Agreement with Use Urban Sport Equipment, LLC DocuSign Envelope ID:5C7C329D-8374-4249-B325-BB9E4BCEBB9C
2020 3 1395--
AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
USE URBAN SPORT EQUIPMENT, LLC
/L
DocuSign Envelope ID:5C7C329D-B374-4249-B325-BB9E4BCEBB9C
AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
USE URBAN SPORT EQUIPMENT, LLC
FOR THE FABRICATION, INSTALLATION AND MAINTENANCE OF URBAN
SPORTS EQUIPMENT IN VARIOUS CITY LOCATIONS, PURSUANT TO CITY
OF MIAMI BEACH REQUEST FOR INFORMATION (RFI) NO. 2017-216-WG
FOR COMPACT MULTI-EXERCISE FITNESS EQUIPMENT
THIS AGREEMENT (the "Agreement") made on , 2021 ("Effective
Date"), between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the
State of Florida, having its principal address at 1700 Convention Center Drive, Miami Beach,
Florida, 33139 (hereinafter, the "City"), and USE URBAN SPORT EQUIPMENT, LLC, a
Florida limited liability company, with its principal address at 407 Lincoln Road, PH-NE,
Miami Beach, Florida 33139, Miami Beach, Florida, 33139 (hereinafter, the "Contractor").
WITNESSETH
WHEREAS, Proposal Documents shall mean City of Miami Beach Request for
Information No. 2017-30067 for Compact Multi-Exercise Fitness Equipment, with all
amendments thereto, issued by the City in contemplation of this Agreement(the "RFI"), and
the Contractor's proposal in response thereto (the "Proposal"), all of which are hereby
adopted by reference and incorporated herein as if fully set forth in this Agreement;
provided, however, that in the event of an express conflict between the Proposal Documents
and this Agreement, the following order of precedent shall prevail: (i)this Agreement; (ii)the
RFI; and (iii) the Proposal; and further provided that in any case, the precedence will be
given to that term/provision which allows the City to enforce this Agreement in the strictest
possible terms, and/or in accordance with the term(s) most favorable for the City; and
WHEREAS, on October 18, 2017, the Mayor and City Commission adopted
Resolution No. 2017-30067, accepting the recommendation of the
Neighborhood/Community Affairs Committee at its September 27, 2017 meeting, approving
the placement of various Farah Service Urban Sports Equipment (USE) (the "Exercise
Equipment"), at South Pointe Park, Brittany Bay Park, Bandshell Park, and the Venetian
Causeway for a one-year pilot period; and
WHEREAS, pursuant to the RFI, Contractor, which is the United States based
company of Farah Services, a Brazilian company, desires to be engaged by the City, for the
Term of this Agreement to supply, install and maintain certain Urban Sports Equipment
(USE) at approved City locations for use by the general public at no cost to the City or the
public at large (the "Program" or"Service"); and
WHEREAS, on October 16, 2019, the Mayor and City Commission adopted
Resolution No. 2019-31030, accepting the recommendation of the Finance and Citywide
Projects Committee at its September 20, 2019 meeting, to enter into an agreement with
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Farah Service for additional placement of various Urban Sports Equipment including,
without limitation, Allison Park, Indian Beach Park, 35th Street along the Beach Walk,
Flamingo Park, North end of Lummus Park, Palm Island Park, Polo Park, Normandy Isle
Park, North Shore Park, Tatum Park, and Altos Del Mar Park, with sponsorship advertising
subject to City Commission approval; and further requiring that the Parks and Recreational
Facilities Board be informed of the locations of the installation of the equipment and to have
oversight of the Program as it expands; and
WHEREAS, on September 16, 2020, the Mayor and City Commission adopted
Resolution No. 2020-31395, amending Resolution No. 2019-31030 to clarify the term of the
agreement to be three (3) years with two (2) one-year renewal terms, at the City's option;
and
WHEREAS, the staff member who is designated by the City Manager to administer
this Agreement on behalf of the City shall be the Parks and Recreation Department Director
("Contract Manager"); and
WHEREAS, accordingly, the City and Contractor have negotiated the following
Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto
as follows:
SECTION 1. RECITALS.
The above recitals are true and correct and are incorporated herein by reference as part of
this Agreement.
SECTION 2. TERM.
2.1 This Agreement shall have an initial term of(3)years, commencing on the date when
all the Exercise Equipment has been installed upon all the Exercise Areas (the
"Operational Rollout Date"), but no later than six (6) months from the Effective Date
(the "Commencement Date"), with two (2) one-year renewal terms to be exercised
at the City Manager's sole option and discretion, by providing Contractor with written
notice of same no less than thirty (30) days from the expiration of the initial term or
the first renewal term, as applicable (collectively, the "Term").
2.2 If the Operational Rollout Date has not occurred within six (6) months from the
Effective Date, either party may terminate this Agreement for convenience; following
which, each party shall be discharged from any and all liabilities, duties, and terms
arising out of, or by virtue of, this Agreement.
SECTION 3. EXERCISE AREA(S) AND EXERCISE SERVICE ZONE.
The City hereby grants to the Contractor the non-exclusive right, during the Term of this
Agreement, to operate the Program, as described herein, generally, in the following
Exercise Service Zone and, specifically, upon the following Exercise Areas (hereinafter
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such areas shall be referred to individually as an Exercise Area, or collectively as the
Exercise Areas):
3.1 Exercise Service Zone.
The Exercise Service zone shall be defined as the following locations within the
City of Miami Beach:
(A) Venetian Causeway ("Venetian Causeway"), north swale, between Island
Avenue East and Island Avenue West;
(B) 7251 Collins Avenue ("Bandshell Sand Bowl");
(C) 6450 Indian Creek Drive ("Brittany Bay Park");
(D) 3 Washington Avenue ("South Pointe Park");
(E) 6500 Collins Avenue (''Allison Park");
(F) 4601 Collins Avenue ("Indian Beach Park");
(G)Miami Beach Boardwalk ("35th Street Miami Beach Boardwalk"), 35th Street
along the beach walk;
(H) 1200 Meridian Avenue ("Flamingo Park");
(I) Lummus Park ("14th Street Lummus Park"), north end of Lummus Park;
(J) 159 Palm Avenue ("Palm Island Park");
(K) 4301 North Michigan Avenue ("Polo Park");
(L) 7030 Trouville Esplanade ("Normandy Park");
(M)501 72nd Street ("North Shore Park");
(N) 8050 Byron Avenue ("Tatum Park"); and
(0)7625 Collins Avenue ("Altos del Mar Park")
(individually referred to as a "City Property" or collectively as "City Properties"), as
more particularly delineated in Exhibit "A", incorporate herein by reference and
attached hereto. Any modification to the list of Properties contained in the
Exercise Service Zone shall be subject to the prior written approval by the City,
in its sole and absolute discretion.
3.2 Exercise Area(s).
The Exercise Areas shall be designated by the City Manager or Contract
Manager, in his or her sole discretion, to be used exclusively for the Program.
Within thirty (30) days from the Effective Date of the Agreement, the City Manager
or Contract Manager shall approve, in writing, a site plan containing a list of the
Exercise Areas, which will be incorporated herein and attached hereto as Exhibit
"B". Any change in the location of the Exercise Areas shall be subject to the prior
written approval of the City Manager, in the City Manager's sole and absolute
discretion.
SECTION 4. USE (S).
4.1 Urban Sport Equipment (USE) Services.
The City herein approves the type of USE (the "Exercise Equipment"), as set forth
in Exhibit"C" hereto, for the operation of the Program. Notwithstanding the above,
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the City and Contractor hereby acknowledge and agree that the City s approval in
Section 2 above, as to the Exercise Areas, and the type of Exercise Equipment,
described in Exhibit "C" is given by the City solely in its proprietary capacity, and
not in its regulatory capacity. Notwithstanding such proprietary City approval,
Contractor acknowledges and agrees that proposed locations of an Exercise
Area or the location of an Exercise Equipment within an agreed upon Exercise
Area may also trigger and require review and approval by one (or more) of the
City's regulatory bodies. Accordingly, in such circumstances, Contractor
shall be required, at its sole cost and expense, to obtain any and all required
final, non-appealable development approvals and/or orders for such Exercise
Equipment prior to implementation of said Program in the approved Exercise
Areas.
4.2 Design, Permitting, Delivery, Acceptance and Installation of Exercise Equipment.
4.2.1 Contractor shall provide, at its sole cost and expense, any and all design
services including, but not limited to, architectural and engineering services,
as reasonably required in connection with the permitting, approval, and
installation of the Exercise Equipment and related installation components
(collectively, the "Exercise Area Improvements"). As part of the Exercise
Area Improvements, Contractor will be permitted to install one (1) sign at
each of the Exercise Areas, identifying the sponsor of the Exercise
Equipment. The sponsorship will be subject to the requirements and
limitations set forth in Subsection 11.2. Contractor, at its sole cost and
expense, will secure the proprietary approval of the sign from the Contract
Manager and will secure the necessary City regulatory approvals for the
installation of the approved sign.
4.2.2 Contractor agrees to secure, at its sole cost and expense, all required
approvals from all governmental authorities having jurisdiction over the
Program, in connection with the permitting, installation and maintenance of
the Exercise Area Improvements.
4.2.3 Prior to the installation of the initial Exercise Equipment, Contractor shall
provide the Contract Manager with a demonstration of the Exercise
Equipment. The purpose of this demonstration is to observe the Exercise
Equipment in an operational environment and to verify its capability,
suitability and adaptability in conjunction with performance requirements
stipulated in the RFI and as set forth herein. The initial Exercise Equipment
used for the demonstration (or any approved upgraded Exercise Equipment,
as the case may be) used in the demonstration shall create an expressed
warranty that the Exercise Equipment to be provided during the Term shall
conform to the Exercise Equipment used in the demonstration. The
acceptance of the Exercise Equipment shall be at the City Manager's sole
and absolute discretion.
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4.3 Project Schedule.
Within thirty (30) days from the Effective Date, Contractor and City shall mutually
agree upon a detailed written schedule for the fabrication, permitting, and
installation of the Exercise Area Improvements, a copy of which shall be attached
and incorporated as Exhibit "D" hereto (as approved, the Project Schedule). The
Project Schedule, or specific dates and/or milestones therein, may be extended
by the City Manager or Contract Manager, in writing, in his or her sole discretion,
upon written request from the Contractor, which notice shall state the reason for
the request and the anticipated period of time requested.
4.4 Removal of Exercise Equipment at Request of City.
Notwithstanding the approval of the installation of any Exercise Equipment, within
a designated Exercise Area, the City Manager, at the City Manager's sole and
absolute discretion, may request the removal of any Exercise Equipment, when
the City Manager, in the City Manager's sole and absolute discretion, deems that
the service of a particular Exercise Equipment is no longer required. Except in the
case where exigent circumstances exist, which in the City Manager's reasonable
discretion require a shorter response time, the City shall provide Contractor with
thirty (30) days written notice of such request ("Request for Removal"). Upon
receipt of a Request for Removal, Contractor shall remove said Exercise
Equipment in conformance of the terms set forth in Subsection 9.4.
4.5 No Use Fee or Compensation, Ownership of Exercise Equipment.
4.5.1 Contractor agrees that no fees will be charged to the public for use of the
Exercise Equipment. Additionally, Contractor will provide its Services at
no cost to the City.
4.5.2 Ownership of Exercise Equipment. The Exercise Equipment shall be the
sole and exclusive property of the Contractor during the Term of this
Agreement and thereafter.
SECTION 5. TAXES, ASSESSMENTS.
5.1 Contractor agrees and shall pay before delinquency all taxes and assessments
of any kind levied or assessed upon an Exercise Area, the Exercise Area
Improvements, and/or on Contractor by reason of this Agreement, or by reason
of Contractor's business and/or operations within an Exercise Area or Areas.
Contractor will have the right, at its own expense, to contest the amount or validity,
in whole or in part, of any tax by appropriate proceedings diligently conducted in
good faith. Contractor may refrain from paying a tax to the extent it is contesting
the imposition of same in a manner that is in accordance with law. However, if,
as a result of such contest, additional delinquency charges become due,
Contractor shall be responsible for such delinquency charges, in addition to
payment of the contested tax, if so ordered.
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5.2 Contractor shall also be solely responsible (at its sole cost and expense) for
obtaining and maintaining current any applicable licenses or permits, as required
for the operations contemplated in this Agreement including, without limitation, any
occupational licenses required by law for the proposed uses contemplated in
Section 3 and for each Exercise Area (if required).
SECTION 6. IMPROVEMENTS, MAINTENANCE and REPAIR.
The Contractor accepts the use of any and all Concession Areas provided in this
Agreement "AS IS," "WHERE IS," and "WITH ALL FAULTS," existing as of the Effective
Date.
6.1 Improvements.
In addition to the specific procedures set forth in Subsection 4.2 for the design,
fabrication, construction, and installation of the Exercise Equipment, Contractor
shall also be solely responsible (including cost) and shall pay for the design,
fabrication, construction, and installation of any and all Exercise Area improvements
to an Exercise Area, including all site preparation costs, as applicable.
6.2 Maintenance/Repair.
During the Term, Contractor, its employees, agents, contractors and vendors may
enter upon a City Property at any time, subject to providing the City's Contract
Manager with twenty-four hours prior written or verbal notice, for purposes of
installing, inspecting, servicing, and maintaining the Exercise Area Improvements.
The Contractor, at its sole cost and expense, shall install, inspect, service and
maintain the Exercise Area Improvements thereon (as required to operate the
Program) including, without limitation, the Exercise Equipment.
Contractor shall be solely responsible for the day to day operation, maintenance
and repair of all Exercise Areas and Exercise Area Improvements. Contractor shall
maintain the Exercise Areas and any Exercise Area Improvements thereon
including, without limitation, the Exercise Equipment, in good condition and proper
working order. Contractor shall keep all Exercise Areas and Exercise Area
Improvements, including all signage installed by Contractor free of graffiti. Many
small/light maintenance items may be done on-site by Contractor and/or its
approved subcontractors to eliminate or minimize unit downtime, while moderate to
heavy maintenance may require the Exercise Area Improvements to be removed
from circulation and serviced at Contractor's repair center.
No maintenance shall cause an Exercise Equipment to be non-operational for a
period of more than five (5) calendar days from the date Contractor undertakes
such maintenance. In the event the City knows of, or becomes aware of, any actual
or potential claim against the Contractor by any person or entity, or any actual or
potential malfunction with the Exercise Area Improvements, the City shall notify
Contractor promptly upon notification of such claim or malfunction; provided,
however that the City's failure to notify Contractor pursuant to this Subsection 6.2
shall not relieve Contractor of any obligations herein including, without limitation, its
sole obligation to service, maintain, repair, and replace the Exercise Area
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Improvements, as necessary.
All damage of any kind to an Exercise Area and any Exercise Area Improvement
thereon including, without limitation, the Exercise Equipment, shall be the sole
obligation of Contractor, and shall be repaired, restored or replaced promptly by
Contractor, at its sole cost and expense, to the reasonable satisfaction of the City
Manager or Contract Manager. Contractor shall have service technicians available
24 hours per day, 7 days per week. In the event that an Exercise Equipment is
damaged for any reason, Contractor shall, at a minimum, commence repairs within
twenty-four (24) hours, and, in any event, complete repairs or (if irreparable), or if
stolen, replace the damaged or stolen so that same is fully operational, no later than
five (5) days from the time Contractor first becomes aware (or should be aware) of
the damage or theft.
All of the aforesaid repairs, restorations and replacements shall be in quality and
class equal to or better than the original work (or equipment) and shall be done in
good and workmanlike manner.
If Contractor fails to make such repairs, restorations and/or replacements to an
Exercise Area and/or to any particular Exercise Area Improvement thereon
including, without limitation, the Exercise Equipment, the same may be made by
the City, at the City's sole option and discretion, but without obligation. Contractor
shall be responsible for any costs associated therewith and shall reimburse the City
within ten (10) days after rendition of a bill or statement.
It shall be Contractor's sole obligation to ensure that any renovations, repairs and/or
improvements made by Contractor to the Exercise Areas comply with all applicable
building codes and life safety codes of governmental authorities having jurisdiction.
6.3 Natural Disasters
During periods of anticipated natural disasters, the Contractor will be responsible for
securing the equipment in a manner that is acceptable to the City. The Contractor
will be solely responsible for any replacements and/or repairs to the equipment as a
result of such disaster. Further, any damage caused by the equipment during a
disaster, shall be the sole responsibility of the Contractor.
6.4 Orderly Operation.
The Contractor shall be solely responsible for the necessary housekeeping services
to properly maintain the Exercise Areas.
6.5 No Dangerous Materials.
The Contractor agrees not to use or permit the storage and/or use of gasoline, fuel
oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing
generators, turpentine, benzene, naphtha, propane, natural gas, or other similar
substances, combustible materials, or explosives of any kind, or any substance or
thing prohibited in the standard policies of fire insurance companies in the State of
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Florida, on or within any of the Exercise Areas, or on any City property and/or right
of way.
Contractor shall indemnify and hold City harmless from any loss, damage, cost, or
expense of the City, including, without limitation, reasonable attorney's fees,
incurred as a result of, arising from, or connected with the placement by Contractor
of any "hazardous substance" or "petroleum products" on, under, in or upon the
Exercise Areas as those terms are defined by applicable Federal and State Statute,
or any environmental rules and environmental regulations promulgated thereunder;
provided, however, Contractor shall have no liability in the event of the willful
misconduct or gross negligence of the City, its agents, servants or employees. The
provisions of this Subsection 6.4 shall survive the termination or earlier expiration
of this Agreement.
6.6 Security.
Contractor shall not employ any recorded video surveillance without the prior
written approval of the City Manager.
Under no circumstances shall the City be responsible for any stolen or damaged
Exercise Area Improvement, including any Exercise Equipment, nor shall the City
be responsible for any stolen or damaged personal property of Contractor's
employees, contractors, or agents.
6.7 Inspection.
The Contractor agrees that any Exercise Area (including, without limitation, any
Exercise Area Improvement thereon) may be inspected at any time by the City
Manager or Contract Manager, or by any other municipal, County, State officer, or
officers of any other agency(ies) having responsibility and/or jurisdiction for
inspections of such operations.
6.8 Signage.
Except as described in Subsection 4.2.1, Contractor shall not install any signs in
the Exercise Areas or on the City property without the written consent of the City
Manager, which consent, if provided at all, shall be in the City Manager's sole
discretion. City shall be responsible to provide, at its sole cost and expense, and
as (or if) it deems necessary, in its sole and reasonable judgment and discretion,
any traffic, regulatory or public safety signs, whether related directly or indirectly to
the Program.
SECTION 7. INSURANCE.
7.1 Contractor shall not commence any work and/or services under this Agreement until
all insurance required under this section has been obtained and such insurance has
been approved by the City's Risk Manager. Contractor shall carry and maintain the
following insurance coverages during the Term of this Agreement:
7.1.1 Worker's Compensation insurance in compliance with the Worker's
Compensation Act of the State of Florida.
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7.1.2 Comprehensive General Liability insurance on an occurrence form basis with
limits of not less than $1,000,000 per occurrence for bodily injury property
damage to include Premises/Operations; Products; Completed Operations and
Contractual Liability. Contractual Liability and Contractual Indemnity, with Hold
Harmless/Indemnity provision, with a general annual aggregate limit of
$1,000,000.
7.1.3 Automobile Insurance shall be provided covering all owned, leased, and hired
vehicles and non-ownership liability for not less than the following limits:
Bodily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
Property Damage $1,000,000 per accident
7.2 The liability policies affording the coverages described in the aforestated Subsection
7.1.2 shall be endorsed to cover the City and its employees, agents, directors and
officers as additional insureds.
7.3 Contractor shall deliver certificates of insurance to the City's Contract Manager and
renewal policies shall be obtained, and certificates delivered to the Contract
Manager, at least fifteen (15) days prior to expiration. The certificates of insurance
shall state that the issuing company shall provide thirty(30)days' prior written notice
to the certificate holder should any of the policies be cancelled prior to the expiration
date.
7.4 All of Contractor's certificates, above, shall contain endorsements providing that
written notice shall be given to the City at least thirty (30) days prior to termination,
cancellation or reduction in coverage in the policy. The insurance must be furnished
by insurance companies authorized to do business in the State of Florida and
approved by the City's Risk Manager. Original certificates of insurance for the above
coverage must be submitted to the City's Risk Manager. These certificates will be
kept on file in the office of the Risk Manager, City Hall, 1700 Convention Center
Drive, 3rd Floor, Miami Beach, Florida 33139. The Contractor shall also be solely
responsible for obtaining, submitting, and maintaining current and in full force, all
insurance for its subcontractors.
7.5 All insurance policies must be issued by companies authorized to do business under
the laws of the State of Florida. The companies must be rated no less than "B+" as
to management and not less than "Class VI" as to strength by the latest edition of
Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey,
or its equivalent, subject to the approval of the City's Risk Manager.
7.6 Compliance with the insurance requirements in this section, shall not relieve the
Contractor of the liabilities and obligations under this section or under any other
portion of this Agreement, and the City shall have the right to obtain from the
Contractor specimen copies of the insurance policies in the event that submitted
certificates of insurance are inadequate to ascertain compliance with required
coverage. The Contractor represents and warrants that any insurance protection
required by this Agreement or otherwise provided by its contractors and
subcontractors shall in no way limit the responsibility to indemnify, keep and save
harmless and defend the City or its officers, employees, contractors, consultants,
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agents, and instrumentalities as herein provided.
7.7 Waiver of Subrogation.
The terms of insurance policies referred to in Subsection 7.1.2 shall preclude
subrogation claims against Contractor, the City and their respective officers,
employees, contractors, agents, and servants.
SECTION 8. INDEMNITY.
8.1 In consideration of a separate and specific consideration of Ten ($10.00) Dollars and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, Contractor shall indemnify, hold harmless and defend the
City, its officials, directors, members, employees, contractors, agents, and servants
from and against any and all actions (whether at law or inequity), claims, liabilities,
losses, and expenses, including, but not limited to, attorneys' fees and costs, for
personal, economic or bodily injury, wrongful death, loss of or damage to property,
which may arise or be alleged to have arisen from the negligent acts, errors,
omissions or other wrongful conduct of the Contractor, its officers, employees,
agents, contractors, or any other person or entity acting under Contractor's control
or supervision, in connection with, related to, or as a result of the Contractor's
performance of the Services pursuant to this Agreement. To that extent, the
Contractor shall pay all such claims and losses and shall pay all such costs and
judgments which may issue from any lawsuit arising from such claims and losses,
and shall pay all costs and attorneys' fees expended by the City in the defense of
such claims and losses, including appeals.
The parties agree that one percent (1%) of the total compensation to Contractor for
performance of the Services under this Agreement is the specific consideration from
the City to the Contractor for the Contractor's indemnity agreement. The provisions
of this Section 8.1 and of this indemnification shall survive termination or expiration
of this Agreement.
SECTION 9. DEFAULT AND TERMINATION.
9.1 Termination for Cause
If the Contractor shall fail to fulfill in a timely manner, or otherwise violates, any of
the covenants, agreements, or stipulations material to this Agreement, the City,
through its City Manager, shall thereupon have the right to terminate this Agreement
for cause. Prior to exercising its option to terminate for cause, the City shall notify
the Contractor of its violation of the particular term(s) of this Agreement and shall
grant Contractor ten (10)days to cure such default. If such default remains uncured
after ten (10) days, the City may terminate this Agreement without further notice to
Contractor. Upon termination, the City shall be fully discharged from any and all
liabilities, duties, and terms arising out of, or by virtue of, this Agreement.
Notwithstanding the above, the Contractor shall not be relieved of liability to the City
for damages sustained by the City by any breach of the Agreement by the
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Contractor. The City, at its sole option and discretion, shall be entitled to bring any
and all legal/equitable actions that it deems to be in its best interest in order to
enforce the City's right and remedies against Contractor. The City shall be entitled
to recover all costs of such actions, including reasonable attorneys' fees.
9.2 Termination for Convenience of the City
THE CITY MAY ALSO, THROUGH ITS CITY MANAGER, AND FOR ITS
CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT
ANY TIME DURING THE TERM BY GIVING WRITTEN NOTICE TO
CONTRACTOR OF SUCH TERMINATION; WHICH SHALL BECOME EFFECTIVE
WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT BY THE CONTRACTOR OF
SUCH NOTICE. IF THE AGREEMENT IS TERMINATED FOR CONVENIENCE BY
THE CITY, CONSTRACTOR SHALL BE PAID FOR ANY SERVICES
SATISFACTORILY PERFORMED UP TO THE DATE OF TERMINATION;
FOLLOWING WHICH THE CITY SHALL BE DISCHARGED FROM ANY AND ALL
LIABILITIES, DUTIES, AND TERMS ARISING OUT OF, OR BY VIRTUE OF, THIS
AGREEMENT.
9.3 Termination for Insolvency
The City also reserves the right to terminate the Agreement in the event the
Contractor is placed either in voluntary or involuntary bankruptcy or makes an
assignment for the benefit of creditors. In such event, the right and obligations for
the parties shall be the same as provided for in Subsection 9.2.
9.4 Surrender of Exercise Areas / Removal by Contractor of Exercise Area
Improvements.
Upon expiration, or earlier termination of this Agreement, Contractor shall surrender
the Exercise Areas in the same condition as the Exercise Areas were prior to
the Effective Date. Contractor shall, at its sole expense and at no charge to the
City, remove all equipment from the Exercise Areas, (as well as any other permanent
or fixed improvements) no later than thirty (30) days after the conclusion of the Term,
(or from the date of earlier termination of this Agreement) unless a longer time period
is agreed to, in writing, by the City Manager.
Contractor's obligation to observe or perform this covenant shall survive the
expiration or other termination of this Agreement. Continued occupancy of any
Exercise Areas after termination of the Agreement (unless otherwise agreed to
pursuant to the signed Removal Schedule) shall constitute trespass by the
Contractor, and may be prosecuted as such.
9.5 Substitute Performance.
In the event that the Contractor fails to properly perform the removal of any Exercise
Area Improvements and restoration of the Exercise Areas to their original condition
in accordance with the terms of the Agreement, then the City shall have the right
to undertake and/or purchase, as the City Manager deems appropriate, any such
supplies, materials, services, etc., covered herein and to charge Contractor for all
actual costs thereby incurred by the City. Contractor shall be responsible for
paying all of said costs.
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SECTION 10. ASSIGNMENT.
Contractor shall not assign all or any portion of its costs or obligations under this
Agreement without the prior written consent of the City Manager, which consent, if given
at all, shall be in the City Manager's sole judgment and discretion. Neither this Agreement,
nor any term or provision hereof, or right hereunder, shall be assignable unless as approved
pursuant to this section, and any attempt to make such assignment (unless approved) shall
be void.
SECTION 11. SPONSORSHIPS.
11.1 The City reserves unto itself all present and future rights to negotiate all forms of
endorsement and/or sponsorship agreements based on the marketing value of any
City trademark, property, brand, logo and/or reputation. Any and all benefits derived
from an endorsement and/or sponsorship agreement based on the marketing value
of a City trademark property, brand, logo and/or reputation, shall belong exclusively
to the City.
11.2 Notwithstanding the City's rights under Subsection 11.1, Contractor shall be entitled
to retain all proceeds from any approved sponsorship deals relating to the Exercise
Equipment within any of the Exercise Areas. All sponsors shall be subject to the
approval of the City Manager and will be subject to guidelines set forth in Citywide
Procedure TC.19.01, incorporated herein and attached as Exhibit"E". Additionally,
this Agreement is subject to that certain agreement between the City and Coca-Cola
Bottling, commencing on September 1, 2011 and expiring on September 1, 2021,
incorporated herein and attached Exhibit "F" hereto, to be the exclusive provider
of non-alcoholic beverages in connection with certain Facilities (as defined therein),
which includes the City's parks. As such, Contractor may not secure sponsorships
from sponsors who are in direct competition with Coca-Cola. Subject to compliance
with the requirements of Subsection 4.2.1, Contractor will be permitted to install a
sign within the Exercise Area, identifying the sponsor for the Exercise Equipment.
11.3 It is further acknowledged that the name, likeness, equipment, concepts, logos,
designs and other intellectual property rights of Contractor shall remain in the
exclusive possession and control of Contractor at all times; provided, however, that
Contractor hereby grants City an irrevocable license to use any Contractor
trademark, brand, and/or logo, for purposes of the City's promotion of the Program
and including, without limitation, the right to use such trademarks, brand, and/or logo
in all media (for such public marketing purposes) whether now existing or as may
exist in the future.
SECTION 12. NO ADVERTISING/MARKETING.
12.1 No Advertising.
Contractor understands that City of Miami Beach regulations strictly prohibit
Contractor from advertising on any part of the Exercise Area Improvements or the
Exercise Area, and expressly agrees not to conduct any advertising hereunder
unless expressly approved in writing by the City, in the City's sole and absolute
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discretion, in order to meet the City's requirements. Notwithstanding the foregoing,
Contractor will be entitled to install the sponsorship sign described in Subsection
11.2, subject to securing the City's proprietary and regulatory approvals, as
described in Subsection 4.2.1.
12.2 Marketing of Program.
Any marketing efforts and materials relating to the Program shall require the
coordination and prior written approval of the City Manager.
SECTION 13. NO IMPROPER USE.
The Contractor will not use, nor suffer or permit any person to use in any manner
whatsoever, any Concession Areas or Exercise Area Improvements thereon, for any illegal,
improper, immoral or offensive purpose, or for any other 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. The
Contractor will protect, indemnify, and forever save and keep harmless the City, its officials,
employees, contractors, and agents from and against damage, penalty, fine, judgment,
expense or charge suffered, imposed, assessed or incurred for any violation, or breach
of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission
of the Contractor, or any official, director, agent, contractor, or servant regarding the
concession. In the event of any violation by the Contractor, or if the City or its authorized
representative shall deem any conduct on the part of the Contractor to be objectionable
or improper, the City shall have the right to suspend concession operation should the
Contractor fail to correct any such violation, conduct, or practice to the satisfaction of the
City Manager or Contract Manager within twenty-four (24) hours following written notice
of the nature and extent of such violation, conduct, or practice. Such suspension to
continue until the violation is cured to the satisfaction from the City Manager or Contract
Manager.
SECTION 1 4 . NOTICES.
Any notice required to be given or otherwise given pursuant to this Contract shall be in
writing and shall be hand delivered, mailed by certified mail, return receipt requested or
sent recognized overnight courier service as follows:
If to CONTRACTOR: USE Urban Sport Equipment, LLC
407 Lincoln Road, PH-NE
Miami Beach, Florida 33139
If to the CITY: City of Miami Beach
Attention: Parks and Recreation Director
1700 Convention Center Drive
Miami Beach, Florida 33139
With copy to City of Miami Beach
Attention: City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
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Notwithstanding the foregoing, the City expressly authorizes Contractor to notice its
designated Contract Manager, City of Miami Beach Parks and Recreation Director with
regard to all matters pertinent to this Agreement, except with respect to any alleged
defaults, which will require notice to the City Manager.
SECTION 15. LAWS.
15.1 Compliance.
Contractor shall comply with all applicable City, County, State, and Federal
ordinances, statutes, rules and regulations, including but not limited to all
applicable environmental City, County, State, and Federal ordinances, statutes,
rules and regulations.
15.2 Governing Law.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Any civil action arising in
any way from this Agreement or the activities of the parties under this Agreement
shall be brought only in a court of competent jurisdiction located in Miami-Dade
County, Florida.
15.3 Equal Employment Opportunity.
Neither Contractor nor any affiliate of Contractor performing services hereunder,
or pursuant hereto, will discriminate against any employee or applicant for
employment because of race, creed, sex, color, national origin, sexual
orientation, and disability (as defined in Title I of ADA).
15.4 No Discrimination.
Contractor agrees that there shall be no discrimination as to as to race, color,
national origin, religion, sex, intersexuality, sexual orientation, gender identity,
marital and familial status, or age, or handicap, in the operations referred to in
this Agreement; and, further, there shall be no discrimination regarding any use,
service, maintenance, or operation within the Exercise Areas. All operations
and services offered in the Exercise Areas shall be made available to the
public, subject to the right of the Contractor and the City to establish and
enforce reasonable rules and regulations to provide for the safety, orderly
operation, and security of the Exercise Areas and improvements and equipment
thereon.
Additionally, Contractor shall comply with City of Miami Beach Human Rights
Ordinance, codified in Chapter 62 of the City Code, as may be amended from time
to time, prohibiting discrimination in employment, housing, public
accommodations, or public services, on the basis of actual or perceived race, color,
national origin, religion, sex, intersexuality, sexual orientation, gender identity,
familial and marital status, age, ancestry, height, weight, domestic partner status,
labor organization membership, familial situation, political affiliation, or disability.
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SECTION 16. MISCELLANEOUS.
16.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture between the City and Contractor.
16.2 Modifications.
This Agreement cannot be changed or modified except by Agreement in writing
executed by all parties hereto. Contractor acknowledges that no modification to
this Agreement may be agreed to by the City unless approved by the Mayor
and City Commission except where such authority has been expressly provided
herein to the City Manager or Contract Manager.
16.3 Complete Agreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all
the understandings and Agreements of whatsoever nature or kind existing
between the parties with respect to Contractor's operations, as contemplated
herein.
16.4 Severability.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid or
unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this Agreement
but the remainder of the Agreement, such provisions and the application thereof
to other persons or circumstances, shall not be affected thereby and this
Agreement as so modified shall.
16.5 Nota Lease.
It is expressly understood and agreed that no part, parcel, building, facility,
equipment or space is leased to the Contractor, that it is a Contractor and not a
lessee; that the Contractor's right to operate the program shall continue only so
long as this Agreement remains in effect.
16.6 No Waiver.
It is mutually covenanted and agreed by and between the parties hereto that the
failure of the City to insist upon the strict performance of any of the conditions,
covenants, terms or provisions of this Agreement, or to exercise any option herein
conferred, will not be considered or construed as a waiver or relinquishment
for the future of any such conditions, covenants, terms, provisions or options
but the same shall continue and remain in full force and effect. A waiver of
any term expressed herein shall not be implied by any neglect of the City to
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declare a forfeiture on account of the violation of such term if such violation by
continued or repeated subsequently and any express waiver shall not affect
any term other than the one specified in such waiver and that one only for the time
and in the manner specifically stated.
The receipt of any sum paid by Contractor to the City after breach of any condition,
covenant, term or provision herein contained shall not be deemed a waiver
of such breach, but shall be taken, considered and construed as payment for
use and occupation, and not as rent, unless such breach be expressly waived
in writing by the City.
16.7 No Third-Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, including,
but not limited to subcontractors, other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies by reason of
this Agreement.
16.8 No Lien.
In the event any notice or claim of lien shall be asserted against the interest of
the City on account of or arising from any work done by or for Contractor, or
any person claiming by, through or under Contractor, or for improvements or
work, the cost of which is the responsibility of Contractor, Contractor agrees to
have such notice or claim of lien cancelled and discharged within fifteen (15)
days after notice to Contractor by City. In the event Contractor fails to do so, City
may terminate this Agreement for cause without liability to City.
SECTION 17. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement placing the operation and management of
the Exercise Area(s) in the hands of a private management entity only if so doing the
City can place a limit on its liability for any cause of action for breach of this Agreement,
so that its liability for any such breach never exceeds the sum of One Thousand
($1,000.00) Dollars. Contractor hereby expresses its willingness to enter into this
Agreement One Thousand ($1,000.00) Dollars limitation on recovery for any action for
breach of contract. Accordingly, and in consideration of the separate consideration of
One Thousand ($1,000.00) Dollars, the receipt of which is hereby acknowledged, the
City shall not be liable to Contractor for damages to Contractor in an amount in excess
of One Thousand ($1,000.00) Dollars, for any action for breach of contract arising out
of the performance or on-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 limitation placed upon the City's liability as set forth
in Florida Statutes, Section 768.28.
SECTION 18. VENUE.
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. This Agreement shall be
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enforceable in Miami- Dade County, Florida, and if legal action is necessary by either
party with respect to the enforcement of any and all the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida.
CITY AND CONTRACTOR HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND
CONTRACTOR MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE EXERCISE AREA(S).
SECTION 19. CONFLICT OF INTEREST.
Contractor agrees to adhere to and be governed by the Miami-Dade County Ethics and
Conflict of Interest laws, as same may be amended from time to time, and by the City of
Miami Beach Charter and Code, as same may be amended from time to time, in connection
with the performance of the Services.
Contractor covenants that it presently has no interest and shall not acquire any interest,
direct or indirectly, which would conflict in any manner or degree with the performance
of the work and services contemplated in this Agreement. The Contractor further
covenants that in the performance of this Agreement, no person having any such interest
shall knowingly be employed by the Contractor.
SECTION 20. FLORIDA PUBLIC RECORDS LAW.
20.1 Contractor shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
20.2 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.
20.3 Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the
definition of"Contractor" as defined in Section 119.0701(1)(a), the Contractor shall:
(A) Keep and maintain public records required by the City to perform the service;
(B) 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;
(C) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed, except as authorized
by law, for the duration of the contract term and following completion of the
Agreement if the Contractor does not transfer the records to the City;
(D) Upon completion of the Agreement, transfer, at no cost to the City, all public
records in possession of the Contractor or keep and maintain public records
required by the City to perform the service. If the Contractor transfers all public
records to the City upon completion of the Agreement, the Contractor shall
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destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If the Contractor keeps
and maintains public records upon completion of the Agreement, the
Contractor 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.
20.4 REQUEST FOR RECORDS; NONCOMPLIANCE.
20.4.1 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 Contractor of the
request, and the Contractor must provide the records to the City or allow the
records to be inspected or copied within a reasonable time.
20.4.2 Contractor'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.
20.4.3 A Contractor who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s. 119.10.
20.5 CIVIL ACTION.
20.5.1 If a civil action is filed against a Contractor to compel production of public
records relating to the City's contract for services, the court shall assess and
award against the Contractor the reasonable costs of enforcement, including
reasonable attorney fees, if:
(A) The court determines that the Contractor 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
the Contractor has not complied with the request, to the City and to the
Contractor.
20.5.2 A notice complies with subparagraph 20.5.1(B) if it is sent to the City's
custodian of public records and to the Contractor at the Contractor's address
listed on its contract with the City or to the Contractor'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.
20.5.3 A Contractor 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.
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20.6 IF THE CONTRACTOR HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA
STATUTES, TO THE CONTRACTOR'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(c,MIAMIBEACHFL.GOV
PHONE: 305-673-7411
SECTION 21. INSPECTOR GENERAL AUDIT RIGHTS.
21.1 Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has
established the Office of the Inspector General which may, on a random basis,
perform reviews, audits, inspections and investigations on all City contracts,
throughout the duration of said contracts. This random audit is separate and distinct
from any other audit performed by or on behalf of the City.
21.2 The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts, records,
contracts and transactions. In addition, the Inspector General has the power to
subpoena witnesses, administer oaths, require the production of witnesses and
monitor City projects and programs. Monitoring of an existing City project or program
may include a report concerning whether the project is on time, within budget and in
conformance with the contract documents and applicable law. The Inspector
General shall have the power to audit, investigate, monitor, oversee, inspect and
review operations, activities, performance and procurement process including but
not limited to project design, bid specifications, (bid/proposal) submittals, activities
of the Contractor, its officers, agents and employees, lobbyists, City staff and elected
officials to ensure compliance with the contract documents and to detect fraud and
corruption. Pursuant to Section 2-378 of the City Code, the City is allocating a
percentage of its overall annual contract expenditures to fund the activities and
operations of the Office of Inspector General.
21.3 Upon ten (10) days written notice to the Contractor, the Contractor shall make all
requested records and documents available to the Inspector General for inspection
and copying. The Inspector General is empowered to retain the services of
independent private sector auditors to audit, investigate, monitor, oversee, inspect
and review operations activities, performance and procurement process including
but not limited to project design, bid specifications, (bid/proposal) submittals,
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activities of the Contractor, its officers, agents and employees, lobbyists, City staff
and elected officials to ensure compliance with the contract documents and to detect
fraud and corruption.
21.4 The Inspector General shall have the right to inspect and copy all documents and
records in the Contractor's possession, custody or control which in the Inspector
General's sole judgment, pertain to performance of the contract, including, but not
limited to original estimate files, change order estimate files, worksheets, proposals
and agreements from and with successful subcontractors and suppliers, all project-
related correspondence, memoranda, instructions, financial documents,
construction documents, (bid/proposal) and contract documents, back-change
documents, all documents and records which involve cash, trade or volume
discounts, insurance proceeds, rebates, or dividends received, payroll and
personnel records and supporting documentation for the aforesaid documents and
records.
21.5 The Contractor shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and
performance of this Agreement, for examination, audit, or reproduction, until three
(3) years after final payment under this Agreement or for any longer period required
by statute or by other clauses of this Agreement. In addition:
(A) If this Agreement is completely or partially terminated, the Contractor shall
make available records relating to the work terminated until three (3) years
after any resulting final termination settlement; and
(B) The Contractor shall make available records relating to appeals or to litigation
or the settlement of claims arising under or relating to this Agreement until such
appeals, litigation, or claims are finally resolved.
21.6 The provisions in this section shall apply to the Contractor, its officers, agents,
employees, subcontractors and suppliers. The Contractor shall incorporate the
provisions in this section in all subcontracts and all other agreements executed by
the Contractor in connection with the performance of this Agreement.
Nothing in this section shall impair any independent right to the City to conduct audits
or investigative activities. The provisions of this section are neither intended nor shall
they be construed to impose any liability on the City by the Contractor or third parties.
SECTION 22. FORCE MAJEURE
22.1 A"Force Majeure" event is an event that(i) in fact causes a delay in the performance
of the Contractor or the City's obligations under the Agreement, and (ii) is beyond
the reasonable control of such party unable to perform the obligation, and (iii) is not
due to an intentional act, error, omission, or negligence of such party, and (iv) could
not have reasonably been foreseen and prepared for by such party at any time prior
to the occurrence of the event. Subject to the foregoing criteria, Force Majeure may
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include events such as war, civil insurrection, riot, fires, epidemics, pandemics,
terrorism, sabotage, explosions, embargo restrictions, quarantine restrictions,
transportation accidents, strikes, strong hurricanes or tornadoes, earthquakes, or
other acts of God which prevent performance. Force Majeure shall not include
technological impossibility, inclement weather, or failure to secure any of the
required permits pursuant to the Agreement.
22.2 If the City or Contractor's performance of its contractual obligations is prevented or
delayed by an event believed by to be Force Majeure, such party shall immediately,
upon learning of the occurrence of the event or of the commencement of any such
delay, but in no case within fifteen (15) business days thereof, provide notice: (i) of
the occurrence of event of Force Majeure, (ii) of the nature of the event and the
cause thereof, (iii)of the anticipated impact on the Agreement, (iv) of the anticipated
period of the delay, and (v) of what course of action such party plans to take in order
to mitigate the detrimental effects of the event. The timely delivery of the notice of
the occurrence of a Force Majeure event is a condition precedent to allowance of
any relief pursuant to this section; however, receipt of such notice shall not constitute
acceptance that the event claimed to be a Force Majeure event is in fact Force
Majeure, and the burden of proof of the occurrence of a Force Majeure event shall
be on the requesting party.
22.3 No party hereto shall be liable for its failure to carry out its obligations under the
Agreement during a period when such party is rendered unable, in whole or in part,
by Force Majeure to carry out such obligations. The suspension of any of the
obligations under this Agreement due to a Force Majeure event shall be of no greater
scope and no longer duration than is required. The party shall use its reasonable
best efforts to continue to perform its obligations hereunder to the extent such
obligations are not affected or are only partially affected by the Force Majeure event,
and to correct or cure the event or condition excusing performance and otherwise to
remedy its inability to perform to the extent its inability to perform is the direct result
of the Force Majeure event with all reasonable dispatch.
22.4 Obligations pursuant to the Agreement that arose before the occurrence of a Force
Majeure event, causing the suspension of performance, shall not be excused as a
result of such occurrence unless such occurrence makes such performance not
reasonably possible. The obligation to pay money in a timely manner for obligations
and liabilities which matured prior to the occurrence of a Force Majeure event shall
not be subject to the Force Majeure provisions.
22.5 In the event that an event of Force Majeure delays a party's performance under the
Agreement for a time period greater than one hundred eighty (180) days, the City
may, at the sole discretion of the City Manager, terminate the Agreement on a given
date, by giving written notice to Contractor of such termination. If the Agreement is
terminated pursuant to this section, Contractor shall be paid for any Services
satisfactorily performed up to the date of termination; following which the City shall
be discharged from any and all liabilities, duties, and terms arising out of, or by virtue
of, this Agreement. In no event will any condition of Force Majeure extend this
Agreement beyond its stated term.
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SECTION 23. E-VERIFY
23.1 Contractor shall comply with Section 448.095, Florida Statutes, "Employment
Eligibility" ("E-Verify Statute"), as may be amended from time to time. Pursuant to
the E-Verify Statute, commencing on January 1, 2021, Contractor shall register with
and use the E-Verify system to verify the work authorization status of all newly hired
employees during the Term of the Agreement. Additionally, Contractor shall
expressly require any subcontractor performing work or providing services pursuant
to the Agreement to likewise utilize the U.S. Department of Homeland Security's E-
Verify system to verify the employment eligibility of all new employees hired by the
subcontractor during the contract Term. If Contractor enters into a contract with an
approved subcontractor, the subcontractor must provide the Contractor with an
affidavit stating that the subcontractor does not employ, contract with, or
subcontract with an unauthorized alien. Contractor shall maintain a copy of such
affidavit for the duration of the Agreement or such other extended period as may be
required under this Agreement.
23.2 TERMINATION RIGHTS.
(A) If the City has a good faith belief that Contractor has knowingly violated
Section 448.09(1), Florida Statutes, the City shall terminate this Agreement
with Contractor for cause, and City shall thereafter have or owe no further
obligation or liability to Contractor.
(B) If the City has a good faith belief that a subcontractor has knowingly violated
Subsection 23.1, but the Contractor otherwise complied with such
subsection, the City will promptly notify the Contractor and order the
Contractor to immediately terminate the Agreement with the
subcontractor. Contractor's failure to terminate a subcontractor shall be an
event of default under this Agreement, entitling City to terminate the
Contractor's contract for cause.
(C) A contract terminated under the aforestated Subsections (A) or (B) is not in
breach of contract and may not be considered as such.
(D) The City or Contractor or a subcontractor may file an action with the Circuit
or County Court to challenge a termination under the aforestated
Subsections (A) or(B) no later than 20 calendar days after the date on which
the contract was terminated.
(E) If the City terminates the Agreement with Contractor under the aforestated
Subsection (A), Contractor may not be awarded a public contract for at least
1 year after the date of termination of this Agreement.
(F) Contractor is liable for any additional costs incurred by the City as a result of
the termination of this Agreement under this section.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed and their seals to be affixed, all as of the day and year first above written,
indicating their Agreement.
Attest: CITY OF MIAMI BEACH, FLORIDA
i DocuSigned by: DocuSigned by:
rarad a'al,tetb
Ra�aerd'Ar acd'o,`City Clerk Dan defier, ayor
6/29/2021 18:35 AM EDT
Date:
Attest: USE URBAN SPORT EQUIPMENT, LLC.
/411
c f04-1) .1) Nz l Ckt Kder - C6/13
Print Name and Title Print Name and Title
Date: - 2.5 - 21
A[T'i r • TO
LAr UAGE
CUTION
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Exhibit"A"
Service Zone
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Exhibit"B"
Exercise Area(s)
Page 26 of 30
DocuSign Envelope ID:5C7C329D-8374-4249-8325-BB9E4BCEBB9C
Exhibit"C"
Exercise Equipment
Page 27 of 30
DocuSign Envelope ID:5C7C329D-8374-4249-B325-BB9E4BCEBB9C
Exhibit C
Exercise Equipment
7.— ..
MATERIALS
The equipment was designed and prepared for all kind of climatic conditions,
resisting heat and cold, sun exposure, rain and sea breeze.
Main structure: Stainless steel
Content Exposure: Tempered glass - 10mm
Support structure: Galvanized steel
Floor: Recycled plastic
SPECIFICATIONS
The urban sports equipment consists in a structure for exercises made of
stainless steel with a polished finish, reducing the absorption of heat from direct
sunlight, ideal for outdoor use in environments exposed to high humidity, rain
and other inclement weather. With a galvanized steel structure underneath, it
DocuSign Envelope ID:5C7C329D-8374-4249-B325-BB9E4BCEBB9C
can be adapted to any kind of field, as it adjustable, being able to stand over
grass, without prejudicing it, for example. Over this support structure is mounted
a straight platform made of recycled plastic, that mimics wood, as it is more
durable and more sustainable in humid places,with protection from moist.
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DocuSign Envelope ID: 5C7C329D-B374-4249-B325-BB9E4BCEBB9C
Exhibit "D"
Project Schedule
Page 28 of 30
Docusign Envelope ID:5C7C329D-8374-4249-8325-BB9E4BCEBB9C
Exhibit "E"
Citywide Procedure TC.19.01
Page 29 of 30
/i
Docusign Envelope ID:5C7C329D-B374-4249-B325-BB9E4BCEBB9C
BEACH DATE ISSUED: I Page: 1 SEQUENCE
f v`
MAY 2014 Of: 3 NUMBER:
CITYWIDE PROCEDURE DATE UPDATED: CO.19.02
_OCTOBER 2019
SUBJECT:
SPONSORSHIPS, DONATIONS, AND
ADVERTISING PROCEDURE
L RESPONSIBLE DEPARTMENT:
MARKETING & COMMUNICATIONS
PURPOSE:
To standardize procedures as it relates to placement of advertising and acceptance of
sponsorships, including in-kind and donations.
PROCEDURE:
The following constitutes the City's administrative procedure relating to sponsorships and
advertising on City-owned property, or for products developed by, for or under contract with the
City.
All advertising, sponsorships and donations must be vetted through the Marketing &
Communications Department prior to acceptance. All sponsors, advertisers and donors must
go through an internal background check to ensure they are a good fit to partner with the City.
ADVERTISING
Advertising guidelines for public rights-of-way, interiors spaces of City-owned buildings,
and city publications.
A. All advertising accepted for placement by the City, or by a contractor authorized by the
City to accept advertising on behalf of the City, must comply with Federal, State, Miami-
Dade County, and existing City of Miami Beach laws, rules and regulations.
B. Consistent with Resolution No. 2009-27142 the City, or a Contractor authorized by the
City to accept advertising on behalf of the City, shall not accept for insertion any
advertisement that falls within one or more of the following categories:
1. Unlawful or illegal goods, services or activities
2. Tobacco or tobacco-related products
3 Firearms
4. Sexual services, programs or products
5. Political candidates or political issues
6. Competitive products for any City of Miami Beach citywide exclusive sponsorship
agreement
7. Advertising for alcoholic beverages within 250 feet of any school, day care or house
of worship
8. Any advertising that contains messages that are threatening, harassing, or
discriminatory
9. Any such additional category of advertising as the City may determine, as notified in
writing to a contractor authorized by the City to place advertising on the public rights-
of-way
C. Any such prohibited material displayed or placed shall be immediately removed by
contractor upon notice from the City.
D. All advertising transactions must be formalized with a contract.
DocuSign Envelope ID:5C7C329D-8374-4249-8325-BB9E4BCEBB9C
Pa
1V\I A ivl I BEACH DATE MAY 2014 Of:
Of93 2 NUMBER:SEQUENCE
CITYWIDE PROCEDURE DATE UPDATED: CO.19.02
OCTOBER 2019
SUBJECT:
SPONSORSHIPS, DONATIONS, AND
ADVERTISING PROCEDURE
RESPONSIBLE DEPARTMENT:
MARKETING & COMMUNICATIONS
SPONSORSHIP, DONATION AND IN-KIND
Definitions
Sponsorship: A cash and/or in-kind fee paid to a property (typically in sports, arts, entertainment
or causes) in return for access to the exploitable commercial potential associated with that
property (Definition provided by lEG). Sponsorships could include cash purchases, budget
relieving in-kind sponsorships, in-kind donation
ns, or donations.
Asset: An asset is defined as any item or benefit that could be assigned a value and presented
and sold to a sponsor as part of their sponsorship participation In conjunction with any City of
Miami Beach event/facility/program. Assets include all trade for products and/or services with
outside organizations.
In-Kind: An in-knd contribution is defined as a non-monetary contribution of goods or services
offered free or at less than the usual charge. This can be in exchange for
sponsorship/advertising rights or simply as a donation.
Donation: Donation is defined as a contribution to a public or charitable cause. Donations are
given to meet specific needs of the organization, without the expectation of any public
recognition to the business. This can be in the form of cash, products or services.
Sponsorship Valuation
All City of Miami Beach sponsorships must be evaluated based on industry standard pricing.
The fair market value must be in line with investment/benefit correlation.
The City of Miami Beach Marketing & Communications Department will be responsible for
approving the Asset Inventory, with assigned values, for use when selling City of Miami Beach
sponsorships, including 3r0 party selling.
All sponsorships must be approved and accepted by the Mayor and Commission.
3rd Party Sales Representatives; Including volunteers and committee members
When partnering with 3r° party sales representatives regarding sales of City of Miami Beach
sponsorships, the 3r° party must adhere to the policies and procedures set forth by the City of
Miami Beach.
A list of current and in-process City of Miami Beach sponsors may be provided to the 3'° party
representative upon request. When soliciting sponsorships for any City of Miami Beach
facility/program/event, the 3rd party representative may not act as competition to the City nor
interfere with anyone on the current and in-process list of sponsors without authorization from
City of Miami Beach Marketing & Communications Staff.
DocuSign Envelope ID:5C7C329D-8374-4249-8325-BB9E4BCEBB9C
AA i A AA I BEACH DATE
MAY 2014UED: ` Of: 3. 3 NUMBER:SEQUENCE
CITYWIDE PROCEDURE DATE UPDATED: C0.19.02
OCTOBER 2019
SUBJECT:
SPONSORSHIPS, DONATIONS, AND
ADVERTISING PROCEDURE
RESPONSIBLE DEPARTMENT:
MARKETING & COMMUNICATIONS
Sponsorship contract process
AN sponsorship transactions must be formalized with a contract.
Once a sponsorship package has been agreed to, Marketing & Communications Staff will draft
a contract and send it to the City of Miami Beach Legal department for form approval. Once the
contract has been form approved it will then be sent to the Sponsor for signature. The contract
will then be sent to the City Manager for signature.
Once all sponsorships have been finalized, the Marketing & Communications Staff will draft a
resolution to Commission for acceptance.
Donations Solicitation and Acceptance
All donations should be documented with a donation receipt, which will be supplied by the
Marketing and Communications Department and approved by the Finance Department and
shall be subject to City Commission acceptance.
All donations must be approved by the City Commission via Resolution and the donor must be
in good standing in the community and vetted through the Marketing and Communications
Department prior to acceptance.
r ared by:
/. .4 ? /L-- --
Director, Ila ting & ♦. munications
iewed by: ro , d_.4......16:
Inte,i- •r
iiir
Chie 4S . /-
••- - Learning' a • ;-veto me t Officer
P
Approved y
—••0, , oIt7 it7
City Man r� Date
DocuSign Envelope ID:5C7C329D-8374-4249-8325-BB9E4BCEBB9C
Exhibit "F"
Coca-Cola Agreement
Page 30 of 30
DocuSign Envelope ID:5C7C329D-B374-4249-B325-BB9E4BCEBB9C
(20 17 — a 177 (,
Execution Version
cl ( C�6Ca CdlQQllf
COCA-COLA PLAZA
ATLANTA,GEORGIA
March 16,20:7
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 US:., !rye. 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 .ransferred certain of its assets :o
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"). CCRF 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
Assiounent, 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@cocacol aflorida.com
DocuSign Envelope ID:5C7C329D-8374-4249-8325-BB9E4BCEBB9C
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]
Classified-Confidential
DocuSign Envelope ID:5C7C329D-8374-4249-8325-BB9E4BCEBB9C
Execution Version
Sincerely,
THE COCA-COLA COMPANY,ACTING BY AND
THROUGH COCA-COLA NORTH AMERICA
By: b1114411 --
-
NamJ.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: J.A.M. Douglas. Jr.
Title: President, Coca-Cola North America
Dale:
March 16, 2017
COCA,cOLA BEVERAGES FLORIDA,LLC
By! �-v �1 — I -�
Name:
Title: I, 7 r • . .
Date: 3
ACCEPTED, CKNOW ED AND AGREED
CITY OF I BEAC FLORIDA
fly: _ ■ ► :.
Name:
Tide:
Date: 3128117
APPROVED AS TO
FORM&LANGUAGE
ATTEST: &FOR EXECUTION
z� t� ,R4 ,o .(-- 3 - L3 -11
Raf 1 E.Granado,City lerk Attorney n
Signature Page to City of Want Beach Consent Letter
DocuSign Envelope ID:5C7C329D-B374-4249-B325-BB9E4BCEBB9C
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 Azreement
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 genera: 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.
Co) 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
•
DocuSign Envelope ID:5C7C329D-8374-4249-8325-BB9E4BCEBB9C
4. Eauioment and Service —
(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 shal: provide
3ottler 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")(collectively, 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 oasis. 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 mariner 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.
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—_-- —_ (c) —if--Civ-learns of ally-Competitive-Predtius being marketed,advertisertvr"pramotettin any-wanner -
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:o protect the
exclusive associational rights grunted 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 wit' 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 fur 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 he 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 th:, 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•ncreases)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", "Sarite","DASANr',"Minute Maid","POWERADE" "Fanta"''vitaminwater""Full Throttle'',
" '111 " 3•• , :.•,,:/. .,a : •u..E l _,' it - . _• e I• S. W•at-4: in these trademarks
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by virtue of thio A¢reament city agrees to subrait-410-poposed etses of 1:he-Coca-Cola CompanymEITto 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 Ciry'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 witiihell.
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 Bonier 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 terminatior.occurs(pro-rated
through the date of termination),if any,as well as any other upfront funding deemed earned over the Term.ii any.
pro-rated through the date of termination,.
(c) it 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 she!!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 shat: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 sell-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:
I) Commercial General Liability. A policy including, but not limited to, commercial general liability,
including bodily injury, personal injury, property damage, in the amount of$I,000,000 per occurrence.
Coverage shall be provided on an occurrence basis.
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•••• • .. . .a • • mp oye s ..ta.ility
Insurance.
3) Automobile Liability-$1,000,000 combined single limit for all owned/non-owned/hired automobiles.
Said policies of insurance she 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. ;lotic05
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.
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
11. 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.
:2. Compliance with Law
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--__ _• ao tee penes hereta agrees-tart wttlrir:its performance of its n6ligations hereunder, fully comply
with al! 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.
'3 Retention of Rigi:Il
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 Waive/
EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY
SAND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER
I EGAL PROCEEDING ARISLNG OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND
THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLIES TO ANY ACTION OR
LEGAL PROCEEDING,WHETHER ARISING IN 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 Bonier may assign this Agreement in connection with its reorganization or the sale of all or
substantially all of its assets. A:I amendments to or waivers of this Agreement must be in writing signed by ail the
parties.
The Coca-Cola Company,acting by and through City of Miami Beach
Its Coca-Cola North America Diiv_tatoo
By� 4 .vower
Print Name: t(lr�i
Print Name: 5(.t___rtQ.C rl ��
Title: 1 I fyj
Title: Sr V1), a1les
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Coca-Cola Refreshments USA. Inc.d/b/a Florida
Coca-Cola BottlingliCompany
By: - '19 ' 'W
Print Name: , uCrt t y rs->
e
APPROVED AS TO
Title: g-etON N n „..;,s VA-41.-
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ATTEST 6
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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:
i Bottler: Coca-Cola Refreshments USA, Inc. d/b/a Florida
Coca-Cola Bottling Company
ICompany: Coca-Cola North America, a division of
The Coca-Cola Company
Sponsor: Collectively, "Bottler" and "Company"
Cil 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 21"and 46th street and at South Pointe
Park and the Miami Beach Convention Center facility
expansion, except as may be otherwise be excluded in the
Agreement
13everage all non-alcoholicbeverages of ay kind includingbut
DocuSign Envelope ID:5C7C329D-8374-4249-8325-BB9E4BCEBB9C
— ---not-limited- to- coffee-products; tea products; concentrated
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 I
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
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_COMPLIMENTARY ur-chase of–equipment or other product—(mutually 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
_ com"limentary Product donation report upon Account's request.
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 A•reement.
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 tor 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 I
party(ies) for the use and/or occupancy of City property. This
shall include, but not be limited to any City property occupied
Iby a tenant through a lease or rental agreement (including,
without limitation, leases or rental agreements for office,
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retail, and/or—commercial uses(s► 16-City-owned buildings);
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
i su. ect o an renewal •rovisions. The current
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- _ -- T--list-ef-such facilities,and-theirexpiration dates, are as toit8ws.9 _
i 1) 213'Street/46"'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 I
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
L____________L__
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
or other primary sponsor of the event. The number
limitation for City-Issued Special Events is subject to a
review after three_(3IA�reerrent Years. f _
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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
j I 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
$2.5,000 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
t ; 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 wilt 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
ity
fountain Products to Cat the National Account prices, as
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—+ , announced by-the Bottler in January of each year. Georg a
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:
Bottler will provide an annual business review report within 90
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rlaya fnllgwinj each Agrcomont Year dui irty the fierm;--
i 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.
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DocuSign Envelope ID:5C7C329D-B374-4249-B325-BB9E4BCEBB9C
____——_ - - EExhibit+to Term Sheet
COMMISSIONS
Workplace Facilities (City Station,and other City Facilities):
Product Vend Price Commission Rate
20 oz. PET carbonated/NESTEA® $1.25 30%
2C oz. PET Minute Maid® $1.25 30%
20 oz. PET DASANI® $1 25 30%
300 ml PET DASANI® $0.75 30%
20 oz. PET POWERADE® $1.50 30%
20 oz. PET vitaminwater® $1.75 15°A
16 oz. cans Energy Beverages $2.00 30%
15.5 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 Beacht:
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, 300ml. DASANI will increase to$1.00
Vend Price and then in Agreement Year Seven, 300m1. 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 formal 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 not 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 mon'es in a form reasonably satisfactory to the City, and shall become
immediate property of City.
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DocuSign Envelope ID:5C7C329D-8374-4249-B325-BB9E4BCEBB9C
Mbit 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 4°i 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 reasonaole 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: 46 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 Spec.al Promotional Events (i e. including.
without limitation, July and Sleepless Nights) City shall use best efforts to provide a full
page ad___
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_ _ _ _ __12.The.right to-brand-City's-public beat eel eession area(s)with approved-Bottler-and-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 mac-tine display shall be subject to approval by the City.
13.One Royalty-free joint City/Bottler message PSA advertising pane: at the 51" and Alton bus
shelter; productionlinstaliation 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' 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 sucn additional marketing activities, as the parties may mutually agree
upon to drive traffic to the Facilities and to increase Product sales.
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DocuSign Envelope ID: 5C7C329D-B374-4249-8325-BB9E4BCEBB9C
Exhibit 3 to Tern Sheet
MARKETING PROGRAM
Bottler shall provide City for approval with the proposed annual marketing plan for promotion or 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 o' 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 Bottler's 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.
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3ocuSign Envelope ID:5C7C329D-B374-4249-B325-BB9E4BCEBB9C
exhibit 4 to Term Sheet
RECYCLING PARTNERSHIP
Bother shat be designated the official"Recycling Partner"of City.
Bother 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.
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DocuSign Envelope ID:5C7C329D-8374-4249-B325-BB9E4BCEBB9C
— - -- • --- Exhibit-bto-Fera-,Sheet
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 UL 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 upor 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 snail
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 snail 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 tha Products to
be sold in the vending machines placed in City parks.
7) Bottler shall maintain vending machines reasonably well-stocked with Products.
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-
- Ex- ibit-6 to Term Sheet
INITIAL PRICE SCHEDULE*
Package Price per case
20 oz. CSD $17.85
12 oz. CSD $9.48
15.2 oz. MMJTG $23.38
12 oz. DASANI® $8.88
1 liter CSD $16.29
20 oz DASA,I® $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 Ilter CSD $12.35
18.9 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 Jnsweet 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
24 ounce $34 55 per 2,000
20 lb. cylinder $25.00 per cylinder(plus$75.00 deposit)
'All prices are per stardard physlcai 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:11112012-
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
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DocuSign Envelope ID:5C7C329D-8374-4249-B325-BB9E4BCEBB9C
_ Exhibit-7-te-Term 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 9C 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 Bottlers expense, all repairs,
replacements and technical services necessary to maintain and preserve the Bother'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 late-than twenty-four(24)hours after notice for all other
dispensing equipment.
Acts of vandalism to Bottler's equipment will be reported to Bottler 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 amourt 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.
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DocuSign Envelope ID:5C7C329D-8374-4249-8325-BB9E4BCEBB9C
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 occurrng 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 cnampionship
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 Beacn 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. 'n 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) Sponsors 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(exceot 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 oaring 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 .ip or
tear down time required, or NCAA Championship events or political conventions which may
_,exceed the aferestated time limitation. The Convention Center may use the three one day
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DocuSign Envelope ID:5C7C329D-B374-4249-B325-BB9E4BCEBB9C
— (one stay =twenty=foorhours)1n 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 orovided three Special
Promotional Event Exceptions per Agreement Year. As sich, the three Special Promotiona
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-approves
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, out 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 of marketer of Competitive Proaucts 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 ar even: where a
Competitive Product is the naming, presenting, title, brought to you by, or other prirnarj
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, Even: "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 ether structure necessary to and
actually used during the Event: or, in the case of NCAA championship events, religious
events cr political conventions where no advertising is allowed and a;, 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 =acilities, 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 Sponsorsnip
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 Specia' Event for which there
is a Special Promotional Events Exception. the City Manager shall submit a letter to
Sponsor requesting that Sponsor grant a waiver to permit such sale at the Event; outlining
the details of the exception and the busiress 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) busiress Jays of Sponsor receiving the City
AAanaget's lettP� _
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DocuSign Envelope ID:5C7C329D-B374-4249-B325-BB9E4BCEBB9C
The Special Promotional Event Exception for a City Approved Major Sponsorsnip Pub
Special Event must occur over a period of no more than seventy-two (72) hours. The
seventy-two hours noes 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 Specia, Promotional Events may occur on public property `or a
total of 288 hours r an Agreement year(72 hours x 4 events = 288 hours/year).
c. Other permitted Exceptions. Exhibitors at Conventions or trace snows. or third party exnibitor
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 n :ne Convention Center would be
allowed to give away bottled water with the Cadillac _ogc. Notwithstarding, Sponsor's
Products would continue to be the only Products allowed to oe sold. distributea or sampled
at the Facility's concession open atiui is
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 Ciy 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 wiii 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 or. the leve' 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 tnese 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 Priae events !=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 express;y spelled
out in the Agreement.
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