the•North Shore Band Shell"). TRF shall keep on-site maintenance
manuals and:records'reflecting all of TRF's maintenance activities,.all of which shall be available'for
insCity Man•ager pen.. less
pec by theity M age upo equ
tion C an r� n r est. .TRF shall.submit to the'
than uarterl r orfs s eci -.. ' • -. � ;. . .: • ., . .,,.
Q y) reports p fying all maintenance work performed:during such period; which reports
ahall be used by the.City's:Parks and:Recreation Department as part of an annual City maintenance
P 325�of 868
. . :Page 9of41.
,
. :. . " • : ; ,MANAGEMENT AGREEMENT BETWEEN CITY.AN?TRF ° • .•
• • • • • FOR THE MGMT OF THE NORTH SHORE BAND SHELL
inspection and review, TRF warrants and represents to City that, prior to the EffectiveDate, TRF' •
,.'inspected the Facility, . ere
and TRFhby.accepts the Facility"as-is,where-is h'
and with faults.".' .
p•...•. ::..5.55.. rent,nt, lease, orpurchase all aqui ment and maintenance Supplies_necessary
appropriate for the day-to-day operation and maintenance of the Facility;
5.5.6 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 TRF in -;•` •
• : •the•course of its management,operation;booking and promotion of the Facility.The prices,rates and rate
schedules for the rental of the Facility, set forth in the attached Exhibit"C", have been approved:by the:: " •
CityMana ei:An' subsequent change to the rates or rate schedule shall be submitted to the CityManager....
g Y q g .
•
- - g
for his review and written approval,prior to TRF's'implementation-of same;.
5:5.7 pay when due,;all Operating Expenses from TRF's own funds;
'• 5.5.8 after consultation with the City Manager.and-the City Attorney, and subject:.to :i::
,approval..by the City Attorney orhis designee, institute as agent.for the City,the costs of which shall be
included as Operating Expenses,such legal actions or proceedings necessary or appropriate in connection
with the;operation of the•Facility(using legal counsel approved by the City Attorney), including, without.
limitation, to collectcharges,,rents.or Other"revenues'due to the•City .to cancel; terminate:or sue for :
damages under, any license,use,.advertisement or concession agreement for the breach thereof or default
-thereunder.by any licensee,user, advertiser, or concessionaire at.the Facility; •institute on TRF's a own
::. . ::behalf(and not as agent for City)without consultation or approval of the City,the costs of which shall be
included as Operating Expenses,such legal actions or proceedings necessary or appropriate in connection
the operation of the Facility,including;without limitatio ; to collect charges;rents or other revenues .
'r.' • ." due to the City.or.TRF or to cancel, terminate,or suefor.damages under,any license,.use, advertisement
••.•. ; or concession agreement for the-breach thereof or.default thereunder by any..licensee,user, advertiser;or ' •
concessionaire at the Facility;
•• 5:5.9 .•maintain a master set of all•Event records,booking records and schedules for the .
Facility (which shall be available for' pection bythe Ci Mana er:upon re uest
. 5.5.10 provide day-to-day administrative services in support of its management activities
• `•.' `'to: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;
•••55:11::•• :engage.in advertising, solicitation, and promotional activities•necessary, to
effectively market:the Facility.and Events, and manage related social media platforms for.the Facility
Any:marketing materials created for the'Facility.;will remain the exclusive property of the• 'City::
'In
connection with its activities under the terms of this Agreement,TRF„will•bepermitted to use the logo
;.; .;. and.brand identity of the City of Miami Beach,and of the Facility,as approved by the City Manager;
Pag
•
Page 10 of,41
MANAGEMENTAGREEM T CITYANDTRF,
FOR THE MGMT OF THE N S ORE BAND SHELL
5 act as a collection agent.for the City on sales taxes as required•from for-profif
facility rentals of the Facility and remit the State of Florida such sales taxes; : :
• comply with all City.Agreements;
5:5 13::
5.5:14.:,except 'as.otherwise approved by'the City.Manager, TRF:shall not license or :
' • allow the use of any portion of the Facility
y except as' eniutted under.Section 3 an
:.;.. ,.. P �in such case, only for:. '' •
. :.
short=teen users (i.e.;:less than fourteen(14) consecutive days). TRF shall require that all users,of the : ,
';:Facility providecertificates of insurance evidencing'appropriate insurance: and any.other::insurance
required by the applicable license, use•or occupancy'agreement. . Copies'of these certificates shall be
3'Managerty g Y
furnished to the Cit " or�Ci Mana er s design ee prior to an .Eventor use. Such insurance shall: ,. .
be kept in force at' •all times by all licensees,users,lessees•and concessionaires. All liability policies shall
also.. , .. 'the City.and additional.insureds:"`PRF sliall require all users of the.Facility to execute
;
•
the;terms°of the license:or.occupancy,.agreement) an.agreement to indemnify, defend:and hold;:;:•: :- .;:; ,,
harmless the City TRF standard license.or occupancy:agreement shall, at.a minimum,include the
insurance and•indemnity requirements contained herein; shall'further be"subject to the prior revie• w and
::approval of.the.City.Manager and City Attorneys Office; and—if and when'approved—shall be attached ";' •
as Exhibit"D"hereto: :
•SECTION 6:COMPENSATION TO THE CITY FOR USE OF THE FACILITY(USE FEE):
.
: :..:..:.. .. . ;.. 6:1:. Base Use Fee:::. For the'initial term Of the Agreement,:TRF.shallpay.Cityan .`:.:::.'•: .;
:annual usefee'for the right to.use the Facility in'the amount of$1.00, in consideration of TRF.'s not for.::
• ;'-: profit status and its investments in programming,staffing,marketing:and improvements.Allpayments are
••: payable.annually, commencing on the;Commencement Date:and thereafter on.the first'day. of
;:;:,Contract_Year: The•BaseUse Fee (and all other amounts due hereunder)•shall be paid to.City:in legal.:'• :' •;
tender of•the United•States ofAmericaat the following address: Parks and Recreation Department,.1'701
••• Meridian Avenue Suite 401;.Miami Beach; Florida 33139,Attention: Elizabeth Valera,.Deputy Director,:; ;.
or at such other:place that City may from time to time,designate by.notice in writing
•
• 6 2 Additional'Fees'and Charge.' In addition to the Base..Use'Fee:as,set:..forth in
section 6.1 TRF shall also be responsible for payment of the following Additional Fees and Charges:`
I .. .; 6.2 1 '.
OPeratin �E -enses. TRF•shall pay all costs and axerases related to., Peratin
g
, with respect—to utilities for which the City is responsible, as more specificallyset forth
Section 20:herein::TRF;hereby irrevocably andi unconditionally guarantees to the:City thatOperating
:.Revenues shall`at all times be sufficient to pay as and when due all Operating Expenses and_any and all
'other amounts that TRF is obligated.to pay pursuant to this Agreement,and further covenants and agrees` •
::::.that.if at any time there are insufficient Operating Revenues to pay all of the foregoing amounts,:as:'and
i• when required, TRF shall immediately pay the difference from-TRF's own funds. This obligation:is '`
:absolute and unconditional and shall even apply if Operating Revenues are reduced or limited by facts or:
.
•
•• . Page 327 of 868. .
Page l l of 41
MANEMENT _
MG•
•
MT
: ..:�::..,: ..: .. : � . . .. '. • • .''FO THE T OF THE NORTH SHORE BANDAND 5HE
.•..:, circumstances not contemplated by the parties.or for reasons beyond the parties'.control: '.The provisions
• of this section•6 shall survive any.termination or expiration of this Agreement: .''::;: .;
6:2 2 • Sales Tax..TRF shall pay and include any and all additional sums for applicable;,.. .
sales and:use tax, now or.hereafter prescribed by State, federal or local law, concurrent with and to the :: .
:; extent any:sales taxis imposed in connection with any payment due hereunder by TRF.
62.3 .Notwithstanding this Section 6, TRF shall not be.responsible for;paying for
major capital improvements or infrastructure within the Facility
SECTION 7'z.INTENTIONALLY OMITTED:
SECTION 8' RIGHTS RESERVED TO CITY:'; ~
8:1 'Rights of Entry Representatives;contractors and.employees of.the City-shall have the.-
n t to.:enter all'portions of the Facility to inspect.same; to observe:the`performance of TRF of its '` '••'
obligations under this Agreement;'to install, remove, 'adjust;repair, replace•or otherwise.handle any•:
equipment,utility.lines,or'otlier 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 chis Agreement. Nothing .contained ui 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 TRF-hereunder,and the City's actions shall •
:•� : ::.;
-:"":•••:..•••:. :ae,.;conducted:such:that-:disruption..of TRF.work`shall:be.kept to a nimum'and.there„'shall.be;no:;
disruption of any Event by City (the City's actions in its proprietary capacity of,the foregoing, shall not
diminish any rights of City inits governmental capacity).:
age:.Exterior marquee messa gwill be controlled bYTRF andwonlY.Events
taking place;within the Facility... TRF .;City, requested public'information messages.'.
:TRE;shall rovide, at:its-.sole ex ense•and:re onsibili ; an required:signs within:the Facility. All!;;':.
signage shall be approved by.the City Manager,and shallbe'in accordance with all applicable Municipal,
County; State and Federal laws and regulations.Any signage Shall-be subject to the prior approval.of the
City Manager ;
as to sizeshape and placement'of same. • :.:
';'•••••••••;'-',8-3 Interior Signage.' TRF shall be entitled toall non-permanent interior signage(i a signage
having•a total duration not to exceed twelve.consecutive (12) months) relating to•an Event, including,
• without limitation,temporary'.banners, and•all proceeds derived.therefrom shall be Operating Revenues,
'provided .however�'that.'the:names affixed thereon are to'the'Ci Mana er'sprior
P subject . tY. g P
approval, which shall not unreasonably be withheld, conditioned or.delayed..In no-event may any such :::.:.;:;: '` :;
signage include the names of any company selling the following types of products.("Prohibited Names"):
guns, tobacco or sexual products. Any and all other naming right not expressly provided for in this
sub"section 8.3, and'any revenues derived'therefrom, shall be owned and controlled exclusively by
he't •Ci ty •'
:::.
';' • •• ,Page;328 of 868
.:, ;,:. ::• :...: Page
1
Zof41
. ; i
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF II
FOR THE,MGh11'OF THE NORTH SHORE BAND SHELL
5.4 , General Requirement_ All signage (whether interior, exterior, permanent andfor
E
. temporary)shall comply with all applicable Governmental Requirements,and shall be maintained by IRE 0.
in good condition.
•` SECTION 9. LIMITED FUNDING BY CITY. ,i
.t,
• , •• During the first Fiscal Year of the initial term of this Agreement (From October 1, 2014 through 'i1
i
September 30, 2015), the City shall provide funding to TRF, in the amount of S30,000.00 ("City
Contribution(s)"), payable within fifteen- (15) days following the end of each Quarter, with the first .1
payment, in the amount of S7,500.00, due April .15, 2015; $11,250.00 due on July 15, 2015, and 11
. S11,250.00 due on October 15, 2015., TRF shall submit an invoice for each payment of such City i$
Contribution and also submit the corresponding reports due for that particular Quarter. The City, in its . E
•,gin,
. sole discretion, may condition payment of the City upon TRF providing the requisite reports under this
I
Agreement, including, without limitation, those reports set forth in Sections 5 and 12 of this Agreement.
Thereafter, subject to funding availability,The City shall provide a City Contribution, in an amount up to
;i
.
,, S45,000.00 annually,during the balance of the Initial Term and any Renewal Terms(should said Renewal
•
Terms be granted,,at the sole option of the City), toward the operation of the Facility. Except as set forth
i
g in this Section 9, and other costs which the City has.expressly agreed to pay under the terms of this
I
Agreement, the City will have no other funding or other payment obligations with respect to the Facility
Q
or its Operating Expenses or its operations. Additionally,TRF and City have entered into this Agreement
with the expectation and belief that;as of the Effective Dinte, no governmental body will impose any ad
I
valorem taxes upon the Facility nor any sales,- income, 'excise or other taxes. Notwithstanding the
i preceding sentence,the City makes no representation to TRF, either expressed or implied, that any or all I
' !
of such_taxes may or may not be imposed at any time during the Term of the Agreement. '
I
SECTION 10. RECEIPTS AND DISBUrRSEMENTS •
i
1.
r
TRF shall establish and maintain in one or more depositories, one or more operating,payroll and f
other bank accounts for the operation and management of the Facility, as TRF'shall determine. All V
},
• Operating Revenues collected by TRF tiom.the operation of the Facility shalt be deposited into the , I
accounts.and all Operating Expenses shall be paid by TRF as agent for the City froth the accounts. Any '
F i
amounts remaining in the operating accounts upon expiration or termination of this Agreement for any'
I reason, after payment of all other amounts that I'RF is required to pay under this Agreement through the
} date of expiration or termination,shall he promptly paid.to TRF. , I
II i
' SECTION IL ALTERATIONS,MAINTENANCE.AND REPAIRS.
11.1 TRF shall not make any additions, improvements, or alternations (collectively . , I
•
"Alterations")to the Facility without the City Manager's prior writtnt. The cost of all Alterations
en cosen
i,` made by TRF shall be borne'solely by TRF from its own funds and shall riot constitute Operating
• f
1, , Pagge3g9( fi$08 .
.• MANAGEMENT AGREEMENT BETWEEN CITY AND
-• FOR THE MGMTOFTHE NORTHSHOREBANDSHELL-.` •:: . : .;� :�
.. •• • Expenses, unless otherwise agreed to by the City under the category'of'Capital •Improvements•or: : .•!.•
Maintenance. The'City Manager:shall:not:unreasonably withhold, condition or delay,his/her consentto
an Alterations"exc t.:
•
•MANAGEMENT AGREEMENT BETWEEN CIY AND TRF; •
,.... .•
• FOR THEM GMT OF THE NORTH SHORE BAND SHELL:i'"
: thereon, in good, clean, and sant order. The Cityshall, at its sole cost and ex ense have,the sole` :''°
I ,
responsibility„for maintaining the'grounds'of the North Shore.Band-Shell and'surrounding ark::,;To
end, the parties.lierem acknowledge;•_andTRF.herein agrees:to:be:bound by, the minimum maintenance:!
standards set forth in Exhibit "B'... •to this Agreement, entitled "City of Miami'Beach Minimum
_
Maintenancce`oo f tlie.Noith Shore Band Shell... It is further understood that TRF.shall °:: `•''` '-'`':::.:'�;::.
provide:the City.with•a'QY
uarterl - maintenance report, iiia format,.to'be approved by the City.Manager...
etting forth any repairs made to the Facility during thereported Quarter.
'11.4 ':':Personal Property ;A list of existing City-owned personal property.,included in the
Agreement"for use by TRF during the Term hereof is attached and incorporated herein'as',Exhibit "E7z
TRF herebyaccepts such equipment`in its"as-is”condition;�and without ay,nwarranty (ies)and,at its sole
I cost and expense,acquire and maintain all replacement and..such other equipment and ,at its sole cost and
expense,':acquire and maintain all replacement and such other equipment as may be necessary to maintain.
'the Facility'hi a condition which satisfies those maintenance standards set forth in Exhibit"B';but•shall
:• •• not have'.an obligation to im rove the condition:of the existin Ci owned-personal ro ert .be and the
P :. : •. •-' : ;g. t t3'- . P P -Y Y
"as-is" condition in:which•it was accepted, all of which shall be noted•::on the inventory •TRF shall have'
:: the right,at the uutial inventory and•at•any point thereafter,to decline.the,use•and responsibility for any
existing City owned personal:property not useful':for its:operation.of the Facility,•and may.turn•"such •
existing Ci owned•personal property over to the Cit in the`condition'in which it.was accepted. s Any
P Pe1fY Y � eP
• personal'Pro erit3•purchaSe...with-'0Perating Revenues shall.become City-owned Personal roPert3and
. . :included-iii the inventory for the Facility.The City shall have;the right to periodically take an inventory:of.•:
any.or ill:City-owned e• quipment at the Facility.
ECTION 12.'RECORDS,:AUDITS AND REPORTS. . •
12.1 •Records and Audits: TRF shall keep full:and-accurate accounting:books and records •'•:,
iv.relating;to all Operating•Revenues and Operating;Expenses,.all in accordance with generally.accepted
•` accounting rinci les:: TRFshall:give`the Citysuch books and-records Burin reasonable business hours
gP P g
•and upon reasonable,advance notice:All books and records shall be mad•e •ava• ilableonthe
-site„at
orielectronicall TRF shall ke and reserve for•at least three 3 ears•follo•win ea••ch Fisc•al **••••Yeor
Y eP: p •O-Y
C for as long such'records are-required't6 be retained pursuant tO Florida Public Records Law(whichever
is-longer), l alsales slips;rental-agreements,purchase order, sales books, credit card invoices,bank books
or duplicate deposit slips and other evidence of Operating Revenues and Operating Expenses'for.such
i period. In addition,on or,before-120 days following each Fiscal Year,TRF.shall furnish.to the City a line
item(ie,by categories)statement of Operating Costs and Operating Revenues(and profit or loss)for the
Facility for.the preceding Fiscal Year, and including the number of tickets sold and Events held 'iricluchng
any:FacilityRentals, prepared in accordance with'generally accepted accounting principles certified as
• accurate by TRF s Chief Accounting Officer or Chief Financial'Officer. • -
r
•
Page 331:of 868 .
-Page:15of41 .
. :.:...:....
: MANAGEMENT AGREEMENT BETWEEN CITY AND TRF'
OR THE MGMT OF THE NORTH SHORE
The City•Manager••shall'have.the right at any.time, and from•time'to .time,to; cause
_a independent auditors or the City.'s own accountants•or auditors to;audit all of the books. TRF relating to
• •OP
erator g � O-Revenues ' eratin `Ex enses,tickets and Events:including; without limitation, cash`
P g I?
tapes, credit card.invoices, duplicate: •deposit-tapes, and invoices. No costs incurred•by the•City'in .
conductor such au o
dit shall be considered an Operating
12:3 Annual Plan. Commencing on June 1, 2015,and thereafter on June 1St of each Contract •.
Year during the term herein;-TRF'shall-provide to the`City an:annual management.plan,..w shall '
the;annual operating budget for the..then current Fiscal;Year but may not have
: plan or event schedule:.The annual plan shall include information regarding TRP•
S anticipated operations
for -such Fiscal Year, including 7 planned.-operating.and_ maintenance activities; anticipated .capital ' .`
improvements and capital equipment purchases andan anticipated budget therefore,•anticipated Events at
the Facility(to the extent known at such time), and planned equipment.andfurmshings.purchases. .TRF
shall have the nght from bore to tune to make any changes it deems necessary or appropriate to•any such
annual plan so long as the annual plan is_consistent with TRF'S.,fulfillment of its obligations hereunder; :;•:.i ?''
.. ;: :12:4 Programmatic Plan Accompanying TRF'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•
.
,i residents and;visitors anticipated'to be impacted.
12:5 Major Capital Repairs. Accompanying TRF's proposed'annual budget shall be a detailed
hst'of then-known mayor capital repairs anticipated for the Facility;which remain the sole responsibility
SECTION INDEMNIFICATION' :':
TRF
hall indemnify,hold harmless and•defend(with'counsel approved by the City Attorney)the
"I . : City,its.officers,a ents,servants and'em to ees from
and a ainst an and all claims,liabilities;demands'
.. P Y. g
:••••••••:.::::causes• of action costs and Oin:ding reasonable attorne s.• fees at trial.
of whatsoever kind or nature:•("Claims") arising out of(i) errors, omission or negligent act or willful.
: misconduct..of TRF its'a encs servants; contractors, or employees; (ii) any default by TRF.under this
.Agreement, or (iii•) any• other• ari• sing; directly or indirectly,from the operation or management of
f the Facrhty or any Event held thereinor rental or use of the Facility; provided that there is expressly
excluded from the foregoing obligations any Claims to the extent resulting solely from thegross
`r"'' ' ne h ence or;willful misconduct of the City, its officers, agents.(excludingTRF , contractors excludm` . ;'.;, ;:
TRF) and employees or the use of the Facility by the City, its•officers, agents (excluding
•
employees,'pursuant to Section 16 hereof. : The provisions of this Section 13 shall survive expiration or
• ,•t
ernunation of this Agreement.
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Page.33..2 of 86.8
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Page 16 of 41
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• MANAGEMENT'AGREEMENT BETWEIN CITY AND TRF .. '.: .. •.. . .
• FOR THE MGMT OF THE NORTH SHORE BAND SHLEL;;; ..1.‘,..
:. <
SECTION 14. INSURANCE REQUIREMENTS.
fi•
: :TRE shall ma ntam, at TRF s sole cost and:expense,the following types of insurance coverage of all ' ` :
>,. • ::., tunes throughout the Term of this Agreement
. '': the .
14.1 , General liability insurance with not less than following limits•
General aggre•gate• $2,000,000 • i
: • Products'(completed operation
• aggregate) $2,000,000 , . • i. :.
•` Personal andd advertising• (injury) . $1,000,000.
i.: er •
•,. (P occurrence) , $1,000,000:: .
ire age
• • Medical Expense $ 5,000 •:.
• : ,
...: `'•Liquor Liability(aggregate) . . •' '.•,$2,000,000:
.. ..,. ....
er.ocourrerice) $1,000,000
14.2 Workers Compensation Insurance"shall be required under the.Laws of ti.he State of Florida :....,..,..,...:.„......,..,........:::::::::,....,....f:::,...,......,.........;,...6......,:,..,'
, ., . :... :.......:. . .,,-.. :14.3:. .: Fire'Insurance for the Facility shall:be the responsibility of the City.
•
,•. •••••••••••••••••,.-14.4 : Builder•'s:Risk:`''.TRT..•.. shall •: • Builder's:Risk =insurance• during any period of
construction of Alte•rations or any other period of construction by,through under TRF. '
TYie policies of insurance referred'to above shall not•be subject to'cancellation or.changing .
.:.:!':•;:.'-!:,"::.i'•';:;!;',''1''';,....:..,1-,-,.":•i1•.::.:•:.'..i.;.:•••.,......:'.',,..•:.?:'':,'.;':,:::':••,:.:,;''.:;:...•':.,.:,,:.:...,•..,•:.•i.•:.....:i•..,:.,•.:':,..::..".,.•:.......i::.:,....'•;••:..:'•:.:i.:..::,•.:.:':.::•.•:::.••.:;:.,.'.:::::.I.:'•,,;::.'.!••:.:••;•:•.„-:•,::•::•::.....••r.:....•:.::'•,.:....,''..':',:.1•."i...1'•,!:,...:•.....,:.........:.!::'.•..':..: covers a exe t.0 on at least .•..y..'.'."..'......'.0.".—?....':
30 'da s wntten'notice to Ci and then subject to the nor;written`.•
.. g ep P �Y( ) Y
YJ P .
approval.of.the City's Risk Manager .TRF shall provide the City with a Certifcate. f Insurance for each
such policy,which shall"name the City'as an`additional named insured: All such policies shall be.obtained:'.`.
1;.: ; ; • •.from•companies;authorized to do•business in,the State.of Florida with an) 14.. 3!!t".Insurance Guide:;,: .•; `:: >'. :
(latest edition)rating acceptable to.'the City's RiskManager,and any replacement or substitute company '
'shall':also be subject to.the approval•of•the City's:Risk Manager. Should TRF',fail.to'.obtainmaintain or
.
•
•
renew the policies of insurance referred to a)ove,.in the required amounts,-the:.City may, at its.i!'.:.'",!.....,....:..,
discretion,obtain such insurance, and any•sums:expended,by City,in obtaining said insurance, shall be
repaid byTRF to;City,plus`teii percent(10%) of the amount of premiums•paid'to compensate City fo•••'••:••ts
admuustrative costs: If TRF does'not repay City's=expenditures within fifteen (15) days of demand, the,
total sum owed shall accrue interest at'the rate-of twelve percent'(12%0)until paid, and:such failure shall
I be deemed an:event of default hereunder. • • -•
• TRF such policies.. City s
shall be the named insured under all licies The hall be an additional insured.;
.under.the insurance,policies.described in.....sib.sections 14.1, 14.3 and 14.4 hereof, as its interests:may
,,:.y. ;appear, and'all such;msurance:policies shall contain a provision covering the indemnification liabilities• ,.. ••;...;:;:.::;,
hereunder
:
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:.. Page`333 of 868 .
:
- Page 17 of 41.. .. .
::.I.. . . .:., i;I• ,
..•
•..., • •
1YiGi`1l
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
The terms of insurance' olicies.referre
•.::. �. . shall,pre oga aga
.„ -.. :..... P Section 14 elude subr tion'claims insf�°�� ;-' •
d to in
TRF,the City:and their respective officers;employees'and agents:
•
SECTION.15 OWNERSHIP•OF ASSETS.
Ownershi The:: ownershi 'of the::
P Facility..and�all buildings and real,estateallexistin' and�� ,;�
replacements thereof);technical and-office equipment and facilities,.furniture;displays; fixtures,.vehicles
and simfilar tangible.property.located;at the Facility.at the time of the commencement of this`Agreement•::. :
shall remain:with the'Cit An "and all technical and oice ui ment and facilities furniture "Splays! `
, Y Y
• � •p .;. � . .. �
fixtures;:vehicles and'.similar tangible property purchased:by TRF.for use at.the facility.shall,reinam
property of TRF:;;Ownership of and title to all intellectual property rights of whatsoever value held'm•the
,, Cfity.s name.shall;remafin.;m the:name:of the City The'-ownership'of-data processing programs'and - , ..�.
` software owned by tthe City shall remain w•ith the;City, and the ownership::of data"processing programs
j and`software owned by:TRF:shall remain with TRF. TRF;shall not take or use; for its•own purposes,
customer.lists or lar materials developed.by the City for the use of theFcility,unless prior written
-
a
consent fis •granted by:the City.Manager. Ownership of.eq•uip•ment, •furnishin•gs,mat•eri•al•s, or fixtures not
considered to be real propertypurchased by.TRF with Operating Revenues for use at and for the Facfility
shall vest.m the City automatically and immediately.uponpurehase or ac uisition "Ci. Pro a The;.'.,: : -.
assets of the Ci as described herein shall not be pledged;ed liened encumbered or otherwise alienated'or ;`: '
•
assigned Notwithstanding•anything to the contrary contained in this Agreement; any personality,
.
furmshin s,and movable ui mentthat isnot a fifixture and
is not inte 1 to the o eration.of the Facilit
... .. :........ g eq P
. . .:....:.
purchased.by TRF with outside funds, (funds which are not part of Operating Revenue)'and used at the
Facility shall.be the sole property'of TRF. Ownership of and title to all intellectual property.rights of'
whatsoever value related to marketing and promotional materials, designs,slogans, social media profiles,
: .• .
'and web pages will remain the exclusive property of the City.'
:SECTION 16....USE BY'1'11E CITY.
The Cit shall haveahe ri t to use'the Facilit 'or an thereof sub ect to:availabiht for the
i � I. Y•. � Yy part- � J Y
benefit:'of.the community for such.purposes including; but•not limited:to, meetings, City-sponsored
'. 'special:events,'Movie Nights receptions, and'other:purposes, as deemed necessary by'the Cfity Manager;.
fin his sole and absolute discretion;without the payment of piny rental or use fee,excep• t that the direct out=
of-pocket`expenses incurred in connection with such uses shall be paid by the City `In addition;=TRF shall
hon l
' or,all'existing booked rentals andpre-determined Events scheduled at the Facility as outlined:in • . . . ..:.:
"
' "`,•attached hereto'and made apart hereof.
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Page.334 of 868
-.Page18 of 41.
.........:.
' MANAGEMENT AGREEMENTBETWEENCITYAND'FRF
- . FOR THE MGMT.OF THE NORTH SHORE BAND SHELL ',:.`: •:
SECTION 17:•ASSIGNMENT/SUBLET.
17.1 Except:as otherwise specifically.provided in this Section 17,TRF may not:voluntarily or
.
•
•
by,operation of law, assign,encumber,pledge or otherwise trans•fer all or any part of TRF's interest•in this �.• -
i Agreement •or subcontract its:.management duties.hereunder without the City's prior written consent, ; •` .
,• ::: . hich:maybe granted or.withheld iii City's sole and absolute discretion:Any.attempt•by.TRF to.assign all::...:....••••,:-.,•:•••::,
or any partof 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 fo.rce`or effect. In the event'of any,
.. ` `` ._ assi ent'transfer, encumbrance•or subcontr•act;TRF shall nevertheless'remain liable for.all obligations .......,:s,..........:...._:".•••••:.:••...
:. i .-_`hereunder and the transferee shall be jointly and severally liable for all obligations thereafter arising under. ::.
'..•:::':::".
.`';':".'1.,•••••• his'Agreement..:Any.transfer of a controllin interest in TR., :,:F'(whether.m a sin le transaction or multiple•':.'. ,....:,..-.........:•,.............
• ::'...
transactions) shall`be considered an assignment of this Agreement. _;TRF specifically recognizes that City
`selected TRF to'be the manager.of the Facility as a result:of:the•City's evaluation:of TRF's`ispecific....:.;.....i'....::::...,....:...„...!..::::::.... .
,":;;; .':qualifications and experience in operating similar first class facilities:
in
P .
' . :17.2: The rovisions of subsection 17.1.above shall not prevent.TRF the performance of its;• •
. : :...
:�.'::..:. 'management.d•uties;hereunder to grant licenses'and"concessions and recital agreements for Events and.:: `. ,'::::':••:.;;•;
: ;entering into a concessions agreement for the concession operations at the Facility
1
S
: , :,,. : :•:, '< ECTION 18: SECURITY.° . .
TRF shall,provide reasonable security to•protect.the Facility and=its equipment,;.materials and
facilities; 'includin 'an '.Ci a ui ment furnishin.s and •fixtures•'used b .TRF, and shall`be solel
g Y tY q P g � y Y ,�.
responsible to the City for any loss or damage to any'City equipment, furmshmgs, and fixtures•so used by
TRF • :,
i
i
`SECTION`19 PERMITS; LICENSES;TAXES.APPLICABLE LAWS:
TRF agrees to obtain.and:pay'for all•permits 'and licenses•necessary.for,the conduct'of its' • :
' business, mcludmg 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 TRF TRF shall also be
j solely responsible•for payment.of any and all taxes levied•on the. acility•and its operations In`addition,
'TRF shall. •co•mply•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; ,'
:,..,......,..., .....,..„:....,• .:......,..............,....:.;. ...„.,:,........,............,...,:::.....1........,. :...•:,..,........
... . :. :.. .:
:',;. :•SECTION 20-: UTILITIES;RESPONSIBILITY•FOR TAXES AND ASSESSMENTS.:::..•• : , ; . .: .
20:1: - :.Utilities During the initial term only,The.City shall be"solely responsible for and shall
.
•
. •"'•°:. - ::•'pay(whether to the Cityor directly'to the utility)before delinquency, of all•char es for,all water an.•(.1.........,......••••••••••..........,...;.::::::.:;.,..::,
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sewer, and electricity utilities used at the Facility. Any other utilities, including the connection •a
phone line,'shall be the responsibility of TRF. ..
Page_335 of 868
'Page 19 of 41•
iMANAGEMENTAGRREMENT BETWEEN CITY AND TRF ° :
• FOB.THE MGMT OF THE NORTH SHORE BAND SHELL
.20.2 .:'Procedure.If-Taxes Assessed. TRF agrees to, and shall pay before delinquency, all taxes
and'assessments of any:kind ;assessed or levied, whether upon TRF,-or the Facility,:by;reason of
Agreement pr by.reaof any use(s)•and/oractivity(ies).of TRF upon or m connection with the Facility
The parties acknowledge that:TRF's operation and use of the Facility.is for public purposes,and therefore .
anticipate that, as'of.the Effective Date, no-ad valorem taxes should be assessed by the Miami-Dade
.County•Tax Appraiser..If,however,.taxes are assessed by the Property Tax Appraiser,TRF•has the right to.•
terminate this..agreement-without penalty by providing 90 days notice to the City, at which point the City
shall be solely responsible for such a ent s
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SECTION 21. FORCE MAJEURE.
No•party.will.be-liable or responsible to.the other party for-..any-delay, damage,loss,failure,or �m
inability to perforin•caused by•`_`Force Majeure" if notice is provided.to the other.party within ten (10)
days of date on whichsuch party gains actual knowledge of the event of,"Force Majeure"that such party
• .
i isnnable to perform The term'"Force Majeure"as.used•in this Agreement_means the following •an act
of God,,strike, war, public rioting, lightning,::fire, storm, flood, explosions, epidemics,, lands•lides; . •
• : 'lightning. storms;: earthquakes;.floods, storms, washouts, civil:disturbances, explosions, and any..other, ;': ?; .
cause whether of the kinds specifically enumerated'above or otherwise which is not reasonably within
control of the.party whose performance•is i
to be excused and which by the,,exercise of due diligence could
not'.be'reasonably prevented or.overcome•(it-being:acknowledged that'under rno circumstances shall a• •
failure topay amounts due and payable heene ecusae due o a Force Majue):.'
ply ,. ruderbxblt
,. . er . ., . .. .
Neither: hereto'shall be under any obligation to supply`any service or services if'and to the
and`during'any period that the supplying'of any.,such service gr;services or the provision.of any
component necessary therefore shall be prohibited or rationed by'any Governmental Requirements
In ahe 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 thaton either case, shallrendpr.a
substantial part of the Facility inoperable for a period of at least ninety(90)days or in.TRF's or.the City's
reasonable opinion the Fa•cility can.no.longer be operated •in a reasonably profitable.manner:as a result'of:.
the.damages'or:•.action,for:a Period'sof at least lninety•(90) days:from the`.happening.of:.the;fire;:other
i': casualty or regulatory action, either party may terminate this Agreement upon written notice to the other
Upon any such termination,'the provisions of Section 31 shall apply; and provided Cityshallreceive• the
. entire amount of all insurance proceeds or eminent domain award as applicable.'
•
•:7 SECTION 22.•INSPECTION..: • •
TRF agrees
!that the Facility may be.inspected at any time upon reasonable notice by authorized'.
is .. . ,.•: •:.: . -. • • ., •.; , .' ..:> ,.. •.
•:r resentatives of the Ci or b'_an other State, County,Federal or municipal officer.or a g enc "having .!-.;,.:••
: ; ' ;':;•:::
responsibilities for inspections of such operations and/or Facility. .. -
Pag a 336 of 868
I. .
•Page 20 of 41
.
AN ME
AGENT AGREEMENT BETWEEN CITY AND TRF
I
FO
R THE MGMT OF THE NORTH SHORE BAND SHELL '
• •
;,.
SECTION:23...WAIVER OF INTERFERENCE;
, TRF.hereby waives all claims for compensation for.loss or dambyage sustained. reasons:of any
:
' mterference with'its operation and management of the Facility by any public agency or official'as a result .. :.
of their enforcement of any laws or ordinances or of any of the rights reservedto the City herein.. Any
such'mterferenceshallaot relieve TRF.from any obligation hereunder.
:SECTION 24, NO LIENS.'-
TRF a ees that it will not .sUffei...,.e.q....throiiihiiidetioxii.or anone under its control or su ervisio
cause to be!filed upon the Facility any lien or_encumbrance of any kind...In the event.any lien is filed,the., _
TRF agrees to cause such lien to be discharged within ten(10)-days therefrom,and in accordance with the
applicable`law and policy . :If this:isnot•accomplished, the City may automatically terminate this ::''
Agreement,without further notice to TRF.
SECTION 25. TRF EMPLOYEES,MANAGERS'AND BOARD OF DIRECTORS.
25.1 The City and TRF recognize that'in the-performance:of this Agreement; it shall be
necessary for TRF to.retain qualified individuals to effectuate and optimize TRF's management and
operation of the Facility. TRF shall select,train and employ at the Facility such number of employees as"
is necessary or appropriate for TRF. ,to.satisfy its responsibilities hereunder. TRF shall recruit employees;`.'
consistent;with'standards employed•at:comparable first class facilities;~and:TRFshall have authority t.o
: hire,.terminate and discipline any and all personnel employed by TRF:working at the Facility.Any such
personnel, whether employees, agents, independent contractors; ,volunteers, and/or.other, employed,
retained, or otherwise engaged by TRF for such " ose s shall not be deemed to• be:a eats, em` to ees
partners,joint ventures•,or•associates of the City and shall not obtain any rights::or benefits under the civil ''
service or:pension •ordinances' of the City, or.any rights.generally afforded:classified.or unclassified
;;;' : employees:of the;City, further;,they,shall not:be.deemed entitled to.the,Florida Worker's Compensation ,,;: :` ,;
benefits as employees :of the .City. Additionally,;TRF; and/or its employees shall never have:been.
convicted.of any offense involving moral turpitude`or felony.Failure to comply.withtins subsection shall
constitute cause for termination of this Agreement .
25.2 :' TRF shall assign to the.Facility a competent staff member experienced in the operations
of siii ilar.facilities,who will'be located on-site with regular and posted hours during the Term.:The staff
_.i..;; • member will be supervised by a general manager who.is experienced in'operating and managing similar
facilities The staff member.shall be accessible to the City Manager at all reasonable times to discuss the
,: , management, operation, and maintenance of the Facility. "Accessible" shall:meanavailable either m =
person, by.phone and/or a mail during.business and/or operation and
-hours within a reasonable time
i frame during'non-business hours in the•event of an emergency..The City Manager may. also'request that ':
Page 337 of.868
. Page 21`of 41. r.:
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T
• :MANAGEMENT AGREEMENT B CITY AND TRF
.... • . :..:.. NORTH SHO
FOR THE MGM OF THE RE$AND SHELL;
the staff member be replaced and TRF shall duly considerall such request buf shall but riot be obligated to
replace the staff member.
SECTION•26: NO IMPROPER USE.• :
: :TRF 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, Coun y , or municipal ordinance •rule order or
regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. TRF
°:shall n•ot 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 businesses) conducted on the Facility• :TRF 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 '
c•riminal activity in the Facility knowingly caused by'or knowingly permitted-by TRF:shall result in
automatic`termmation of this Agreement. •Exc t,as ma result_from acts of force ma'eure
eP Y J
;'that'it will not allow the Facility to become unoccupied or vacant. TRF shall take appropriate precautions
• . " to prevent.fire on the Facility, Maintainingexistin fire detection devic•e'••:•-•:., nd extm islun-.e•qui •meat at ': ` , ;
all tim• es:Fire detection devices and extinguishing equipment to be provided and maintained by the City
SECTION:27 NO DANGEROUSMATERIALS.`•
TRF agrees'not to use or permit in the Facility the:storage'of iIlummatmg oils, oil lamps,
turpentine gasol ne (except:for small containers [5,gallons or less] for'machmery), benzene, naphtha, or
other similar substances`or ex losives or an kind'or au substance or,thm rohibited m'the standard :'::; :..`''
policies of fire insurance companies in the State of Florida. :.
SECTION 28. •NO•CLAIM'AGAINST CITY OFFICERS.EMPLOYEES,INDIVIDUALS;
• It is e•xpressly.:understood and agreed.by;and..between the::parties hereto,that.:all individuals, .
`employees, ofhcers,and agents of the City are•acting in a representative capacity and'not for their own
benefit, and that.neith• er TRF nor.any occupant shall have•any .claim'against them.or any of them'as ': •
individuals,•in any event whatsoeve•r in conjunction with any acts or duties which are reasonably related to
the performance of their duties. •
SECTION 29. DEFAULT AND TERMINATION: • . . ....
29.1' ,TRF's•Defaults. The.occurrence of any one or more'of the following events
constitute an event of Default by TRF.
29.1.1 The.failure by TRF to make any a ent required to be:made.b TRF as and; ..; >:..
when due,which continues for more than ten(10)days after written notice from City;
29.1:2 The failure.or inability by TRF to observe.or.perform any of the•covenants Cr ';•: '
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Page 338 of 868
a e22of4T
g
' • .MAN
AG
EMENTAGREEMENTBETWEENCITYANDTRF :.:. :`�' �• ''. . ,.
FOR THE MGMT OF THE NORTH SHORE BAND SHELL •" ', � ::•
:
:. provisions`of this Agreement,to be observed or.performed b TRF, which,continues for more than Y
an thrrty
(30) days after written:notice.from City-Manager;.P rovided;;•however;if-the nature of the failure is such'
• .
that marethan•such period is:reasonably required for,its cure, then TRF,.shall not be deemed'to have
tted an Event Of Default if TRF commences the:cure',within such period and,thereafter diligently.;. :-,
pursues the cure to Completion'and actually completes the cure within an additional sixty'(60)day.period; . •
29.1.3 Except`as permitted pursuant to Section 17 of this Agreement, the assignment,
encumbrance, pledge;,.or transfer of this A eement whether voluntaril
P g � gr y or by operation of Iaw,.or any ;
subcontract of TRF's•duties hereunder, which.continues for more than fifteen (15) business days.after
,,: written notice thereof from city Manager;
29.1.4 .(r)The making by TRF of any general assignment for the benefit of creditors;,(ii) •
I the filing byor'against TRF of a•petition to have TRF,adjudged a Chapter 7.debtor under the Bankruptcy •
Code, or.any Code:or•to have debts discharged or a petition'for reorganization.or arrangement under any
law relating to bankruptcy(unless,in the case of a petition filed against TRF,the same is dismissed within•
:;; ; ;;..:':.:sixty. (60).:days);;(iii):the;appointment of.a:trustee:or receiver,to;take possession of.substantially ..o
. •TRF's assets located at the Facility oof TRF's iriterest.in this Agreement,if possession is not
r restored to; ••
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:'';TRF within sixty,(60)'days; or(iv)the attachment,execution or other judicial seizure of substantially a:.
of TRF's assets located at the Facility or of TRF's interest in.this Agreement, where the seizure
discharged within sixty(60)days.
29.2 e
9. : City R medies: `If in Event of Default Eby TRF•occurs,-thenin•addition to.any other ;
remedies available to.City,City may exercise the following remedies: . • • . •
Citymay terminate this Agreement by written notice to'TRF;:in.which'case.this
. .:•Agreement;shall •terminate •arid TRF shall immediately surrender ossession.of the Facilit to Ci U on
•termination; City shall.be •entitled to recover'from TRF: (1) Operating Expenses that remain unpaid
through the date of termination;:(2) all other amounts:that TRF• ,is required.to.pay under this Agreement:
. • •
'• through the date of termination. •
• . ::.29.2.2 Cit may seek specific: erformance.of any'of TRF s :obligations hereunder or
seek injunctive relief, ,
:29.2.3. City:may.exercise.any.other remedies available at law or in equity. .
29.2.4 The various rights'and remedies"reserved to City in this Agreement or otherwise
shall be cumulative and, except as otherwise provided•by%Florida law,•City may pursue any or'all:.of.its
rights'and:remedies at the same time.
29.3• TRF's Remedies.'If an Event of Default by City occurs,then TRF may exercise either of .
the'following remedies: .'
• • -.: TRF maywritten terminate this Agreement byritten notice to.City, in which case.this.Agreement shall
terminate and.TRF shall immediately surrender possession of the Facility to City. Upon termination,TRF
shall be entitled to recover from City.all amounts owed by City to TRF as of the termination;date and the
_ Pa e.339.of 868: _
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' • . age 23 of 41 •
,. .. MANAGEMENT AGREEMENT BEI'WEEN CITY AND TRF : . :'. .::.:::.;.
- FOR THE MGMT OF THE NORTH SHORE BAND SHELL
,. provisions of Section 31.shall apply;•or
29.4 Late Payments Any paymentowed.to,City. or TRF under this Agreement including,,.
without limitation,any other payment owed to City.or TRF under this Agreement that is not received by,.
Ci or TRF within ten(10)da s followin notice of such amount bemgdue shall bear:interest at the rate
tY� Y g
of eighteen 18% er'anri w "Def Rate") from.thedate'>' :`.!'
gh percent ( )•p um or the highest•rate allowable by.la .( cult
due until fully paid.
29:5 ' IN THE EVENT THAT TRF CEASES TO BE A NOT-FOR-PROFIT'CORPORATION,
• :THIS AGREEMENT:SHALL BE AUTOMATICALLY:TERMINATED. ,
SECTION30:':'INTENTIONALLY DELETED]._.
SECTION 31:TERMINATION.
31.1 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
TRF7s rights andresponsibilities with respect to;the operation,management,,mairitenance,promotion an
marketing of the Facility,upon one hundred eighty days prior written notice to TRFF .
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.Section l0 and.to the '.;.
extent such funds are not sufficient, TRF shall pay all such amounts,from its own•funds, (2)After
amounts referenced in. sub ara h (1) have•been aid TRF maretain all remaining O eratm
` .: ..:
Revenues(if any): Upon the expiration of,this Agreement or a termination`for any reason, all further .
obligations of the parties hereunder shall terminate except for the obligations which for all periods up to
the date of expiration or termination and such other obligations as are stated to survive or be performed
after.such expiration or termination: All of the foregoing reimbursement and the payment obligations are,
to be made withinthirty (30) days after the termination date.` The provisions of this Subsection-31 2
regarding the above reimbursemerit`and payment obligations of the City shall:survive the termination of.:
hus Agreement:'' .
I Surrender of Facility. Upon termination or `expiration of this Agreement TRF: shall ,
sUrrender.arid vacate the Facility upon the effective date of such termination(or expiration).'The Facility
and all'equipment and furnishings shall.be returned to the City in a good and'clean'condition,consistent :
with other similar•Comparable Facilities and in compliance with all•Governmental Requirements,
ordinary.,wear and tear,•and casualty loss excepted. •
SECTION 32. NOTICES • •
�h' Yby to
Certified
. All notices from the Cn to TRF shall be deemed duh served if mailed re 'stered or certi
Page 340 of 868.
Page 24 01 41 .
MANAGEMENT AGREEMENT BETWEEN CTTYAND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHLLE : :•`'
mail to,TRF,at the following address: •
The•Rhythm Foundation,Inc
407 Lincoln Road#6E '- ..
.Miami Beach Florida 33139 .
Attention: Laura Quinlan,Executive Director
i ` - All notices'•from TRF to the City shall be deemed duly served if mailed to:
City of Miami Beach:'
1700 Convention Center Drive •. .
:MiamiBeach Florida33139
Attention: City Manager.
,' With copies to
City of Miami Beach
i • -1700.ConventionCenter Drive
Miami Beach,:Florida •33139
' Attention: John Rebar,Parks and Recreation Department Director
•
'i•:.:;• ::.;;, . ::: : •., TRF and the City may change the above mailing addresses at"any,tiiiie u on g in the:other. art written.:.: : :,;; ...
.. P to g P Y . .
notification 'All notice under•this Agreement must be in writmg
SECTION 33.. NO DISCRIMINATION.
33.1 The TRF agrees that there shall•be no•discrimination.as.to race,.color,•national origin,
religion,sex,mtersexuahty,gender.identity,sexual orientation,marital and•familiar:status, or,disability in
the.operations referred;i.e. by this Agreement; anfu
d rther,there sha1:1_....b,. .. .......eo•discrimination regarding any.
use,'service, maintenance or operation of the Facility_ All facilities located on•the Facility:shall be made•."
available to the public; •subject to the right. of:TRF to 'establish and enforce reasonable rules and
regulations to provide for the safety,orderly operation and security.of the facilities.•',
:...'1...;:.1..:':'!', :-.::::',:.:.k:14.'.:;i1,.:-, :::•:‘,:',:'!•-;:;',.....'•;..,•••:,•...',:;•::.•,...::::..:•;:::.,.,•'...33:2 'No Discrimination m' Employment; Affirmative Action.::.. In..connection with: the
. •performance of work under.this-Agreement,:TRF shall not refuse.to •hire, •discharge,refuse to promote.or
demote,or.to•discriminate,in••matters;of',compensation against,:any'person.otherwise .qualified, solely
t ? because of•race,,'color, national origin,•religion, sex,intersexuality, gender i•denti•ty, sexual orientation,
i "marital'and familial status andage or disability. :
•
SECTION 34 [INTENTIONALLY DELETEDI. •••• •••
SECTION 35.•LIMITATION OF LIABILITY. .
i The City desires to!enter into this Agreement only if in so doing the City can place•a,limit on its
liability for'-any cause.of•`action for money damages due to an',alleged breach•by the .City of this•'
Agreement, so:that its liability.for any such breach"never exceeds the sum of.$10,000. TRF hereby.'
expresses;his willingness to enter into this Agreement.with TRF's recovery.from the City.for.any damage
of 868 .
. ._ • P
age 25 of 41
' _. IT
MANAGEMENTAGREEMENTBETWEENCYANDTRF,.; ;;.;;: • ;:.,:.:
-FOR THE MGMT OF THE NORTH SHORE BAND SHELL
• r •
.action for breach'of contract to•be limited to a maximum amount of$10,000;.less the amount of all'funds
actually paid by the City to:TRF•pursuant to this Agreement. • •
Accordingly,'and notwithstanding•any other term or condition.of this:Agreement, TRF hereby:.
agrees that:the:City shall not be liable to TRF for damages in an amount.in excess of$10,000, which •
amount shall be reduced by the amount actually paid by the City to TRF ursuant to this Agreement, for ^
any'action'or claim''for breach of contract'arising out of•the performance or:non-performance of any
• obligations imposed upon'the Cityby this Agreement:Nothing,contained in this•paragraph or elsewhere "'
in this-Agreement is in any way intended to be a.waiver of the limitation placed upon the City's liability as
set forth in Section 768:28,Florida Statutes. • • • •
SECTION 36. NOT A LEASE. :. :..:.:
Itis:expressly understood and agreed that no part,parcel,'building,structure, equipment or space .
„,:'•,is leased to:TRF;that this Agreement is a mana ement a eement'and not a lease;'and that•TRF's right to :: ,:
'� • ' g ?
operate•and manage the Facility shall'continue only so long as thef TRF.complies with the undertakings,-•
•- r
Povisions,agreements, stipulations and conditions of this A eement.
� sti P
SECTION 37: MISCELLANEOUS.
37.1 .` :-Venue/Waiver`of.Jury Trial. 'This Agreement=-shall.be governed by,:and:construed in
accordance with,•the:laws:of•the•State of Florida, both substantive and reinedial;•without:regard:to.
principals of conflict of laws., The exclusive venue for any litigation arising out of this•Agreement shall
be Miami-Dade County,Florida;if in state court,and the U.S.District Court,Southern District of Florida;
if in federal court::BY ENTERING INTO THIS AGREEMENT,CITY AND TRF EXPRESSLY WANE
!'ANY.RIGHTS EITHER PARTY MAY HAVE TOA TRIAL BY JURY OF ANY:CIVIL LITIGATION: ••
RELATED TO OR ARISING OUT OF,THIS AGREEMENT.
37.2 No Partnership.'or Joint:Venture. Nothing:,herein'contained is intended or shall be
construed in anyway to create or establish the relationship of partners or a joint venture between the City
and TRF 'None.of the officers;agents or employees of TRF shall be or be deemed to be employees of the "
City for any purpose,whatsoever. :•
•;:',37.3 Entire'Agreement. This,Agreement and all Exhibits attached hereto.contain"the,entire
1 agreement between .the:parties with 'respect_ to the subject matter hereof. and supersedes all :prior
agreements, understandings,:proposals or other expressions of intent'with respect thereto. The Exhibits
attached hereto are'incorporated into arid'made 'a part of this Agreement. No.other agreements,
• representations; warranties or other matters, whether oral or written, will be deemed to bind the parties
hereto with respect to the subject matter hereof.
'37.4:. Written Amendments. This Agreement shall not be altered modified.or`amended•.in;
whole or in part,:except in writing executed by each of the parties hereto. The City.Manager,on behalf of
.• Page 342 of 868 '•'
Page 26 of 41
,
MANAGEMENT AGREEMENT BETWEEN CITYAND TRF.
; ..
R THE MGMT OF THE NORTH SHORE BAND SHELL . • ::.�' •' .:
City,shall have authority to approve any.changes to this Agreement. .. •
::Bindin `e on Su
•.�;,;.,,. :• ,,.: g p sors and Assigns No Third-Party•Beneficiaries.� ••
tees
37 5 1 This Agreement and the,rights and obligations set forth herein shall inure
benefit of, and-be binding upon, the Parties'hereto•and•each of their respective permitted successors and
permitted assigns .•.
• 37:5.2 •.•This Agreement- shall not be construed'as ••giving •� � .. •
another than the
:' parties hereto and their•successors and ermitted assi
right, remed or claun
�� any legs 'equitable Y •'
P
••; ••under oi:iii respect;of this Agreement or any of the provisions'_herein contained,.this Agreement'and all`.' '.: •
iprovisions and conditions hereof being intended to be, and being, for the sole and exclusive benefit-of
suchparties:and t•heir success•ors and•perrn•it•ted:assigns•and•for the benefit of no o•
ther person or entity.
37.6.•••.' Section Headings and Defiried'Terms: The headings contained:herein are for:reference.:
PSP
•y of in'any way affect the meaning,and•interpretation:of this Agreement The••
oses'Only and shall n
•
terms defined herein-and in any agreement executed in connection herewith sin-chide the plural as well as
• tlie:singular and the singular-as.well•as the plural, and the use of•masculine 'pronouns shall include the. "
feminme'and neuter•.Except:as otherwise indicated,•all.agreements defined hmem'refer to the same as.
from"time to time amended or..supplemented or the terms thereof waived or.modified in accordance;
herewith and therewith.
This Agreement maybe executed in two•or:more counterparts, each of which'shalt be deemed'an.;:'
• ongmal copy.of this Agreement;and all of which,'when'taken•together;.shall•be deemed to constitute but
.
one and the same agreement.
377 ; Severability :The.invalidity or unenforceability of any particular provision, or part of any.,::`
provision,of this Agreement shall not affectthe other provisions:or parts hereof,and.this Agreement
be construed in all respects as if such invalid or•unenforceable-previsions or parts were omitted
•-• :•A
37.8 • Non Waiver: failure by either•party to take any action with respect:to'any default• or
:.
iviolation-b the other Of-anyof.the terms,..covenants or conditions of this A r eement shall not in an
i :.. 'respect limit;-pre udice,dmunish;'or constitute a waiver of any'ri is of such part tosact with res ect to •
an nor; contemporaneous,• or subsequent violation or default;or:with•respect;to any continuation,or
repetition of the origmal.violation or`default:
37.9 Certain•Representations•and•Warranties. ' .
'37 9 1 : The City represents;warrants, and_ covenants to TRF thes.following: (i)City has
full le al
.right, power!and;authori to enter into `and erform:its obli ations'hereunder,.and ii this
gtY• P g (•�)
_ ,: •.dul execthe--City and `constitutes :a:.valid.and'.binding
obligation•of:the;City,:enforceable in accordance with its terms,•except as.such enforceability may.be
insolvency,,:;; � ':�:; :" :.:.:,; linuted':b �bankru •tc ,reorganization or similar,laws affectmg creditors'. • g , .. y
. by general.equitable•principles."•.
37.9.2 :TRF represents and,warrants to•the City the following: (i) TRF has full`legal
Page 343 of 868
. Page 27 of.41. ° •.
MANAGEMENT AGREEMENT BETWEEN CTTYAND TRF
..:::.. . .,._ • •.. . :... ... ;. •FOR THE MGMTOF.THENORTH SHORE BAND SHELL
• .
•
.•: •••: right,:power.and'authority to'enter.into and perform its obligations hereunder and(ii):this Agreement has
been duly executed• and delivered by TRF and constitutes a valid and binding obligation of
enforceable in:accordance with its_terms,•except as such'enforceabih May be limited by bankruptcy,
insolvency, reorganization or.similar laws affecting;creditors',rights generally or by general.equitable.
principles:
37.10 ;Governing Law. This Agreement•will be governed by-and construed in accordance with.:: :
the internal laws of.tlie State.of Florida, without.`giving effect...to:otherwise applicable principles;:of
conflicts'of law. •
SECTION 38:TRF'S COMPLIANCE WITH FLORIDA-PUBLIC RECORDS LAW. •
'Pursuant to Section 119.0701 of the Florida.Statutes, if TRF meets the definition of"Contractor"
.1.• as-defined in Section 119.0701(1)(a),the Concessionaire shall::
Keep and maintain public recordsGhat ordinarily and necessarily would be a . , required by
.. . .
thePublic a encyinOrder to perform the serune
e;
. •
•
•
:. :; b),. :: Piovide.the public with access to public records on the same:terms and conditions that the
..'' •public•agency.would 7pixiVide the records-and at.a cost`that does not exceed the'•cost : "' •
in hiha aw;-'
Provided t s c pfer or as otherwise provided by 1 ,•
c) . Ensure that •
public:records that are .exempt or confidential'and exempt from.public •. _ • •
�c.;;•:., .;:.,: records disclosure requirements are not disclosed.except as authorized bylaw,and - :"'
• d) :'Meetall,requirements for retainingpublic records and transfer to he,City,at.no City cost;
: all•public records created,received;maintained and/or directly related,to the performance
of tlns`Agree•ment that are in possession'of TRF upon terminationof this Agreement.; '' .
UP on'termination'of..this Agreement; :the:Concessionaire 'shall:`destroy:.:any duplicate ' ::
.
public records that are exempt or confidential and exempt.from.public•records disclosure .
requirements::All records stored electronically musf be provided to the Crty. a format';
that is compatible with the information technology systems of the City.;
' For purposes of this Article the term"public:records" shall'mean.all'documents,papers,'letters,
m• aps,:books, tapes, photographs, films, sound recordings; data processing software, or other material,
e ursuant'to; ,;
.:' regardless:of the physical form;'characteristics; or meads of transmission,.made'or receiv d •
.p
.,; ;:
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF ,
:' FOR THE MGMT OF THE NORTH SHORE BAND SHELL
::::;:1.1::':::1..:'''':::::'::;:;;.:''''''.:ii:•••••:,...•SECTION 39:PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE
FOOD SERVICE ARTICLES
.
.:::'.1'..::::::•....',...... ..1.:,,......1.:'.,•:..,..":ri.;;;„.',::.,'.;
Pursuant.to Section'82-7.of•the City.Code,•"as'.inay be amended from time::to time, effective
'.'1':'."':"1.::."'::i::!:!'::1:'''::' "..::'
August 2, 2014, the Cit has prohibited-the•use of ex anded: of st ene'food service articles b Ci
,. y p- P P Y Yr Y tY.
Contractors, m connection with'any.City contract,,lease, concession agreement or Special event permit.:,
E.;'....i.'!".:;!'.. ....:•:::;...::•:.'j''.'.......!:....';''''.'e.:'.'•.....-....;Additionally, pursuant.:to..Section 82-385•of•the City.Code, as may.be amended from time to tune,no•:•:•'. . :;' f
polystyrene food service articles will be allowed in'the right-of-way, and no polystyrene food service", ..
', articles can be provided to sidewalk cafe patrons.,
1:i.i.?••••••••:iii;!:':!..,r....,:isil.:.i.:..:.:..1:,.;:::::..::.::'.::::';'''''.: ::..
P p y .
Ex anded of� r
s ene is a petroleum byproduct commonly known�as'Styrofoam: Expanded polystyrene �•:
:is more particularly defined:as blown •polystyrene and expanded .and• extruded foams that are .
.: : " :;therE.moplastic... etrochemical'materials utilizin� -,.,a ene,monomer.and rocessed b... an :number,of.....,........„.....-::::.i.:::,•;,::;.;;:
:::::
� • P g Y Y � :
r • •
techniques"including,'but:°not limited••to,•fusion of•polymer'spheres.(expandable bead'•foam),• injection
:::'...:;1':':':::;:....:1';::::: ...:'::::::'.:::11:'''....,''.1'...':.i.;'-molding;foam molding,and extrusion-blown molding(extruded foam polystyrene).
..:...-.;:„...,....,....,.: :.........:,..............:!,...........i...i.,:::::.„...:‘.....,...,7:::i........,....;,......:.i........:.,.... ...,.:..,i..;:.:;,,,,,:::1...i:Ji..,......:.....,::::.
j Expanded polystyrene food's•ervice articles means plates, bowls;cups, containers, lids,'trays,:coolers, ice
, :....:, .: •. ..
chests,and.all similar articles.that consist of eic�anded of s ene: : ,.• ...:: •:: . . -;... . < , ;,: .. :...
P_ .... P. Y
•
::::..1:)1.,.::1!:::..::...::„.,..1:.!.1I1".'•:,:::'..;‘:::':.;,:':
Additionally,'Concessionaire:agrees to•comply(and ensure compliance by its vendors)•with Sect•ion 46=92'
(c)of the City Code, which,states'that•it is unlawful for:any person to carry expanded•polystyrene:'
' ' product onto any beach'or into any park within•the City or for any business to provide plastic straws with
j , tlie'service;or delivery of any:.beverage to patrons on the'beach. .. -
l'i:'•,,i,::;:':.ill'...:::!.:,:',..1.,':;:.::•;•:,:s'i:,...:il':::.:,:::!;:,. ."1::::.1.::::::::'',,,:'1.
TRF•agrees not to sell,use,provide food m,'or offei.the use *Of;expand ed.polystyrene food service articles
at the Facility or m connection with this Agreement TRF shallensure that all vendors operating in the"
:Facility abide by:the restrictions contained in this Section.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'
f service articles used for.prepackaged.food that have been filled;and seal•ed.... ..,.::,7::::7.........,........,77....,.,...:;it by the TRF or.:
its•vendors
_ •
.
SECTION 40 COCA COLA
'.` '`` : The..,City has entered into an agreement with Coca-Cola Bottling,'effective:September 1 2011.
Septemlier.1, 2021, to. be the exclusive provider of non-alcoholic beverages and coffee products •.TRF:°-,.:::,.....,....i.::::::::...!!.:::::::,...:.....H.....,'.
shall only sell Coca-Cola beverages as listed in the attached Exhibit"G"and•as maybe updated from e,........,..!:...,..,::.:.....:..:..'..r..:,:,:.',:.'..-,;:,:::-... ,:::::,.
j to time.
.
Page 345 of.868
Page 29 of 41 '
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
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
F
!�, ,
1 / -
2 j. . ...wir ih "'
Rafael E. Granado, City 40:60"4 �\ B q4t Philip Levine,Ma}or 7' ,
{ rzi /
's"-` '
0 :INC RO P )ORATED-
.4011
STATE OF FLORIDA� ) `g ... r ,
fir"
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this /9 day of ��(Jrwa/2-/ , 2015, by
Mayor Philip Levine, Mayor, and Rafael E. Granado, City Clerk, or their designees respectively, on
behalf of the CITY OF MIAMI BEACH, known to me to be the persons described in and who executed
the foregoing instrument, and acknowledged to and before me that they executed said instrument for the
purposes therein expressed.
WITNESS my hand and official seal,this /9day of 74°19 .1ri- , 2015.
4 ale
Notary Public, State of Florida at Large APPROVED AS TO
FORM & LANGUAGE
Commission No.: & FOR EXECUTION
My Commission Expires:
D i (1/4------- ;_--,ti— (5
%' lJUA CAaD1LLo City Attorney ✓' ( a"'to
TiMY COMMISSION#FF 155322
�. . s_ EXPIRES:August 27,2418
'r `4`�'
,i '` Bonded ThruWary Pub Under/eters
Page 346 of 868
Page 30 of 41
MANAGEMENT AGREEMENT BETWEEN CTCV AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
Attest: The Rhythm Foundation,Inc.
Name/Title Laura Quinlan, Executive it \ /
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this J Z day ofrrr.n' , 2015, by
Laura Quinlan, as Executive Director and , as
on behalf of The Rhythm Foundation,Inc., known to me to be the persons described in and who executed
the foregoing instrument, and acknowledged to.and before me that they executed said instrument for the
purposes therein expressed.
WITNESS my hand and official seal, this 1 Z day ofrLCL , 2015.
perex-en'
�- mbar
Tatt
Notary Public, State of Florida at Large •= >xsana on4F7087923
'� iSy Expires:JAN.30,2018
Commission No.: �.,,,,,n HN®TARY.oat4
My Commission Expires:
Page 347 of 868
Page 31 of 41
MANAGEMENT AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
THE RHYTHM FOUNDATION,INC.
FOR THE MANAGEMENT OF THE NORTH SHORE BAND SHELL
THIS AGREEMENT, is made and executed as of this day of , 2019 ("Effective
Date"), by and between the CITY OF MIAMI BEACH, a municipal corporation organized and existing
under the laws of the State of Florida, whose address is 1700 Convention-Center Drive, Miami Beach,
Florida 33139 ("City"), and THE RHYTHM FOUNDATION, INC., a,-Floda not-for-profit corporation,
whose principal address is 407 LINCOLN ROAD#6E,MIAMI BEACH,`FL 3:3139 ("TRF").
RECITALS';: .._. \. :\
WHEREAS, City is the owner of the North Shore.Band Sliell, located at 7275 Collins Avenue,
),
Miami Beach, Florida 33141; and which is more particularly. described and depicted'in Exhibit"A,"
r
attached hereto and made a part hereof(the"Band Shell"or thet`Facility"); and
WHEREAS, TRF is a Florida not-for-1)4.0,4 (501(c)3) arts organization which seeks to increase
international awareness and cultural exchange,through thepresentation of live music and related media
\
programming; and
WHEREAS, on Apn1 723, 2014, the City,,;is'sued Invitation'to Negotiate No. 2014-215-LR\for
:.� sar
Band Shell Management Services(the"1 \TN"); and
WHEREAS;'on`September 10,2014, the City°\Cori mission adopted Resolution No. 2014-28722
I/
authorizing the administration to negotiate with-TRF,,as'the top-ranked proposer pursuant to the ITN, for
the management'and operation of the Facility; and
/WHEREAS, (Pending Commission Action_)
WHEREAS, City desires,to engage TRF, and TRF desires to accept the engagement, to provide
management services for the Facility on the terms and conditions set forth herein.
1' f
NOW TIIEREFORE,Irecognizing the aforestated recitals as true and correct and incorporating
herein, and in consideration`of the mutual covenants and conditions herein contained, it is agreed by the
parties hereto as follows`>
SECTION 1.DEFINITIONS.
For purposes of this Agreement, the following terms have the meanings referred to in this
Section 1:
"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
Pagg348o4868
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
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 body of the City.
"City Manager" -- the chief executive officer of the City, or such person who shall be the City
Manager's designee, as defined below and as may, from time to time,be authorized in writing by the City
Manager to act for him/her with respect to any or all matters pertaining to this Agreement. City Manager's
designee shall be the City's Parks and Recreation Department Director.
"Commencement Date"--as defined in Section 2. '. '`•.
"Contract Year"--each one year period beginning October 1st,and'ending September 30th.
"Effective Date"—provided that this Agreement has been exeeuued by,City and TRF, the date set
forth in the first paragraph of this Agreement.
"Event" -- all uses at the Facility which involve a,schediiled show with a;beginning and ending
time, typically all within the same day. With respect to a."Series":(as such term is hereafter defined"),
each show within the Series shall constitute an Event. :'
•r
"Event Expenses" --any and all expenses incurred or paynients made by TRF in connection with
the occurrence of an Event at the Facil4\4including, but not limited,to, costs for staffing, and costs
relating to set-up and clean-up. k
., ^
"Expiration Date"--as defined in Section\2
\`\
"Facility" -- as defined-in-the BackgroundrSection of this}Agreement, and as depicted in Exhibit
"B"hereto, ./
"Facility Rentals" =',temporary1use of the Facility.at specific interval of time pre-determined and
agreed upon by TRF. %;"
"FiscalAYear"--each City fiscal yeareginning October 1st and ending September 30th.
%/"Governmental Requirements." all Jaws, ordinances, rules, regulations, statutes, policies and
procedures (including administrative guidelines), and other legal requirements of any governmental body
or authority or agency thereof(including,without limitation,federal, State, County, and City).
1a
"Net Operation Loss/Profit" -- with respect to a Fiscal Year, the excess, if any, of Operating
Expenses for such Fiscal'Year)o'ver Operating Revenues for such Fiscal Year, in the case of a loss; and the
excess, if any, of OperatingRevenues for such Fiscal Year over Operating Expenses for such Fiscal Year,
in the case of a profit.
"Operating Expenses" -- any and all expenses and expenditures of whatever kind or nature
incurred, directly or indirectly, by TRF in operating, managing, maintaining, and promoting the Facility
including, but not limited to: employee compensation , employee benefits , supplies, materials, costs of
any independent contractors, advertising costs, all costs of maintaining the Facility (as required by this
Agreement),marketing and public relations costs and commissions,janitorial and cleaning expenses, dues
and membership costs, amounts expended to procure and maintain permits and licenses, sales taxes
Page 349 of 868
Page 2 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
imposed upon rentals, professional fees directly relating to the operation of the Facility, printing costs,
Event Expenses, postage and freight costs, equipment rental costs, computer equipment leases and line
charges, telephone and telecommunications services, artist and talent fees, show settlement charges,
security expenses, travel and entertainment expenses in accordance with TRF's normal policies, the cost
of employee uniforms,safety and medical expenses, exterminator costs, costs relating to the maintenance
of signage, costs associated with compliance of Governmental Requirements, all premiums for insurance
carried by TRF 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 TRF, or,ariy,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,
/ N'
managing or promoting the Facility including, but not limited to 'concession fees,,rentals,revenues from
merchandise sales, advertising sales, equipment rentals,box office revenues, food service and'concession
revenues (However, if such revenues are collected fib the first ,instance by and retained by the
concessionaire, only the amount of such revenues paid by the`concessionaire to TRF 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
a� ,.
subcontractors, only the amount of such revenues paid-by stich,contractors to TRF shall be included as
4 to
Operating Revenues), revenues-generated from separate agreements with TRF Affiliates pertaining to the
4 p
Facility, interest revenues; and any`,other miscellaneous ope'r'ating revenues; all as determined in
accordance with generally accepted accounting principles,consistently applied and recognized on a full
accrual basis. For the sake of clarity,:the parties acknowledge that revenues from the sale of tickets for
Events at the Facility are not'Operating Revenues, but are instead revenues of the promoter and/or
performer,of each such'Event: To the extentthat TRF collects such ticket sale revenue on behalf of a
prom ter'and/or performer, such'ticket sale revenue shall be the source of funds from which TRF collects
the rental charges and other event;reimbursements owed by the promoter and/or performer for use of the
Facility, which such, charges i and reimbursements are Operating Revenues hereunder. Operating
Revenues shall also not.include any revenues from name-in-title rights (i.e.,the right to name the exterior
or interior of the Facility-or any portion thereof, except as set forth in subsection 8.3 hereof), and any
signage related thereto,all of which are specifically reserved to the City.
;`Proposal Documents" shall mean City of Miami Beach Invitation to Negotiate No. 2011 215
..
-..
incorporated and made a part hereof; provided,,however, that in the event of an express conflict between
Agreement;_the ITN;and the Proposal,"
Page 350 of 868
Page 3 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
"Quarterly/Quarter(s)"—October 1st, January 1st,April 15t and July 1St of each Fiscal Year.
"Series" -- a sequence of Events which may or may not involve the same production elements,
but can be characterized by a unifying theme and schedule.
"TRF"--as defined in the first paragraph of this Agreement.
SECTION 2. TERM.
2.1 Initial Term. _ This Agreement shall be for a_period of five (5) years, commencing on
October 1, 2019 (Commencement Date), and which shall end on September 30, 2024 (Expiration Date);
unless earlier terminated pursuant to the provisions of this Agreement ,/I/
2.2 Renewal Term(s) At its sole option and discretion, the City, through its City
Manager, may extend this Agreement for two (2) successive two(2)year terms (each a"Renewal Term")
by giving written notice to the Manager of-such intention not less than ninety (90) days prior to the
expiration of the Initial Term or an exercised Renewal Term The Initial Term and any successive,
Renewal Terms,if approved by the City Manager,umaycollectively be referred to as the"Term"'
2.2.1 Notwithstanding anything in this Sectionv2, in the event TRF decides not to
renew the Agreement, it shall provide the City Manager with written^notice of its intent not to renew at
least 365 days prior to the Expiration Date, or,ninety (90) days written noticeprior to the expiration date
of the then current Renewal Term, as the case may
t r,; 4"/
SECTION 3. NORTH SHORE BAND SHELL. ` `z J/
• \
The Facility<subject to this Agreement shallt be those facilities and spaces more specifically
described in Exhibit"A."; r y"
SECTION'4. OPERATIONkAND MANAGEMENT OF THE BAND SHELL.
(,
41'x General Scope.",City hereby engages TRF to operate, manage, maintain, promote and
market theFacility during the Term,upon the terms and conditions hereinafter set forth.
j
4.2 Manager of the,Facility. TRF accepts the engagement and agrees to operate, manage,
maintain, promote and market,the Facility, at a minimum, in a manner and quality consistent with the
Comparable Facilities defined in Section 5.1 hereof. Subject to the terms of this Agreement, TRF shall
be, as agent for the City, the sole and exclusive manager of the City to operate, manage, maintain,
promote and market the Facility during the Term. In such capacity, except as otherwise expressly
reserved under this Agreement to the City, and/or except for such matters as are subject to the approval of
the City or City Manager, TRF shall have exclusive authority over the management and operation of the
Facility.
4.3 Permitted Uses. TRF shall use the Facility solely and exclusively as a venue for its not-
for-profit cultural presentation company. The Facility shall be used primarily as a venue for top-quality
Page 351 of 868
Page 4 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
cultural entertainment. The venue may also be used as a live theatrical entertainment venue and public
auditorium, or any combination thereof, and for such ancillary uses as are customarily related to such
primary use including, without limitation, broadcasting, recording, filming, private parties or functions,
food and beverage concessions; in each case in conjunction with an Event then being held; and sale of
merchandise related to any Event then being held. TRF shall be responsible for ensuring that any
requisite special event permits, which the City of Miami Beach may require for Events at the Facility, are
properly secured. Such uses shall include only the following:
a. Performance venue J"•
,.
b. Events facility •
c.Rehearsal space \
d.TRF administrative offices;
e. Food and beverage concession
f Sale of merchandise related to an Eventfthen being,held; I �. •>
g. Private parties and/or functions in conjunctions with an Event then being held;
h.As an ancillary use,third party rentals as may occur from time to time;
i. Facility for film/television%photographic/audio productions;
e \ :.ti
The Facility does not include dedicated parking forfthe building. Patrons;of'Events may park in public
parking lots and garages if and to the extent available,upon paying the)
applicable parking charges. No
other uses shall be permitted without the prior writtelvapproval bf the'City Manager, which approval may
be granted or withheld in'his solediscretion.Any such other use which the City Manager approves must,
however, be in accordance with (i) the Articles of In orporation and other charter documents of TRF; (ii)
all laws and regulations applicable to :;not for-profit entities; (iii) all applicable Governmental
Requirements,:and(iv) all.ad valorem,,tax exempt uses of property under Chapter 196,Florida Statutes.
4 4` Prohibited Uses It is understood and agreed that the Facility shall be used by TRF
during the'Term only for the stated purposes'in Section 4.3, and for no other purposes or uses whatsoever,
without express written permission of the City Manager. Notwithstanding anything contained in Section
4.3, or any oth 'term or condition of this Agreement: (1) TRF will not make or permit any use of the
Facility that, directly:4or:--indirectly, is forbidden by any Governmental Requirement, or that may be
dangerous to life, limb or iiroperty; and (2) TRF 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 Governmental Requirements). In the event that TRF 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 TRF.
Page 352 of 868
Page 5 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
4.5 Operational Rules for Facility.
On December 17, 2014, the City of Miami Beach Commission passed Resolution No. 2014-
r-
28874,
014-
T28874, attached as Exhibit"H";hereto, requiring certain operational guidelines for the Facility, including
the following:
4.5.1 Amplified Sound and Live Entertainment: The City will be installing an audio
sound system designed to maintain the audio levels at a maximum level of 105 dBC ("House Sound
System"). TRF will only be permitted to use such House Sound System in connection with any Events
held at the Facility and, at all times,the sound levels may not exceed 105dBC:Additionally,TFR shall be
O K
responsible for ensuring that users of the Facility do not use temporary;sound equipment for any Event
held at the Facility.
4.5.2 Facility Hours of Operation: 10:00 am tq 10 00 pm.; provided, however, that the
� � a
City Manager shall have the discretion to extend the hours of operation on a case by case basis to 11:00
pm on the weekends (Friday or Saturday) and to 12:30 am on New Year's Eve,' Any extension of the
hours of operation under this Subsection 4.5.2 shall be given in',wrnting by the City Manager in advance
of the scheduled Event. ``
._F ti
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
s
forth in Section 4.3, and in the event that another;particular-iise(s)--and/or business activity(ies) has(ve)
n '\ ,/
been approved by the City Manager, and the City Manager thereafter',upon reasonable inquiry, determines
that the continuation o 'such use(s) and/or activity(ies)wis(are), or may be, inconsistent, contrary to, and/or
,,_
detrimental to the Permitted.Uses set';forth in this Agreement, and/or to the health, safety and/or welfare
of the residents-of-and.visitors to the City oLMiafhi Beach, then the City Manager, upon thirty(30) days
prior written notice to-TRP\,of same, may revoke,suspend, and/or otherwise disallow the objectionable
uses(s)'andlor business activity(ies), and TRF shall immediately cease and desist in providing, and/or
continuing .with, said use(s) `and/or business activity(ies) within the time period and in the manner
prescribed in the:City, subject to;such additional guidelines, as may be determined and established by the
City Manager,in his/her sole arid reasonable discretion and judgment.
f
SECTION 5. SCOPEOF SERVICES.
5.1 General. TRF shall perform and furnish management services, personnel, and systems
and materials, as are appropriate or necessary to operate, manage, supervise, maintain, promote and
market the Facility in a manner consistent with the operations, management,promotions and marketing of
other similar first-class facilities such as Daytona Beach Band Shell in Daytona Beach, Florida, and
ArtsPark Amphitheater in Hollywood,Florida("Comparable Facilities").
Page 353 of 868
Page 6 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
5.2 Required Number of Events; Reports; Continuous Operation; Conclusion of Events. In
order to ensure the continuous operation of the Facility and, commencing as of the Effective Date, TRF
shall cause at least 35 Events to be held at the Facility for each Contract Year during the Term. The
aforesaid 35 Events shall be calculated by counting each separate Event in a Series.
5.2.1 Annual Benchmarks
5.2.1.1 TRF shall operate a minimum of 35 new Events per year at the Facility
(The City's Movie Nights shall not count towards the benchmark.) These 35 new Events shall take
precedence over any private rentals of the Facility. Since TRF will not commence to operate the Facility
until after the Effective Date of this Agreement (instead of October 1, 2011) and the City has been
operating the Facility and presenting Events prior to the Effective Date,during the first year of the Initial
. I . . .
5.2.1.2 In addition to its own,produced Events, TRF shall collaborate,with other
cultural and quality presenting organizations to develop consistent Events at the Facility.).
5.2.1.3 TRF shall create and implement consistent marketing materials,
including, but not limited to, public relations, social media campaigns, and paid marketing outreach, to
ensure that both the North Beach community-.and South Florida residentss in general are aware of
-
4t \ y
programs taking place at the Facility. A detailed,plan and budget illustration marketing efforts will be
submitted Quarterly, within fifteen,(15) days fron the end of each Quarter, with the first report due (for
the January,2020 Quarter)on or before April 15,_2020!
5:2.'1.4 TRF`slall survey Event goers and community businesses to ensure that
TRF's programming at the Facility continues-;to benefit,North Beach residents and businesses, as well as
Miami Beach residents as a whole Survey questions shall be approved_in writing by_the City Manager
in advance_;The overall'satisfaction target shall be 90%. Surveys must be conducted in a format which is
auditable. •. •• • -
City Manager `
5.2 1 5 1 TRF shall submit to the City, every Quarter,within fifteen(15)days from
the end of each Quarter, coriimencing with the January, 2020 Quarter, a detailed report ("Programmatic
Quarterly Report")setting forth the following information:
i. The number of Events hosted during the previous Quarter,
including the charge to the public for the event, if any.
ii. The number in attendance at the Event.
iii. The number of Facility Rentals and the charge for said Facility
Rentals.
iv. A detailed plan and budget illustrating the marketing efforts.
Page 354 of 868
Page 7 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
v. The Events scheduled or anticipated for the upcoming Quarter.
5.3 TRF 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 alterations. All Events
and all uses shall conclude prior to 10:00 p.m. on weeknights, and may be extended to 11:00 p.m. on
weekends (Friday and Saturday) and 12:30 a.m. on New Year's Eve,' if approved in advance by the City
Manager, in writing; provided, however, that TRF's employees and/or contractors may be permitted to
remain at the Facility beyond 10:00 pm on weekdays or 11:00 pm on weekends, however, no later than
midnight in the event that same is necessary for purposes of taking down andlor:dismantling a production,
cleaning the Facility after a performance, etc., so long as TRF's activities`at the Facility during this time
do not disrupt and/or negatively impact the surrounding neighborliodd. In;the.event of such disruption,
the City Manager shall have the right to either strictly enforce the hours'_,of;operation, or impose
reasonable guidelines upon TRF as a condition to keeping/the Facility open for theaforestated purposes
(beyond 10:00 pm) TRF SHALL PROVIDE SURROUNDING CONDOMINIUMS`WITH 30 DAYS
`' 1,
ADVANCE WRITTEN NOTICE WHEN SCHEDULED.EVENTS WILL INVOLVE AMPLIFIED
SOUND.
5.4 Booking Policies. The City,:and TRF agree and acknowledge that the Facility will be
primarily used by TRF to provide top-quality cultural`and entertainment'to the City's residents and
visitors, but that TRF may also,._from time to time, rent the Facility to third party presenters consistent
with the terms herein. Except as otherwise provided herein,TRF-shall have the sole authority to approve
" u , �\
the scheduling of any.Ever t\in the Facility and Events`trequiring or having co-promotions and may refuse
to book any type or categoryo f Events for--any reason whatsoever, so long as the event is consistent with
Section 4 of this Agreement and`applicable Governmental Requirements. TRF shall have no obligation to
book any type or category;of Events`(or specific Event) that are inappropriate or unprofitable, as
reasofiablyi determined by TRF, or which may in any way interfere with the day to day activities of area
•
residents and;businesses. Notwithstanding the preceding, or any other term or condition of this
Agreement, the``-City:Manager'shall have the right to prohibit certain Events or uses from occurring
/
at the Facility, upon"the qty Manager's reasonable determination that such Event or use might
present unreasonable `1Nsafety concerns, or violate (or otherwise not comply with) Governmental
'
v-
Requirements. Notice of any such determination shall be sent by written notice to TRF within thirty(30)
days after the City Manager has received the Quarterly booking report from TRF that specifies the
potential Event.
5.5 Specific Services. Without limiting the generality of the foregoing,TRF shall perform all
of the following services, all without the necessity of first obtaining City's approval (except where
otherwise expressly required in this Agreement), and all of which shall be performed by TRF, at a
minimum,in a manner consistent with the management and operation of the Comparable Facilities:
Page 355 of 868
Page 8 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
5.5.1. employ, supervise, and direct all employees and personnel consistent with the
provisions of this Agreement. All employees and/or subcontractors shall be employees and/or
subcontractors of TRF, its Affiliates, or third parties,and not of City. TRF shall be solely responsible for
assuring that the Facility is adequately staffed with competent, qualified personnel to fulfill its
responsibilities under this Agreement;
5.5.2. administer relationships with all third parties (including, without limitation,
entering into contracts and licenses for the food and beverage concessionaire at the Facility) for the use,
day to day maintenance and operation of the Facility, initiate and participate`in,any and all negotiations,
renewals and extensions relating to such third party relationships, and'enforce contractual agreements
concerning any such third party relationships;
5.5.3. negotiate, execute in its name as agent for the:City, deliver and administer any and
all licenses, occupancy agreements, sponsorship agreements,(excluding name-in-title agreements), rental
agreements, booking commitments, concession agreements (excluding valet parking, agreements),
supplier agreements, service contracts (including, 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 seryices which are necessary or appropriate, and all other
contracts and agreements in connection witlfilie management, maintenance,promotion and operation of
l
the Facility; provided that (1) if any such license, agr` m
eeenmnu
t,,cotment or contract has a term that
extends beyond the remami ig Term, such license;`agreement, commitment or contract shall provide that
it is automatically assignedto City�Yas'of the expiration or termination date of this Agreement 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) TRF 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 TRF and ay subsidiary and/or Affiliate company shall be at terms and
for prices customarily charged by such`isubsidiary and/or Affiliate company for comparable goods and
services elsewhere at rates that;are competitive within the industry;
maintain; the Facility (excluding all structural components thereof and
maintenance and replacement of all electrical HVAC, life safety, mechanical, plumbing and other
systems and equipment)iiia good and clean condition consistent with other Comparable Facilities and in
compliance with all Governmental Requirements, ordinary wear and tear, and casualty loss excepted.
Maintenance responsibility shall include, without limitation, preventative and any and all other
maintenance and as required in Exhibit"B";to this Agreement(entitled"City of Miami Beach Minimum
Specifications for Maintenance of the North Shore Band Shell"). TRF shall keep on-site maintenance
manuals and records reflecting all of TRF's maintenance activities, all of which shall be available for
inspection by the City Manager or designee upon request. TRF shall submit to the City Manager or,
designee periodic (not less than Quarterly) reports specifying all maintenance work performed during
Page 356 of 868
Page 9 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
such period, which reports shall be used by the City's Parks and Recreation Department as part of an
annual City maintenance inspection and review, • • • • • • • • • • : ,
. . iv . «. • . . .
•
•
•
5.5:5 rent, lease, or purchase all equipment and maintenance supplies necessary or
appropriate for the day-to-day operation and maintenance of the Facility;
5.5.6 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 TRF in
the course of its management, operation, booking and promotion of the Facility. The prices,rates and rate
'schedules for the rental of the Facility, set forth in the attached Exhibit "C", have been approved by the
City Manager or designee. Any subsequent change to the rates,or rate schedule.shall be submitted to the
_ :\
City Manager or designee for review and written approval,,prlor to'TRF's implementation of same;
5.5.7 pay when due, all Operating Expenses from<TRF's own funds;:,,
5.5.8 after consultation with the City Manager and..the City Attorney, and subject to
=> t
approval by the City Attorney or his designee, institute as agent for the City, the costs of which shall be
included as Operating Expenses, such legal'--tions or proceedings'necessary or appropriate in connection
with the operation of the Facility (using legal`counsel-`approved by the CityAttorney), including, without
limitation, to collect charges, rents or other revenues 'dile to`the„City or'to cancel, terminate or sue for
damages under, any license, use, advertisement or',Concession agreement for the breach thereof or default
\
thereunder by any licensee user;advertiser, or concessionaire at'the Facility; institute on TRF's a own
`t ,
behalf(and not as agent`-for City) without consultation`or approval of the City, the costs of which shall be
included as Operating Expenses,'such legal actions or proceedings necessary or appropriate in connection
with the operatlori_'of the:Facility, including, without'limitation, to collect charges,rents or other revenues
due to the,City or TRF or.to cancel,'teri iinateor sue for damages under, any license, use, advertisement
,
or concession agreement for the•"breach thereof or default thereunder by any licensee,user, advertiser, or
t.
concessionaire at the Facility; \ :a
5:5.9=, maintainja master set of all Event records, booking records and schedules for the
Facility(which shallbe available for inspection by the City Manager upon request);
5.5.10 provide day-to-day administrative services in support of its management activities
to 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;
5.5.11 engage in advertising, solicitation, and promotional activities necessary to
effectively market the Facility and Events, and manage related social media platforms for the Facility.
Any marketing materials created for the Facility will remain the exclusive property of the City. In
Page 357 of 868
Page 10 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
connection with its activities under the terms of this Agreement, TRF will be permitted to use the logo
and brand identity of the City of Miami Beach, and of the Facility,as approved by the City Manager;
5.5.12. act as a collection agent for the City on sales taxes as required from for-profit
facility rentals of the Facility and remit to the State of Florida such sales taxes;
5.5.13. comply with all City Agreements;
5.5.14. except as otherwise approved by the City Manager, TRF shall not license or
allow the use of any portion of the Facility except as permitted under Section 3 and, in such case, only for
short-term users (i.e., less than fourteen (14) consecutive days). TRF shall require that all users of the
Facility provide certificates of insurance evidencing appropriate insurance and any other insurance
,tri. p
required by the applicable license, use or occupancy agreement.,,/Copies IDL,these certificates shall be
furnished to the City Manager or City Manager's designee 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 TRF as additional insureds. TRF shall also require all users of the.Facility,to execute
(among the terms of the license or occupancy agreement).,an A.agreetnent,to indemnify, defend and hold
harmless the City. TRF standard license or occupancy'tagreerneft shall, at a minimum, include the
insurance and indemnity requirements contained herein; shall further 13p subject to the prior review and
approval of the City Manager and City Attorney's Ohice, and—if and when approved—shall be attached
• z • •
as Exhibit"D"hereto' ''
SECTION 6. COMPENSATION TO THE CITY FOR USE OF THE FACILITY(USE FEE).
6.1 / Base,U
. se Fee: For the initial term of the Agreement, TRF shall pay City an
annual use fee for the right to,use the Facility,-In the amount of$1.00, in consideration of TRF's not for
profit statusra&1 its mvestments incprogramming staffing, marketing and improvements.All payments are
payable/annually, commencing on the Commencement Date and thereafter on the first day of each
Contract Year. The Base Use Fee (and;all other amounts due hereunder) shall be paid to City in legal
t. •
tender of the`United States of America at the following address: Parks and Recreation Department, 1701
Meridian Avenue,',Suite 401, Miami Beach, Florida 33139, Attention: Cynthia _Casanova Assistant
Director;or at such other City may from time to time designate by notice in writing.
6.2 Additional Fees and Charge. In addition to the Base Use Fee as set forth in
section 6.1,TRF shall also be responsible for payment of the following Additional Fees and Charges:
6.2.1 Operating Expenses. TRF shall pay all costs and expenses related to Operating
Expenses, except with respect to utilities for which the City is responsible, as more specifically set forth
in Section 20 herein. TRF 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 TRF is obligated to pay pursuant to this Agreement, and further covenants and agrees
that if at any time there are insufficient Operating Revenues to pay all of the foregoing amounts, as and
Page 358 of 868
Page 11 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
when required, TRF shall immediately pay the difference from TRF's own funds. This obligation is
absolute and unconditional and shall even apply if Operating Revenues are reduced or limited by facts or
circumstances not contemplated by the parties or for reasons beyond the parties' control. The provisions
of this section 6 shall survive any termination or expiration of this Agreement.
6.2.2 Sales Tax. TRF shall pay and include any and all additional sums for applicable
sales and use tax, now or hereafter prescribed by State, federal or local law, concurrent with and to the
extent any sales tax is imposed in connection with any payment due hereunder by TRF.
6.2.3 Notwithstanding this Section 6, TRF shall not be're sponsible for paying for
major capital improvements or infrastructure within the Facility.
SECTION 7--INTENTIONALLY OMITTED.
.
hf
``ice ~, , \i;
SECTION 8-RIGHTS RESERVED TO CITY.
8.1 Rights of Entry. Representatives, contractors,-and employees of the City shall have the
right to enter all portions of the Facility to inspect same, toy;observe the performance of TRF of its
•
obligations under this Agreement, to install;;-remove, adjust, repair;,replace or otherwise handle any
equipment, utility lines, or other matters in, on; oraboutthe Facility, or to go/any act or thing which the
City may be obligated or have the right to do under this Agreement. Nothing contained in this
.;//j"
subparagraph is intended or shall-be construed to limit any other rights of the City under this Agreement.
- 't;
The City shall not unreasonably interfere with the activities of TR 'hereunder, and the City's actions shall
be conducted such that-:.disruption of,TRF work shall.be.kept to a minimum and there shall be no
disruption of any Event by City(the Clty's, actions in its proprietary capacity of the foregoing, shall not
diminish any rights of Cityin its governmental capacity).
Signage. Exterior marquee messaging will be controlled by TRF and will list only Events
•
taking place,,within the Facility,, TRFlshall include City requested public information messages.
TRF shall provide, at its sole;expense and responsibility, any required signs within the Facility. All
signage shall be approved by the City Manager or designee, and shall be in accordance with all applicable
;r -
Municipal, County, State and Federal laws and regulations. Any signage shall be subject to the prior
approval of the City Manager or designee as to size,shape and placement of same.
8.3 Interior Signage. TRF shall be entitled to all non-permanent interior signage (i.e. signage
having a total duration not to exceed twelve consecutive (12) months) relating to an Event, including,
without limitation, temporary banners, and all proceeds derived therefrom shall be Operating Revenues;
provided, however, that the names affixed thereon are subject to the City Manager's 'or designee's prior
written approval, which shall not unreasonably be withheld, conditioned or delayed. In no event may any
such signage include the names of any company selling the following types of products ("Prohibited
Names"): guns, tobacco or sexual products. Any and all other naming right not expressly provided
Page 359 of 868
Page 12of42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
for in this subsection 8.3, and any revenues derived therefrom, shall be owned and controlled
exclusively by the City.
8.4 General Requirement. All signage (whether interior, exterior, permanent and/or
temporary) shall comply with all applicable Governmental Requirements,and shall be maintained by TRF
in good condition.
SECTION 9. LIMITED FUNDING BY CITY.
During the first Fiscal Year of the initial term of this Agreement (From October 1 2011'
through September 30, 2015), the City_shall provide funding to TRF, in the amount of$30,000.00 ("City
Contribution(s)"),._pay_able within fifteen (15) days following the end of each Quarter,_with the first
payment, in_the_amount of $7,500_00, due April ,15,_2015;__$11,250.00 due on July 15, 2015, and
Contribution and also submit the corresponding reports due for that particular_Quarter. The City, in•
its
Agreement, including, without limitation, those reports ..et forth in Sections 5 and 12 of this Agreement
During the term of the Agreement, subject to funding availability, the City shall provide a City
Contribution, in an amount up to $45,000 00annually, during tlie�balance of the Initial Term and any
Renewal Terms (should said Renewal Terms be~granted, at the sole option of the City), toward the
operation of the Facility. The-City Contribution, in subsequent years, will increase and_be adjusted
annually,_effective October 1' of each Business Year (the `EffectiveDate of Adjustment"), by the,'
.�- •
percentage of change published in the Producer price indexes for the net output of selected industries and
their products,_not seasonally adjusted (1982.84=100 unless otherwise indicated) or 3%,- whichever is
smaller. The CPI increase shall be determined by multiply_ing_the City Contribution being_paid by the
percentage of change for the Effective Date of Adjustment Should the CPI become unavailable a
reasonable substitute designated by the City shall be used. The City Contribution shall continue to be
—
paid in quarterly installments,based upon the amount established for the previous Business Year,until the
PI indexis published and the new City Contribution is established Thenew City Contribution shall be
payable retroactively to the Effective Date of Adjustment,,within forty—five (45) days from receipt of an
approved invoice from TRF of the new_quarterly City Contribution__ Notwithstanding the foregoing, the
r._.. ----� — -r _p t (3%)._ I � _ negative change, C�--:
annual CPI increase shall not exceed three ercentIf the CPI has a the City,.
Contribution shall remain the same for the upcoming Business Year
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,TRF and City have entered into this
Agreement with the expectation and belief that, as of the Effective Date, no governmental body will
impose any ad valorem taxes upon the Facility nor any sales, income, excise or other taxes.
Notwithstanding the preceding sentence, the City makes no representation to TRF, either expressed or
Page 360 of 868
Page 13 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
implied, that any or all of such taxes may or may not be imposed at any time during the Term of the
Agreement. -
SECTION 10.RECEIPTS AND DISBURSEMENTS
TRF 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 TRF shall determine. All
Operating Revenues collected by TRF from the operation of the Facility shall be deposited into the
accounts and all Operating Expenses shall be paid by TRF as agent for the,Cty..,from the accounts. Any
amounts remaining in the operating accounts upon expiration or termination of this Agreement for any
reason, after payment of all other amounts that TRF is required to,p y under' this Agreement through the
date of expiration or termination,shall be promptly paid to TRF.,
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SECTION 11.ALTERATIONS,MAINTENANCE,AND REPAIRS.
11.1 TRF shall not make any additions, improvements, or alternations (collectively
"Alterations")to the Facility without the City Manager's or designee's prior written consent. The cost of
all Alterations made by TRF shall be borne;solely by TRF from`its`own funds and shall not constitute
Operating Expenses, unless otherwise agreed'to bye,City under the
the of Capital Improvements
or Maintenance. The City Manager shall not unreasonably withhold, condition or delay his/her consent to
any Alterations except that the City Manager may.,,.withholdti,consent, in his/her sole and absolute
•
discretion, with respect to any Alterations that change the structural elements or life-saving systems or
that affect the exterior of,the,Facility,;Notwithstanding anything to the contrary, however, TRF 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:an a licable Governmental Requirements; or (iii) interfere in any
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material manner with the proper functioning of any mechanical, electrical, plumbing, HVAC, life safety
•or otlier`systems, facilities eq ipment of,:th
ore Facility. Except as required pursuant to Section 5.5.4, it is
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understood by the parties heret64.that TRF shall not be responsible,nor required to pay for, any other costs
related to capital°.improvements'o'r infrastructure (i.e. including, but not limited to, plumbing and sewer
lines,major electrical,structural,HVAC,roof,etc.)with regard to the Facility.
11.2 TRF shall-obtain all required permits for Alterations performed by,through or under TRF
and shall perform or cause to be performed such Alterations in compliance with all Governmental
Requirements. Under no circumstances shall TRF make any Alterations which incorporate any
Hazardous Substances including, without limitation, asbestos-containing construction materials, into the
Facility. Any request for City Manager's consent to any proposed Alterations by, through or under TRF
shall be made in writing and shall contain plans or other written materials describing the work in detail
reasonably satisfactory to City Manager, provided that architectural plans shall not be required unless
required for the issuance of a building permit. The City Manager shall provide or deny consent within
Page 361 of 868
Page 14 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FORTHE MGMT OF THE NORTH SHORE BAND SHELL
twenty (20) business days following receipt of TRF's 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 TRF and consented to by City Manager modify the basic floor plan of the Facility and the
building permit therefor require architectural plans, then TRF shall, at its expense, furnish City with as-
built drawings and CAD disks for such work. Unless the City Manager otherwise agrees in writing, all
Alterations made or affixed to the Facility (excluding moveable trade fixtures, equipment, personal
property and furniture) (including without limitation, all upgrades constructed pursuant to subparagraph
(b)), shall become the property of City and shall be surrendered with the,Facility at the expiration or
termination of this Agreement. With respect to Alterations costing:;in'excess of $200,000, the City
Manager may require TRF to obtain a payment bond for the work.:<:'
11.3 Maintenance. TRF shall, at its sole cost and expense, have sole responsibility for basic
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maintenance to be performed on a regular basis on all facilities, improvements, andfaei!lities and utilities
infrastructure equipment at the Facility, as well as any`necessary repairs to the perimeter walls and gates.
Any other repairs or replacement of the same is the responsibility,rof the City. TRF shall, at its sole cost
and expense, and to the satisfaction of the„City, keep and maintain\he Facility, and all improvements
thereon, in good, clean, and sanitary order.\The City shall, at its sole5'cost and expense, have the sole
responsibility for maintaining the grounds of the,North Shore Band Shell;and surrounding park. To that
end, the parties herein acknowledge, and TRF herein agrees to be bound by, the minimum maintenance
standards set forth in E-xhibit "B",to this Agreement, entitled "City of Miami Beach Minimum
Specifications for Maintenance of the;North Shore Band Shell." It is further understood that TRF shall
provide the City with a Quarterly maintenance report, in a'format to be approved by the City Manager or
his designee, setting forth any repairs made tothe Fkility during the reported Quarter.
11:4 Personal'.Property` A list of existing City-owned personal property included in the
IT
Agreement use by TRF during the'Term hereof is attached and incorporated herein as Exhibit "E":
w �.
TRF hereby accepts such equipment in its "as-is"condition, and without any warranty(ies) and, at its sole
cost and expense,-acquire and maintain all replacement and such other equipment and, at its sole cost and
expense, acquire and maintain all replacement and such other equipment as may be necessary to maintain
the Facility in a condition which satisfies those maintenance standards set forth in Exhibit "B", but shall
not have an obligation to improve the condition of the existing City-owned personal property beyond the
"as-is" condition in which it was accepted, all of which shall be noted on the inventory. TRF shall have
the right, at the initial inventory and at any point thereafter, to decline the use and responsibility for any
existing City-owned personal property not useful for its operation of the Facility, and may turn such
existing City-owned personal property' over to the City in the condition in which it was accepted. Any
personal property purchase with Operating Revenues shall become City-owned personal property and
included in the inventory for the Facility. The City shall have the right to periodically take an inventory of
Page 362 of 868
Page 15 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
any or all City-owned equipment at the Facility.
SECTION 12.RECORDS,AUDITS AND REPORTS.
12.1 Records and Audits. TRF 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. TRF 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. TRF shall keep and preserve for at least three (3) years following each Fiscal Year, or
for as long as such records are required to be retained pursuant to Florida Public Records Law(whichever
is longer), all sales slips, rental agreements,purchase order, sales books,credit card invoices, bank books
or duplicate deposit slips, and other evidence of Operating Revenues and Operating Expenses for such
period. In addition, on or before 120 days following each Fiscal Year,TRF shall furnish to the City a line
item(i.e.,by categories) statement of Operating Costs and&Operating Revenues (and profit'or_loss) for the
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Facility for the preceding Fiscal Year, and including the number of tickeksold and Events field, including
any Facility Rentals, prepared in accordance with generally accepted accounting principles certified as
accurate by TRF s Chief Accounting Officer.,or.-Chief Financial Officer:.,
12.2 The City Manager shall have the right,:at any time;' and-from time to time, to cause
independent auditors or the City's own accountants or auditors'to,.audit all of the books of TRF relating to
Operating Revenues, Operating-Expenses, tickets and Events including, without limitation, cash register
tapes, credit card invoices; duplicate'deposit tapes, ,and invoices. No costs incurred by the City in
conducting such audit shall be considered an Operating,Expense.
1 ,
12.3 Annual Plan Commen&hg-on October 1, 2019,and thereafter on June 14 October 1St of
each Contract Year during the term`herein, TRF--shall provide to the City an annual management plan,
which shall include the" operating budget for the then current Fiscal Year but may not have a
complete:,booking plan or event,schedule The annual plan shall include information regarding TRF'S
anticipated operations for such.Fiscal Year, including planned operating and maintenance activities,
;. r
anticipated capit`al,- mprovements' 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. )TRF 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 TRF'S
fulfillment of its obligations hereunder.
12.4 Programmatic Plan. Accompanying TRF'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 TRF's proposed annual budget shall be a detailed
list of then-known major capital repairs anticipated for the Facility, which remain the sole responsibility
Page 363 of 868
Page 16 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
of the City.
SECTION 13.INDEMNIFICATION.
TRF 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 TRF, its agents, servants, contractors, or employees; (ii) any:default by TRF under this
Agreement; or (iii) any other claim arising, directly or indirectly, from the operation or management of
the Facility or any Event held therein or rental or use of the Facility; provided that there is expressly
excluded from the foregoing obligations any Claims to the extent resulting solely from the gross
negligence or willful misconduct of the City, its officers, agents (excluding TRF);,contractors (excluding
TRF) and employees or the use of the Facility by the City, its officers, agents (excluding:~TRF), and
employees, pursuant to Section 16 hereof The provisions of this Section 13 shall survive expiration or
termination of this Agreement.
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SECTION 14. INSURANCE REQUIREMENTS:-
TRF shall maintain, at TRF s sole cost and,expense;the following types'of insurance coverage at all
times throughout the Term of this Agreement:
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14.1 General liability.insurance with not;!less than the following limits:
• 'General aggreg''a)te '„ $2,000,000
• Products(completed operation
• aggregate) $2,000,000
`e
/, • :Personal and advertising(injury) $1,000,000
• (Per,occurrence)`, $1,000,000
• •
Fire damage $ 100,000
• '` Medical Expense $ 5,000
• `Liquor,Liability(aggregate) $2,000,000
• ""'(Per'occurrence) $1,000,000
14.2 Workers Compensation Insurance shall be required under the Laws of the State of Florida
14.3 Fire Insurance for the Facility shall be the responsibility of the City.
14.4 Builder's Risk. TRF shall carry Builder's Risk insurance during any period of
construction of Alterations or any other period of construction by,through or under TRF.
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days written notice to City and then subject to the prior written
Page 364 of 868
Page 17 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
approval of the City's Risk Manager. TRF shall provide the City with a Certificate of Insurance for each
such policy,which shall name the City as an additional named insured. All such policies shall be obtained
from companies authorized to do business in the State of Florida with an A.M. Best's Insurance Guide
(latest edition) rating acceptable to the City's Risk Manager, and any replacement or substitute company
shall also be subject to the approval of the City's Risk Manager. Should TRF fail to obtain, maintain or
renew the policies of insurance referred to above, in the required amounts, the City may, at its sole
discretion, obtain such insurance, and any sums expended by City in obtaining said insurance, shall be
repaid by TRF to City,plus ten percent(10%) of the amount of premiums paid'to compensate City for its
administrative costs. If TRF does not repay City's expenditures within:f ffeen (15) days of demand, the
f`•; :'
total sum owed shall accrue interest at the rate oftwelve percent (12%)until'paid, and such failure shall
be deemed an event of default hereunder. •
TRF shall be the named insured under all such policie-s-. 'The City shalllbe an,additional insured
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under the insurance policies described in subsections'14..1, 14.3 and 14.4 hereof, as its_interests may
appear, and all such insurance policies shall contain a provision covering the indemnification liabilities
hereunder. . : '',
The terms of insurance policies refeirred•to in Section 14 shall:preclude subrogation claims against
•
TRF,the City and their respective officers,employees and agents.
SECTION 15.OWNERSHIP-OF ASSETS. \", ,
Ownership. The'oWnership of the Facilitmnd all buildings and real estate, all existing (and
/ ` .,
replacements thereof)'teehnical and office equipment and_facilities, furniture, displays, fixtures, vehicles
•
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and similar tangible propertylocated at the Facility at the time of the commencement of this Agreement
shall remainwlthathe City. Any and'all technical and office equipment and facilities, furniture, displays,
fixtures, vehicles and similar°s.:tan ible-property TRF for use at the facilityshall remain
g rt purchasedby
property of TRF. Any and all technical and office equipment and facilities, furniture, displays, fixtures,
;vehicles and similar tangible property purchased by TRF through funds received from grants which were
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applied for solely by the City or in partnership with the City for use at the facility shall remain property of
the City. Ownership pf and title to all intellectual property rights of whatsoever value held in the City's
name shall remain in th`e: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 TRF shall remain with TRF. TRF shall not take or use,for its own purposes, customer
lists or similar materials developed by the City for the use of the Facility, unless prior written consent is
granted by the City Manager. Ownership of equipment, furnishings, materials, or fixtures not considered
to be real property purchased by TRF with Operating Revenues for use at and for the Facility shall vest in
the City automatically and immediately upon purchase or acquisition("City Property"). The assets of the
City as described herein shall notbe pledged, liened, encumbered or otherwise alienated or assigned.
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Page 18 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
Notwithstanding anything to the contrary contained in this Agreement, any personality, furnishings, and
movable equipment that is not a fixture and is not integral to the operation of the Facility purchased by
TRF with outside funds, (funds which are not a part of Operating Revenue) and used at the Facility shall
be the sole property of TRF. Ownership of and title to all intellectual property rights of whatsoever value
related to marketing and promotional materials, designs, slogans, social media profiles, and web pages
will remain the exclusive property of the City.
•
SECTION 16. USE BY THE CITY.
The City shall have the right to use the Facility, or any part thereof;subject to availability, for the
benefit of the community for such purposes including, but not,limited"to„°meetings, City-sponsored
special events, Movie Nights, Parks and Recreation events, and other purposes,'as deemed necessary by
the City Manager, in his sole and absolute discretion,without-thepayment 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
as outlined in Exhibit"F"",attached hereto and made a part hereof
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Page 366 of 868
Page 19 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
SECTION 17. ASSIGNMENT/SUBLET.
17.1 Except as otherwise specifically provided in this Section 17, TRF may not voluntarily or
by operation of law, assign, encumber,pledge or otherwise transfer all or any part of TRF'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 TRF to assign all
or any part of its interest and any attempt to subcontract itsmanagement 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,TRF shall nevertheless remain liable for all obligations
hereunder and the transferee shall be jointly and severally liable for all obligations thereafter arising under
this Agreement. Any transfer of a controlling interest in TRF (whether 11-1,4.single transaction or multiple
transactions) shall be considered an assignment of this Agreement. TRF specifically recognizes that City
selected TRF to be the manager of the Facility as a result of the City's evaluation of TRF's specific
qualifications and experience in operating similar firstclass facilities; Y.
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17.2 The provisions of subsection 17.1 above shall:not prevent TRF in the performance of its
management duties hereunder to grant licenses and concessions and rental agreements for Events and
entering into a concessions agreement for the concession operationswat the Facility.
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SECTION 18. SECURITY. \
TRF shall provide reasonable security to\protect the Facility and its equipment, materials and
facilities, including any/Cityequipment, furnishings,i and fixtures used by TRF, and shall be solely
responsible to the City-for,any loss or damage to any eity,equipment, furnishings, and fixtures so used by
TRF. ''t
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SECTION'19. PERMITS LICENSES;,.TAXES;APPLICABLE LAWS.
, - TRF••,agrees to obtain 'and pay Jfor all permits and licenses necessary for the conduct of its
s.
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 TRF. TRF shall also be
solely responsible for payment'of any and all taxes levied on the Facility and its operations. In addition,
TRF shall comply with!all rules, regulations and laws of the City; Miami-Dade County; the State of
Florida; and the U.S. Government now in force or hereafter to be adopted.
SECTION 20 UTILITIES; RESPONSIBILITY FOR TAXES AND ASSESSMENTS.
20.1 Utilities. During the initial term only, The City 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. Any other utilities, including the connection of a
phone line, shall be the responsibility of TRF.
Page 367 of 868
Page 20 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
20.2 Procedure If Taxes Assessed. TRF agrees to, and shall pay before delinquency, all taxes
and assessments of any kind assessed or levied, whether upon TRF or the Facility, by reason of this
Agreement or by reason of any use(s) and/or activity(ies) of TRF upon or in connection with the Facility.
The parties acknowledge that TRF's operation and use of the Facility is for public purposes, and therefore
anticipate that, as of the Effective Date, no ad valorem taxes should be assessed by the Miami-Dade
County Tax Appraiser. If,however, taxes are assessed by the Property Tax Appraiser,TRF has the right to
terminate this agreement without penalty by providing 90 days notice to the City, at which point the City
shall be solely responsible for such payment(s).
SECTION 21. FORCE MAJEURE.
No party will be liable or responsible to the other party for any delay,:darnage, loss, failure, or
inability to perform caused by "Force Majeure" if notice,is provided to the other,party within ten (10)
days of date on which such party gains actual knowledge'of the event of"Force Majeure"that•such party
is unable to perform. The term"Force Majeure" as used`'in_this Agreement means the following: an act
of God, strike, war, public rioting, lightning, fire, storm,cflood, explosions, epidemics, landslides,
lightning storms, earthquakes, floods, storms, washouts, civil disturbances, explosions, and any other
cause whether of the kinds specifically enumerated above or otherwise which-is not reasonably within the
control of the party whose performance is to be'excused and which by the'exercise of due diligence could
not be reasonably prevented or-overcome (it bei`ng ,acknowledged.that under no circumstances shall a
failure to pay amounts due.and payable4hereunder bete)wusable due to a Force Majeure).
Neither party;hereto`,shall be lur der 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 necessarytherefore shall be prohibited rationed by any Governmental Requirements.
Iri'ithe event offsubstantial damage to,,or destruction of the Facility by reason of fire, storm or
•
other casualty or any eminent domain action or other regulatory action that, in either case, shall render a
=
substantial part;of the Facility inoperable for a period of at least ninety(90) days or in TRF's or the City's
reasonable opinion the Facility/can no longer be operated in a reasonably profitable manner as a result of
the damages or action for.aperiod of at least ninety (90) days from the happening of the fire, other
casualty or regulatory action, either party may terminate this Agreement upon written notice to the other.
Upon any such termination, the provisions of Section 31 shall apply; and provided City shall receive the
entire amount of all insurance proceeds or eminent domain award as applicable.
SECTION 22. INSPECTION.
TRF agrees that the Facility may be inspected at any time upon reasonable notice by authorized
representatives of the City, or by any other State, County, Federal or municipal officer or agency having
responsibilities for inspections of such operations and/or Facility.
Page 368 of 868
Page 21 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
SECTION 23. WAIVER OF INTERFERENCE.
TRF hereby waives all claims for compensation for loss or damage sustained by reasons of any
interference with its operation and management of the Facility by any public agency or official as a result
of their enforcement of any laws or ordinances or of any of the rights reserved to the City herein. Any
such interference shall not relieve TRF from any obligation hereunder.
SECTION 24. NO LIENS.
TRF 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
TRF 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 TRF. ;
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SECTION 25. TRF EMPLOYEES,MANAGERS AND BOARD OF DIRECTORS.
25.1 The City and TRF recogmze that in the performance of this Agreement, it shall be
necessary for TRF to retain qualified individuals to .effectuate and''optimi'ze TRF's management and
�.
operation of the Facility. TRF shall select, tram,.and employ at the Facility such number of employees as
is necessary or appropriate for TRFyto satisfy its r`e'sponsibilities`hereunder. TRF shall recruit employees
consistent with standards°employed t comparable'first class facilities, and TRF shall have authority to
hire, terminate and discipl ne;any and'all personnel employed by TRF working at the Facility.Any such
personnel, whether employees,''agents, independent contractors, volunteers, and/or other, employed,
retained, or otherwise engaged by,TRF for sucl 'purpose(s), shall not be deemed to be agents, employees,
partners;�omt ventures,or associates'of the City,and shall not obtain any rights or benefits under the civil
service or pension ordinances of the City`or any rights generally afforded classified or unclassified
employees of,the City; further'they shall not be deemed entitled to the Florida Worker's Compensation
benefits as employees of the1 City. Additionally, TRF, and/or its employees shall never have been
convicted of any offense'involving moral turpitude or felony. Failure to comply with this subsection shall
constitute cause for termination of this Agreement.
25.2 TRF shall assign to the Facility a competent staff member experienced in the operations
of similar facilities, who will be located on-site with regular and posted hours during the Term. The staff
member will be supervised by a general manager who is experienced in operating and managing similar
facilities. The staff member shall be accessible to the City Manager at all reasonable times to discuss the
management, operation, and maintenance of the Facility. "Accessible" shall mean available either in
person, by phone and/or a-mail during business and/or operation hours and within a reasonable time
frame during non-business hours in the event of an emergency. The City Manager may also request that
Page 369 of 868
Page 22 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
the staff member be replaced and TRF shall duly consider all such request but shall but not be obligated to
replace the staff member.
SECTION 26. NO IMPROPER USE.
TRF 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. TRF
shall not use the Facility for any unlawful purpose and shall comply with rall laws, permitting, and
licensing requirements now in force or hereafter adopted, applicable to the"Facility or the activities, uses,
and/or business(es) conducted on the Facility. TRF 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..TRF shall result in
ars'
automatic termination of this Agreement. Except as mayresult from acts of forcemaleure, TRF agrees
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that it will not allow the Facility to become unoccupied tit`vacant. TO‘shall take appropriate precautions
to prevent fire on the Facility, maintaining existing fire detectiomdevicesand extinguishing equipment at
all times. Fire detection devices and extinguishing equipment to beproyided and maintained by the City.
SECTION 27. NO DANGEROUS MATERIALS:"--L
TRF agrees not to use or permit in thaci
ewFhty the storage of illuminating oils, oil lamps,
t , ,
turpentine, gasoline (except for-smalbeontainers [5\gallons or less] for machinery), benzene, naphtha, or
other similar substances,-or explosives or any kind, or any substance or thing prohibited in the standard
t
policies of fire insurance companies m the State of Florida':
,'SECTION,28. NO CLAIM,AGAINST.CITY OFFICERS,EMPLOYEES,INDIVIDUALS.
Itis expressly understood and agreed by and between the parties hereto that all individuals,
employees,.officers, and agents:of the City are acting in a representative capacity and not for their own
benefit and tliat neither TRF not any occupant shall have any claim against them or any of them as
..\, `ti, r. ;
individuals in any event in conjunction with any acts or duties which are reasonably related to
the performance of their,duties.
SECTION 29. DEFAULT AND TERMINATION.
29.1 TRF's Defaults. The occurrence of any one or more of the following events shall
constitute an event of Default by TRF.
29.1.1 The failure by TRF to make any payment required to be made by TRF as and
when due,which continues for more than ten(10) days after written notice from City;
29.1.2 The failure or inability by TRF to observe or perform any of the covenants or
Page 370 of 868
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MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
provisions of this Agreement to be observed or performed by TRF, which continues for more than thirty
(30) days after written notice from City Manager; provided, however, if the nature of the failure is such
that more than such period is reasonably required for its cure, then TRF shall not be deemed to have
committed an Event of Default if TRF commences the,cure within such period and thereafter diligently
pursues the cure to completion and actually completes the cure within an additional sixty(60) day period;
29.1.3 Except as permitted pursuant to Section 17 of this Agreement, the assignment,
encumbrance, pledge, or transfer of this Agreement, whether voluntarily or by operation of law, or any
subcontract of TRF's duties hereunder, which continues for more than fifteeh (15) business days after
written notice thereof from City Manager; /
29.1.4 (i)The making by TRF of any general assignment forr•the benefit of creditors; (ii)
the filing by or against TRF of a petition to have TRF adjudged a Chapter 7 debtor under the Bankruptcy
•
Code, or any Code or to have debts discharged or a petitionr,.for reorganization or•arrangement under any
law relating to bankruptcy(unless,in the case of a petition filed against TRF,the same\is dismissed within
sixty (60) days); (iii) the appointment of a trustee or receiver,, to take,-:possession of substantially all of
TRF's assets located at the Facility or of TRF's interest in th s Agreement, if possession is not restored to
TRF within sixty (60) days; or (iv) the attachment, execution or otherjudicial seizure of substantially all
,\
of TRF's assets located at the Facility or of TRF's interest in this Agreement, where the seizure is not
y
discharged within sixty(60) days. 41 i ` .. ��'1
29.2 City Remedies:--4f.,an Event of befault�by TRF;occurs, then in addition to any other
remedies available to City,City may exercise the following remedies:
29 2 J 'Ci y may terminate this Agreeinent,by written notice to TRF, in which case this
Agreement shall terminate and TRF.shall"immediately surrender possession of the Facility to City. Upon
termination, city shall be,entitled to,recover from'"TRF: (1) Operating Expenses that remain unpaid
through,the'date of termination; (2)all other amounts that TRF is required to pay under this Agreement
through the;date of termination. ",
`:. 29.2.2 City may seek specific performance of any of TRF's obligations hereunder or
seek injunctive relief,,
29.2:3 YCityrray exercise any other remedies available at law or in equity.
29.2.4 Th'e various rights and remedies reserved to City in this Agreement or otherwise
shall be cumulative and, except as otherwise provided by Florida law, City may pursue any or all of its
rights and remedies at the same time.
29.3 TRF's Remedies. If an.Event of Default by City occurs,then TRF may exercise either of
the following remedies:
TRF may terminate this Agreement by written notice to City, in which case this Agreement shall
terminate and TRF shall immediately surrender possession of the Facility to City. Upon termination,TRF
shall be entitled to recover from City all amounts owed by City to TRF as of the termination date and the
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MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
provisions of Section 31 shall apply; or
29.4 Late Payments. Any payment owed to City or TRF under this Agreement including,
without limitation, any other payment owed to City or TRF under this Agreement that is not received by
City or TRF within ten(10) days following notice of such amount being due shall bear interest at the rate
of eighteen percent(18%)per annum or the highest rate allowable by law ("Default Rate") from the date
due until fully paid.
29.5 IN THE EVENT THAT TRF CEASES TO BE A NOT-FOR-PROFIT CORPORATION,
THIS AGREEMENT SHALL BE AUTOMATICALLY TERMINATED.
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SECTION 30. [INTENTIONALLY DELETED]. " ``
SECTION 31.TERMINATION.
31.1 Termination for Convenience by City./Oe City reserves and retains the right; at its sole
option and discretion, to terminate this Agreement, without'cause,.and without penalty, with regard to
r'f V
TRF's rights and responsibilities with respect to the operation,pmanagement, maintenance, promotion and
marketing of the Facility,upon one hundred eighty(180) days priorwritten notice to TRF.
31.2 Effect of Termination. In the;event this Agreement expire's or is terminated for any
reason: (1)All Operating Expenses and all other'obli atlons for the eriod upto the date of expiration or
P g p g ... p P�
termination shall be paid using funds on deposit`'in the account(s)"described in Section 10 and to the
extent such funds are notfsufficient, TRF shall p y'a11 such amounts from its own funds; (2) After all
amounts referenced'in subparagraph i(1) have been;;paid, TRF may retain all remaining Operating
Revenues (if any). Upon the:expiration of this Agreement or a termination for any reason, all further
obligations of.the parties.hereunder"shall terminate,-except for the obligations which for all periods up to
the date of expiration ortermnnatio r and-,such other obligations as are stated to survive or be performed
after such'expiration or termination. A111 of the foregoing reimbursement and the payment obligations are
to,be made`-within thirty (30)\6ys after the termination date. The provisions of this Subsection 31.2
regarding the aboveryreimbursement and payment obligations of the City shall survive the termination of
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this Agreement.
31.3 Surrender,:of Facility. Upon termination or expiration of this Agreement TRF shall
surrender and vacate the Facility upon the effective date of such termination(or expiration). The Facility
and all equipment and furnishings shall be returned to the City in a good and clean condition consistent
with other similar Comparable Facilities and in compliance with all Governmental Requirements,
ordinary wear and tear, and casualty loss excepted.
SECTION 32. NOTICES.
All notices from the City to TRF shall be deemed duly served if mailed by registered or certified
Page 372 of 868
Page 25 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
mail to TRF at the following address:
The Rhythm Foundation,Inc.
407 Lincoln Road#6E
Miami Beach Florida 33139
Attention: Laura Quinlan,Executive Director
All notices from TRF to the City shall be deemed duly served if mailed to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach,Florida 33139
Attention: City Manager
er
1. r'
With copies to: f;I\
City of Miami Beachi •
1700 Convention Center Drive
Miami Beach,Florida 33139 •
Attention: John Rebar,Parks and/Recreation Departnent Director \
TRF and the City may change the above mailing addr e ses�at any time upon giving the other
sparty written
notification. All notice under this Agreement must be in writing„"'';,
SECTION 33. NO DISCRIMINATION
33.1 The TRF agrees that there shall\1e no discrimination as'to race, color, national origin,
religion, sex, intersexuality, gender-Identity, sexual\orientation, marital and familiar status, or disability in
the operations referred to`by this Agreement; and further, there shall'be no discrimination regarding any
use,service, maintenance o?operation-of the Facility.`MLfacilities located on the Facility shall be made
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available to the public, subject\to the right..„of TRF, to establish and enforce reasonable rules and
regulations,to`pro de ithe safty,orderloperation and security of the facilities.
X33/2 No Discrimination 'in Employment; Affirmative Action. In connection with the
perfo•rmarice of work under this Agreement'TRF shall not refuse to hire, discharge, refuse to promote or
demote, or to, discriminate in matters of compensation against, any person otherwise qualified, solely
because of race,',col"or, national origin, religion, sex, intersexuality, gender identity, sexual orientation,
o ,, / f
marital and familial status and;age or disability.
SECTION 34 [INTENTIONALLY DELETED].
SECTION 35. LIMITATION OF LIABILITY..
The City desires to enter into this Agreement only if in so doing the City can place a limit on its
liability for any cause of action for money damages due to an alleged breach by the City of this
Agreement, so that its liability for any such breach never exceeds the sum of $10,000. TRF hereby
expresses his willingness to enter into this Agreement with TRF's recovery from the City for any damage
Page 373 of 868
Page 26 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
action for breach of contract to be limited to a maximum amount of$10,000, less the amount of all funds
actually paid by the City to TRF pursuant to this Agreement.
Accordingly, and notwithstanding any other term or condition of this Agreement, TRF hereby
agrees that the City shall not be liable to TRF for damages in an amount in excess of$10,000, which
amount shall be reduced by the amount actually paid by the City to TRF pursuant to this Agreement, for
any action or claim for breach of contract arising out of the performance or non-performance of any
obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere
in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as
set forth in Section 768.28,Florida Statutes.
f,l
SECTION 36: NOT A LEASE.
It is expressly understood and agreed that no part„parcel, building, structure„'equipment or space
is leased to TRF; that this Agreement is a management agreement and not a lease; and that TR,F's right to
• 1
operate and manage the Facility shall continue only so long as,the TRF complies with the'undertakings,
provisions,agreements, stipulations and conditions of this Agreement.
\
SECTION 37. MISCELLANEOUS.
.\
37.1 Venue/Waiver of Jury Trial. This Agreement shall be,`governed by, and construed in
•
accordance with, the laws of-the.,State of Florida„'both substantive and remedial, without regard to
principals of conflict of laws The exclusive venue`for any litigation arising out of this Agreement shall,
be Miami-Dade County,-Florida, if in,state court, and the:U.S. District Court, Southern District of Florida,
if in federal court. BY ENTERING-INTO'THIS AGREEMENT, CITY AND TRF EXPRESSLY WAIVE
ANY RIGHTS.EITHER;-PARTY,N AY HAVE-TOA TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED'TO, OR ARISING OF THIS,AGREEMENT.
37:2^, No Partnership 'or Joint Venture. Nothing herein contained is intended or shall be
construed in`anyway to create or establish the relationship of partners or a joint venture between the City
and TRF. None of the officers„agents or employees of TRF shall be or be deemed to be employees of the
s;
City for any purpose`whatsoever.
37.3 Entire Agreement. This Agreement and all Exhibits attached hereto contain the entire
agreement between the parties with respect to the subject matter hereof and supersedes all prior
agreements, understandings, proposals or other expressions of intent with respect thereto. The Exhibits
attached hereto are incorporated into and made a part of this Agreement. No other agreements,
representations, warranties or other matters, whether oral or written, will be deemed to bind the parties
hereto with respect to the subject matter hereof.
37.4 Written Amendments. This Agreement shall not be altered, modified or amended in
whole or in part, except in writing executed by each of the parties hereto. The City Manager, on behalf of
Page 374 of 868
Page 27 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
the City, shall have authority to approve any changes to this Agreement.
37.5 Binding Upon Successors and Assigns;No Third-Party Beneficiaries.
37.5.1 This Agreement and the rights and obligations set forth herein shall inure to the
benefit of, and be binding upon, the parties hereto and each of their respective permitted successors and
permitted assigns.
37.5.2 This Agreement shall not be construed as giving any person, other than the
parties hereto and their successors and permitted assigns, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any of the provisions herein contained, this Agreement and all
provisions and conditions hereof being 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 do other person or entity.
37.6 Section Headings and Defined Terms. The headings contained`herein are`for reference
purposes only and shall not in any way affect the meaning:and``interpretation of:\tliis\Agreement. The
terms defined herein and in any agreement executed in connection herewith include the plural as well as
the singular and the singular as well as the plural, and the use of masculine pronouns shall include the
feminine and neuter. Except as otherwise indicated, all agreetients defined herein refer to the same as
from time to time amended or supplemented,:or the terms thereof waived or modified in accordance
herewith and therewith.
\+
This Agreement may be executed in two or more,counterparts, each of which shall be deemed an
original copy of this Agreement;and all of which,when taken together, shall be deemed to constitute but
one and the same agreement E
37.7 Severablity\The mvaldity or unenforceability of any particular provision, or part of any
provision, of this Agreement shall not;affect the other provisions or parts hereof, and this Agreement shall
j
be construed in:alLrespeetsas if`'such invalid r unenforceable provisions or parts were omitted.
y `
17:8 Non-Waiver 'A failure by either party to take any action with respect to any default or
/
violation`by the other of anyterms,'covenants, or conditions of this Agreement shall not in any
respect limit;.prejudice, diminish;'or constitute a waiver of any rights of such party to act with respect to
any prior, contemporaneous, or,Subsequent violation or default or with respect to any continuation or
repetition of the original violation or default.
37.9 Certain Representations and Warranties.
37.9.1 The City represents, warrants, and covenants to TRF the following: (i) City has
full legal right, power and authority to enter into and perform its obligations hereunder; and (ii) this
Agreement has been duly executed and delivered by the City and constitutes a valid and binding
obligation of the City, enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or
by general equitable principles.
37.9.2 TRF represents and warrants to the City the following: (i) TRF has full legal
Page 375 of 868
Page 28 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
right,power and authority to enter into and perform its obligations hereunder, and(ii) this Agreement has
been duly executed and delivered by TRF and constitutes a valid and binding obligation of TRF,
enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable
principles.
37.10 Governing Law. This Agreement will be governed by and construed in accordance with
the internal laws of the State of Florida, without giving effect to otherwise applicable principles of
conflicts of law.
,:"
SECTION 38.TRF'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW.
Pursuant to Section 119.0701 of the Florida Statutes,:'if TRF `meets the\definition of"Contractor"
/
as defined in Section 119.0701(1)(a),the Concessionaire/shall: w;•:'N
a) Keep and maintain public records that ordinarily and necessarily would be required by
the public agency in order to perform the service,,<<v/
b) Provide the public with access to public records on'ihe,same terms and conditions that the
public agency would provide the.'records and at a`cost;that,does not exceed the cost
provided in this chapter or as otherwise provided by law,,;',r'
c) Ensure that public records that\are exempt or conf dential and exempt from public
records disclosure requirements are`'not disclosed,except as authorized by law; and
d) Meet all requirements for retaining public records and transfer to the City, at no City cost,
all public records created,received,mantamed and/or directly related to the performance
•of this,.Agreement that are In possession of TRF upon termination of this Agreement.
r. 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 record's stored electronically must be provided to the City in a format
\thatis compatib�te jwith the information technology systems of the City.
For purposesof:this Article, the term "public records" shall mean all documents, papers, letters,
maps, books, tapes, plotogr`aphs, 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.
TRF failure to comply with the public records disclosure requirement set forth in Section
119.0701 of the Florida Statutes shall be a breach of this Agreement.
In the event TRF does not comply with the public records disclosure requirement set forth in
Section 119.0701 of the Florida Statutes, the City may, at the City's sole discretion, avail itself of the
remedies set forth under this Agreement and available at law.
Page 376 of 868
Page 29 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
SECTION 39. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE
FOOD SERVICE ARTICLES.
Pursuant to Section 82-7 of the City Code, as may be amended from time to time, effective
August 2, 2014, the City has prohibited the use of expanded polystyrene food service articles by City
Contractors, in connection with any City contract, lease, concession agreement or Special event permit.
Additionally, pursuant to Section 82-385 of the City Code, as may be amended from time to time, no
polystyrene food service articles will be allowed in the right-of-way, and no polystyrene food service
articles can be provided to sidewalk cafe patrons.
.
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded polystyrene
is more particularly defined as blown polystyrene and/expanded and extruded' foams that are
thermoplastic petrochemical materials utilizing a styrene`;•monomer and processedby any number of
techniques including, but not limited to, fusion of polymer spheres (expandable bead,_`foam), injection
molding, foam molding, and extrusion-blown molding(extrudedfoam polystyrene). %'
Expanded polystyrene food service articles means.plates, bowls, cups,containers, lids, trays, coolers, ice
chests, and all similar articles that consist of expan`dedpolystyrene. \,,
Additionally, Concessionaire agreesto comply(and.ensure compliance by its vendors)with Section 46-92
(c) of the City Code, which states'that;it is unlawfulfor any person to carry my expanded polystyrene
product onto any beachwo`r into.any park within the City)dr for any business to provide plastic straws with
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the service or delivery of any beverge to patrons on-the beach. -
TRF agrees not to sell,use,provide food in;of offer the use of expanded polystyrene food service articles
at the Faeility:or in connectionwith thisAgreement. TRF shall ensure that all vendors operating in the
' il
Facility abide by the restriction's, ontained in this Section. A violation of this section shall be deemed a
default under the`term%s.of this,/Agreement. This subsection shall not apply to expanded polystyrene food
service articles used for prepackaged food that have been filled and sealed prior to receipt by the TRF or
its vendors.
SECTION 40.COCA-COLA.
The City has entered into an agreement with Coca-Cola Bottling, effective September 1, 2011 —
September 1, 2021, to be the exclusive provider of non-alcoholic beverages and coffee products. TRF
shall only sell Coca-Cola beverages as listed in the attached Exhibit"G"and as may be updated from time
to time.
Page 377 of 868
Page 30 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
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 E. Granado,City Clerk Dan Gelber,Mayor `
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STATE OF FLORIDA )
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COUNTY OF MIAMI-DADE ) u'`s ..N
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The foregoing instrument was acknowledged before..rrie this da,,of.` , 2019,
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Mayor Dan Gelber, Mayor, and Rafael E. Granado, CityrClerk, or-their'designees respectively, on behalf
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of
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of the CITY OF MIAMI BEACH,-known to me to'be the persons described in and who executed the
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foregoing instrument, and'acknowledged to and before me that they executed said instrument for the
purposes therein expressed )' \ /�'
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WITNESS4V l and and._official seal;this yof ,2019.
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Notary Public, State of-Florida at Large
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Commission No.: r°
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My Commission Expires:
Page 378 of 868
Page 31 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
Attest: The Rhythm Foundation, Inc.
Name/Title Laura Quinlan,Executive Director
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STATE OF FLORIDA )
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COUNTY OF MIAMI-DADE ) �.,e "".
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The foregoing instrument was acknowledged before„methis day\of , 2019, by
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Laura Quinlan,as Executive Director and �.°�, /,---', , ,Aas
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on behalf of The Rhythm Foundation,�Inc., known to me to be they,pe• rsons described in and who executed
the foregoing instrume and acknowledged to and be
ntfore me that they executed said instrument for the
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purposes therein expressed ! "
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WITNESS-my hand and official seal,this day of , 2019.
,. `,,
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Notary Public, State'of,Florida,:at'Large
Commission No.: ',
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My Commission Expires:'`
Page 379 of 868
Page 32 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
EXHIBIT A
SITE PLAN AND LEGAL DESCRIPTION OF THE FACILITY
LEGAL DESCRIPTION:
The area delineated on the Site Plan, attached hereto and incorporated herein as Exhibit A-1, located at
the North Shore Park,which is located in a portion of land more particularly described as:
A portion of land located in section 2, Township 5.3 South Range 42 East, bounded as
follows: bounded on the North by the South right-of-way line of Third Street (now 73rd
Street) and its easterly extension as shown in PLAT OF TOWNSITE'OF`HARDING,Plat
Book 34,Page 40,of the Public Records of Miami-Dade County;.Florida; bounded on the
South by the South line of government Lot 6, Section 2 Townsh p.,53,,South Range 42
East (now South line of 72nd Street) and its,/easterly'''extensions..;as, shown in
NORMANDY BEACH SOUTH,Plat Book 21,Page 54,of the Public Records of Miami-
Dade County, Florida; bounded on the East<by the'Erosion Control Line of theAtrantic
Ocean, as recorded in Plat Book 105, at Page 62, of‘tl e\Public Records of Miami-Dade
County, Florida and bounded on theyest by the East rightof-way line of Collins Avenue
as shown according to Florida Depart`inent of Transportation,_Finished Project ID
2507471. Said land located in the City of,Miami Beach,Miami-Dade County,Florida.
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Page 380 of 868
Page 33 of 42
, MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL.
BAND SHELL SITE PLAN
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Page 381 of 868
Page 34 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
EXHIBIT B
CITY OF MIAMI BEACH
MINIMUM MAINTENANCE SPECIFICATIONS
FOR MAINTENANCE OF THE NORTH SHORE BAND SHELL
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 TRF is only expected to use good faith efforts to
endeavor to meet the standards set forth herein. In the event of a conflict between the terms or conditions
of the Agreement and the terms or conditions of this Exhibit, the terms and conditions of the Agreement
shall control. '`
PERSONNEL
TRF shall have the sole responsibility to recruit and employ;a full-time`:general manager and any
necessary administrative and accounting personnel that are responsible for the overall management and"
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operation of the Facility. <.. a.
TRF shall have the sole responsibility to recruit and employ sufficient personnel to maintain_the following
functions: general and event security;janitorial, housekeepingiand cleaning for both event:and non-event
cleanup (including graffiti removal); painting and general''oye'ral1 Itiaiiitenance of the Facility to ensure
that the Facility is being maintained consistent with other Comparable Facilities.
The City shall have the sole responsibility for,,maintenance of capital systems, electrical systems,
plumbing; and air conditioner operation;
TRF shall have the sole responsibility to recruit'and employ.personnel as it deems necessary for the
staging and coordinating of Events and productions a/j/ /
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TRF shall maintain personnel policies-that assure employment practices do not discriminate on the basis
of race, color, religion,'military status; status,'phy,sical or mental disability, national origin, age,
gender, or sexual preference .
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GENERAL SECURITY. `L-
TRF shall provide for the;overall securityof the Facility, including during non-event hours.
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EMERGENCY PROCEDURES;
TRF shall assign an employee and a backup employee to act as an Emergency Liaison to the City. This
individual will be;required to use'good faith efforts to attend any and all meetings, held by the City, that
deal with emergency situations;such as extreme weather events,terrorist acts, etc. The Liaison will serve
as the point of contact'during,any emergency crisis.
TRF 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.
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.
Page 382 of 868
Page 35 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
•
The City 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. Any additional dumpster services and the collection of and depositing of trash within the Band
Shell will be the responsibility of TRF
At the City'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.
Windows shall be maintained in a reasonably clean condition and cleaned'm an as needed basis.
Entrance doors and mirrors shall be maintained in a reasonably,;elean condition and cleaned on an as
needed basis.
LANDSCAPING
The City shall maintain all exterior landscaping :.
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EXTERIOR LIGHTING
The Facility shall remain illuminated regularly after dark. TheCity shall maintain all exterior lighting.
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EQUIPMENT MAINTENANCE AND GENERAL MAINTENANCE,,
Equipment shall be maintained in a good and\workmanlIke manner ini"order to maintain in full force and
affect all dealer's and manufacturer's warranties: TRF shall develop an annual schedule for equipment
inspection and preventative maintenance.
yam.
Upon termination, cancellation,,and/or expiration,of the Agreement, TRF shall provide all records
maintained in accordance; with Section 5.5.4. All,'existing warranties that are transferable will be
transferred to the City:--
TRF shall post and maintain, as required by.ariy-applicable governmental code and/or regulation, any and
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all required professional licenses;certifications,arid/or permits.
The City shall maintain and,inspect all safety systems including but not limited to: smoke, fire,
and'CO-'detector systems, backup generator'operation, emergency battery backup functions, emergency
lighting, emergency egress, special needs and blackout preparedness equipment. All building safety
systems shall be tested on at least an annual basis or as required by federal, state or local codes and
regulations and maintained in operating condition at all times.
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.
TRF has the sole responsibility of maintaining the paint on the interior of the Facility.
Page 383 of 868
Page 36 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
EXHIBIT C
RENTAL RATES FOR FACILITY
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Page 384 of 868
Page 37 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
k EXHIBIT D
TRF STANDARD AGREEMENT•
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Page 385 of 868
Page 38 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
EXHIBIT E
CITY OF MIAMI BEACH OWNED PROPERTY INCLUDED IN THE AGREEMENT
Item Brand Model Serial No:
Theater Control Element 4330A1020 434401078
Computer Screen #1 Kristel-LP LED19-023-P 20100603180
Computer Screen #2 Kristel-LP LED19-023-P 20100700858
Computer Mouse Kensington SA1034A001657 •
Aluminum benches
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Page 386 of 868
Page 39 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
EXHIBIT F
CITY PREDETERMINED SCHEDULED EVENTS FOR FACILITY
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Page 387 of 868
Page 40 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
EXHIBIT G
COCA COLA AGREEMENT AND PRODUCT LIST
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Page 388 of 868
Page 41 of 42
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
EXHIBIT H
RESOLUTION NO.2014-28874
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Page 389 of 868
Page 42 of 42