Management Agreement with The Rhythm Foundation, Inc. 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 23day otOCT , 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 Florida not-for-profit corporation,
whose principal address is 7275 Collins Avenue,Miami Beach,FL 33141 ("TRF").
RECITALS
WHEREAS, City is the owner of the North Shore Band Shell, located at 7275 Collins Avenue,
Miami Beach, Florida 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
WHEREAS, TRF 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,on April 23,2014,the City issued Invitation to Negotiate No.2014-215-LR for Band
Shell Management Services(the"ITN"); and
WHEREAS, on September 10, 2014,the City Commission adopted Resolution No. 2014-28722,
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,on June 5,2019,the City Commission adopted Resolution No.2019-30846 accepting
the recommendation of the City Manager 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 management agreement between the City and The Rhythm Foundation 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; 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 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:
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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 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 executed by City and TRF, the date set
forth in the first paragraph of this Agreement.
"Event" -- all uses at the Facility which involve a scheduled 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.
"Event Expenses" --any and all expenses incurred or payments made by TRF in connection with
the occurrence of an Event at the Facility including,but not limited to, costs for staffing, and costs relating
to set-up and clean-up.
"Expiration Date"--as defined in Section 2
"Facility" -- as defined in the Background Section of this Agreement, and as depicted in Exhibit
"A"hereto.
"Facility Rentals" --temporary use of the Facility at specific interval of time pre-determined and
agreed upon by TRF.
"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 administrative guidelines), and other legal requirements of any governmental body
or authority or any agency thereof(including,without limitation,federal, State,County, and City).
"Net Operation Loss/Profit" -- with respect to a Fiscal Year, the excess, if any, of Operating
Expenses for such Fiscal Year over Operating Revenues for such Fiscal Year, in the case of a loss; and the
excess, if any, of Operating Revenues for such Fiscal Year over Operating Expenses for such Fiscal Year,
in the case of a profit.
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"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 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 any costs that are specified in
this Agreement as costs to be paid by City. All Operating Expenses shall be determined in accordance with
generally accepted accounting principles consistently applied and recognized on a full accrual basis.
"Operating Revenues" -- any and all revenues of every kind or nature derived from operating,
managing or promoting the Facility including, but not limited to: 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 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 subcontractors, only
the amount of such revenues paid by such contractors to TRF shall be included as Operating Revenues),
revenues generated from separate agreements with TRF Affiliates pertaining to the Facility, interest
revenues, and any other miscellaneous operating 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
extent that TRF collects 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 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 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
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are specifically reserved to the City.
"Quarterly/Quarter(s)"—October 1st, January 1St,April 1st and July 15t 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
retroactively 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.
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,may collectively be referred to as the"Term".
2.2.1 Notwithstanding anything in this Section 2,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 notice prior to the expiration date of the then
current Renewal Term, as the case may be.
SECTION 3. NORTH SHORE BAND SHELL.
The Facility subject to this Agreement shall be those facilities and spaces more specifically
described in Exhibit"A."
SECTION 4. OPERATION AND MANAGEMENT OF THE BAND SHELL.
4.1 General Scope. City hereby engages TRF to operate, manage, maintain, promote and
market the Facility during 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,
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-
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profit cultural presentation company.The Facility shall be used primarily as a venue for top-quality 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
b. Events facility
c.Rehearsal space
d.TRF administrative offices;
e. Food and beverage concession;
f. Sale of merchandise related to an Event then being held;
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;
The Facility does not include dedicated parking for the building. Patrons of Events may park in public
parking lots and garages if and to the extent available, upon paying the applicable parking charges. No
other uses shall be permitted without the prior written approval of the City Manager, which approval may
be granted or withheld in his sole discretion.Any such other use which the City Manager approves must,
however, be in accordance with(i)the Articles of Incorporation 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
other term or condition of this Agreement: (1)TRF will not make or permit any use of the Facility that,
directly or indirectly, is forbidden by any Governmental Requirement, or that may be dangerous to life,
limb or property;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
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addition to all other remedies available to City, restrain such improper use by injunction or other legal
action,with or without notice to TRF.
4.5 Operational Rules for Facility.
On December 17,2014,the City of Miami Beach Commission passed Resolution No.2014-28874,
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
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 to 10:00 pm.; provided, however, that the
City Manager shall have the discretion to extend the hours of operation on a case by case basis to 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 writing by the City Manager in advance of the
scheduled Event.
4.6 Cessation/Suspension of Approved Use(s)and/or Business Activity(ies).
Notwithstanding anything contained in this Agreement,and except for the Permitted Uses expressly set
forth in Section 4.3,and in the event that another particular use(s)and/or business activity(ies)has(ve)
been approved by the City Manager, and the City Manager thereafter,upon reasonable inquiry,determines
that the continuation of such use(s)and/or activity(ies)is(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 of Miami Beach,then the City Manager,upon thirty(30)days
prior written 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 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 and reasonable discretion and judgment.
SECTION 5. SCOPE OF 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
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Amphitheater in Hollywood,Florida("Comparable Facilities").
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
These 35 new Events shall take precedence over any private rentals of the Facility.
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 residents in general are aware of programs taking
place at the Facility.A detailed plan and budget illustration marketing efforts will be submitted Quarterly,
within fifteen (15) days from 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 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.The overall satisfaction target shall be 90%.Surveys must be conducted
in a format which is auditable.
5.2.1.5 TRF shall submit to the City, every Quarter,within fifteen(15)days from
the end of each Quarter, commencing 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.
The number of Facility Rentals and the charge for said Facility
Rentals.
iv. A detailed plan and budget illustrating the marketing efforts.
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
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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 and/or 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 neighborhood. 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 the aforestated purposes(beyond 10:00
pm) TRF SHALL PROVIDE SURROUNDING CONDOMINIUMS WITH 30 DAYS 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 the scheduling
of any Event in the Facility and Events requiring or having co-promotions and may refuse to book any type
or category of 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 reasonably 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 City
Manager's reasonable determination that such Event or use might present unreasonable safety
concerns,or violate(or otherwise not comply with)Governmental Requirements. Notice of any such
determination shall be sent by written notice to 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:
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
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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 services which are necessary or appropriate,and all other contracts and
agreements in connection with the management, maintenance, promotion and operation of the Facility;
provided that (1) if any such license, agreement, commitment or contract has a term that extends beyond
the remaining Term,such license,agreement,commitment or contract shall provide that it is automatically
assigned to City as of the expiration or termination date of this Agreement 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 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 Facility(excluding all structural components thereof and maintenance
and replacement of all electrical HVAC, life safety, mechanical, plumbing and other 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 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 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,TRF warrants and represents to City that,prior to the Effective Date,TRF inspected the
Facility, and TRF hereby accepts the Facility"as-is,where-is and with all faults."
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,
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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,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
approval by the City Attorney or his designee, institute as agent for the City, the costs of which shall be
included as Operating Expenses, such legal actions or proceedings necessary or appropriate in connection
with the operation of the Facility (using legal counsel approved by the City Attorney), including, without
limitation, to collect charges, rents or other revenues due to the City or to cancel, terminate or sue for
damages under, any license, use, advertisement or concession agreement for the breach thereof or default
thereunder by any licensee, user, advertiser, or concessionaire at the Facility; institute on 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
with the operation of the Facility, including,without limitation, to collect charges,rents or other revenues
due to the City or TRF or to cancel,terminate or sue for damages under,any license,use, advertisement or
concession agreement for the breach thereof or default thereunder by any licensee, user, advertiser, or
concessionaire at the Facility;
5.5.9 maintain a master set of all Event records, booking records and schedules for the
Facility(which shall be available for inspection by the City Manager upon request);
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 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
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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 required by the
applicable license,use or occupancy agreement. Copies of 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 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 review and approval of the City Manager
and City Attorney's 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 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 status
and its investments in programming, 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 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 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:
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
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 Free Charitable Use
The Cultural Arts Council may issue up to twelve(12)rental waivers per calendar year to qualified
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nonprofit organizations for use of the North Beach Bandshell. Venue waivers are available for nonprofit
arts organizations that will present performing arts activities in Miami Beach. These performing arts
activities include:theater,dance,music,cabaret,opera,performance art,multi-disciplinary works and film.
Venue waivers will cover rental fees for up to four days per week. Venue waivers are funded by the
Community Benefit fund and administered by the Tourism and Culture Department following review and
recommendation by the Miami Beach Cultural Arts Council. Although City shall not owe a fee, rent or
other payment strictly for the Charitable Use, (1) City shall promptly(within ten(10) business days after
receipt of invoice thereof)reimburse The Rhythm Foundation for all actual costs incurred by The Rhythm
Foundation to facilitate the Charitable Use, including, without limitation, The Rhythm Foundation's
standard charges for janitorial,clean-up,crowd and traffic control,set-up and tear-down costs and fees and
charges (including for materials, labor and other services) directly necessitated by the occurrence of any
Charitable Use;(ii)The Rhythm Foundation shall retain exclusive rights to the operation of all concessions
and other operations at the Facility during any Charitable Use, including, without limitation, food and
beverage concessions and sales, including alcoholic beverages (but City Manager shall have the right to
prohibit the sale of alcoholic beverages during any Charitable Use)and all proceeds of sales and concession
operations shall be Operating Revenues (City shall have no right to retain or reserve any portion thereof
nor to operate in competition therewith); The Rhythm Foundation will ensure that the pricing for any
concessions shall not exceed the normal pricing therefor charged at standard Events at the Facility;and(iii)
any Charitable Use Event shall be scheduled in accordance with The Rhythm Foundation's scheduling
needs so as not to conflict with or impair The Rhythm Foundation's ability to maintain its anticipated
schedule of Events; but shall otherwise be scheduled at a time convenient for the City, with The Rhythm
Foundation reasonably cooperating with City in coordinating all scheduling(but in any case,The Rhythm
Foundation shall not be obligated to permit any Charitable Use unless scheduling thereof was memorialized
in writing signed by the parties in advance of the Charitable Use Event); and(iv)City shall not be entitled
to"roll over"or"carry forward"any unused Charitable Use from a prior Fiscal Year,such that,in the event
during any Fiscal Year no such Charitable Use Event occurs for any reason,including reasons which were
completely outside the parties'reasonable control, then, City shall be deemed irrevocably to have waived
its right or entitlement to the benefit of the Charitable Use Event that otherwise could have occurred during
the prior Fiscal Years). The Rhythm Foundation shall have the right to promulgate reasonable rules from
time to time concerning the Charitable Use so long as they are consistent with the terms hereof and rules
imposed upon other Events at the Facility.
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.
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6.2.3 Notwithstanding this Section 6,TRF shall not be responsible for paying for major
capital improvements or infrastructure within the Facility.
SECTION 7—INTENTIONALLY OMITTED.
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, 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 other matters in, on, or about the Facility, or to do any act or thing which the
City may be obligated or have the right to do under this Agreement. Nothing contained in this subparagraph
is intended or shall be construed to limit any other rights of the City under this Agreement. The City shall
not unreasonably interfere with the activities of TRF 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 City's actions in its proprietary capacity of the foregoing, shall not diminish any rights of City
in its governmental capacity).
8.2 Signage. Exterior marquee messaging will be controlled by TRF and will list only Events
taking place within the Facility, in addition to recognition of sponsors. TRF shall 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 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 for
in this subsection 8.3,and any revenues derived therefrom,shall be owned and controlled exclusively
by the City.TRF shall submit an invoice for each payment of such City Contribution and also submit the
corresponding reports due for that particular Quarter. The City, in its sole discretion, may condition
payment of the City upon TRF providing the requisite reports under this Agreement, including, without
limitation, those reports set forth in Sections 5 and 12 of this Agreement due on January 15t,April 15t,
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July 15t,and October 1st
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 Term, and subject to funding appropriation and approval during the City's
annual budgetary process, the City will provide an annual contribution ("City Contribution") toward the
operation of the Facility,payable on a quarterly basis,due fifteen days from the end of each quarter(October
15th, July 15th',April 15th and January 15th), as more particularly described herein. The City Contribution
for the first Contract Year will be $45,000.00, with quarterly payments of $11,250.00. The City
Contribution, in subsequent Contract Years,including during any Renewal Terms which may be approved,
at the City's sole option and discretion, will be increased annually, effective October 1'of each Contract
Year (the "Effective Date of Adjustment"), by the percentage of change published by the Miami-Fort
Lauderdale-West Palm Beach, FL, CPI-U 12 month percent changes, all items index, not seasonally
adjusted ("CPI"), or 3%, whichever is smaller. The CPI increase shall be determined by multiplying 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 Contract Year,until the CPI index is published and the new City Contribution is established. The
new 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 annual CPI increase shall not exceed three percent
(3%). If the CPI has a negative change, the City Contribution shall remain the same for the upcoming
Contract 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
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
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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 City from the accounts. Any amounts
remaining in the operating accounts upon expiration or termination of this Agreement for any reason, after
payment of all other amounts that TRF is required to pay under this Agreement through the date of
expiration or termination, shall be promptly paid to TRF.
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 by the City under the category 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 withhold consent,in his/her sole and absolute discretion,with
respect to any Alterations that change the structural elements or life-saving systems or that affect the exterior
of the Facility;Notwithstanding anything to the contrary,however,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 any applicable Governmental Requirements; or(iii)interfere in any material manner with the
proper functioning of any mechanical, electrical, plumbing, HVAC, life safety or other systems, facilities
or equipment of the Facility. Except as required pursuant to Section 5.5.4, it is understood by the parties
hereto that TRF shall not be responsible, nor required to pay for, any other costs related to capital
improvements or infrastructure (i.e. including, but not limited to, plumbing and sewer lines, major
electrical,structural,HVAC,roof, etc.)with regard to the Facility.
11.2 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 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
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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
maintenance to be performed on a regular basis on all facilities, improvements, and facilities 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 of the City. TRF shall, at its sole cost
and expense, and to the satisfaction of the City, keep and maintain the Facility, and all improvements
thereon, in good, clean, and sanitary order. The City shall, at its sole 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 Exhibit "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 to the Facility during the reported 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"E". 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 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
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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 Facility for
the preceding Fiscal Year,and including the number of tickets sold and Events held, 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.
12.3 Annual Plan. Commencing on October 1, 2019, and thereafter on October ls` of each
Contract Year during the term herein, TRF shall provide to the City an annual management plan, which
shall include the annual operating budget for the then current Fiscal Year but may not have a complete
booking plan or event schedule. The annual plan shall include information regarding TRF'S anticipated
operations for such Fiscal Year,including planned operating and maintenance activities,anticipated capital
improvements and capital equipment purchases and an anticipated budget therefore, anticipated Events at
the Facility (to the extent known at such time), and planned equipment and furnishings purchases. 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 of
the City.
SECTION 13.INDEMNIFICATION.
TRF shall indemnify,hold harmless and defend(with counsel approved by the City Attorney)the
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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.
The provisions of this Section 13 shall survive expiration or termination of this Agreement.
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:
14.1 General liability insurance with not less than the following limits:
• General aggregate $2,000,000
• Products(completed operation
• aggregate) $2,000,000
• Personal and advertising(injury) $1,000,000
• (Per occurrence) $1,000,000
• Fire damage $ 100,000
• Medical Expense $ 5,000
• Liquor Liability(aggregate) $2,000,000
• (Per occurrence) $1,000,000
14.2 Workers Compensation Insurance shall be required under the Laws of the State of Florida
14.3 Fire Insurance for the 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 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
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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 fifteen(15)days of demand,the total sum owed shall accrue
interest at the rate of twelve percent(12%)until paid, and such failure shall be deemed an event of default
hereunder.
TRF shall be the named insured under all such policies. The City shall be an additional insured
under the insurance policies described in subsections 14.1, 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 referred 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 Facility and all buildings and real estate, all existing (and
replacements thereof) technical and office equipment and facilities, furniture, displays, fixtures, vehicles
and similar tangible property located at the Facility at the time of the commencement of this Agreement
shall remain with the City. Any and all technical and office equipment and facilities, furniture, displays,
fixtures, vehicles and similar tangible property purchased by TRF for use at the facility shall remain
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
applied for solely by the City or in partnership with the City for use at the facility shall remain property of
the City. Ownership of and title to all intellectual property rights of whatsoever value held in the City's
name shall remain in the name of the City.The ownership of data processing programs and software owned
by the City shall remain with the City,and the ownership of data processing programs and software owned
by 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 not be pledged, liened, encumbered or otherwise alienated or assigned.
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
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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 or his designee, in his sole and absolute discretion,without the payment of any rental or use fee,
except that the direct out-of-pocket expenses incurred in connection with such uses shall be paid by the
City.
SECTION 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 its management duties hereunder without first having
obtained City's prior written approval shall be void and of no force or effect. In the event of any assignment,
transfer, encumbrance or subcontract, 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 in a 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 first class facilities.
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 concessions agreement for the concession operations at the Facility.
SECTION 18. SECURITY.
TRF shall provide reasonable security to protect the Facility and its equipment, materials and
facilities, including any City equipment, furnishings, and fixtures used by TRF, and shall be solely
responsible to the City for any loss or damage to any City equipment, furnishings, and fixtures so used by
TRF.
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,
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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. 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.
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, damage, loss, failure, or
inability to perform caused by"Force Majeure"if notice is provided to the other party within ten(10)days
of date on which such party gains actual knowledge of the event of"Force Majeure" that such party is
unable to perform. The term"Force Majeure" as used in this Agreement means the following: an act of
God, strike, war, public rioting, lightning, fire, storm, flood, explosions, epidemics, landslides, 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 being acknowledged that under no circumstances shall a failure to
pay amounts due and payable hereunder be excusable due to a Force Majeure).
Neither party hereto shall be under any obligation to supply any service or services if and to the
extent and during any period that the supplying of any such service or services or the provision of any
component necessary therefore shall be prohibited or rationed by any Governmental Requirements.
In the event of substantial damage to or destruction of the Facility by reason of fire, storm or other
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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 a period of at least ninety(90)days from the happening of the fire,other casualty
or regulatory action,either party may terminate this Agreement upon written notice to the other. Upon any
such termination,the provisions of Section 31 shall apply;and provided City shall receive the entire amount
of all insurance proceeds or eminent domain award as applicable.
SECTION 22. INSPECTION.
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.
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.
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 TRF shall have authority to 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 purpose(s),shall not be deemed to be agents,employees,partners,joint ventures,
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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 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 e-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 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 all laws, permitting, and licensing requirements
now in force or hereafter adopted, applicable to the Facility or the activities, uses, and/or business(es)
conducted on the Facility. 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 automatic termination of this
Agreement. Except as may result from acts of force majeure,TRF agrees that it will not allow the Facility
to become unoccupied or vacant. TRF shall take appropriate precautions to prevent fire on the Facility,
maintaining existing fire detection devices and extinguishing equipment at all times.Fire detection devices
and extinguishing equipment to be provided and maintained by the City.
SECTION 27. NO DANGEROUS MATERIALS.
TRF agrees not to use or permit in the Facility the storage of illuminating oils,oil lamps,turpentine,
gasoline(except for small containers [5 gallons or less] for machinery),benzene, naphtha, or other similar
substances, or explosives or any kind, or any substance or thing prohibited in the standard policies of fire
insurance companies in the State of Florida.
23
SECTION 28. NO CLAIM AGAINST CITY OFFICERS,EMPLOYEES,INDIVIDUALS.
It is expressly understood and agreed by and between the parties hereto that all individuals,
employees, officers, and agents of the City are acting in a representative capacity and not for their own
benefit; and that neither TRF nor any occupant shall have any claim against them or any of them as
individuals in any event whatsoever in conjunction with any acts or duties which are reasonably related to
the performance of their duties.
SECTION 29. DEFAULT AND TERMINATION.
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
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 fifteen (15) business days after
written notice thereof from City Manager;
29.1.4 (i)The making by TRF of any general assignment for 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 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 all of TRF's
assets located at the Facility or of TRF's interest in this Agreement, if possession is not restored to TRF
within sixty(60)days;or(iv)the attachment,execution or other judicial seizure of substantially all ofTRF's
assets located at the Facility or of TRF's interest in this Agreement, where the seizure is not discharged
within sixty(60)days.
29.2 City Remedies. If an Event of Default by TRF occurs, then in addition to any other
remedies available to City, City may exercise the following remedies:
29.2.1 City may terminate this Agreement by written notice to TRF, in which case this
Agreement shall terminate and TRF shall immediately surrender possession of the Facility to City. Upon
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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 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 may terminate this Agreement by providing the City with one hundred eighty(180)days prior
written notice, 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 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.
SECTION 30. [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 TRF's
rights and responsibilities with respect to the operation, management, maintenance, promotion and
marketing of the Facility,upon one hundred eighty(180)days prior written notice to TRF.
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 10 and to the extent
such funds are not sufficient, TRF shall pay all such amounts from its own funds; (2)After all amounts
referenced in subparagraph(1)have been paid,TRF may retain all remaining Operating Revenues(if any).
25
Upon the expiration of this Agreement or a termination for any reason,all further obligations of the parties
hereunder shall terminate except for the obligations which for all periods up to the date of expiration or
termination and such other obligations as are stated to survive or be performed after such expiration or
termination. All of the foregoing reimbursement and the payment obligations are to be made within thirty
(30) days after the termination date. The provisions of this Subsection 31.2 regarding the above
reimbursement and payment obligations of the City shall survive the termination of 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
mail to TRF at the following address:
The Rhythm Foundation,Inc.
PO Box 414625
Miami Beach Florida 33141
Attention: James Quinlan,Chairman
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
With copies to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach,Florida 33139
Attention: John Rebar,Parks and Recreation Department Director
TRF and the City may change the above mailing addresses at any time upon giving the other party written
notification. All notice under this Agreement must be in writing.
SECTION 33. NO DISCRIMINATION.
33.1 The TRF agrees that there shall be no discrimination on account of actual or perceived race,
color, national origin, religion, sex, intersexuality, gender identity, sexual orientation, marital and familial
status, age, disability, ancestry, height, weight, domestic partner status, labor organization membership,
familial situation, or political affiliation in the operations referred to by this Agreement; and further, there
26
shall be no 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.
33.2 No Discrimination in 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
because of race, color, national origin, religion, sex, intersexuality, gender identity, sexual orientation,
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 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.
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 TRF's right to
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
27
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 MAY HAVE TO A 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 any way 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
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 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 no 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 this Agreement. The terms
defined herein and in any agreement executed in connection herewith include the plural as well as the
singular and the singular as well as the plural,and the use of masculine pronouns shall include the feminine
and neuter. Except as otherwise indicated,all agreements defined herein refer to the same as from time to
time amended or supplemented or the terms thereof waived or modified in accordance herewith and
therewith.
28
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.
37.7 Severability. The invalidity or unenforceability of any particular provision, or part of any
provision,of this Agreement shall not affect the other provisions or parts hereof,and this Agreement shall
be construed in all respects as if such invalid or unenforceable provisions or parts were omitted.
37.8 Non-Waiver. A failure by either party to take any action with respect to any default or
violation by the other of any of the terms,covenants,or conditions of this Agreement shall not in any respect
limit,prejudice,diminish,or constitute a waiver of any rights of such party to act with respect to any prior,
contemporaneous,or subsequent violation or default or with respect to any continuation or repetition of the
original violation or default.
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 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.
38.1 TRF shall comply with Florida Public Records law under Chapter 119,Florida Statutes,as
may be amended from time to time.
38.2 The term"public records"shall have the meaning set forth in Section 119.011(12), which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data
processing software, or 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.
29
38.3 Pursuant to Section 119.0701 of the Florida Statutes, if TRF meets the definition of
"Contractor"as defined in Section 119.0701(1)(a),TRF shall:
38.3.1 Keep and maintain public records required by the City to perform the service;
38.3.2 Upon request from the City's custodian of public records,provide the City with a
copy of the requested records or allow the records to be inspected or copied within a reasonable
time at a cost that does not exceed the cost provided in Chapter 119,Florida Statutes or as otherwise
provided by law;
38.3.3 Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed, except as authorized by law, for the duration of
the contract term and following completion of the Agreement if TRF does not transfer the records
to the City;
38.3.4 Upon completion of the Agreement, transfer, at no cost to the City, all public
records in possession of the Consultant or keep and maintain public records required by the City to
perform the service. If the Consultant transfers all public records to the City upon completion of
the Agreement,TRF shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If TRF keeps and maintains public records
upon completion of the Agreement, the Consultant shall meet all applicable requirements for
retaining public records.All records stored electronically must be provided to the City,upon request
from the City's custodian of public records, in a format that is compatible with the information
technology systems of the City.
38.4 REQUEST FOR RECORDS;NONCOMPLIANCE.
38.4.1 A request to inspect or copy public records relating to the City's contract for
services must be made directly to the City. If the City does not possess the requested records, the
City shall immediately notify the Consultant of the request, and TRF must provide the records to
the City or allow the records to be inspected or copied within a reasonable time.
38.4.2 TRF's failure to comply with the City's request for records shall constitute a breach
of this Agreement,and the City,at its sole discretion,may:(1)unilaterally terminate the Agreement;
(2)avail itself of the remedies set forth under the Agreement;and/or(3)avail itself of any available
remedies at law or in equity.
38.4.3 A Concessionaire who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s. 119.10.
38.5 CIVIL ACTION.
38.5.1 If a civil action is filed against TRF to compel production of public records relating
to the City's contract for services,the court shall assess and award against TRF the reasonable costs
of enforcement, including reasonable attorneys'fees,if:
30
a. The court determines that TRF unlawfully refused to comply with the public records
request within a reasonable time;and
b. At least 8 business days before filing the action,the plaintiff provided written notice of
the public records request,including a statement that TRF has not complied with the request,to the
City and to TRF.
38.5.2 A notice complies with subparagraph(1)(b) if it is sent to the City's custodian of
public records and to TRF address listed on its contract with the City or to the Concessionaire's
registered agent. Such notices must be sent by common carrier delivery service or by registered,
Global Express Guaranteed,or certified mail,with postage or shipping paid by the sender and with
evidence of delivery,which may be in an electronic format.
38.5.3 A Concessionaire who complies with a public records request within 8 business
days after the notice is sent is not liable for the reasonable costs of enforcement.
38.6 IF TRF HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,
FLORIDA STATUTES, TO TRF'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS AGREEMENT,CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO,CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH,FLORIDA 33139
E-MAIL: RAFAELGRANADO(a,MIAMIBEACHFL.GOV
PHONE: 305-673-7411
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 café patrons.
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded polystyrene is
more particularly defined as blown polystyrene and expanded and extruded foams that are thermoplastic
petrochemical materials utilizing a styrene monomer and processed by any number of techniques including,
31
but not limited to, fusion of polymer spheres (expandable bead foam), injection molding, foam molding,
and extrusion-blown molding(extruded foam polystyrene).
Expanded polystyrene food service articles means plates, bowls, cups, containers, lids, trays, coolers, ice
chests,and all similar articles that consist of expanded polystyrene.
Additionally,Concessionaire agrees to comply(and ensure compliance by its vendors)with Section 46-92
(c) of the City Code, which states that it is unlawful for any person to carry my expanded polystyrene
product onto any beach or into any park within the City or for any business to provide single use plastic
straws or single use plastic stirrers with the service or delivery of any beverage to patrons on the beach
except that this prohibition shall not apply to a person or patron with a disability or medical condition that
impairs the consumption of beverages without a single-use plastic beverage straw or plastic stirrer;provided
however,TRF agrees not to sell,use,provide food in,or offer the use of expanded polystyrene food service
articles at the Facility or in connection with this Agreement. TRF shall ensure 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
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 purchase, from the City's Bottler, Coca-Cola beverages as listed in the attached Exhibit "G" and as
may be updated from time to time.
32
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
A1.ci L , PI\ I ii ii
Rafa l E. ranado,City lerk = \ J'•- \y a . ora es, City Manager
*!
.. v.:
STATE OF FLORIDA ) 0',; cJ
'
COUNTY OF MIAMI-DADE ) '" "'
The foregoing instrument was acknowledged before me this 2-5 day of 0aher-- ,2019,by Dan
Gelber, 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 o23 day of r2G/b"--- , 2019.
xyd i`///
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires: f-•,'':` ':*.. LILIACAROILLO
,k :, MY COMMISSION#GG 230433
JL EXPIRES:August27,2022
'o's#-°; Bonded Ttw Notary Public Underwriters
APPROVED AS TO
FORM & LANGUAGE
7& F R EUTION
33 �,..--. NO I C
City Attorney i Date
4 i
ATTEST: THE RHYTHM FOUNDATION, INC.
-,A141“ NL AI C=�- /
Name/Title J. Ks Q 4117 , Chairman
O¢4N Nina
"S. Commission#FF9 91 6
STATE OF FLORIDA ) %, _;
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,Township 53 South Range 42 East
(now South line of 72' 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 the Atlantic Ocean,as recorded
in Plat Book 105, at Page 62, of the Public Records of Miami-Dade County, Florida and
bounded on the West by the East right-of-way line of Collins Avenue as shown according
to Florida Department of Transportation Finished Project ID 2507471. Said land located
in the City of Miami Beach, Miami-Dade County,Florida.
35
EXHIBIT A-1
BAND SHELL SITE PLAN
eNORTH H BEACH USE AGREEMENT
BANDSHELL BACKSTAGE MAP
4
*1•000000.1.00000.111.0*
r O
36
USE AGREEMENTH BEACH
BANDSHF1 I MAP
eBNAONR'TDsHELL
•
37
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 operation of
the Facility.
TRF shall have the sole responsibility to recruit and employ sufficient personnel to maintain the following
functions: general and event security;janitorial, housekeeping and cleaning for both event and non-event
cleanup(including graffiti removal);painting and general overall maintenance 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.
TRF shall maintain personnel policies that assure employment practices do not discriminate on the basis of
race,color,religion,military status,marital status,physical or mental disability,national origin,age,gender,
or sexual preference.
GENERAL SECURITY
TRF shall provide for the overall security of the Facility,including during non-event hours.
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.
38
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 on an as needed basis.
Entrance doors and mirrors shall be maintained in a reasonably clean condition and cleaned on an as needed
basis.
LANDSCAPING
The City shall maintain all exterior landscaping
EXTERIOR LIGHTING
The Facility shall remain illuminated regularly after dark. The City shall maintain all exterior lighting.
EQUIPMENT MAINTENANCE AND GENERAL MAINTENANCE
Equipment shall be maintained in a good and workmanlike manner in 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.
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 any applicable governmental code and/or regulation, any and
all required professional licenses,certifications,and/or permits.
The City shall maintain and inspect all building safety systems including but not limited to: smoke, fire,
and CO detector systems, backup generator operation, emergency battery backup functions, emergency
lighting, emergency egress, special needs and blackout preparedness equipment. All building safety
systems shall be tested on at least an annual basis or as required by federal, state or local codes and
regulations and maintained in operating condition at all times.
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.
39
EXHIBIT C
RENTAL RATES FOR FACILITY
eNORTH BEACH USE AGREEMENT
BA N D S H E L L RATE SHEET
RENTAL RATES (10 HRS*)
*INCLUDING LOAD IN/OUT
PUBLIC EVENTS
FOR PROFIT COMPANY $3,500
NON PROFIT ORGANIZATION $2,500
PRIVATE EVENTS
(INCLUDES HOUSE MANAGER,2 SECURITY
GUARDS,AUDIO
FOR PROFIT COMPANY $7,500
ENGINEER,CLEANING FEE
(INCLUDES HOUSE MANAGER,2 SECURITY
GUARDS,AUDIO
NON PROFIT ORGANIZATION $6,500
ENGINEER, CLEANING FEE
STAFFING RATES (PER HOUR)
TECHNICAL STAFF
AUDIO ENGINEER $50
STAGE TECHNICIAN $30
LIGHTING DESIGNER $35
FRONT OF HOUSE STAFF
HOUSE MANAGER $25
STAGE MANAGER $25
CONCESSIONS MANAGER $30
SECURITY GUARD $22
DOOR PERSON $20
MERCHANDISE PERSON $20
HOSPITALITY PERSON $15
HOUSE LABOR $15
•
USHER $10
SERVICE RATES
CLEANING
POST SHOW CLEAN UP $300
40
NORTH BEACH
BANDSHELL EXHIBIT D USE AGREEMENT
TRF STANDARD AGREEMENT TERMS SHEET
THIS LICENSE AGREEMENT("Agreement")made this day of , ,between THE
RHYTHM FOUNDATION("TRF")located at P.O.Box 414625,Miami Beach,Florida,33141,FID:65-
0102768,on behalf of The NORTH BEACH BANDSHELL("VENUE")located at 7275 Collins Ave,Miami
Beach,Florida,33141,and("RENTER")as
Corporate Name:
Contact:
Address:
City, State,Zip Code:
Telephone:
Email:
Website:
is for the RENTER's limited,temporary,and revocable license for the use of the venue described below and
to conduct the event(s)/performance(s)regarding as follows:
Event/Artist/Performance/Engagement Name and description type,as applicable: (collectively referred to
as"USE AGREEMENT"
Description below is subject to change based on information provided.
CATEGORY DESCRIPTION COST
Space Rental:
Event Name:
Date/Time:
Load In Date/Time(s):
Load out Date/Time(s):
Total Use
Review Date:
Security Deposit:
Tax Status(Check one): 0 Non-Profit 0 For PRofit
Admission(Check one): 0 Ticketed 0 Free
Fundraiser(Check one): 0 Advocacy 0 Political 0 N/A
Audience(Check one): 0 Public 0 Private 0 Production
0 Athletic 0 Community 0 Exposition 0 Festival
Event Type 0 Screening 0 Standard Concer 0 Theatre 0 Wedding
0 Conference 0 Photo 0 Filming 0 Limited
Additional Comments
Initials: /
41
786-453-2897
7275 Collins Ave
Miami Beach,FL 33141
USE AGREEMENT
This Agreement is entered into this day of , ,by
and between The Rhythm Foundation,Inc.("TRF")and ("Renter").
1. TERM
TRF hereby grants to Renter the privilege and license to use The North Beach Bandshell,
located at 7275 Collins Avenue Miami Beach,FL 33141 ("Facility").This Agreement shall
commence upon the full execution and terminate upon fulfillment of all the responsibilities and
obligations of the parties.
2. USE PERIOD
Renter shall be permitted to enter and occupy the Facility, excluding"Production Office",
"Janitor Closets"and"Storage Facilities",during the Use Period for the purposes of presenting an
event("Event").Unless otherwise agreed to in writing by TRF,the Event shall be held at no other
times at the Facility.The Use Period shall consist of the period of time required for set-up,
presentation, and dismantle of the Event. In consideration of an additional fee,TRF may allow
Renter a longer period.Any equipment or stage props left in the Facility after the expiration of the
time allowed for dismantle may be disposed of by TRF without any right of claim by the Renter.
Staffing rates will apply based on services required, staff must be present at all times that Renter or
their representatives are on site.
3. PERMITTED USE
This Agreement solely authorizes Renter to the temporary use of the Facility for the limited
purposes set forth herein and for no other purpose.The parties hereby agree that the provision of
this Agreement do not constitute a lease.TRF retains dominion,possession, and control of the
Facility.This Agreement confers no exclusive possession of the Facility.The Renter cannot
exclude TRF from the Facility.
Renter shall not allow any of the foregoing into the facility or the surrounding property at
any time,without TRF's prior written consent: interactive physical games and attractions,
mechanical rides,body art and piercing services, exotic animals,and pyrotechnics.
Renter understands that the Venue Occupancy at any one time is 1,350 persons.
Anything to the contrary not withstanding,the Renter may sell tickets to All Ages and
market event to the public as"All Ages".
4. USE RATE
In consideration of the use of the Facility,Renter agrees to pay TRF rental charge detailed on
the first page of this Agreement as well as all costs incurred by the performance(including but not
limited staffing, equipment rental,and other fees as described in the attached Payment and Fees
Schedule).This total does not reflect any additional charges that may be levied against
Initial I 42 4;
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USE AGREEMENT
Renter.The total fee is to be paid no later than thirty days(30)prior to the beginning of the Use
Period,unless otherwise agreed to in writing with TRF. Payment of additional charges shall be
made within two(2)business days following the occurrence of the Event giving rise to such
payment.
5. SECURITY DEPOSIT
A security deposit of$1,000 per event day is due at the time of execution of this contract. Dates
will not be reserved for any rental without the payment of a deposit.Dates can be reserved for a
maximum of one year.The Security Deposit is provided towards Renter's performance under
this Agreement and full payment of all amounts due hereunder,including the cost of any
damage repairs,replacement or restoration,payment of any Additional Charges,or to defray any
other unusual but reasonable expense borne by TRF as a consequence of Renter's use of the
Facility and/or presentation of an Event.TRF shall return the Security Deposit,or the
unexpended portion thereof,to the Renter upon full satisfaction of all of Renter's obligations
hereunder according to the Payment&Fees Schedule at the Adjusted Final Settlement. If
Security Deposit is not sufficient to fully restore damages caused by this use,Renter agrees to
provide necessary repairs or payments within thirty(30)days to fully restore the venue and/or
the in-house equipment to the condition in which it was received. Except where this Agreement
is terminated for cause,Renter shall be entitled to a refund of the Deposit,or so much thereof as
has not been applied,upon termination of the Agreement, after satisfaction of all amounts due
by Renter hereunder, if any. Should the rental agreement be canceled within 60 days of the
event,the Renter agrees to forfeit the full security deposit amount.
6. CONDITION OF FACILITY/REMOVAL OF RENTER'S EFFECTS
Renter has inspected the Facility and accepts it in"as-is"condition. Commencement of the use of
the Facility by Renter shall be conclusive that the Facility was in good repair and in satisfactory
condition, fitness, and order when such use commenced.Renter shall not paint,drill into, or in any
way mark or deface any part of the Facility.Renter agrees to tear down and remove all of Renter's
effects immediately after the presentation of an Event and/or expiration of the Term.TRF will have
the full right to collect and have custody of all articles and personal property left on the Facility or at
the Facility after the expiration of the Use Period.Any property so left will be deemed abandoned by
Renter and may be disposed of by TRF,as TRF sees fit,without any liability for any loss,damages
or costs associated with such disposal,which liability will rest solely with Renter.Any costs
incurred by TRF in removal of effects or in the repairing of any damage to Facility caused by the
Event will be fully charged to the Renter.
7. EVENT PERSONNEL
Renter shall be responsible for all staffing costs in connection with the use of the Facility,
see attached Payment&Fees Schedule for Staffing Guidelines,Rates&Responsibilities.
TRF reserves the right to schedule staffing to ensure quality customer experience,public
Initial l 43 4;
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USE AGREEMENT
safety,venue cleanliness&execution of all services provided. An estimate of staffing costs is
in the attached Payment&Fees Schedule.
8. IN HOUSE EQUIPMENT
Use of the In House Sound and Lighting and any other furniture, fixtures,and equipment are
available to the Renter at no additional charge.No additional amplified sound system is permitted
for use within the venue.The removal of speakers from their original setting is prohibited. It is
acknowledged by Renter that final authority over operation of in-house equipment rests with TRF.
Changing of the original positioning or focusing of lighting equipment, or reprogramming of the
lighting computer or audio console can only be done with TRF's approval and supervision.Renter
shall pay for any technical labor involved in returning the equipment to its original standard
design.Any violations of this section may result in the immediate termination of this Agreement
and will subject Renter to liability for all damages arising from, or in connection with, said
violation.
9. BOX OFFICE
TRF shall manage all Box Office operations including but not limited to online event creation,
online ticket sales,day of show ticket sales,box office management and staffing of personnel.Third
party ticket outlets and consignment sales may be allowed by written agreement and TRF inventory
control. Settlement from Box Office proceeds to take place at the Adjusted Final Settlement based
on the attached Payment&Fee Schedule.TRF requires 20 complimentary tickets to all events at
the North Beach Bandshell.TRF charges a$3.00 per ticket fee for all tickets sold.
10. VENUE SPONSORSHIPS AND SIGNAGE
Renter understands that TRF has entered into signage and sponsorship relationships related to
the Facility for which TRF will retain all proceeds.TRF reserves all rights to display signage in
accordance with its Venue Sponsor agreements.Renter will not mark, cover or attempt to modify
any of the signage erected in accordance with its Venue Sponsor agreements at, on or near the
Facility.All active Venue Sponsors can be found in attached Sponsor Guidelines.
11. BRANDING, SIGNAGE& SPONSORS
Renter shall only display or erect any lettering, signs,pictures,notices,or advertisements in
consultation and approval of TRF staff.TRF reserves the right of discretion regarding the
location of all Branding& Signage. Sponsors must adhere to the rules laid out in the Sponsor
Guidelines.
Initial / 44 4,
786-453-2897
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USE AGREEMENT
12. EVENT ADVERTISING AND PROMOTION
Renter shall be responsible for costs associated with all advertising and promotional materials
in connection with the Event.Renter acknowledges and agrees that TRF shall in no way be
responsible for the actual results from and/or the success, financial or otherwise,of the Event.
13. THIRD PARTY CHARITABLE DONATIONS
Renter may allow Third Party Charitable Donations. Renter acknowledges and agrees to
comply with all applicable laws,regulations,and ordinances imposed by any governmental
authority in collecting said donations.Renter further agrees that it will be solely responsible for all
liability related to said donations.
14. PARKING
TRF shall not be obligated to provide or cause to be provided any parking whatsoever.TRF
shall not be responsible,under any circumstances, for any loss or damage occurring to
automobiles brought onto the Facility by Renter's employees, subcontractors,or guests.
15. MUNICIPAL SERVICES
The Venue(TRF)reserves the right to hire,within reason, additional services as required by
The City of Miami Beach. Costs associated with CMB additional services will be the sole
responsibility of the Renter to be paid based on the attached Payment&Fee Schedule.
16. MERCHANDISE AND CONCESSIONS
TRF's designated food and beverage concessionaire shall sell all food and beverages and
retain one hundred percent(100%)of the profits therefrom,and TRF's designated merchandise
vendor shall sell all merchandise with seventy percent(70%)going to Renter and thirty percent
(30%)retained by TRF,less taxes. In the event that Alcoholic Beverages are being sold, age
verification will take place at the entrance of the venue by designated staff.
17. BOOTH/COMMERCIAL SPACE
Renter agrees to give notice to TRF to ensure successful execution and proper distribution of in
house utilities and equipment,whose approval is not to be unreasonable withheld, should Renter
desire to sell booth/commercial space("Booth Space")at the Facility to vendors or exhibitors or
otherwise permit vendors or exhibitors at the Facility("Vendors")in connection with the Event.
Renter will assume sole control and responsibility for(i)all operations of all Vendors relating to
the Event and(ii)requiring Vendors to comply with any applicable Facility rules and regulations.
Renter will be solely responsible for the payment of any and all taxes or other fees associated with
the payments received from the Vendors of the use of the Booth Space.All Vendors must adhere
to attached Payment&Fee Schedule regarding submission of Indemnification form and delivery
of all necessary Licensure and Insurance based on needs described in this agreement. In addition to
any other indemnification requirements set forth herein,Renter shall indemnify,defend,be solely
liable for and hold,waive and release the TRF parties(herein described),harmless from and
against any and all claims, lawsuits,injuries, or losses arising out of the installation, operation,and
removal of or in any manner related to the booth space and booth vendors.
Initial / 45 4!
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18. RISK OF LOSS USE AGREEMENT
Renter understands and agrees that TRF shall not be liable for any loss, injury,or damage to any
personal property or equipment brought into the Facility by Renter or by anyone whomsoever not
under the control or direction of TRF,during the time that the Facility is under the control of, or
occupied by the Renter. All personal property placed or moved in the Facility shall be at the risk of
Renter or the owner thereof. Renter further agrees that it shall be responsible to provide security
whenever personal property either owned or used by the Renter,its employees, agents or
subcontractors is placed in the Facility,including any property or equipment necessary for set-up
and dismantle,whether or not the Facility is open to the general public.
19. INDEMNIFICATION
In addition to any other indemnification requirements set forth herein,Renter agrees to defend,
indemnify, shall be solely liable for and hold, waive and release TRF and the City of Miami Beach
("city")and each of their respective parents,members,partners,affiliates,divisions and
subsidiaries,and each of their respective officers, directors, shareholders, employees, agents and
representatives(collectively,"releasees")harmless from and against any and all claims, suits,
losses, injuries,liability, and damages(including reasonable attorneys' fees and court costs)arising
or alleged to have arisen out of(a)any act or omission of renter,its employees,agents,volunteers,
contractors,patrons, guests,invitees,participants and performing artists; and/or(b)the
presentation or performance of the event and/or(c)renter's breach of any of the provisions of this
agreement.The parties agree,however,that the foregoing indemnity,waiver and release does not
include any claims,demands, suits,liabilities, expenses,etc.that arise out of TRF's or the city's
sole negligence or willful misconduct.
Renter agrees to use and occupy the facility and to place material, equipment,and other
property therein at its own risk and hereby releases the TRF parties from all claims for any
damage or injury arising therefrom.Renter will require all third-party service providers and
contractors to provide signed indemnification agreement consistent with the indemnification
requirements stated in this agreement and in the attached`Service Provider/Vendor
Application"The indemnification,waiver and release provisions contained throughout this
agreement shall survive the termination of this agreement.
Renter will be solely responsible for the conduct and activities of Renter's employees,
agents, contractors,guests and invitees and,for purposes of the Agreement, such conduct and
activities of Renter.Renter and its employees,agents,contractors,guests,and invitees
Initial / 46 4E
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Miami Beach,FL 33141
USE AGREEMENT
will abide by all reasonable rules and regulations adopted by TRF for the use, occupancy, and
operation of the Facility. Renter's obligations under this Section shall survive the expiration
or termination of this Agreement.
20. INSURANCE
Renter will maintain and pay all premium costs for,and will ensure that all of Booth Vendors
and other contractors of Renter maintain and pay for the following insurance coverages in amounts
not less than specified throughout the duration of the Term:
1. Commercial General Liability Insurance for limits of not less than
$1,000,000.00 per occurrence Bodily Injury and Property Damage combined;
$1,000,000.00 per occurrence Personal and Advertising Injury; $2,000,000.00
aggregate Products and Completed Operations Liability; $100,000.00 Fire Legal
Liability,and
$2,000,000.00 general aggregate limit per event.The policy shall be written
on an occurrence basis.
2. Umbrella Liability Insurance at not less than$2,000,000.00 limit providing
excess coverage over all limits and coverages noted in attached Insurance
Requirements.This policy shall be written on an occurrence basis.
3. Statutory Workers'Compensation including Employer's Liability Insurance,
subject to limits of not less than$500,000.00, affording coverage under
applicable worker's compensation laws. Renter will cause, if allowed by law,its
workers'compensation carrier to waive Insurer's right of subrogation with
respect to the TRF Parties.Workman's Compensation is not required of Vendors
with less than three employees. In this instance,an official letter from the
Vendor stating that they have less than three employees is required.
Policies 1 and 2 above shall list TRF and the City of Miami Beach as"Additional
Insureds"with respect to any and all claims arising from Renter's operations.
Further,coverage for the"Additional Insureds"will apply on a primary basis irrespective of any
other insurance,whether collectible or not. Should any additional premium be charged for such
coverages or waivers,Renter will be responsible to pay said additional premium charge to their
insurer. Renter will deliver to TRF satisfactory evidence of the described insurance coverage on a
certificate form approved by TRF or,if required,copies of the policies.All required insurance
will be placed with carriers licensed to do business in the State of Florida,have a rating in the
most current edition of A.M.Best's Property Casualty Key Rating Guide that is reasonably
acceptable to TRF and will provide thirty(30)days written notice of cancellation or nonrenewal.
The insurance obligations stated in this Section are independent of, and shall not be affected by
the scope or validity of,any other indemnity,waiver,release or insurance provisions in other
sections of this Agreement.
Renter will ensure that all of its contractors(including,without limitation, sponsors and Booth
Vendors arranged by Renter)who will be entering the Facility to engage in any business activity
(including,without limitation, sampling, distributing,vending or other commercial activity)will
comply with the foregoing insurance requirements and provide satisfactory evidence thereof prior
to the Event.
Initial I 47 4'
786-453-2897
7275 Collins Ave
Miami Beach,FL 33141
USE AGREEMENT
21. LICENSING AND PERMITS
Renter will be responsible for obtaining and paying for all licenses or permits necessary for
holding the Event,including,but not limited to,tax requirements and any permits required by
governmental authorities.All costs associated with Permitting and Licensing are to be paid by
Renter based on Payment&Fee Schedule.
22. DEFAULT
If Renter,after having been given the opportunity to cure, fails to comply with any term(s)or
condition(s)of this Agreement,or fails to perform any of its obligations hereunder,then Renter shall
be in default.Upon the occurrence of a default hereunder,TRF,in addition to all remedies available
to it by law,may by notice to Renter,terminate this Agreement whereupon all deposits,payments,
advances,or other compensation paid by the Renter to TRF shall be retained by TRF.
Notwithstanding any provision herein, or any rule or regulation providing otherwise,if the Renter
cancels the event thirty(30)or less days from the commencement of the Use Period this shall be a
default by the Renter.Renter will automatically forfeit and owe the entire Use Rate, as described on
the first page of this Agreement as well as the amount due for any contracted services already
rendered on behalf of Renter.The Renter shall have no recourse against TRF due to the Renter's
cancellation of the event thirty(30)or less days preceding the Use Period.The forfeiture of the Use
Rate shall not apply if the cancellation occurs due to a Force Majeure.
23. TRF'S TERMINATION RIGHTS
Termination Right:TRF,at the request of CMB,shall have the right to cancel the
presentation of an Event at any time if,in the exercise of its reasonable discretion,CMB
determines that the presentation of such Event,at the scheduled time, is not in the best
interest of TRF or the City of Miami Beach("CMB")due to concerns of Public Safety,
Quality of Life or in case of Emergency.
Termination for Cause:TRF shall have the right to terminate this Agreement,without
notice or liability to Renter,upon the occurrence of an event of default so long as the
Renter has been given written notice of the default and reasonable opportunity to cure
said default in each instance.
Force Majeure:TRF shall not be liable for any failure to perform its obligations where
such failure is caused by conditions beyond its control,including,but not limited to,
Acts of Nature(including fire, flood, earthquake, storm,hurricane,or other natural
disaster),war,invasion,act of foreign enemies, events in foreign countries that affect
the City of Miami Beach and its citizens,hostilities(whether war is declared or not),
riots, street celebrations or protests,military or usurped power of confiscation,terrorist
activities,nationalization,government sanctions or restrictions,blockage,embargo,
labor dispute, strike, lockout or interruption,of the failure of services such as
electricity or telephone.
24. MISCELLANEOUS PROVISIONS
This Agreement shall be construed and enforced according the laws of the
State of Florida.
Title and paragraph are for convenient reference and are not a part of
this Agreement.
No waiver or breach of any provision of this Agreement shall constitute a
Initial I 48 41
786-453-2897
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Miami Beach,FL 33141
USE AGREEMENT
waiver of any subsequent breach of the same or any other provision hereof,
and no waiver shall be made effective unless made in writing.
Should any provision,paragraph, sentence,word, or phrase contained in this
Agreement be determined by a court of competent jurisdiction to be invalid,
illegal or otherwise unenforceable under the laws of the State of Florida or
the City of Miami Beach, such provision,paragraph, sentence,word, or
phrase shall be deemed modified to the extent necessary in order to conform
with such laws, or if not modifiable,then same shall be deemed severable,
and in either event,the remaining terms and provisions of this Agreement
shall remain unmodified and influx force and effect or limitation or its use.
This Agreement and any references Addendums and attachments constitute
the sole and entire agreement between the parties hereto.No modification
or amendment hereto shall be valid unless in writing and executed by
properly authorized representatives of the parties hereto.
25. NONDISCRIMINATION
Renter represents and warrants to TRF that Renter does not and will not engage in discriminatory
practices and that there shall be no discrimination in connections with Renter's use of the Facility or
presentation of the Event on account of race,color, sex, sexual preference,religion,age,disability,
marital status,or national origin. Renter further covenants that no individual shall,solely by reason
of his/her race, color, sex, sexual preference,religion, age, disability, marital status,or national
origin,be excluded from participation in,be denied services,or be subject to discrimination in
connection with the use of the Facility under this Agreement.
26. ASSIGNMENT
Renter may assign this Agreement, in whole or in part with written approval from TRF.
27. NOTICES
All notices or other communications required under this Agreement shall be in writing and
shall be given by hand-delivery, electronic mail, or by registered or certified US Mail,return
receipt requested, addressed to the other party at the address indicated herein or to such other
address as a party may designate by giving notice in the matter herein provided.Notice shall be
deemed given on the day on which personally delivered; or,if by mail,on the fifth day after being
posted or the date of actual receipt,whichever is earlier.
28. ENTIRE AGREEMENT
This instrument,together with its attachments and all other instruments incorporated herein
by reference constitute the sole and only agreement of the parties hereto relating to the use of
the Facility. Any prior agreements,promises,negotiations, or representations not expressly set
forth in this Agreement are of no force or effect.
29. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall
constitute an original,but all of which,when taken together, shall constitute one and the
same agreement.
Initial / 49 4!
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USE AGREEMENT
30. INSPECTIONS
The Renter will allow TRF inspectors,agents, or representatives the ability to monitor its
compliance with safety precautions as required by federal, state,or local laws,rules,
regulations, and ordinances. By performing these inspections TRF,its agents,or representatives
are not assuming and liability by virtue of these laws,rules,regulations,and ordinances.The
Renter shall have no recourse against TRF, its agents,or representatives from the occurrence,
nonoccurrence,or results from such inspection(s).
31. AMERICANS WITH DISABILITIES ACT
Renter shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act("ADA")in the course of providing any work, labor or services funded by TRF
including Titles I and II of the ADA(regarding non-discrimination on the basis of disability)
and all applicable regulations,guidelines,and standards. Additionally,Renter shall take
affirmative steps to ensure the nondiscrimination in employment of disabled persons.
32. COMPLIANCE WITH LAWS
Renter accepts this Agreement and hereby acknowledges that Renter's strict compliance with
all applicable federal, state,and local laws, ordinances and regulations is a condition of this
Agreement, and Renter,and any of its employees,agents, or performers, shall comply therewith as
the same presently exist and as they may be amended hereafter.This Agreement shall be construed
and enforced in accordance to the laws of the State of Florida.Further,the Renter, and any of its
employees, agents or performers,hereby agrees to comply with all regulations regarding travel to
and from the United States as promulgated by the US Department of Treasury Office of Foreign
Assets Control, and the US Department of State.
Violation of any federal, state and local law shall subject the Renter to immediate cancellation of
this Agreement.
The Rhythm Foundation Renter
Name: Name:
Title: Title:
Date: Date:
Initial / 50 5(
NORTH BEACH
BA N D S H E L L LICENSE AGREEMENT
Insurance Requirements
All productions and vendors that go into the North Beach Bandshell require General Liability Insurance
with the following limits:
For all events
General aggregate $2,000,000
Products (completed operation aggregate) $2,000,000
Personal and advertising Injury $1,000,000
Per Occurrence $1,000,000
Fire Damage $100,000
Medical Expense $5,000
If applicable:
Automobile Liability providing coverage for $1,000,000
all Owned,Hired and Non Owned Autos
If vendor is dispensing alcohol:
Liquor Liability(aggregate) $2,000,000
Per Occurrence $1,000,000
Workers Compensation Insurance shall be required under the Laws of the State of Florida. If the
vendor has less than three employees and thus is exempt from Worker's Compensation, a letter attesting
to the fact must be submitted.
In every case,the following entities must be listed as additionally insured:
The City of The Rhythm
Miami Beach Foundation PO Box
1700 414625
Convention Miami Beach,FL 33141
Center Drive
Miami Beach,
FL 33139
51
EXHIBIT E
CITY OF MIAMI BEACH OWNED PROPERTY INCLUDED IN THE AGREEMENT
NORTH BEACH CITY OWNED
BA N D S H E L L EQUIPMENT
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
HOUSE CONSOLE:
Yamaha QL5 I 48x16
FLOOR MONITORS:
4 --QSC KW122
F.O.H.SYSTEM:
12—Meyer Sound I MINA
Compact Curvilinear Array Loudspeaker
3 —Meyer Sound 1700—HP
UltraHigh—Power Subwoofer
LIGHTING:
16—Chauvet IP65 ColorDash Par H 12IP LED Wash Light
16—Chauvet IP65 ColorDash Par H7IP LED Wash Light
11 —Medium PAR 64(1K)
1—Opto Branch 4 4way DMX Distributor ETC
Element Lighting Console
52
EXHIBIT F
CITY PREDETERMINED SCHEDULED EVENTS FOR FACILITY
City of Miami Beach Parks and Recreation Department—Hispanic Heritage Events(September)
City of Miami Beach International Tennis Federation Events(October)
City of Miami Beach Turkey Give-Aways(November)
City of Miami Beach Toy Drives(December)
City of Miami Beach Parks and Recreation Department—Black History Event(February)
City of Miami Beach Youth Music Festival(March)
***other City events to be scheduled in conjunction with The Rhythm Foundation***
53
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
EXHIBIT G
COCA COLA AGREEMENT AND PRODUCT LIST
54
���y /' ►��j� Execution Version
cl/lG 6-'7-C l'2(JC�7"T""'I�
COCA-COLA PLAZA
ATLANTA,GEORGIA
March 16,2017
City of Miami Beach
Attention: Ms.Gisela Torres
1700 Convention Center Drive,Fourth Floor
Miami Beach,Florida 33139
Re: Sale of the Assets of Coca-Cola Refreshments USA, Inc. to Coca-Cola Beverages
Florida,LLC
Dear Ms.Torres:
Reference is hereby made to that certain agreement(the"Agreement"), dated March 14,
2012, by and among the City of Miami Beach, Florida (the "City"), Coca-Cola Refreshments
USA, Inc. d/b/a Florida Coca-Cola Bottling Company ("CCR") and The Coca-Cola Company,
acting by and through Coca-Cola North America,attached hereto as Exhibit A.
As you know from our prior communications,CCR has transferred certain of its assets to
Coca-Cola Beverages Florida, LLC ("CCBF"). In connection with such transfer, CCR formally
requests the City's consent to: (i) assign all of CCR's right, title and interest in and to the
Agreement to CCBF, including those rights noted in the Agreement as non-assignable by CCR,
as of February 25, 2017 (the"Assignment Effective Date")and (ii)CCBF's assumption of all of
CCR's obligations and liabilities under the Agreement from and after the Assignment Effective
Date (collectively, the "Assignment"). CCBF hereby accepts the Assignment and further
assumes and agrees to perform all of the duties and obligations of the Bottler under the
Agreement,subject to the Agreement's terms,from and after the Assignment Effective Date.
By consenting to the Assignment, the City acknowledges and agrees that the Agreement
shall remain in full force and effect after completion of the Assignment and that there is no
default or breach by any party under the Agreement in connection with, or as a result of, the
Assignment, and the City agrees to release CCR from all liabilities and obligations under the
Agreement arising after the completion of the Assignment.
From and after the Assignment Effective Date, all references to the Bottler or '`CCR"
under the Agreement shall be construed to refer to CCBF. The address for notices to Sponsor,
as set forth in Section 10 of Attachment A to the Agreement shall be as follows:
Coca-Cola Beverages Florida, LLC
10117 Princess Palm Avenue, Suite 400
Tampa, Florida 33610
Attention: Thomas Benford, Executive Vice President
tbenford@cocacolaflorida.com
Classified-Confidential CS
With a copy to:
Deborah Pond,Vice President and General Counsel
dpond@cocacolaflorida.com
at the address above
We would greatly appreciate that you indicate your consent by countersigning in the
space below.
[Signature page follows]
Classifled-Confidential
Execution Version
Sincerely,
THE COCA-COLA COMPANY,ACTING BY AND
THROUGH COCA-COLA NORTH AMERICA
By: �'"
Name! J.A.M. Douglas, Jr.
Title: President, Coca-Cola North America
Date: March 16, 2017
COCA-COLA REFRESHMENTS USA,INC.D/B/A
FLORIDA COCA-COLA BOTTLING COMPANY
BY '
Name:: Douglas, Jr.
Title: President, Coca-Cola North America
Date:
March 16, 2017
COCA OLA BEVERA S FLORIDA,LLC
Name: tjCgb tz•1,4{ po t.1D
Title: vitt Resio6- T t 6c t✓r 'rte e;.oLtNS l;,
Date: 3 . 11 • t
ACCEPTED, CKNOW ' i GED AND AGREED
CITY OF 1 BEAC ' FLORIDA
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Title:
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i-r/t›-.2(-••••Signature page:ta,.City of Miami Beach Consent Letter
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March 14,2012
Mayor Matti Herrera Bower
Mayor of City of Miami Beach
1700 Convention Center Drive
Miami Beach,FL 33138
Dear Mayor:
This letter confirms the agreement made by and among the City of Miami Beach, Florida ("City"),
Coca-Cola Refreshments USA, Inc. d/b/a Florida Coca-Cola Bottling Company ("Bottler") and Coca-Cola North
America, a division of The Coca-Cola Company ("Company", and collectively with Bottler, "Sponsor"), which
sets forth certain exclusive rights granted to Bottler by City,as set forth in the Term Sheet and Exhibits attached
thereto,all of which are attached hereto as Attachment A.
1. Term Sheet and Definitive Agreement
The Term Sheet and Exhibits attached thereto are hereby incorporated herein in their entirety. This letter and the
Term Sheet,together with any other attachments referenced in either, will constitute a legally binding agreement
(the"Agreement")when this letter is signed by all parties in the spaces provided below. All capitalized terms not
defined in this letter shall have the meanings assigned to them in the Term Sheet. This letter shall prevail in the
event of any conflict between the provisions of this letter and the Term Sheet.
2. Advertising Rights
(a) City agrees that Bottler's advertising shall be positioned at all times in such a manner that the
advertising message is in no way obscured(electronically or otherwise)and is clearly visible to the general public.
The Products shall be prominently listed on any menu boards located at the Facilities and all Equipment(as such
term is defined herein)dispensing Products shall be prominently identified with the appropriate trademarks/logos.
(b) City further agrees that all Products will be dispensed in Sponsor's Equipment and that no other
trademarked,equipment,coolers or containers will be permitted.
3. Product Rights
(a) City shall purchase or shall cause its Concessionaires to purchase, all Products,(and cups,lids and
carbon dioxide,if applicable)directly from Bottler.
(b) City hereby grants to Bottler the exclusive Beverage rights at the Facilities, except as may be
otherwise provided for in this Agreement and Exhibits.
(c) If City contracts a concessionaire, City will cause concessionaire to purchase from Bottler all
requirements for Beverages (and cups, lids and carbon dioxide, if applicable). Such purchases will be made at
prices and on terms set forth in Bottler's existing agreement with concessionaire, if any. If no agreement exists
between concessionaire and Bottler, such purchases will be made at prices and on terms set forth in this
Agreement. City acknowledges that there will be no duplication of allowances, funding or benefits (including
pricing)to City or concessionaire if concessionaire has an existing agreement with Bottler.
1
4.' Equipment and Servicg
(a) Bottler Equipment and Service: During the Term,Bottler will loan to City,pursuant to the terms of
Bottler's equipment placement agreements, at no cost,that Beverage vending equipment reasonably required and as
mutually agreed upon to dispense Products at the Facilities("Bottler Equipment"). In addition,Bottler will provide
at no charge regular mechanical repair reasonably needed for Bottler Equipment, as further outlined in Exhibit 7 to
the Term Sheet. Prior to Bottler's installation of Bottler's Equipment at a particular Facility,the City shall provide
Bottler with written confirmation that it has conducted an inspection of the electrical service at such Facility and
that, based on such inspection, the City finds that the electrical service at the Facility is proper and adequate for
installation of Bottler's Equipment.Notwithstanding the preceding,if at any time following Bottler's installation of
Bottler's Equipment at a Facility,Bottler's Equipment is damaged as the direct result of defective electrical service
at the Facility, then the City will reimburse Bottler for the cost of repair or replacement, as the case may be, of
Bottler's Equipment, pursuant to the filing of a claim with the City's self-insurance fund. Notwithstanding the
preceding,the City shall not be responsible nor liable to Bottler under this subsection for any damages to Bottler's
Equipment which is not caused as a direct result of defective electrical service at a Facility (including, without
limitation, any damage to Bottler's Equipment which is caused due to the negligence or misconduct of Bottler's
employees,contractors,and/or agents,or from any other cause or act other than faulty electrical service).
(b) Fountain Equipment and Service: During the Term, Company will loan to City, pursuant to the
terms of Company's equipment placement agreement, at no cost, that Fountain Beverage dispensing equipment
reasonably required and as mutually agreed upon to dispense a quality fountain Beverages at the Facilities
("Fountain Equipment")(coIlectively,Bottler Equipment and Fountain Equipment are called "Equipment"). No
ice makers or water filters will be provided. All Fountain Equipment provided by Company will at all times
remain the property of Company and is subject Company's equipment agreement, but no lease payment will be
charged. To the extent that Fountain Equipment loaned from Company under this Agreement is located at
Facilities that are owned, controlled or managed by a concessionaire of City or other persons not party to this
Agreement, City will include provisions in its agreements with such concessionaires that recognize that the
Fountain Equipment is owned by Company and that obligates the concessionaires to honor the terms and
conditions such equipment agreement.
Company (or Bottler) will provide at no charge regular mechanical repair reasonably needed for Fountain
Equipment. Any removal, remodel, relocation or reinstallation of dispensing equipment, flavor changes,
summerize/winterize, line changes, or service necessitated by damage or adjustments to the equipment resulting
from misuse,abuse,failure to follow operating instructions,service by unauthorized personnel,unnecessary calls
(equipment was not plugged in, CO2 or fountain syrup container was empty), or calls that are not the result of
mechanical failure (collectively "Special Service Calls"), are not considered regular service and will not be
provided free of charge. Charges for Special Service Calls will be charged at Company's (or Bottler's) then
current rate and will be invoiced on a semi-annual basis. Charges will include labor, travel time, parts, and
administrative costs.
5. Competitive Products Prohibited.
(a) City agrees that it will not knowingly permit any Competitive Products to be sold, distributed,
served, sampled, marketed, advertised, or promoted in any manner at the Facilities,or in association with City,the
Facilities or the City trademarks,during the Term, except as outlined in this Agreement.
(b) City agrees that City will not grant any rights, or enter into any contractual or other relationship,
whereby City, the Facilities, and/or the City trademarks will be, or have the potential to be, associated in any
manner,with any Competitive Products,except as outlined in this Agreement and the Term Sheet.
2
(c) If City learns of any Comf,etitiv.,Preduets-being advertised,or promoted in any manner
which implies an association with City, Facilities or City trademarks (hereinafter referred to as "Ambush
Marketing"), City will promptly notify Bottler in writing of the Ambush Marketing; and also will promptly use its
efforts,and cooperate in good faith with Bottler, to prevent or stop such Ambush Marketing in order to protect the
exclusive associational rights granted to Bottler under this Agreement.
(d) Special Promotional Events Exception. See Exhibit 8.
(e) The City will provide Bottler with no less than thirty(30)calendar days prior written notice of each
event which it intends to designate as a Special Promotional Event.
(f) The private,personal consumption of Competitive Products by athletes, coaching staff,musicians,
actors,comedians, or other entertainment personalities appearing and performing at the Facility is allowed and will
not be considered a Special Promotional Event. City shall use efforts to ensure such consumption is limited to
private areas and may not be permitted in any area of the Facility to which the public or any member of the print or
electronic media has legal access.
(g) Product availability at Facilities for private events.A private event at a Facility shall mean the use
of a Facility, either through the rental of the Facility or through the issuance of a City-approved Special Event
Permit, by a person(s) or business entity (ies) (i.e. such as a corporation) which is not open or accessible to the
general public either free or via a purchased ticket. For example purposes only,private events may include,but not
be limited, to the following: weddings, bar mitzvah/bat mitzvah and corporate events. Product availability and
exclusivity at private events shall be handled as follows: Only Products will be sold, distributed, sampled or
otherwise served at Facilities at any time. Notwithstanding the foregoing, Competitive Products may be distributed
at no cost by the user of the Facility for private events,provided that Products will continue to be the only Products
sold,distributed,sampled,or otherwise served by Facilities concession operations.
(h) Product availability at Facilities as it relates to charitable events (including, events produced by
not-for-profit entities with valid tax exemption from the IRS)at Facilities or at City-Permitted Special Events(e.g.,
Relay for Life, Aids Walk, American Cancer Society), shall be handled as follows: Only Products will be sold,
distributed, sampled or otherwise served at Facilities at any time. Notwithstanding the foregoing, Competitive
Products may be distributed at no cost by the charitable organization using the Facility provided that Products
will continue to be the only Products sold, distributed, sampled, or otherwise served by Facilities concession
operations and that Bottler had opportunity to supply Products for the charitable event and declined.
6. Consideration.
(a) Pricing. Pricing(including price increases)will be implemented as outlined in the Term Sheet.
(b) Credit Card Readers and Funding. Bottler and City will mutually agree to install credit card
readers in select Beverage dispensers,which are identified as high traffic locations. Bottler will pay for the credit
card readers in an aggregate amount of not to exceed Ten Thousand Dollars ($10,000). This funding will be
earned over the Term of the Agreement. City shall have no responsibility to fund any overage for payment of the
credit card readers should they exceed Ten Thousand Dollars ($10,000). Bottler shall be responsible for all
maintenance and repair of the credit card readers. Upon termination or expiration of the Agreement, City shall
return all credit card readers to Bottler.
7. Trademarks;Approvals.
(a) City acknowledges that The Coca-Cola Company is the owner of all right and title in the trademarks"Coca-
Cola","Diet Coke","Sprite","DASANI", "Minute Maid","POWERADE", "Fanta""vitaminwater""Full Throttle",
"NOS" and-other trademarks of The Coca-Cola Company, and it acquires no rights whatsoever in these trademarks
3
by virtue of this Agreement. City agrees to submit all proposed uses of The Coca-Cola Company marks to Sponsor
for approval prior to use,but such approval shall not be unreasonably withheld.
(b) Bottler acknowledges that City is the owner of all right and title in the service mark"MiamiBeach"and that
Bottler acquires no rights whatsoever in the service mark by virtue of this Agreement. Bottler shall have the right to
use the City's service mark during the Term in connection with its marketing activities at the Facilities. Bottler
agrees to submit all proposed uses of City's service marks to City for approval prior to use,but such approval shall
not be unreasonably withheld.
8. Termination
(a) Notwithstanding the other provisions of this Agreement, if any federal, state or local law, rule,
regulation or order prohibits, restricts or in any manner interferes with the sale or advertising of Beverages at any
time during the Term of this Agreement, and the City fails to cure such breach within thirty (30) days following
written notice of same from Bottler then, at its option, Bottler may terminate this Agreement and City shall (i)
return any Equipment,and(ii) pay to Bottler the unearned portion of pre-paid Sponsorship Fees for the Agreement
Year in which the termination occurs(pro-rated through the date of termination),if any,as well as any other upfront
funding deemed earned over the Term,if any,prorated through the date of termination.
(b) City represents and warrants that it has full right and authority to enter into this Agreement and to
grant and convey to Bottler the rights set forth herein. In the event of expiration or revocation of such authority,and
if the City fails to cure such breach within thirty(30)days following revocation of full right and authority,then at its
option, Bottler may terminate this Agreement, and City shall (i) return any Equipment; and (ii) pay to Bottler the
unearned portion of pre-paid Sponsorship Fees for the Agreement Year in which the termination occurs(pro-rated
through the date of termination), if any,as well as any other upfront funding deemed earned over the Term,if any,
pro-rated through the date of termination,.
(c) If Bottler breaches any of its material obligations under this Agreement, and fails to cure such
breach within thirty (30) days following written notice of same from the City, then City may terminate this
Agreement and Bottler shall remove all Equipment from the Facilities,and the City shall be entitled to retain the
earned portion of any pre-paid Sponsorship Fees for the Agreement Year in which the termination occurs(pro-rated
through the date of termination),if any;other upfront funding deemed earned over the Term,if any,prorated through
the date of termination; and any fees or payments due for the Agreement year in which the termination occurs,such
as commission fees,if any.
(d) Notwithstanding the above,nothing in this section shall operate to restrict any other remedies that
either party may have against the other in the event of a material breach by a defaulting party.
9. Insurance
The Bottler acknowledges that the City is self-insured,as provided in Attachment B to this Agreement.
Bottler shall, at its sole cost and expense, obtain,provide and maintain,during the Term,the following types and
amounts of insurance, which shall be maintained with insurers licensed to sell insurance in the State of Florida
and have a B+VI or higher rating in the latest edition of AM Best's Insurance Guide:
1) Commercial General Liability. A policy including, but not limited to, commercial general liability,
including bodily injury, personal injury, property damage, in the amount of$1,000,000 per occurrence.
Coverage shall be provided on an occurrence basis.
4
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2) Workers' Compensation per the statutory limit, of the State of Florida and Employer's Liability
Insurance.
3) Automobile Liability-$1,000,000 combined single limit for all owned/non-owned/hired automobiles.
Said policies of insurance shall be primary for Sponsor/Bottler's negligence only to and contributing with any
other insurance maintained by Bottler or City, and all shall name City of Miami Beach, Florida as an additional
insured on the commercial general liability and automobile liability policies. Sponsor shall provide thirty (30)
days written notice to City prior to policy cancellation.
Bottler shall file and maintain certificates of the above insurance policies with the City's Risk Management
Department showing said policies to be in full force and effect at all times during the Term.
10. Notices
Any notice or other communication under this Agreement must be in writing and must be sent by registered mail
or by an overnight courier service (such as Federal Express) that provides a confirming receipt. A copy of the
notice must be sent by fax when the notice is sent by mail or courier. Notice is considered duly given when it is
properly addressed and deposited (postage prepaid) in the mail or delivered to the courier. Unless otherwise
designated by the parties,notice must be sent to the following addresses:
(A) Notice to Sponsor.
Coca-Cola Refreshments USA, Inc.d/b/a Florida Coca-Cola Bottling Company
3350 Pembroke Road
Hollywood,Florida 33021
Attention: V.P.Market Unit,South Florida
Fax: 954-986-3173
Ticket Addressee:V.P.Market Unit,South Florida
Fax: 954-986-3173
With a copy to: Coca-Cola Refreshments USA,Inc. F
2500 Windy Ridge Pkwy
Atlanta,Georgia 30339
Attention: General Counsel
(B) Notice to City.
City of Miami Beach
1700 Convention Center Drive
Miami Beach,Florida 33138
Attention: Hilda Fernandez
Fax: 305-673-7782
1 l. Governing Law
•
This Agreement and any dispute arising out of or relating to this Agreement shall be governed by and
construed in accordance with the laws of the State of Florida,without reference to its conflict of law rules.
12. Compliance with Law
•5
lrash-o-f-the-parties-heretcrawees that it will, in is performance of its obligations hereunder, fully comply
with all applicable laws, regulations and ordinances of all relevant authorities and shall obtain all licenses,
registrations or other approvals required in order to fully perform its obligations hereunder.
13. Retention of Rights
No party shall obtain, by this Agreement, any right,title or interest in the trademarks of the other,nor shall
this Agreement give any party the right to use, refer to, or incorporate in marketing or other materials the name,
logos, trademarks, service marks or copyrights of the other, except as may be expressly provided and authorized
herein.
14. Jury Waiver
EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER
LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND
THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLIES TO ANY ACTION OR
LEGAL PROCEEDING,WHETHER ARISING LN CONTRACT,TORT OR OTHERWISE.
15. Entire Agreement
This Agreement and its exhibits contains the entire agreement between the parties with respect to the subject
matter hereof. This Agreement may not be assigned without the prior written consent of all parties; provided,
however, that Bottler may assign this Agreement in connection with its reorganization or the sale of all or
substantially all of its assets. All amendments to or waivers of this Agreement must be in writing signed by all the
parties.
The Coca-Cola Company,acting by and through City of Miami Beach
its Coca-Cola North America Divisio • t A
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ATTEST 6
Attachment A
TERM SHEET
EXCLUSIVE NON-ALCOHOLIC BEVERAGE AGREEMENT
CITY OF MIAMI BEACH AND COCA-COLA REFRESHMENTS USA, INC.
and COCA-COLA NORTH AMERICA, A DIVISION OF THE COCA-COLA
COMPANY
[1. DEFINITIONS:
Bottler: Coca-Cola Refreshments USA, Inc. d/b/a Florida
Coca-Cola Bottling Company
Company: Coca-Cola North America, a division of
The Coca-Cola Company
Sponsor: Collectively, "Bottler" and "Company"
City: City of Miami Beach
Agreement: Exclusive Non-Alcoholic Beverage Agreement
Facilities: Includes the following Miami Beach property,
including any land, building, structures and/or other facilities
thereon: Miami Beach Golf Club; the Normandy Shores Golf
Club; The Fillmore Miami Beach at the Jackie Gleason
Theater (upon the expiration of the current management
agreement); the Miami Beach Convention Center; all currently
existing City of Miami Beach owned parks and recreational
facilities; all currently existing City of Miami Beach owned
public parking garages which are either directly operated by
the City, through its Parking System, or by a third party who,
pursuant to a management or concession agreement with the
City, is contractually authorized to operate and manage such
garage on behalf of the City; all currently existing public
beachfront concessions which are either directly operated by
the City or by a third party who, pursuant to a concession or
management agreement with the City, is contractually
authorized to operate and manage such concession on behalf
of the City; and any additional future Facilities or expansion of
existing or future Facilities, including but not limited to, the
concession facilities at 21St and 461' street and at South Pointe
Park and the Miami Beach Convention Center facility
expansion, except as may be otherwise be excluded in the
Agreement.
Beverage: all non-alcoholic beverages of an kind including but
,tut lii uduut5; ttd p1oduct5, Limner crtRt"
energy drinks, including those in small servings; protein-
enhanced dairy beverages; frozen drinks (e.g. ICEE) and
smoothies made from concentrate; and the pre-mix and/or
post-mix syrups used to prepare fountain Beverages.
"Beverage" or "Beverages" shall not include dairy products
except as noted above (e.g. milk, yogurt, ice cream), water
drawn from the public water supply, or unbranded juice
squeezed fresh at the Facilities.
Products: Beverage products purchased directly from Bottler,
or with written Bottler approval from, or Bottler's authorized
distributor, or sold through vending machines owned and
stocked exclusively by Bottler.
Competitive Products: Beverages which are not Products.
2. AGREEMENT TERM:
The Term shall begin January 1, 2012 and will continue until
December 31, 2021 (the "Term"). When used in this Term
Sheet, the term "Agreement Year' means each consecutive
twelve-month period during the Term, beginning with the first
day of the Term.
3. EFFECTIVE DATE:
January 1, 2012
4. EXPIRATION DATE:
December 31, 2021 as to all Facilities
5. SPONSORSHIP FEE: !`
$3,725,000 for the Term of the Agreement.
• First installment of $800,000 (includes sponsorship fee for
Agreement Year One and signing bonus) will be paid within
sixty (60) days of execution of the Agreement by all parties.
The portion pertaining to the signing bonus ($475,000) will
be deemed earned over the Term and the portion
pertaining to the sponsorship fee for the Agreement Year
One ($325,000) shall be deemed earned evenly on a
monthly basis during the first Agreement Year.
• $325,000 due each Agreement Year thereafter during the
Term of the Agreement, due upon the anniversary date of
the Agreement and will be deemed earned over the
Agreement Year. (Subject to purchase of a minimum of
22,500 cases of bottles/cans per year.)
6. COMMISSIONS:
Commissions to be paid quarterly in arrears by Bottler to City
based upon cash collected less taxes and as per the
Commission Rate Structure according to Bottler's sales
records. (Exhibit 1)
7. COMMUNITY:
SUPPORT/ Bottler will provide City with a total of $17,500 in cash for the
2
—O OMPLIMEN-TARY----purchase--of—ectuipment—or-otiler—prodacts—(mutua-ffy agreed
PRODUCT: upon)
Bottler shall provide City, upon City's request, with up to 450
standard physical cases of complimentary Product (12 ounce
CSD cans and/or DASANI 12 ounce bottles) per Agreement
year for a Product bank to be used by the City. If City does not
request complimentary Product by the end of each year, any
remaining complimentary Product shall be retained by Bottler
with no further obligation to Account. Bottler will provide
complimentary Product donation re.ort u.on Account's resuest.
8. ADVERTISING &
SPONSORSHIP: Bottler has the exclusive right to advertise Products (i) at the
Facilities and (ii) in connection with the Facilities. No
permanent or temporary advertising, signage or trademark
visibility for Competitive Products are permitted anywhere at the
Facilities, except as permitted pursuant to the Agreement.
Advertising rights are further delineated in Exhibit 2. Bottler has
the exclusive right to advertise the Products as the "Official" or
"Exclusive" soft drink, sports drink, dairy-based protein drink,
water, tea, energy drink, and/or juice or juice drink, etc. of the
Facilities, of the City of Miami Beach and of South Beach.
Bottler will be the exclusive advertiser of Products associated
with the Facilities.
9. PRODUCT RIGHTS:
Bottler has the exclusive right to sell or distribute Products at
the'Facilities. No Competitive Products may be sold, dispensed,
sampled or served anywhere at the Facilities, or on the City's
public rights-of-ways, except as may otherwise be provided for
in this Agreement.
10.EXCEPTIONS:
Except for those Facilities specifically enumerated in Section
1., "Facilities" shall NOT include any City of Miami Beach
property (including any City-owned land, buildings, structures,
and/or other facilities thereon) which—as of the Effective
Date—is used, occupied, controlled, and/or managed and
operated by a third party (or parties) pursuant to any of the
following agreements between the City and such third
party(ies): (i) lease agreement; (ii) concession agreement; (iii)
operation and management agreement; (iv) development
agreement; (v) easement agreement; (vi) license and!or use
agreement; (vii) revocable permit; and/or (viii) any other written
instrument between the City and such third party(ies) which •
establishes a contractual right on behalf of such third
party(ies) for the use and/or occupancy of City property. This •
shall include, but not be limited to, any City property occupied
by a tenant through a lease or rental agreement (including,
without limitation, leases or rental agreements for office,
3
retail, and/or commercla uses s in i -owne• •LH •ings);
any City property managed and operated, and/or otherwise
used, by a third party(ies) pursuant to a management
agreement or concession agreement; private upland owner
beachfront concessions which are issued a permit by the City
(and which are neither operated directly by the City, nor by a
third party on behalf of and pursuant to a contract with the
City); sidewalk cafes which are issued a permit to operated ,
pursuant to the City's Sidewalk Café Ordinance, as may be
amended from time to time; "public-private" projects
developed and constructed pursuant to a Development
Agreement (pursuant to the requirements of the Florida Local
Government Development Agreement Act under Chapter 163,
Florida Statutes); any hotel or retail development related to the
expansion of the Miami Beach Convention Center that is not
managed as part of the Convention Center operations (e.g.
adjacent commercial retail, hotel, etc.); public bus shelter
advertising managed by a third party under contract with the
City; and advertising permitted pursuant to the City's current
agreement for the public bike-share concession.
Notwithstanding the preceding, the City will: i) make
reasonable good faith efforts to meet with the bike-share
concessionaire and negotiate an amendment to the existing
bike-share concession agreement, which must also be subject
to agreement by the bike-share concessionaire, to prohibit the
bike-share concessionaire from advertising Competitive
Products; ii) if City renews the bike-share concession
agreement with the bike-share concessionaire, then, as a
condition to such renewal, the City Manager will recommend
that such renewal be conditioned that such renewal include a
term prohibiting the bike-share concessionaire from
advertising Competitive Products; and iii) no advertising of
Competitive Products shall be permitted on bike-share station
kiosks during the Term should the City, after the Effective
Date, approve advertising for placement on bike-share kiosks.
Should the City enter into any new bike-share agreements
during the Term, no advertising of Competitive Products shall•
be permitted on the bicycles used for that bike-share
agreement(s).
Further, for the following locations which are under a pre-
existing concession and/or use agreement (i.e. in effect prior
to the Effective Date of the Agreement) with a Competitive
Products supplier, those Facilities will come under this
Agreement after such Competitive Products agreement is
terminated or expires, or until such time as the concession or
use agreement with the City for those Facilities is terminated,
expires or is sub'ect to an renewal •rovisions. The current
4 •
' a - - _ , . • - - " •' _ '• •_ - , _ - _ • OWS—1
1) 21st Street/46th Street Beachfront Concession/Tim
Wilcox, Inc. — 11/30/2012
2) South Pointe Park Concession/Blissberry— 11/30/2012
3) Normandy Isle Pool Concession Stand/E. Gomez—
11/09/2011
City agrees that it will not knowingly permit any Competitive
Products to be sold, distributed, served, sampled, marketed,
advertised or promoted at the Facilities, or in association with
City, except, and as further explained, in Exhibit 8:
• Third party exhibitor set ups at Facilities or during City-
Permitted Special Events in accordance with the City's
Special Event Permit Guidelines, as same may be
amended from time to time.
• Charitable events at Facilities or at City-Permitted Special
Events where Competitive Product are donated to the
charitable event;
• Availability at City-Permitted Special Events only within
Special Event Permit Area (as such term is defined in the
City's Special Event Permit Guidelines, as same may be
amended from time to time).
• Up to four (4) sponsorship events at the Miami Beach Golf
Club, and up to four (4) sponsorship events at the
Normandy Shores Golf Club each Agreement year;
• up to three (3) sponsorship events at the Miami Beach
Convention Center each Agreement Year (the number
limitation for the sponsorship events at the Miami Beach
Convention Center is subject to a review after three (3)
Agreement Years);
• a mutually agreed upon number of sponsorship events at
the Fillmore Miami Beach at the Jackie Gleason Theater
(upon expiration of the existing management agreement);
and
• up to four (4) City-issued Special Event Permits for a "City
Approved Major Sponsorship Public Event", each
Agreement Year, which includes an event sponsored by a
manufacturer, distributor, or marketer of Competitive
Products under a master sponsorship agreement with the
owner or operator of the sponsorship event; an event
conducted on a national or regional multi-market basis;
and/or an event where a competitor is the presenting, title 4'
or other primary sponsor of the event. The number
limitation for City-Issued Special Events is subject to a
review after three (3) Agreement Years.
5
Whenever possible, City will make reasonable good faith
efforts to encourage third party users of the Golf Courses and
Convention Center, and Special Event organizers, to use
Bottler's Products for their non-alcoholic beverage needs.
Since third party organizers who apply for Special Event
Permits will be permitted to sell only Bottler's Products, City
will amend City's Special Events Permit Application and City
will provide Sponsor contact information through the City's
Special Events Permit Application process.
11.MARKETING
PROGAM: Bottler agrees to provide Account with annual in-kind
marketing support fund with an approximate retail value of
Two Hundred Thousand Five Hundred Dollars ($200,500) as
further delineated in Exhibit 3.
12.RECYCLING
PARTNER: Bottler shall be designated the official "Recycling Partner" of
Account. In consideration of this designation, Bottler shall
provide, at their cost, the services/products delineated in
Exhibit 4, with a minimum total value of $15,000, and up to
$25,000 over the entire Term
13.VENDING
PROGRAM/OTHER City agrees that Bottler shall place a minimum of sixty-five (65)
EQUIPMENT Product vending machines in mutually agreed upon locations
at the Facilities, and Bottler will loan to City at no cost,
Beverage dispensing equipment as reasonably required and as
mutually agreed upon to dispense Products at the Facilities,
and in accordance with Exhibit 5.
14.CITY SUPPORT:
In consideration of the partnership, City grants to Bottler:
Twenty-six (26) rounds of golf each Agreement Year (max of
eight during peak season; no more than twelve at Miami
Beach Golf Course; benefit does not roll over); a minimum of
four (4) free tickets to at least six (6) ticketed events at
Facilities each Agreement Year, subject to availability (e.g. Art
Basel Miami Beach, Auto Show, South Beach Comedy
Festival at the Fillmore, etc.). Additional tickets will be
provided as available. Benefit does not roll over.
15.PRICING:
Bottle/Can Pricing: City is entitled to purchase bottle/can
Products from Bottler in accordance with the price schedule
set forth in Exhibit 6; prices shall remain in effect until July 31,
2012. Thereafter, such prices will be subject to an annual
increase of no more than four percent (4%) over the previous
Agreement Year's price.
Fountain Products or Georgia Coffee Pricing: Bottler will sell
fountain Products to City at the National Account prices, as
6
I•
announced by the Bottler in January of each year. Georgia
Coffee pricing shall be provided quarterly based on commodity
markets.
Purchasing: All Product shall be purchased directly from
Bottler, except for those Products that Bottler identifies can be
purchased from an authorized Coca-Cola distributor.
16.TERMINATION:
If City breaches any of its material obligations set forth in this
Agreement, and fails to cure such breach within thirty (30) days
following written notice of same from Bottler, then, Bottler may
terminate this Agreement, and City shall (i) return any
Equipment, and (ii) pay to Bottler the unearned portion of any
pre-paid Sponsorship Fees for the Agreement Year in which the
termination occurs (pro-rated through the date of termination).
If Bottler breaches any of its material obligations set forth in this
Agreement, and fails to cure such breach within thirty (30) days
following written notice of same from City, then, City may
terminate this Agreement, and Bottler shall (i) remove any
Equipment, and (ii) pay to City the earned portion of any pre-
paid Sponsorship Fees or other fees or payments due for the
Agreement year in which the termination occurs (pro-rated
through the date of termination).
City shall not be in default in the event of any claim filed in
relation to City's restriction on Competitive Product sampling;
provided, however, the Bottler shall have the following
remedies: 1) ability to renegotiate financial terms, as
appropriate, within a specified time (e.g. 90 days); or, 2) failing
to negotiate terms acceptable to both parties within specified
time, Bottler may terminate the Agreement, and City shall (i)
return any Equipment, and (ii) pay to Bottler the unearned
portion of any pre-paid Sponsorship Fees for the Agreement
Year in which the termination occurs (pro-rated through the date
of termination). Nothing in this section shall operate to restrict
either party's other remedies in the event of a material breach
by the other.
17.MAINTENANCE &
SERVICE: Bottler agrees to provide reasonable service and maintenance
for the equipment during the Term. City shall allow Bottler to
enter its premises for the purpose of inspection or
performance of such maintenance and repair, or necessary
replacement or return of the equipment. Bottler and City will _.
establish a mutually agreed upon refund bank and customer
service program, as delineated in Exhibit 7.
18.REPORTS/AUDITING:
Bother will provide an annual business review report within 90
7 •
days following each Agreement- Year during—the-Term;
Commission reports will be provided monthly. The format of
such reports shall be mutually agreed upon. City has the right
to audit/inspect account statements with reasonable prior
notice to Bottler and during normal business hours. If City
requests an audit, City agrees to pay for such audit. Account
records must be retained for a minimum of two (2) Agreement
Years after the payment of the annual Sponsorship Fee is
paid, in addition to the current Agreement Year of the Term,
and for two (2) Agreement Years following expiration or
termination of the Agreement.
•
•
•
8
'
Exhilait4-to-Term-S heet-- —
COMMISSIONS
Workplace Facilities (City Hall, Police Station, and other City Facilities):
Product Vend Price Commission Rate
20 oz. PET carbonated/NESTEA® $1.25 30%
20 oz. PET Minute Maid® $1.25 30%
20 oz. PET DASANI® $1.25 30%
300 ml PET DASANIOO $0.75 30%
20 oz. PET POWERADE® $1.50 30%
20 oz. PET vitaminwater® $1.75 15%
16 oz. cans Energy Beverages $2.00 30%
16.5 oz. PET FUZE ® $2.00 15%
15.2 oz. PET Minute Maid®Juices to Go $1.50 15%
All other public locations (such as South Beach):
Product Vend Price Commission Rate
20 oz. PET carbonated/NESTEA® $1.50 30%
20 oz. PET Minute Maid® $1.50 30%
20 oz. PET DASANI® $1.50 30%
300 ml PET DASANI® $1.00 30%
20 oz. PET POWERADE® $1.75 30%
20 oz. PET vitaminwater® $2.00 15%
16 oz. cans Energy Beverages $2.25 30%
16.5 oz. PET FUZE® $2.25 15%
15.2 oz. PET Minute Maid®Juices to Go $1.75 15%
In Agreement Years Four and Seven, the Vend Prices will increase by twenty-five cents for each
Product listed above. For example, in Agreement Year Four, 300m1. DASANI will increase to $1.00
Vend Price and then in Agreement Year Seven, 300m!. DASANI will increase an additional twenty-
five cents to $1.25. The Commission Rates will not change during the Term of this Agreement.
There are two vend rates (one for workplace and one for public locations) that will be outlined in the
final forma!agreement between the parties, but note that commission rates will remain the same.
Commissions are paid based upon cash collected after deducting taxes, deposits, recycling fees, •
other handling fees, communication charges and credit and debit card fees, if any. Commissions
shall rot be payable on any sales from vending machines not filled or serviced exclusively by
Bottler. Bottler may adjust the vend prices and/or commission rates as necessary to reflect
changes in its costs, including cost of goods, upon prior written notice and approval by City. •
Commissions will be paid each month following the month in which they are earned, with an •
accounting of all sales and montes in a form reasonably satisfactory to the City, and shall become
immediate property of City.
9
Exhibit-2-to-Term-Sheet
ADVERTISING RIGHTS
(Except as otherwise noted,the following rights may not be transferred or assigned by Bottler)
1. Recognition of Bottler as the"Official Non-Alcoholic Beverage Sponsor" of City. Official status
will include Official Status Recognition for City across all non-alcoholic beverage categories
i.e. "Coca-Cola Official Soft Drink of Miami Beach" and Official Status Recognition for South
Beach across all non alcoholic beverage categories (i.e. "POWERADE Official Sports Drink
for South Beach")
2. Official Sponsor Status (for Products) of all City-produced citywide Special Events, whether
now existing or as may exist in the future (i.e. including, without limitation, and for example
purposes only Sleepless Nights); Bottler to have highest sponsorship level and benefits
available other than presenting or title sponsorship. In addition, Bottler will be recognized as
the 'Title Sponsor" of City's "Fire on the 44' Annual Independence Day Celebration" each
Agreement Year during the Term.
3. Recognition of Bottler as the "Official Recycling Partner" for the City of Miami Beach & South
Beach
4. Joint Bottler/City Logo placement on City and City-related websites (e.g. Miami Beach
Convention Center, Miami Beach Golf Club, Normandy Shores Golf Club, Miami Beach
Culture web site (MBCulture.com); and any other City websites, whether now existing or as
may exist in the future, to such extent as permitted by any federal or state regulations on .gov
domains, City will use reasonable commercial efforts to include joint Bottler/City Logo on all
printed convention and tourism materials, as appropriate and available.
5. Waiver of any Special Event Permit and/or Permit Application Fees for Bottler's use of certain
Account Facilities for up to two (2) mutually agreed upon events per Agreement Year, based
on availability. For purposes of the Special Event Permit and/or Permit Application Fee waiver,
these Facilities shall include public beachfront areas and Parks and Recreation facilities where
Special Events are permitted. All other fees and costs of production, including but not limited
to, taxes, security, sanitation, etc., shall be the responsibility of Bottler. Right may not be
transferred or assigned.
6. Waiver of any rental or use fees for Bottler's use of certain City Facilities for up to (two) 2
mutually agreed upon events per Agreement Year, based on availability. For purposes of the
rental or use fee waiver, these Facilities shall include the use of meeting room space or
ballroom space at the Miami Beach Convention Center.All other fees and costs of production,
including but not limited to taxes, security, audio/visual, decoration, etc., shall be the
responsibility of the Bottler. Right may not be transferred or assigned.
7. Unlimited, royalty-free Product sampling at City produced and/or sponsored events;
Royalty-free Product sampling permits per Agreement Year, as follows: 48 permits each
Agreement Year, but permits will be limited to not more than six (6) permits in any one
month period. Right may not be transferred or assigned. If Sponsor does not use all 48
permits by the end of each Agreement Year, any remaining permits will not roll-over to the
following Agreement Year, but will be forfeited.
8. Mutual agreement on the development and use of a joint logo between Bottler and Account.
9. Right to use mutually agreed upon joint logo on any point-of-sale, marketing materials, and/or
signage that may be mutually agreed upon.
10. Royalty-free advertisement in City's magazine (i.e. MB Magazine); minimum of a quarter
page each issue; larger ad size as may be available. Right may be transferred or assigned.
11. Royalty-free prominent advertisement in any Special Promotional Event programs or
collaterals produced for City-produced citywide Special Promotional Events (i.e. including,
without limitation, July 4th and Sleepless Nights). City shall use best efforts to provide a full
page ad.
10
12 The rig- • • _•-• '- -- _ - _ - _ -- -_ - _.. .'-. Bottles slid City joint
branding graphics (e.g. concession stands, storage shed, umbrellas, etc.), subject to
proposed branding meeting all necessary administrative and regulatory approvals.
Implementation of any approved branding shall be at the Bottler's expense. All trademark
usage must be pre-approved prior to usage. The erection of any other signage other than
vending machine display shall be subject to approval by the City.
13. One Royalty-free joint City/Bottler message PSA advertising panel at the 5th and Alton bus
shelter; production/installation costs paid by Bottler. Minimum of full use of one PSA ad
panel for the entire term of the Agreement.
14. Minimum of one (1) Royalty-free advertising panel at the 5`h and Alton bus shelter, on a
space availability (remnant) basis; production/installation costs paid by Bottler. Right may be
transferred or assigned.
15. Minimum of one (1) one-month Royalty-free electronic joint City/Bottler message PSA run
on Atlantic Broadband and Welcome Channel; Additional months based on ongoing
availability;
16. Minimum of one(1) unlimited run on MBTV of City/Bottler message PSA;
17. Royalty-free POF ticket ad based on space availability; production costs paid by Bottler.
Right may be transferred or assigned.
The parties agree to perform such additional marketing activities, as the parties may mutually agree
upon to drive traffic to the Facilities and to increase Product sales.
11
Exhibit 3 to Term Sheet
MARKETING PROGRAM
Bottler shall provide City for approval with the proposed annual marketing plan for promotion of the
partnership no later than ninety (90) days prior to the beginning of each Agreement Year, except
for the first Agreement Year when the marketing plan shall be provided to the City within ninety(90)
days after execution of Agreement. The annual value of the marketing plan shall be no less than
$200,500, as determined in good faith by Bottler and based on generally accepted marketing
values. Some examples of activation may include the following; however, actual marketing
programs will depend on availability of these programs.
• Inclusion of the City in the My Coke Rewards program, or other customer reward program
offered by Bottler, through an annual promotional program (e.g. sweepstakes); estimated value
$100,000, or equivalent value. Activation based on availability
• Truck-back promotions program -value: $24,000/year based on availability
• Box Topper program or other similar high-visibility promotional program; value: $25,000/year
• Neck Ringer program: a Neck Ringer program shall be available with a minimum distribution of
neck ringers
• Touring Program: Bottler will bring the Open Happiness Tour, or such other promotional touring
program offered by Bottler, to the City based on availability.
• Bottler to develop and implement at least five (5) strategic marketing partnerships with the
Account and the Bottlers other sponsorship partners during the Term of the Agreement. Such
strategic marketing partnerships may include, but are not limited to, cross promotion, product,
tickets, etc., with other brands or products currently under a sponsorship or other
promotional/marketing agreement with the Bottler.
• Lebron James Event/celebrity event; value: $45,000 based on availability, or equivalent value
City acknowledges the intent of the Bottler to develop a joint marketing logo incorporating the
Bottler's mark and the City's mark. Bottler shall obtain approval from the City, in writing, of the joint
logo for use in promotion of the Agreement, including, but not limited to, its use in all commercial,
marketing, media advertisements, web sites and promotional products.
A party's use of the other party's marks in promotions, on products and signage, shall be first
approved by the other party in writing, and all uses of a party's marks shall be acknowledged as
that party's intellectual property and include appropriate trademark notices.
The parties agree to perform those additional marketing activities, as the parties may mutually agree
upon to drive traffic to the Facilities and to increase Product sales. City agrees to provide Bottler with
reasonable marketing assets inventory(e.g., to be used with a My Coke Rewards national
consumer sweepstakes, or other such similar sweepstakes)for mutually agreed upon promotions
each year during the Term to promote Bottler Products and City.
i
rl
12
1
exhibit 4 to Term Sheet
RECYCLING PARTNERSHIP
Bottler shall be'designated the official "Recycling Partner"of City.
Bottler shall provide, at its cost, the following services/products (value of$15,000-$25,000):
• Assess, consult and offer a Recycling Program Plan for bottle/can recycling initiatives
• Propose messaging strategy for the City's bottle/can recycling initiatives (within 90 days after
execution of Agreement)
• Provide Temporary recycling bins for special events (minimum of 30) to City at Bottler's cost;
• Provide Recycling bins for placement in Facilities or agreed upon public areas (minimum of 15)
to City at Bottler's cost; design subject to review and approval of City;
• Place reverse vending machines (crushers) in vending banks in the Facilities; minimum of five
(5) crushers placed during the first five Agreement Years of the Term, at Bottler's cost.
• Use of Recycling Educational Vehicle (REV,) or other Education Recycling material, at City
events; scheduled at least one time every 18 months during the Term.
•
•
•
13
Exhib1t-5-fe--Ter-m-Street
VENDING PROGRAM
Bottler shall place, at their cost, all vending machines in agreed upon locations pursuant to the
following:
1) Bottler shall provide to City within 90 days after execution of Agreement the proposed
equipment plan for the Agreement Term; to include the machine allocation plan by type (e.g.
interactive vending machines, glass front etc.) and location; equipment replacement schedule;
and vend front replacement and schedule for existing vending machines that need the vend
front replaced.All equipment shall be U!.energy star rated. .
2) Bottler shall install vending machines within 180 days after the proposed equipment plan has
been approved by all parties. Both parties agree that the installation of vending machines shall
be completed within 180 days after the proposed equipment plan has been approved by all
parties. Agreement execution. The already approved beach thematic vend fronts will be used
unless other mutually agreed upon vend fronts have been selected and approved, and if beach
thematic vend fronts are available. The vend fronts shall include advertising panels for use by
the City, as approved by Bottler, provided that the vending machines are equipped with
advertising panel(s). Bottler shall pay all costs for the production and installation of the City
vend front advertising panels. A minimum of two (2) and a maximum of four(4) City vend panel
ads shall be produced/installed each Agreement Year.
3) Bottler shall provide within 90 days after execution of Agreement the proposed credit card
reader installation plan and schedule. All credit card reader installation shall be completed
within Agreement Year One.
4) City shall provide all electrical power necessary to operate the vending machines, and City shall
pay up to $200 for the cost of any electrical modifications or connections necessary to
accommodate any new vending machine placement, upon mutual agreement of the proposed
location for the placement of the vending machine.
5) All vending machines remain the property of the Bottler.
6) Bottler shall provide a product list to the City to be included in the vending program. Any
changes to the Product list shall be provided to the Account prior to Product placement in a
vending machine. Bottler shall work with the City's Parks and Recreation Department to identify
the appropriate vending products for inclusion in vending machines located in any City park.
The City's Park and Recreation Department shall provide approval, in writing, of the Products to
be sold in the vending machines placed in City parks.
7) Bottler shall maintain vending machines reasonably well-stocked with Products.
14
•
Exhibit-6-to-berm Sheet
INITIAL PRICE SCHEDULE*
Package Price per case
20 oz. CSD $17.85
12 oz. CSD $9.46
15.2 oz. MMJTG $23.36
12 oz. DASANI® $8.88
1 liter CSD $16.29
20 oz. DASANI® $10.82
20 oz. vitaminwater® $27.00
8 oz. CSD $16.00
20 oz. NESTEA®/
Minute Maid® Refreshment $17.85
20 oz. POWERADE® $19.00
16 oz. Monster® $34.00
2 liter CSD $12.35
16.9 Honest Tea® $12.60
500 ml Gold Peak® $13.99
8 oz. aluminum bottle $16.48
Post-Mix Price per gallon
5 gallon BIB CSD and NCB $12.24
2.5 gallon BIB CSD and NCB $12.78
5 gallon BIB Unsweet NESTEA® $11.82
2.5 gallon BIB Unsweet NESTEA® $12.40
5 gallon BIB Premium NCB $12.75
2.5 gallon BIB Premium NCB $13.30
5 gallon BIB Frozen Dispensed $13.88
2.5 gallon BIB Frozen Dispensed $14.26
Cups
24 ounce $52.89 per 1,200
Lids
24 ounce $34.55 per 2,000
CO2
20 lb. cylinder $25.00 per cylinder(plus $75.00 deposit)
*All prices are per standard physical case and exclusive of taxes,deposits,handling fees, and recycling fees.
Georgia 64 Oz Brew; Price per Case and package size: (Prices effective for the period: 1/1/2012-
3/31/2012)(All coffee is priced FOB to Distributor,prices do not include any distributor markup.)
Product Package Small Filters Large Filters
(Frac)
Dark Roast 100, 2.75 oz $110.38 $110.38
Light Roast 128, 2.25 oz $117.87 $117.87
Decaf 75, 2.00 oz $67.95 $67.95
Organic 75, 2.75 oz $110.10 $110.10
15
Exhi-bit'*-.-to 1 ernj-Sheet
MAINTENANCE & SERVICE
During the Term, Bottler will loan to Account, pursuant to the terms of Bottler's equipment
placement agreements, at no cost, that Beverage equipment reasonably required and as mutually
agreed upon to dispense Beverages at the Facilities.
Bottler agrees that all equipment shall be new or in "like new"condition and that it shall operate and
manage the equipment, services and facilities offered in a first-class manner. Bottler shall provide
City with the Maintenance Plan and Schedule for all Bottler equipment within 90 days of execution
of Agreement, to include the Bottler's plan and schedule for servicing the City.
Bottler shall provide throughout the Term of this Agreement, at Bottler's expense, all repairs,
replacements and technical services necessary to maintain and preserve the Bottler's equipment in
a decent, safe, healthy and sanitary condition satisfactory to City and in compliance with applicable
laws.
Bottler warrants that it shall correct all mechanical problems with vending machines no later than
four(4) business days after notice and no later than twenty-four(24) hours after notice for all other
dispensing equipment.
Acts of vandalism to Bottler's equipment will be reported to Bother immediately and addressed
within four (4) business days. If the vending machine is repairable, the vending machine will be
repaired within four (4) business days. If the vending machine is not repairable, vending machine
will be condemned and swapped within seven (7) business days.
Bottler is the only party allowed to make repairs on Bottler-owned equipment.
All vending machines shall display a "service hotline" sticker to expedite calls. A toll free ("1-800")
number shall be provided and a 24-four hour per day, seven days a week continuously operating
telephone answering service shall be provided.
A reimbursement fund in the amount adequate to handle all necessary refunds between service
calls shall be made available to City at designated location(s) mutually agreed upon by City and
Bottler. Each person requesting a refund shall complete a form which shall be maintained by the
City and provided to the Bottler as required. The reimbursement fund shall be checked by the
Bottler no less than once a month and replenished as needed. Information on refunds shall be
provided on each machine.
•
it
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16
9
Exhibit 8
The term "Special Promotional Events" ("Event") shall mean and is limited to the following:
concerts; theatrical or comedic performances; conventions; trade shows; religious events; athletic
events; or other special events occurring at a Facility that meet the following requirements: (i) they
are sponsored by a manufacturer, distributor, or marketer of Competitive Products under a master
sponsorship agreement with the owner or operator of the subject Event (including, without
limitation, a concert or theatrical production company, or a trade show or convention production
company, but NOT including in any instance the City or its affiliates or agents); (ii) they are
conducted on a national or regional multi-market basis; (iii) they are NCAA collegiate championship
athletic events; and, (iv) the event sponsorship agreement referred to in subsection (i) above
requires on-site temporary signage for Competitive Products.
The term "Special Promotional Events Exceptions" shall refer to those exceptions granted under the
Agreement, for each Agreement year, to permit the following fifteen (15) Special Promotional Events
at the following Facilities: (I) four(4) events at the Miami Beach Golf Club; (ii) four (4) events at the
Normandy Shores Golf Club (The Miami Beach Golf Club and Normandy Shores Golf Club may also
be referred to collectively herein as "Golf Courses");(iii) three (3) events at the Miami Beach
Convention Center("Convention Center"); and (iv) four (4) City Approved major Sponsorship Public
Special Events (as defined below); provided, however, that the number limitation for City Approved
Major Sponsorship Public Special Events shall be revisited and reviewed by the parties, in good
faith, at the conclusion of the third Agreement Year.
a. Golf Courses and Convention Center/Special Promotional Events Exception. In any
Agreement Year, temporary signage (such as, but not limited to, banners) for Competitive
Products may be displayed at each of the Golf Courses during up to four (4) Special
Promotional Events, and during up to three (3) Special Promotional Events at the
Convention Center ; PROVIDED, HOWEVER, that: (i) Sponsor's Beverage availability,
marketing, advertising, promotional, and other rights under this Agreement will not
otherwise be affected during any such Event; (ii) Competitive Products may be distributed at
no cost, but no Competitive Products will be sold or otherwise made available during the
Event(except as permitted in this exception); (iii) no blockage of any signage or other
trademark/service mark display Sponsor may have at the Facility will occur during the
Event, except for incidental blockage due to the construction and/or placement of a person,
stage or other structure necessary to and actually used during the Event; or, in the case of
NCAA championship events , religious events or political conventions where no advertising
is allowed and all advertisers are treated equal with all signage covered in the seated area
of the Facility; (iv) all temporary signage for Competitive Products will be promptly removed
from the Facility upon the conclusion of the Event; and (v) at no time will the Competitive
Products make any statements, or use any temporary signage, that uses the
trademarks/service marks of the City of Miami Beach, South Beach, Golf Courses or the
Convention Center, nor in any way associate these Competitive Products with the City of
Miami Beach, "South Beach," the Golf Courses, or the Convention Center. The Special
Promotional Events at the Golf Clubs and the Convention Center must occur over a period
of no more than twenty-four (24) hours. The twenty-four hours does not include set up or
tear down time required, or NCAA Championship events or political conventions which may
exceed the aforestated time limitation. The Convention Center may use the three one day
17
(one day = twenty-four hours) in the aggregate in each Agreement Year during the Term.
Aggregate, as used in this paragraph, shall mean the total of twenty-four hours multiplied by
the total number of Special Promotional Events permitted, as provided for herein. For
example purposes only, the Miami Beach Convention Center are provided three Special
Promotional Event Exceptions per Agreement Year. As such, the three Special Promotional
Events may occur in the Miami Beach Convention Center for.a total of 72 hours in an
Agreement year(24 hours x 3 events = 72 hours/year).
b. City Approved Major Sponsorship Public Special Events/Special Promotional Events
Exception. In any Agreement Year, temporary signage (such as, but not limited to,
banners) for Competitive Products may be displayed during up to four (4) Special
Promotional Events for City Approved Major Sponsorship Public Special Events. The term
"City Approved Major Sponsorship Public Special Event" shall refer to a City-approved
public event (i.e. where public access is allowed either via no cost or via pre-purchased
ticket) held on City property, and permitted pursuant to the City's approved Special Event
Permit process, as same may be amended from time to time during the Term of this
Agreement (for example purposes only, this may include, but not be limited to events such
as Super Bowl Pepsi Jam and Red Bull Illume); and may also include an event sponsored
by a manufacturer, distributor or marketer of Competitive Products pursuant to a
sponsorship agreement with the owner, operator or promoter of the event; an event
conducted on a national or regional multi-market basis; and/or an event where a
Competitive Product is the naming, presenting, title, brought to you by, or other primary
sponsor of the Event. Temporary signage for Competitive Products at City Approved Major
Sponsorship Public Events may be displayed as an Event "naming sponsor", Event
"presented by" sponsor, Event"brought to you by" sponsor, or as a sponsor represented as
a 'Gold" or "Platinum" (or such other equivalent) sponsor of the Event; PROVIDED,
HOWEVER, that: (i) Sponsor's Beverage availability, marketing, advertising, promotional,
and other rights under this Agreement will not otherwise be affected during any such Event;
(ii) no blockage of any signage or other trademark/service mark display Sponsor may have
at the Facility will occur during the Event, except for incidental blockage due to the
construction and/or placement of a person, stage or other structure necessary to and
actually used during the Event; or, in the case of NCAA championship events, religious
events or political conventions where no advertising is allowed and all advertisers are
treated equal with all signage covered in the seated area of the Facility; and (iii) all
temporary signage for Competitive Products will be promptly removed from the Facility upon
the conclusion of the Event. At no time will the Competitive Products make any statements
or use any temporary signage that uses the trademarks/service marks of the City of Miami
Beach, "South Beach," or the Facilities, or in any way associate these Competitive Products
with the City of Miami Beach Facilities. Notwithstanding the above, Competitive Products
may be distributed, sampled or made available during a City Approved Major Sponsorship
Public Special Event for which there is a Special Promotional Events Exception. Such
distribution, sampling or availability shall occur ONLY within the approved site plan for the
event. However, should concession service (sales) for any non-alcoholic beverage other
than Products be required or necessary for the event, and there are no existing concessions
at the location of the City Approved Major Sponsorship Public Special Event for which there
is a Special Promotional Events Exception, the City Manager shall submit a letter to 4:
Sponsor requesting that Sponsor grant a waiver to permit such sale at the Event; outlining
the details of the exception and the business reasons for the request and such request shall
require Sponsor's prior written approval. Sponsor reserves the right to not approve the
limited waiver for this purpose. Sponsor will notify the City Manager of whether the request
for waiver will be approved within twenty (20) business days of Sponsor receiving the City
Manager's letter_ -
18
The peciei Promotiunal Event Exceiition fur a City Approved Major Sponsorship Public
Special Event must occur over a period of no more than seventy-two (72) hours. The
seventy-two hours does not include set up or tear down time required, or NCAA
Championship events or political conventions which may exceed the aforestated time
limitation. The seventy-two hours may be used in the aggregate in each Agreement Year
during the Term. Aggregate, as used in this paragraph, shall mean the total of seventy-two
hours multiplied by the total number of Special Promotional Events Exceptions, as provided
for herein. As such, the four Special Promotional Events may occur on public property for a
total of 288 hours in an Agreement year(72 hours x 4 events =288 hours/year).
c. Other permitted Exceptions. Exhibitors at Conventions or trade shows, or third party exhibitor
set ups at Facilities shall have the right to serve Competitive Products within their booth
provided that same is limited to the duration of the corresponding event and, provided further,
that the Competitive Products are not marketed, advertised or promoted in association with
the City of Miami Beach and/or the Facilities, and their respective trademarks. For example
purposes only, a Cadillac booth at the Auto Show in the Convention Center would be
allowed to give away bottled water with the Cadillac Logo. Notwithstanding, Sponsor's
Products would continue to be the only Products allowed to be sold, distributed or sampled
at the Facility's concession operations.
d. Competitive Beverages may also be permitted to be distributed, at no cost, at third party
events that are not affiliated with the City, but where the City has permitted the event
through the issuance of a City of Miami Beach Special Events Permit, subject to the City's
notification to Sponsor prior to the event; and, provided further, that the third party event
operator is not a manufacturer, distributor or seller of a Competitive Product; that the
Competitive Products are not marketed, advertised or promoted in association with the City
of Miami Beach or the Facilities, and their respective trademarks; that no Competitive
Products will be sold during such event; and that the distribution of the Competitive Product
is limited to Special Event Permit Area (as such term is defined in the City's Special Event
Permit Guidelines, as same may be amended form time to time through the Term of this
Agreement). For example purposes only, a third party event contemplated under this
paragraph might include, but not be limited to, a walkathon or marathon where one of the
event sponsors might request to be permitted to distribute free bottled water to the event
participants. Notwithstanding the above, Sponsor shall have first right of refusal to provide
donated Beverages through a sponsorship agreement to the non-profit events, permitted by
the City through the issuance of a City of Miami Beach Special Events Permit, known as the
White Party, Winter Party and Miami Beach Pride (based on the level of non-alcoholic
Beverages provided for the White Party, Winter Party and Miami Beach Pride events in
2012.) for the sale of these Beverages by these three (3) events as part of their annual •
charity fundraisers. If Sponsor elects to participate, Sponsor will notify the organizer six (6)
months prior to start date of White Party, Winter Party and Miami Beach Pride events. If at
any time during the Term the Sponsor cannot or does not provide donated non-alcoholic
Beverages through a sponsorship agreement to these three (3) non-profit events for this
purpose, these three (3) events shall be permitted to secure Competitive Products for use
and sale consistent with the use and sale of non-alcoholic Beverages in the 2012 White
Party, Winter Party and Miami Beach Pride events.
Per Section 9 of Term Sheet, No Competitive Products may be sold, dispensed, sampled or served
anywhere at the Facilities, or on the City's public rights-of-ways, unless otherwise expressly spelled
out in the Agreement.
19
Pricing - Bottle/Cans August 1 , 2018-July 31 , 2019
Proposed Product Type Pack/Size 2018/2019
Case Price
Carbonated Soft Drinks Bottles 24/20oz $23.49
Dasani Water 24/20oz $14.24 771. 7
. Ogt
-- 3
" i Fuze Tea/ MM Refreshments 24/20oz $23.49
Carbonated Soft Drinks Cans 24/12oz $12.45 °"A` " r
PEK
Glaceau Vitamin Water 24/20oz $35.53 `"`- t
Glaceau Vitamin Water Zero 24/20oz $35.53 HONEST
PowerAde 24/20oz $25.00
0113 Minute Maid Juices 24/12oz $30.74
Mie Energy Drinks (Monster, NOS, Full Throttle 24/16oz $44.74 _7fl lr�ntc
Maid 1 t¢
.,a„. Dasani Water 24/12oz $11.69 i 1
Carbonated Soft Drinks 1 Liter Bottles 12/1L $21.44
Coca-Cola Glass Bottles 24/8oz $21.05
4—.
Coca-Cola Aluminum Bottles 24/8.Soz $21.69 smartwater
Carbonated Soft Drinks 2 Liter 8/2L $16.25
Gold Peak Tea 12/18oz $18.41 Minute
Honest Tea 12/16oz $16.58 Maid
CO2 Tank 201b tank $29.59 �"aims"
Please note that annual price increase goes into effect August 1 , 2018
MI A M I B E AC HConfidential- 1 C i6Z7
ORDERS/SERVICE
ea,,WAve;a 888-204-2653(COKE)
r-. li
''* CARBONATED SOFT DRINKS •
u
24/8oz.PROPRIETARY BOTTLES `=COCA-COLA,DIET COKE,SPRITE h
- 1, .2 [11 N g pc .g'. I
CORE POWER 11.5oz
CHOCOLATE,VANILLA,LIGHT STRAWBERRY BANANA,LIGHT CHOCOLATE,BANANA
Gopiaa�,
ti ,, t^- 24/7.50Z MINI-CAN
.. (77776 24/10oz.BOTTLES
! 'J1c. SEAGRAMS GINGER ALE,TONIC,CLUB SODA. COKE,COKE ZERO,DIET COKE,SPRITE,FANTA ORG,ALE
1,.
24/20oz.PROPRIETARY BOTTLES
NI MI COCA-COLA, COCA-COLA ZERO,DIET COKE, CAFFEINE FREE DIET COKE,CHERRY COKE,SPRITE,SPRITE
ZERO,BARQ'S ROOT BEER,PIBB XTRA,FANTA ORANGE,FANTA PINEAPPLE,FANTA GRAPE,FANTA
STRAWBERRY, CHERRY COKE ZERO,VANILLA COKE, MELLO YELLO,SEAGRAMS ALE
I
12/1 LITER BOTTLES(PROPRIETARY BOTTLES,
i i I
COCA-COLA,DIET COKE,SPRITE,SEAGRAMS GINGER ALE,
TONIC,CLUB SODA.
8/2 LITER BOTTLES
COCA-COLA,COCA-COLA ZERO,CAFFEINE FREE CLASSIC,DIET COKE, CAFFEINE FREE DIET COKE,CHERRY
El e spi COKE,SPRITE,DIET SPRITE ZERO,FUZE W/LEM, BARQ'S ROOT BEER,SEAGRAMS GINGER ALE,FANTA
ORANGE,FANTA GRAPE, FRESCA,
3%JUICE: MINUTE MAID LEMONADE.
1 24/12oz.CANS
® ® COCA-COLA,COCA-COLA ZERO,CAFFEINE FREE CLASSIC,DIET COKE,DIET COKE WITH LIME,CAFFEINE FREE
_ i:.,-,..IiDIET COKE,CHERRY COKE ZERO,SPRITE,SPRITE ZERO,FRESCA,FRESCA BLACKCHERRY CITRUS,FRESCA
PEACH CITRUS,TAB,DIET BARQ'S ROOT BEER, FUZE LEMON,DIET FUZE WILEM, PIBB XTRA,SEAGRAMS CLUB
SODA,TONIC WATER,GINGER ALE,FANTA GRAPE,FANTA ORANGE,FANTA ORANGE ZERO,VANILLA COKE,
MI MO MI VANILLA COKE ZERO,MELLO YELLO.
3%JUICE: MINUTE MAID LEMONADE,MINUTE MAID PINK LEMONADE&MINUTE MAID FRUIT PUNCH,
Mad M. Mud ORANGEADE
! i McCafe— 13.7oz Z
, gi 11 %-i CARAMEL,MOCHA,VANILLAii
FP MINUTE MAID %
24/12.oz BOTTLES
ORANGE,APPLE,CRAN GRAPE,CRAN APP RAS,RUBY RED,STRWPASS,
TROPICAL BLEND,PEACH MANGO
Oh MINUTE MAID (FRUIT DRINKS) t+o loo,
YZ ZE V 24/20oz BOTTLES .
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_- FRUIT PUNCH,LEMONADE,PINK LEMONADE, �� ,.. J TUM-E.YUMMIES 12/l0.loz BOTTLESBIG BRY BLST,EDGY ORG BRST,EPIC APL FLIP,FRT PNCH PARTY,RED RBY Z
—• FUZE TEAS 1 l �°"% � l % , V�I �I % ' i /1
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SWT W/LEM,REDSTRWBRY,SWT NO LEM •�.� `�
PEACE TEA-12/23oz CANS , !�
RAllLEBERRY,CADDYSHACK SNO-BERRY., 41•3 4� �t% f'�+� 1`
GREEN TEA,SWT LEMON,TX STYLE,PEACH ORIGINS
16 oz 12 pack HUBERTS Georgia Peach
MANGO LEMONADE,BLACKBERRY LEMONADE,WATERMELON LEM.STRAWBERRY LEM.
ORIGINAL LEMONADE. California Raspberry
Dunkin Donuts 13.7oz 12/cs 112112Mocha ,yam
24/355ML BOTTLE S11
French Vanilla
COKE,SPRITE,FANTA ORG :LAI 'J; Original ;� ;�
®IpAnotAQE
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'+` HONEY GREEN,POMEGRANATE BLUEHALF AND HALF,ORANGE MANGO,PEACH WHITE,GLASS:LEMON GROVE MAPLE BLACK TEA,MOROCCAN MINT GREEN TEA,JUST GREEN TEA
MINUTE MAID SPARKLING 16.9oz
MIXED BERRY,TROPICAL CITRUS,FRUIT PUNCH,FIZZY LEMONADE
GOLD PEAK TEA
, 12/18.5 PLASTIC BOTTLESill
LEM SWT,DIET,GREEN,UNSWT/NO LEMON,SWT,LEMONADE ICED TEA
d
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POWERADE ION (SPORTS DRINKS) , l
24/20oz BOTTLES
FRUIT PUNCH,Mll
TN BLAST,STRWBRY LEM,ORANGE,GRAPE,LEMON LIME,
POWERADE ZERO WITH ION4.20oz 8pk �,;.�
MIXED BERRY,STRAWBERRY,GRAPE,FRUIT PUNCH
`4e-4a- l DASANI ZERO
24/20oz BOTTLES,24/24oz FLACAP BOTTLES.12/1 LITER BOTTLES,12/1.5 LITER BOTTLES , ,
4
24/12 oz BOTTLES DASANI DROPS 1.90Z-STRWKIW,PKLEM,MIXBRY,PAPPCOCO
V'' •'4" "," GLACEAU (VITAMIN WATER) ^.i'i
_ C VITAMIN WATER 12oz,20oz,320Z4110 a
ENERGY-TROP CITRUS,ESSENTIAL-ORANGE,
�''" ' FOCUS-KIWI STRAW,POWER C-DRAGONFRUIT,REVIVE-FRT PCH,
XXX-ACAI POM BLUEBRY MSANI )ASA
VITAMIN WATER ZERO -XXX-ACAI POM BLUEBRY,SQUEEZED LEMONADE,RISE ORANGE, tF i G,..,.
.ns GLOW,RISE,GO-GO MIXED BRY • (" f
DASANI SPARKLING
1Ff011t(i in SMART WATER-200Z,700ML,1 LIT,1.5 LIT -7-7-3
f' � 0 SMART WATER SPARKLING 1 LITER "`^
FULL THROTTLE,BLUE AGAVE, (ENERGY DRINK-REGULAR&SUGAR FREE)
FULL THROTTLE UNLEADED (Zero Carbs)
24/16oz.CANS, ""` v�sflaa -
NOS 1i i
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MVNR
220Z REG, NAA. Wig
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44 MONSTER-MONSTER COFFEE
16oz CANS,240Z CANS,(ORIG W/NITROUS OXIDE,8.30Z CANS,18.60Z IMPORT,240Z
ORIGINAL,LO CARB,ABSOLUTE ZERO,ULTRA ZERO,ASSAULT,KHAOS,REHAB,REH ROJO,REH ORG,REH GRN TEA
V41rt REHAB PROTEIN,BALLR BLND,DUBB,150Z JAVA MONSTER-LOCA MOCHA,MEAN BEAN
1" ZICO(PURE COCONUT WATER) 14 oz.Rich Chocolate,Very Strawberry,
12/16.9oz PLASTIC BOTTLES Smooth Vanilla,Dalryilcious White iIP
ea inl NATURAL,CHOCOLATE,JALAPENO MANGO„WATERMELON RASB. "'rill „.r,4
NATURAL ka'rtIfe #` -
• • • • 1211 LITER IMP! /f '! ti
NATURAL,CHOCOLATE
II DIET COKE 12oz SLEEK CANS
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— 121 FEISTY CHERRY,TWISTED MANGO,GINGER LIME,BLOOD ORANGE
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POST-MIX FLAVORS x
..._. BEVERAGES flOR10A
5.0 GALLON BAG IN THE BOX AlW
Eflar
Coca-Cola, Diet Coke, Sprite
i � !ter /
2.5 GALLON BAG IN THE BOX
Cherry Coke, Caffeine Free Diet Coke, Coca-Cola Zero Sugar, Minute Maid
Lemonade, HI-C Poppin' Pink Lemonade, Minute Maid Lemonade Light, Fanta
Orange Soda, HI-C Flashin' Fruit Punch, Barq's Root Beer, Diet Sprite Zero,
Seagrams Ginger Ale, Seagrams Tonic, Powerade Lemon-Lime, Powerade
Mountain Blast, Powerade Fruit Punch, Southern Sun Sour Mix, Southern Sun
Orange 35%, MM Orchards Best Orange Blend, MM Orchards Best Pineapple,
MM Orchards Best Cranberry,
MM Orchards Best Apple. a�...,�
1
2.5 GALLON BAG IN THE BOX TEA
Gold Peak Southern Style Sweet Tea, Gold Peak Unsweet Tea,
Gold Peak Green Tea, Gold Peak Raspberry Tea.
FUZE Raspberry Tea, FUZE Lemon Tea, FUZE Sweet Tea,
FUZE Unsweetened Tea.
TRADEMARK CUPS & LIDS (SIZE & QUANTITY)
Cups — 16oz=1000, 24oz=1000, 32oz=480, 44oz=480
Lids — 16/24oz =2000, 32oz=960, 44oz=960 --
CO2 — 201bs ;1
qe-di .
•
Flavors may vary by market and are
subject to change.
MANAGEMENT AGREEMENT BETWEEN CITY AND TRF
FOR THE MGMT OF THE NORTH SHORE BAND SHELL
EXHIBIT H
RESOLUTION NO.2019-30846
55
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 the best 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 5/7th 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.
ICI;2---L---
Dan Gelber, Mayor
ATTEST:
. c t9oZcsici
Rafa I E. ranado, City Clerk
PO\11111,,,1,,
,„CORP •
, ,
ORATED. ,
d). •::'
APPROVED AS TO
FORM &&FOR EXECUTIONLANGUAGE
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J10rney
Date