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Beverage Sales and Sponshorship Agreement with PepsiCo 2G2Z -3zaiI ed PEPSI BEVERAGES COMPANY BEVERAGE SALES AND SPONSORSHIP AGREEMENT This sets forth the.agreement("Agreement')between PepsiCo Beverage Sales, LLC,a Delaware limited liability company, with an office located at 8701 NW 93rd Street, Medley, FL 33178 ("Pepsi or"PepsiCo")and the City of Miami Beach, Florida; a Florida municipal corporation,with its principal place•of business at 1700 Convention Drive,Miami Beach, Florida 33139(the"City"), each may be referred to individually as a "party" or collectively as the"parties". The support described below is in lieu of any other discounts, allowances or rebates to which City might otherwise be entitled from time to time. When fully executed, this Agreement will constitute a binding obligation of both parties until expiration or termination. . Definitions . As used in this Agreement,the following capitalized terms have the respective meanings assigned thereto below. "Affiliate"or"Affiliates"means,with respect to any Person, any other Person that, directly or indirectly,through one or more intermediaries,Controls or is Controlled by,or is under common Control with, such Person. As referenced herein, "Control" (including the terms "controlled by" and "under common. control with") shall.mean possession of a Controlling Interest. "Controlling Interest"means the membership of greater than fifty percent(50%)of the voting equity interests in a Person or the ownership of greater than fifty percent (50%) of the votes necessary to elect a majority of the board of directors or other governing body of such Person. As referenced herein; "Person" means an individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, estate, trust, unincorporated association, or other entity; any Federal, state, county or municipal government or any bureau, department, political subdivision, or agency thereof; and any fiduciary acting in such capacity on behalf of any of the foregoing. "Beverage" or "Beverages" means all carbonated and non-carbonated, non-alcoholic drinks, however dispensed during the Term of the.Agreement. "Cases" means cases of Packaged Products (as defined herein) purchased by City from Pepsi during the Term; initially delivered in quantities of 24 plastic.bottles (for categories not including packaged soda and water), aluminum cans, glass bottles(or equalized24 pack cases,.0.g., two. 12-pack cases), or such other size, quantity and type of containers as Pepsi may make available from time to time during the Term. Notwithstanding the foregoing,,the use of aluminum or glass shall take preference,with plastic bottles only being allowed in categories where plastic alternative options are not yet:available. At no point will packaged soda or water be allowed to be purchased for sale or vending in a'plastid bottle without prior written approval of the City. "Competitive Products" means any and all Beverages other than the.Products. "City;"City Manager"or"City Manager's designed'means, unless specifically delegating the • 'authority to the City Commission, any references. to the "City" ,herein shall require the action/approval of the City Manager on behalf of the City. Any references to the City Manager shall refer to the City Manager,as the executive director of the City. Any references to the City Manager's designee shall refer to.the:City's Office of Marketing and Communications Department Director, as the City staff member who will be responsible for administering the.Agreement, and. with respect to'inspection and audit functions, may include internal auditors or outside auditors 1 Amp TwId PEPSI BEVERAGES COMPANY retained by the City. "City.Marks"means(i)the Designations(as defined below)and (ii)City Marks including;without limitation, characters, colors, emblems, designs, identifications, logos, mascots, name, service marks, symbols, trademarks, all trade names, uniforms and other proprietary designations associated with or related to the City,the Facilities, at the beginning of the Term or which will be created during the Term,if any. "Designations"includes, but are not limited to,the following:"Official Water and Soft Drink of the City of Miami Beach" and "Official Beverage of the City of Miami Beach" and "Official.Beverage Sponsor of Miami Beach"as mutually agreed to by both parties . "Equipment" means equipment loaned by Pepsi to City to dispense, store or cool Products (as . . defined below), as more fully described in Section 4 herein. "Facilities" means the entire premises of every facility owned, leased, occupied or operated by City or its Food Service Provider throughout the.Term, as more particularly outlined in Section 2 "Food Service Provider'means any third party which sells or serves.Beverages at,the Facilities during the Term. "Gallons"means gallons of the,Postmix Products purchased by City.from Pepsi during the Term. "Packaged Products" means Beverages that are sold or distributed by Pepsi in pre-packaged form (e.g., bottles and cans). A current list of Pepsi's Packaged Products is listed in attached Exhibit A which may be amended by Pepsi from time to time. "Postmix Products" means Beverages sold and/or distributed by Pepsi and used to create and prepare fountain beverages, frozen carbonated or non-carbonated beverages. A.current list of. Pepsi's Postmix Products is listed in.attached Exhibit A which may be amended by Pepsi from time to time. . "Products" means Postmix Products,and Packaged Products: "Units" means the total combined Gallons and Cases during any applicable time period. For the purposes of measuring total Units only, 1 Case of Packaged Products equals 1 Gallon of.Postmix Product. • "Year"means each 12-month period during the Term commencing on the first day of the Term or an anniversary thereof. 1. . Term The term of this Agreement is the ten(10)year period commencing on July 1, 2022 and expiring on June 30, 2032.(the"Term"). Each Year shall commence on July 1st and expire.on June 30th. 2. Performance This Agreement, including all of Pepsi's support to City as described below, is contingent upon City's compliance with all of the following performance criteria throughout the Term: 2 ed PEPSI BEVERAGES COMPANY (A) Exclusivity. Except for the Permitted Exceptions set forth below, Pepsi will be the exclusive Beverage supplier to, and Beverage sponsor of, the City and the following City owned or operated facilities in the following categories: community centers, golf courses, parks and recreational facilities, tennis centers, parking garages, beachfront concessions and internal City Departments(collectively, the"Facilities"): • Miami Beach Convention Center/Carl Fisher Clubhouse • Miami Beach Golf Club • Normandy Shores Golf Club • Miami Beach Bandshell (formerly the North Beach Bandshell) • .All existing City of Miami Beach Parks and Recreation Facilities o Flamingo Park Tennis Center o Miami Beach Tennis Center o Muss Park o . North Shore Park o Normandy Isle Park o Scott Rakow Youth Center • Existing public City of Miami Beach Parking Garages(directly operated by the City or.by a third party who, is contractually authorized to operate and manage the garage on behalf of the City via a management or concession agreement, as. described in Exhibit D,attached hereto, as may be amended from time to time). • Beachfront concessions operated by Boucher Brothers Miami Beach, LLC (21st St, 46th St, South Pointe Park, Lummus Park, North. Beach Oceanside Park, Allison Park, and Ocean Terrace (as stipulated .under the Boucher Brothers agreement);provided,however,such locations will remain subject to,the terms and conditions of the Agreement if the City's agreement with Boucher Brothers Miami. Beach expires or terminates during the Term. • South Pointe Cafe(Pavilion Building at South Pointe Park) • All internal City Departments • Any future City owned or operated golf courses,:parks and recreational facilities, tennis centers, parking garages, beachfront concessions and internal City Departments or expansion of existing Facilities where the City is the owner and operator ("Future Facilities"), unless otherwise outlined in the Third-Party Agreement, as defined below. • Additional Facilities may be added pursuant to a:written agreement between the. City and a third party operator of a City owned or operated property. The City will notify.Pepsi of any such additional Facilities. Except with respect to the Permitted Exceptions (as described below), the City will take all necessary steps to ensure that the Products are the exclusive Beverages of their respective types sold, dispensed or otherwise made available,or in any way advertised,displayed, represented or . - promoted at or in connection with the Facilities by any method or through any medium whatsoever (including without limitation digital, print, broadcast,direct mail, coupons, handbills, displays and signage):. Except with respect to the Permitted Exceptions, City will not serve, dispense or otherwise make available or permit the availability of, or in any way advertise, display, represent or promote, beverage products licensed by, or produced by bottlers licensed by, The Coca-Cola Company or any affiliate thereof, or any other supplier of Competitive Products. As referenced in the Agreement "with the City" or"at the City":or the City and the Facilities", as it relates to the City, shall refer to the use of the City's rights of ways in connection.with City-Sponsored Events or Special Event Permits issued to a.third party. 3 • Amp frfid PEPSI BEVERAGES COMPANY (B) Permitted Exceptions. The following agreements, Beverages and facilities shall be excluded from the scope of this Agreement: (1) Notwithstanding the foregoing exclusive rights, City, through itself or pursuant .to a separate agreement with a third party, may market, sell, serve, dispense, or otherwise make available beverages in the Energy Drink category,as defined below,as well as hot or iced coffee, hot cocoa, and hot tea, as more particularly described below. i.Energy Drink Beverages. As used herein, '`Energy:Drink' means every beverage product which claims to improve.personal energy, physical or cognitive performance, endurance,vitalization including,without limitation,any beverage(whether alcoholic, non- alcoholic, carbonated or non-carbonated) regardless of whether in ready-to- . drink/consume,concentrate,powder,frozen,mixed with another beverage,or in any other format, and.whether or not the product/beverage is manufactured, distributed, marketed, advertised or sold on the Effective Date or thereafter; provided, isotonic category, Beverages are not Energy Drinks for purposes of this Agreement and such isotonic category Beverages fall within Pepsi's exclusivity rights. ii.Hot.Coffee, Cocoa and Tea Beverages. Pepsi offers packaged coffee, cocoa and tea beverages, as described in Exhibit A, attached hereto; however, dispensed hot coffee or iced coffee; hot cocoa; and/or hot tea shall not fall within Pepsi's exclusivity rights. (2) Additionally, Facilities shall NOT include any City of Miami Beach property including City- owned land, buildings,structures,and/or other facilities thereon(collectively"City Property')that. is operated by a third party, pursuant to a Concession Agreement, Lease, Management Agreement, Use Agreement or any other form of agreement (collectively, "Third-Party Agreements"), where the third party has.not agreed to be subject to the exclusive rights granted to Pepsi in this Agreement (collectively, the "Permitted Exceptions"), as more particularly described below: Pre-existing Third-Party Agreements shall be Excluded: Facilities shall NOT include any City Property which, as of the Effective Date is used, occupied, controlled, and/or managed and operated.by a third party(or parties)pursuant to any of the.following. agreements: (a) lease agreements, which include, without limitation, Smith & Wollensky, Nikki Beach; Anchor Garage Shops retail stores (16th and Washington); .1701 Meridian Avenue leases; 1130 Washington Avenue; Miami Beach Marina lease; 22 Washington Avenue lease; Segafredo Café at 1040 Lincoln Rd.; Fillmore Miami. Beach at 1700 Washington Avenue; : (b),concession agreements where the City does not operate, which include, without limitation, Green Markets; beach front concession agreements granted to upland private property owners; permits or concession agreements granted to restaurant owners/operators who use the right of way adjacent to their businesses as outdoor seating fortheir food and beverage service;bike share concession and advertising pursuant to the Deco Bike Concession Agreement: . (c) operation and management agreements, which include, without limitation,. North Shore Senior Center, Boys and Girls Club; 10th Street Auditorium;the Miami_ Beach Garden Conservancy; (d) development.agreements/P3 agreements, which include, without limitation, Lincoln Place (Washington &:16th), the Lincoln (1691 Meridian Ave), the Pelican Garage(10th Collins); (e)easement agreements; (f) license and/or use agreements; (g)revocable permits; (h)'sidewalk café permits; and 4 PEPSI BEVERAGES.COMPANY (i) any other written instrument between the City and such third parties which establishes a contractual right on behalf of such third parties for the use and/or occupancy of City Property. ii. The following Third-Party Agreements executed between the City and a third-party subsequent to the Effective:Date of the Agreement shall NOT be included as part of the Facilities, unless specifically added to the scope of this Agreement by written agreement with the third-party: (a) lease agreements; (b) concession agreements that are not otherwise added to the scope of this Agreement, and may include, without limitation,..concession agreements granted to restaurant owners/operators who use the right of way adjacent to their businesses as outdoor seating for their food and beverage service; and agreements with beachfront private upland owners to:operate the beachfront adjacent to their private properties; (c)operation and management agreements; (d) development agreement/P3 agreements/development projects, which may include, without limitation, the Collins Park Cultural Facility and Artist Workforce Housing.Project; the 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.);Lincoln Lane mixed use projects; Byron Carlyle development and the Barclay building development (e)easement agreements; (f)license and/or use agreements; (g) revocable permits; (h)sidewalk café permits; (i) any other written instrument between the City and such third:parties which establishes a contractual right on behalf of such third parties for the use and/or occupancy of City Property .that is not otherwise added to the scope of.this. Agreement pursuant to a written agreement with the third party. 3. Special Promotional Events, Public Special Events, Private Events and Charitable Events,as more particularly described in Exhibit C, shall NOT be subject to. the PepsiCo exclusivity requirements. . (C) Purchase and Resale of Products. City agrees to continuously purchase and require its Food Service Providers,as defined in Subsection 2(1), and purchasing representatives of the Facilities to purchase, Products exclusively and directly from Pepsi. Throughout the Term, City will continuously serve, dispense, sell and/or otherwise make Products available to its patrons throughout the Facilities. City;agrees:to pay all accounts owing to Pepsi within thirty(30)days from the due date. All payments to the City shall be sent to the following address: 5 . • • • • r PEPSI BEVERAGES COMPANY City of Miami Beach • Attn: Matt Kenny—Marketing and Communications 1700 Convention Center Drive Miami Beach, FL 33139,USA • (D) Fountain Products. City agrees to use the Postmix Products for use in preparing the fountain beverage.products (the "Fountain Products"): (i) in accordance with the standards . established by Pepsi and(ii)only for immediate or imminent consumption;City agrees not to resell the Postmix Products either to nonaffiliated.outlets or to consumers in any form other than the Fountain Products. • (E) . Sponsorship and Promotional Rights. • Pepsi shall, have the right to advertise its Products on signage at the Facilities and in print advertising as•more fully set forth on Exhibit B attached hereto, subject to securing the prior written approval of the'City, and securing.any required governmental. approvals, including compliance with the City Code and any City• . . guidelines pertaining to advertising and signage. In addition, City hereby grants Pepsi the right to promote the fact that Pepsi is the official and exclusive non-alcoholic Beverage sponsor of City, the Facilities, including the right.of Pepsi to use and promote City Marks,and the City to use and promote PepsiCo Marks. Such promotion may be conducted through the distribution channels of digital, television, radio and print media;on the packaging of(including cups and vessels); and at • • the point-of-sale of any and all Products wherever:they may be sold or served. . In connection .therewith, City hereby grants to Pepsi a nonexclusive license to use the name of the Facilities • and City Marks for the limited purposes of promoting Products within thecontext of promotional activities and activation of sponsorship benefits as set forth herein,with both parties having full approval over the use of their name and registered marks as outlined in Exhibit B. City represents and warrants that it is the sole and exclusive owner of all right, title and interests in and to City Marks(including without limitation,,all goodwill associated therewith)and.Pepsi's use of City Marks pursuant to this Agreement will not infringe the rights of any third parties. Pepsi represents and warrants that it is the sole and exclusive owner of all right, title and interests in • and to PepsiCo Marks (including without limitation, all goodwill associated therewith) and City's •use of PepsiCo Marks pursuant to this Agreement will not infringe the rights of any third"parties. Pepsi and City agree that advertising and promotional copy produced by each of them relating to the sponsorship rights granted herein will be subject to the prior written approval of the other party. (F) Brand Identification. City must display appropriate brand identification for each Product served on all menus(including catering and digital),menu boards and postmix dispensing valves . at each of the Facilities throughout the Term. Pepsi will provide all the Facilities with the acceptable brand identification collateral or equipment, as applicable. • (G) Product Mix; Minimum SKU/Brand Requirement. Throughout the Term, City agrees to offer a reasonable mix of Pepsi's Products and.package sizes for sale and distribution. throughout. the Facilities, including, carbonated soft drinks, water, • isotonic, packaged Frappuccino's and packaged and fountain iced teas,juices, and other beverages available from Pepsi-based 'upon .the demand for each Facility.-The parties agree that all Packaged Product • carbonated.soft drinks and water purchased pursuant to this'Agreement will be provided in. . aluminum packaging. • (H) . Restrictions for Products. City agrees not to distribute or resell the Products, directly or • • co PEPSI BEVERAGES COMPANY indirectly, outside the territories serviced.by Pepsi and shall cause its purchasing representative for each Facility to abide by such territorial restrictions.. (I) Food Service Providers. The terms and conditions of this Agreement, including the pricing, funding and other consideration provided for herein is based on City's current operating model/use of third-party food service providers at the Facilities.("Food Service Providers"), as of the commencement date of this Agreement. If City switches Food Service Providers during the Term,then City must require such food service provider to abide by the applicable pricing and other terms set forth in this Agreement to the exclusion of all other benefits,including in connection. with any agreement such food service provider may separately have with Pepsi or Pepsi's affiliates: (J) Best Taste Limit and Product Handling. City understands that the Products provided hereunder are provided with a best taste limit("BTL")date printed on the packaging. Pepsi will not replace Products that are past the BTL date. City agrees that no Product in control of the City, shall be sold past the BTL date,and that it shall abide by policies on product handling and quality control periodically published by the manufacturer. (K) Product Reallocation. The City shall have the option of changing the Product type sold at the Facilities or Vending Machines. For the sake of example, but without limitation, if the City would like to have a greater amount of healthy type of Products in the City's recreational facilities, Pepsi shall reallocate the inventory for those Facilities, as requested by the City. 3. Monetary Funding Pepsi agrees to provide City with the funding described below. ' (A) Annual Support Funds. Each Year during the Term, Pepsi agrees to provide City with an annual support fund("Annual Support Fund')pursuant to the below: Year Applicable Time Period. ' Amount Due Date:within 90 days after: 1 . ' July 1, 2022-June 30, 2023 $70,000' At time of signing 2 July 1,2023-June 30, 2024 $75,000* July 1, 2023 3 July 1, 2024-June 30,2025 $80,000* July 1, 2024 4 ' July 1, 2025-June 30, 2026 $85,000* ' July 1, 2025 5 ' July 1,2026-June 30, 2027 $90,000* July 1, 2026 6 July 1,2027-June 30, 2028 ' $95,000* July 1, 2027 . 7 July 1, 2028-June 30, 2029' . $100,000* July 1, 2028 8' July 1, 2029-June 30, 2030 $105,000* July 1, 2029 9 July 1, 2030-June 30, 2031 ' $110,000* ' July 1, 2030 10 ' July 1,2031-June 30, 2032 $115,000* July 1, 2031 * City acknowledges and agrees that, beginning in Year 2, each Annual Support Fund,will be adjusted based on the number of Units purchased from Pepsi during the previous Year plus the Units sold from the Vending Machines during the previous Year,as compared to an annual Unit threshold of 24,000 Units("Annual Units Threshold'). In the event City's purchases are below the Annual Units Threshold ("Non-Performing Yea?), Pepsi shall be entitled to .a reimbursement for,the proportionate share of Annual Support Funds.advanced by Pepsi but not earned by the City. The amount of the Annual Support Funds deemed earned by the City • • • • • :PEPSI BEVERAGES COMPANY • • Year Applicable Time Period Amount • Due Date: within 90 days. after: for the.Non-Performing Year ("Earned Annual Support Funds") shall be determined by multiplying the Annual Support Payment for the Non-Performing Year by the fraction.equalto • the Units purchased during the Non-Performing Year, divided by the Annual Units Threshold. The refund amount owed to Pepsi shall be the difference between the Annual Support Payment_ and the amount of the'Earned Annual Support Funds for the Non-Performing Year. Should the City exceed the Annual Units Threshold,the City shall be entitled to additional Annual Support Funds in a proportionate share equal.to the percentage of the increase above and beyond the required 24,000 Annual Units Threshold. In the event of early termination for any reason other than an uncured material.breach by Pepsi pursuant to Section 9 herein, the unearned Annual Support Funds will be repaid to Pepsi pursuant to the terms of Section 9(F)herein. (B) Rebates. Each Year throughout the Term, Pepsi agrees to calculate.the total number of eligible Units purchased by each of the applicable-Facilities from Pepsi (excluding the products sold from the Vending Machines), on a quarterly basis, pursuant to this Agreement, and will provide City with rebates calculated based on applicable rates set forth below (the "Rebates"). • The Rebates, as applicable, will be paid by Pepsi within sixty-(60) days after the.end of each quarter. For the avoidance of doubt, each quarter ends on the last day of each of the following months(September, December, March, June) •Rebates Rates - • Eligible Products . • $1/Gallon Postmix Products $1/case(all pack sizes). Packaged Products . (C) . Marketing Funds. Each Year throughout the Term, Pepsi will accrue marketing funds on • behalf of City at the rate of$.75/Unit to be used and spent by City in support of mutually agreed .upon: marketing programs for the benefit of Pepsi and the City ("Marketing Funds"). The . Marketing Funds shall be paid within sixty(60)days following the•end of each Year. The parties agree that the Marketing Funds may be used, without limitation, in connection with mutually . agreed upon initiativet .that meet City's goals in sustainability, tourism, health and wellness or. family programming. (D) Sustainability Support. Each Year during the Term, Pepsi agrees to provide City with sustainability support, valued at up to Twenty-Five Thousand US Dollars ($25,000) • ("Sustainability Support'): The Sustainability Support will be used and spent by Pepsi to pay for sustainability initiatives in support of the City's recycling and sustainability efforts, as mutually agreed to by the parties. City acknowledges and agrees that all Sustainability Support in any Year must be fully utilized within the:Year,as mutually.agreed upon. Both parties understand that any unused portions will not be carried over to a subsequent Year and will not be redeemable for a cash payment. . . • (E) Community Outreach Support.Each Year during the Term,Pepsi agrees to provide City • with community outreach support, valued at up to Twenty Thousand US Dollars ($20,000) .("Community Outreach Support!). The Community Outreach Support will be used and spent by Pepsi to pay for community.outreach initiatives, as mutually agreed to by the parties: City •acknowledges and agrees that all•Community Outreach Support in any Year must be fully utilized within the Year, as mutually agreed upon. Both parties agree:that any unused portions will not • • 8 , • • • • • Aim lord PEPSI BEVERAGES COMPANY be carried over to a subsequent Year and will not be redeemable for a cash payment. • (F) Commissions. Pepsi agrees to provide City with commissions, as a percentage of the actual cash("cash in baggy'or"CIB")collected by Pepsi:from the Vending Machines placed at the Facilities, less any applicable government-imposed taxes/fees and deposits, as applicable ("Commissions"). Such Commissions shall be at the rate(s)set forth below(the"Commission • Rate")and shall be calculated as follows:. (CIB—applicable taxes/fees/deposits)*Commission Rate=.Commission due Product Initial Vend Price Commission Rate* CSD and Non-Carb cans(12oz) $2.00 40% CSD and Non-Carb cans(16oz) $2.50 40% Proud Source cans(16oz) $2.50** 40% Gatorade G2 bottles(20oz) $2.50 40% Bubly cans(16oz) $2.50 40% Starbucks cans(15 oz) $3.50 40% *Vending•Prices for new Product will be mutually agreed upon by Pepsi and City ** Proud Source Water may be sold for$2.00 at Park and Recreation-locations. (1) Commissions Payment. Pepsi agrees to pay Commissions to City within thirty(30) days of the end of each 4-week accounting period established by Pepsi. Pepsi shall make all pertinent revenue and sales records respecting the Vending Machines available to City. City further acknowledges and agrees that it shall not receive any Commissions payment from Pepsi if Commissions fail to reach a certain threshold amount per period or quarter. The current threshold amounts are $50 per four-week period or.$75 per quarter. The foregoing shall not be construed as a waiver of those Commissions,as such Commissions will be included with the following month's Commission payment once the threshold is met. (2) Change toCommission Rate/Formula/Compliance with Laws.. City.agrees-that. Pepsi shall have the right to change the Commission Rate and/or its formula/method for calculating Commissions only to the extent required to comply with any regulatory change . in the applicable laws that would make the Commission Rate unenforceable otherwise. (3) Vending Price. The initial vending prices for City to qualify for:any,Commissions are set forth in the Commission chart above. Pepsi:shall have the right to increase Vending Prices in Years3,6,and'9 by$0.25. City acknowledges that Pepsi has the right to pass through any governmentally imposed fees, deposits, taxes or other charges (whether local, state, federal or judicially. imposed on manufacturers, distributors,.' consumers or otherwise)(collectively,"Governmentally Imposed Fees")that are imposed upon Pepsi after the Effective Date of the Agreement. The pass-through of any such Governmentally Imposed Fees on the Products will be:in addition to any agreed upon scheduled •Vending' Price increases set forth herein:or otherwise specified in this Agreement. Upon the City's request,Pepsi shall substantiate the basis for the increase in the Vending Price, when the total increase exceeds the amounts outlined.above. (G) Complimentary Product Free of Charge. Upon request from City,. Pepsi agrees to provide up to a total of 400 Cases of a combination of 12oz cans of carbonated soft drinks, or 9 • • . PEPSI.BEVERAGES COMPANY 16.oz Proud Source Water per Year at no additional charge to City, provided,however, that City will administer all requests through a central contact so that City may prioritize the requests. City acknowledges and'agreesthat unrequested Product in any Year shall not be carried over to the subsequent Year or be redeemable for cash payment. Any Products requested during a-Year will. • not be forfeited,just because lhe Products.are delivered during the subsequent Year. (H) Reports/Payments. Within thirty (30)'days from the end of each quarter or Year, as applicable, in connection with any payments due under this Section 3, Pepsi shall provide the City with a report identifying the number of purchases of Product made by the City and its Facilities; identifying the.origin of the orders by each Facility or Special.Event Permit user;.gross metered •receipts, prices charged; together with the payments due to the City pursuant to the Agreement, all certified to be correct by Pepsi. • (I) 'Sales Tax/Taxes. Pepsi shall pay any applicable sales and use taxes related to any payments due under Section 3 (F) (Commissions) to the City directly to the State of Florida • Department of Revenue. Pepsi warrants and represents that it self-reports sales-and use tax. Upon the City's request, Pepsi shall provide the City with evidence of the current Sales-and Use Tax Direct Pay Permit:• Pepsi shall be responsible for any sales and use tax amounts which may be due to the State of Florida Department of Revenue, including any associated penalties and interest'in connection with any payments which the City receives from Pepsi under this Section 3..Pepsi shall not be charged by the City common area maintenance fees,taxes or.other.charges_ related to Pepsi's occupation of the -space allocated to its Equipment at the Facilities. Notwithstanding the-foregoing,Pepsi shall be responsible for personal property taxes.related to • the Vending Machines and any other Pepsi.Equipment. Additionally, in the event that Miami- Dade County assesses ad-valorem taxes related to the use of spaces being occupied by Pepsi's . . Vending Machines, Pepsi shall be responsible for paying or reimbursing the City.for said taxes Pepsi.shall defend, indemnify and hold the City, its officers, employees, and agents harmless. from and against any and all liability, loss, expense (including reasonable attorney's fees) or • claims for.damages arising•out of its failure to comply with the requirements of this Subsection. • . 3(1). The provision.of this -Subsection 3(1) shall survive expiration or early termination of the • Agreement. • 4. Equipment, Service, Employees and Independent Contractors (A) Equipment. Pepsi will loan to-City, at no charge, appropriate.Equipment for dispensing • the Products at the Facilities. The City will not be required to accept a minimum amount of Equipment. Where permitted by'applicable local law, rule or regulation, the Equipment will be - exclusively.used to display and merchandise the Products, at locations, to be mutually agreed upon.and.City.-will'not use the Equipment'to display,.stock,.advertise, sell.or maintain any other - products'(including on the exterior of the Equipment).Title to such Equipment will remain vested in Pepsi or its affiliate and Pepsi will be entitled to collect all Equipment during the thirty(30)day period following the expiration or earlier termination of:this Agreement. At Pepsi's request, City • will provide:Pepsi with a written Equipment verification list:indicating the asset number,Equipment. type,and,location of the Equipment loaned to City pursuant to this Agreement. To the extent that future technology.enhancements,equipment platforms or products to support these platforms are substantially different in scope or composition compared to existing equipment components and products, 'Pepsi and City will work in good faith to negotiate the economic terms for implementation of the new technology equipment. If not agreement can be reached, the parties • • can agree to maintain the same technology. • 10 • • eo PEPSI BEVERAGES COMPANY (B) Vending Machines. With respect to the vending machine Equipment placed at the Facilities (the "Vending Machine?), Pepsi will have the additional responsibility for(i) stocking the Vending Machines with.the Products and (ii)collecting, for its own account, all cash monies from the Vending Machines and for all related accounting for collected monies: The initial list of Vending Machine locations is attached-hereto as Exhibit E. Any change in the approved locations shall require the prior written consent of the.City Manager or designee. Any approved change shall be memorialized by the City via an amended Exhibit E, executed by the City Manager or designee, without.the need to amend the Agreement. The City;at the sole discretion of the City Manager's designee,may require that Pepsi relocate or remove certain Vending Machines. Pepsi shall not be obligated to pay Commissions on documented revenue losses resulting.from vandalism or theft of Product with respect to any Vending Machines. (C) Service. Pepsi will provide, at no charge to City, preventative.maintenance,-and service to the Equipment. The Equipment shall be maintained by Pepsi in good working -order, good appearance, and free of graffiti. Pepsi will also provide City with a telephone number to request emergency repairs and receive technical assistance related to theEquipment after business hours. Pepsi will promptly respond to each City.request within forty-eight(48)hours and will use • reasonable efforts to remedy_the related Equipment problem as.soon as possible, but no later. 'than five(5) working days. Notwithstanding the foregoing, City acknowledges that delays in service may be caused by supply chain shortages, well outside of Pepsi's control;.however, in . such .a case, all repairs shall be completed within two business days from receipt of the part/supply. Pepsi will notify City should a maintenance issue with Equipment not be remedied in a timely manner. • (D)Employees And Independent Contractors. (1). In connection_with the performance of its responsibilities hereunder, Pepsi may hire its own employees who will be employees of Pepsi and not-employees or agents of the City.Additionally, Pepsi's vendors(i.e.,entities who provide products. • and/or Machines to Pepsi)shall not be considered agents or employees of the City. Pepsi shall select the number, function, qualifications, compensation,, including benefits (if any), and may, at its discretion and at any time, adjust or revise the • terms and conditions relating to its employees and/or independent contractors. (2) Pepsi shall ensure that all. its employees, independent contractors and vendors while working at or within the City Property or Venues observe all the graces of personal grooming. Pepsi shall hire people to workin its Vending 'Machines operation who are neat, clean, well-groomed and.shall comport themselves in a. professional and courteous manner and ensure that its vendors comply with same. (3) Level 1 Background Check Screening Process. With respect to any persons hired by Pepsi or contractor under Pepsi's control (collectively, Pepsi personnel"), who provide services at the City's Venues, Pepsi shall conduct a full.Level I criminal background screening check at its own expense on each of its employees and/or contractors engaged in providing services under this Agreement. The Level I background screening check shall be compliant:with the requirements of Section 435.03, Florida Statutes,as may be amended from time to time, and must include, - at minimum, employment history checks and statewide criminal correspondence: • checks through the Department of Law Enforcement,and a check of the Dru Sjodin. National Sex Offender-Public Website, and local criminal records checks through local law enforcement agencies(collectively,the"Statutory Screening Standards"). 11 • 411PdPEPSI BEVERAGES COMPANY • Pepsi shall ensure that Pepsi personnel meet the Statutory Screening Standards prior to commencing to perform any work and/or services under this Agreement. Pepsi acknowledges that it has an ongoing duty to maintain and update these lists • as new employees and/or contractors are hired and in the event that any previously screened employee and/or contractor fails to meet the Statutory Screening Standards. Pepsi agrees to notify the City immediately upon becoming aware that one of the Pepsi Personnel who was previously certified as completing the. background check and meeting the Statutory Screening standards is subsequently. arrested or convicted of any disqualifying.offense.. Failure by Pepsi to notify the City of such arrest or conviction within two business days of being put on notice shall constitute grounds for the City, at its sole option, to place Pepsi in default. Pepsi shall defend,indemnify and hold the City,its officers,employees,and agents harmless from and against any and all liability,loss,expense(including reasonable attorneys fees)or claims for injury or damages arising out of its failure to comply . • with this requirement:Pepsi shall employ personnel competent to perform the work specified. herein. The City reserves the right to request the removal of Pepsi's Personnel from performing services under this Agreement where Pepsi's Personnel's performance or actions are deemed,at the sole discretion of the City.' . Manager's designee,to be inappropriate or disrespectful of the City's property or policies. Pepsi's personnel must .wear photo identification at all times. • Notwithstanding the foregoing,Pepsi's Authorized Distributors shall be responsible for:complying with these Statutory.Screening Standards, under their separate . agreement with the City. • (4) If Pepsi materially fails to comply with this provision the City may default Pepsi pursuant to Section 9 herein. (E) Inspection. Pepsi agrees that the Vending Machines and their locations maybe inspected at any time during days and hours of operation by the City Manager or his designee, or by any other municipal, County, State officer, or agency having responsibilities for inspections of:such operations. Pepsi hereby waives all claims against the City for compensation for loss or damage sustained by reason of any interference (which interference, if by the City, must be reasonable) :with the vending operation by any public agency or official in enforcing their duties or any laws or ordinances. Any such interference (which interference, if by the City, must be reasonable) shall not relieve Pepsi from any obligation'hereunder. • 5. Pricing City will purchase and will require that its Food Service Providers or purchasing representative for the Facilities, purchase Products directly and exclusively from Pepsi pursuant to the pricing and terms and conditions set forth herein.The initial pricing schedule for Products is set forth on attached Exhibit A. Pricing on Packaged Products may be changed by Pepsi no more than once per Year during the Term, provided, however, price increases in any Year shall not exceed 4% from the prior Year,.unless authorized in writing by the City Manager. Upon the City's request,' - Pepsi shallsubstantiate the basis for an increase in the pricing, when the total increase exceeds 4% from the prior Year's pricing. Postmix Products are available to the City at Pepsi's national account prices and subject-to change at Pepsi's sole discretion For all Products, Pepsi will be • entitled to pass-through any Governmentally Imposed;Fees that are imposed upon Pepsi after the Effective Date of the.Agreement. The pass-through of any such Governmentally Imposed Fees on.the Products will not be subject to any.pricing cap or notification restrictions that may be. . specified in,this Agreement. 12 PEPSI BEVERAGES COMPANY 6. Inspection and Audit. :(A) Pepsi shall maintain its financial records pertaining to its operations under the Agreement : during the Term and for a period of three (3) years after the conclusion of the Term or'earlier termination of the Agreement, and such records shall be open and available to the City Manager or designee for inspection.and/or audit,as they may deem necessary:Such records and accounts shall include 'a breakdown of gross Receipts from the purchase of Products pursuant to the agreement received by Pepsi, expenses including, without limitation, Marketing Payments, . - Rebates,:commissions .and such records shall be maintained as would be required by an independent CPA in order to;audit a statement of annual gross receipts pursuant to.generally accepted accounting principles. Pepsi shall maintain all such records at Pepsi's place of business;.. however, all such records'shall be submitted, at Pepsi's expense, electronically to the City of Miami Beach,within fifteen(15)business days'written notice from the City Manager or designee that the City desires to review said records.The City may not audit Pepsi's operations under this : : • Agreement more than once per Year, including during the three (3) year period following expiration or termination of the Agreement. Nothing contained within this Section shall preclude the City's audit rights for resort tax. (B) Pepsi shall submit at the end of each Year, a certified audited annual statement of gross receipts related to the Agreement, in a form consistent with generally accepted accounting principles. (C) It is Pepsi's intent to stay informed of comments and suggestions by the City regarding Pepsi's performance under the Agreement. Within thirty (30) days after the end of each Year, Pepsi and the City may meet to review Pepsi's performance under the Agreement.At the meeting, Pepsi and the City may discuss quality,operational,maintenance and any other issues regarding Pepsi's performance under the Agreement. (D) Inspector General Audit Rights. (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. (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 Pepsi; 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 . 13 • Amp PEPSI BEVERAGES COMPANY • allocating.a.percentage of its overall annual contract expenditures to fund the activities and operations of the Office of Inspector General. • • (3) Upon ten.(10)days written notice'to Pepsi, Pepsi 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, activities of Pepsi its: officers,: agents and employees; lobbyists, City staff and elected. officials to ensure.compliance with the . contract documents and to detect fraud and.corruption. . • (4) The Inspector General shall have the right to inspect and copy all documents'and • records in Pepsi's possession, custody or control which, in the Inspector General's sole - judgment,:pertain to performance of the Agreement, 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, insurance proceeds, rebates, or dividends received,. payroll. and personnel .records,.and supporting documentation for the aforesaid documents and records. (5) Pepsi 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: If.this Agreement is completely or partially terminated, Pepsi shall make available records relating to the work terminated until three (3)years after any resulting final termination settlement;and • ii. Pepsi 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.- • • • (6). The-provisions-in this Section shall apply to Pepsi, its officers,agents, employees, and suppliers. PepsFshall incorporate the provisions in this Section in all subcontracts and all other.agreements executed by Pepsi in connection with the performance of this Agreement. (7) 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 Pepsi or third parties. 7. Notices. All notices from the City to'the'Pepsi shall be.deemed duly served upon receipt, if mailed.by. - registered or certified mail with a return receipt to the Pepsi at the following address: ' • 14 PEPSI BEVERAGES COMPANY All notices from the Pepsi to the City shall be deemed duly served upon receipt, if mailed by registered or certified mail, return receipt requested, to the City of Miami Beach at the following addresses: City of Miami Beach • 1700 Convention Center Drive • Miami Beach, FL 33139 Attention: Melissa Berthier=Director, Marketing &Communications E-Mail: MelissaBerthier@miamibeachfl.gov With copies to: City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attention: City Manager Pepsi and the City may change the above mailing address at any time upon giving the other party written notification. All notices under this Agreement must be in writing: Notwithstanding the. foregoing,operational notifications,that are not of a nature seeking to have the other party placed in default, may be provided to the other party via e-mail. 8. Price Discrepancy. Any price discrepancy claim-must be submitted to Pepsi within 365 days of the date of the invoice in question. If City makes a price discrepancy claim within 90 days of the invoice date, City must submit a written request specifying the particular Product,amount in dispute and reason for the dispute. This request should be addressed to: Accounts Receivable Pepsi-Cola Customer Service Center • P.O. Box 10 . • Winston-Salem, North Carolina 27102 If City makes a price discrepancy claim from 91:to 365 days after the date of invoice, in addition to the written request as specified above, City must submit to Pepsi a copy of the invoice in question, and copies of any payment/check remittances'pursuant to the invoice in question. Notwithstanding the foregoing, the City's failure to submit a Price Discrepancy within 365 days from the date of the invoice, shall not be interpreted as a waiver by the City in connection with • any price or other discrepancy that may be discovered through an audit process, even if the period, during which the discrepancies occurred,exceeds 365 days. All price discrepancies shall , be resolved within thirty(30)days from receipt of the Price Discrepancy claim by Pepsi. 9. Default/Termination. Subsections(A)through(C)shall constitute events of default under this Agreement. An event of default by Pepsi shall entitle City to exercise any and all remedies described as City's remedies. under this Agreement including, but not limited to, those set forth in Subsection (E). An event of default by City shall entitle Pepsi to exercise any and all remedies described as Pepsi's remedies under this Agreement including, but not limited to,those set forth in Subsection (F). 15 : ed PEPSI BEVERAGES COMPANY (A) Bankruptcy. If either the City or Pepsi shall be adjudged bankrupt or insolvent, or if any receiver or trustee of all:or any part of the business property of either party shall be appointed, or if any receiver of all or any part of the business property shall be appointed. and'shall not be discharged within sixty(60) days after appointment, or if either party shall make an assignment of its property for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency;or shall apply for reorganization or arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal,-State, or otherwise, or if such petitions shall.be filed against either party and shall not be dismissed within sixty(60)days after. such filing, then the other'party may immediately, or at any time thereafter, and withoutfurther demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract (B) Default in Payment. Any payment which Pepsi is required to make to the City which is not paid within thirty (30) days of its due date shall.be subject to interest at the rate of eighteen percent (18%) per antrum. If such failure continues thirty(30) days after written notice thereof from the other party hereto, such non-defaulting party may immediately or at any time thereafter, and without further demand or notice,terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. (C) Non-Monetary Default In the event that Pepsi or the City fails to perform or observe any of the covenants,terms or provisions under this Agreement and such failure continues thirty(30) days after written notice thereof from the other party hereto, such non-defaulting party may immediately or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract In the event that a default is not reasonably susceptible to being cured within such period, the defaulting party shall not be considered in default if it shall, within such period, commence with due diligence and dispatch to cure such default and thereafter completes with. • dispatch and due diligence:the curing of such default, but in no event shall such extended cure. - period exceed ninety (90) days from the date of written notice thereof. In the event that Pepsi_ cures any default pursuant to this Subsection, it shall promptly provide City with written notice of same. . - (D) Additional Termination rights. (1) This Agreement may be terminated in whole by Pepsi upon one hundred eighty (180)days'advance written notice to City if a final judicial opinion or governmental regulation prohibits, or materially impacts or impairs by thirty percent (30%) or more (e.g., beverage tax or package size restriction) the availability or cost of Beverages,whether or not due to a cause beyond the reasonable control of City. Before Pepsi exercises its right to terminate as described herein, Pepsi agrees to engage in good faith renegotiations with City, for-a period of no less than ninety (90).days, to see if an agreement can be reached to adjust the funding offered to City herein on an equitable basis to neutralize any material negative impact such change may have on the economics of-the original Agreement. (2) Pepsi acknowledges that the City, at the City's sole discretion, may transfer,sell or close all or a portion of the Facilities. In such a case,then the parties agree that the portion of the Agreement referencing to said individual Facility shall be partially terminated for convenience, without cause and without penalty to either,party; however, in the event that the Year, during which the transfer, sale or closure of 16 • • • • i� PEPSI BEVERAGES COMPANY • • the Facility occurs, becomes a Non-Performing Year, Pepsi would be entitled to a reimbursement, calculated pursuant to Section-3(A). Pepsi herein acknowledges - and agrees that it shall not have any additional claim, demand, or cause of action . of whatsoever kind or nature,against the City in connection with such transfer,sale:. • or closure. (E) City's Remedies for. Pepsi's Default. If any of the events of default by Pepsi, as set • forth in this Section.9, shall occur,the City may, after notice(if required)and the expiration of • cure periods(as provided above), at its sole option and discretion, institute such proceedings as in its opinion are necessary to cure such defaults and to compensate City for damages resulting from such defaults, including but not limited to the right to give to Pepsi a notice of termination upon the date specified in such notice from City to Pepsi. On the termination date, Pepsi shall then quit and surrender the:Facilities to City pursuant to the provisions of Subsection (H). Upon the termination of this Agreement,all rights and interest of Pepsi in and to the Facilities and to this Agreement,and every part thereof,shall cease and terminate. In addition to the rights set forth above, City shall have the rights to pursue any and all of the following: - • • • (1) the right to injunction or other similar relief available to it under Florida law against. Pepsi; and/or (2) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from Pepsi's default • . (F) Pepsi's Remedies for City's Default_If an event of default by the City, as set forth in this Section 9, shall occur, then Pepsi may, after notice (if required) and the expiration of the cure periods (as provided above), at its sole option and discretion,:terminate this Agreement upon • written notice to the City pursuant to this Agreement and/or sue for damages. In no event will Pepsi specify a termination date that is less than sixty (60) days from the date of the written • termination notice.. On the termination date, Pepsi shall quit and surrender the Facilities to.City. - • pursuant.to the provisions of Subsection(H). Upon any termination of this Agreement, Pepsi.shall have no further obligation under the-Agreement, other than those obligations or liabilities, which pursuant to the terms.of the Agreement, survive termination or expiration of the'Agreement. • .Additionally, Pepsi shall be entitled to collect the proportionate share of any previously.advanced but unearned funding paid to the City pursuant to Section 3("Prepaid Funds"),including unearned .Annual Support Funds, unused marketing Funds, unused portions of,Sustainability Support, and; value-of complementary Product.provided-free of charge, all for the remainder of the.Year for the. - effective date of•the termination. The amount of such'reimbursement will be the result of • multiplying, the total amount of the Prepaid -Funds paid to the City in the Year in which_ the. • Agreement is terminated by a fraction,the numerator of which is the number of months remaining in the Year in which the Agreement is terminated, at the time such termination occurs, and the - denominator of.which.is 12 (twelve). Pepsi's sole remedy for a breach of contract action • against the City shall be to terminate the Agreement and collect the proportionate share of the unearned Prepaid Funds. (G) • Remedies in the event of a Default_WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES' SHALL PEPSI OR THE CITY BE LIABLE FOR ANY SPECIAL,. INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE-DAMAGES, INCLUDING LOST- . PROFITS. HOWEVER, NOTHING IN THIS PARAGRAPH SHALL BE.DEEMED TO EXCLUDE 17 eld PEPSI BEVERAGES COMPANY OR LIMIT ANY LIABILITY UNDER ANY APPLICABLE LAW OR STATUTE WHICH SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED. (H) Surrender of Facilities. At the expiration of this Agreement,or in the event of termination { or partial termination of the Agreement, Pepsi shall surrender the Facilities in the same condition as the Facilities were prior to the Commencement Date of this Agreement, reasonable wear and tear excepted. Pepsi shall remove all its Vending Machines and any and all other Equipment, fixtures, personal,property, etc. within thirty (30) days from the end of the expiration date of the Agreement or within thirty (30) days from the effective date of the termination date of the Agreement, unless a longer time period is agreed to by the City.Pepsi's obligation to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy of the Facilities (or portions thereof) after. expiration,.or termination (or partial termination) of the Agreement shall constitute trespass by the Pepsi, and may be prosecuted as such. In addition,the Pepsi shall pay to the City one thousand dollars($1,000)per day as liquidated damages for such trespass and holding over. 10. . Indemnification. . Pepsi shall defend, indemnify and hold harmless the City, and its officers, employees, agents, and contractors from and against any and all demands, damages, actions, losses, and liability • claims made by a third party, and costs and expenses related.thereto, including reasonable attorneys' fees for personal, economic or bodily injury, wrongful death, loss of or damage to property, at law or in equity(collectively"Losses")arising from or related to Pepsi's: (i)breach of its representations or warranties(or those of its employees,contractors or agents); (ii)negligence or willful:misconduct(or those of its employees,contractors or agents); (iii)infringement or alleged infringement of a third party's intellectual property rights;and/or(iv) Products and services being. provided:under this Agreement. The provisions of this Section shall survive the expiration or termination of this Agreement. 11. . Insurance Requirements. Pepsi shall maintain, at its sole cost and expense,the following types of insurance coverage at all times throughout the term of this Agreement. (A) Commercial General Liability in the minimum amount of One Million Dollars($1,000,000) per occurrence and Two Million Dollars ($2,000,000)'aggregate for bodily injury and property damage. This policy must also contain coverage for premises operations, products, completed, operations and contractual liability(withhold harmless endorsement):. . (B) ' Workers.Compensation Insurance and Employers Liability Insurance shall be provided as required under.the Laws of the State of Florida. (C) 'Automobile Insurance for any vehicles used for, or associated with Pepsi's operations 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 ' 18 • 1 PEPSI BEVERAGES COMPANY Property Damage $1,000,000 per accident • (D) Proof of these coverages must be provided by submitting original certificates of insurance to.the City's Risk Manager and City Manager's designee, respectively. All policies must provide thirty(30.)days written notice of cancellation to both the City's Risk Manager and City Manager's .designee (to be submitted to the addresses set forth in Section 7 hereof). All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida • and must have a rating of B+:VI.or better per A.M. Best's Key Rating Guide, latest edition, and certificates are subject to the approval of the City's Risk Manager. (E) Certificates must be sent directly to certificates-miamibeach(c�riskworks.com. Please ask vendors to.include the following information when sending the insurance certificates: •. Include the Contract's#and.Pepsi's name in the subject line of the email.. COI must include that the City of Miami Beach is an "Additional Insured" with respect to the General Liability coverage. • Certificate Holder on all COI shall read: City of Miami Beach c/o Exigis'Insurance Compliant Services • P.O. Box 947 Murrieta,CA 92564 . (F) Failure to procure or maintain the required insurance program shall, at the City's discretion, either(i) constitute an automatic default of the Agreement,under which.the City may, . • upon written notice to Pepsi, immediately terminate the Agreement. .. • (G) The policies of insurance referred to above shall not be subject to cancellation or changing • coverage except upon at least thirty (30) days prior written notice to the City. Prior to the Commencement Date of this Agreement, Pepsi shall provide City with a .Certificate of Insurance for each such policy. COMMERCIAL GENERAL LIABILITY AND.AUTOMOBILE INSURANCE POLICIES SHALL INCLUDE THE CITY OF MIAMI BEACH FLORIDA AS AN ADDITIONAL NAMED INSURED.All such policies,and any replacement or substitute policies,shall be obtained from companies authorized to do business in the State of Florida with an A.M. Best's Insurance • Guide (latest edition) rating of B+VI. Should Pepsi fail to obtain, maintain, or renew the policies. of insurance referred to above, in the required amounts, the City may, at its sole discretion, automatically terminate this Agreement. Said policies of insurance shall be primary to and contributing:with any other insurance maintained • by Pepsi or City for claims arising out of Pepsi's operations. Pepsi shall file and maintain certificates of all insurance policies with the City's Risk Management Department showing said • policies to be in full force and effect at all times during the course of the contract: If any of the required insurance coverages contain aggregate limits or apply to other operations or tenancies of Pepsi outside this Agreement Pepsi shall give the City prompt written•notice of any incident, occurrence, claim settlement or judgment against such insurance which may • diminish the protection such insurance affords the City.Pepsi shall further take immediate steps to restore such aggregate limits or shall provide other:insurance protection for such aggregate limits. 19 co PEPSI BEVERAGES COMPANY (H) Subrogation. The terms of insurance policies referred to herein shall preclude subrogation claims against Pepsi, the City and their respective officers,employees, and agents. 12. Limitation of City's Liability. The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action,for money damages due to.an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of$100,000.00.. Pepsi hereby expresses its willingness to enter into this-Agreement with Pepsi's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $100,000.00. Nothing contained in this Section or elsewhere in thisAgreement is in any way intended to be a waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida Statutes. . 13. Laws. In its performance of the Services, Pepsi shall comply with all applicable laws, ordinances, and regulations of the City, Miami-Dade County,the State of Florida,_and the federal government, as applicable. For purposes of this Agreement, Pepsi shall obtain the applicable "Coin Vending Distributor"and/or"25 Cents and Over Machine' category City Business Tax Receipts. 14. No Discrimination. . In connection with the performance of the Services, Pepsi shall.not exclude from participation in, deny the benefits of,or subject to discrimination anyone on the grounds of race, color, national • origin,sex, age, disability, religion, income or family status. Additionally, with respect to its activities within the City of Miami Beach, Pepsi shall.comply fully with the 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, public services, and.in connection with its membership or policies because of actual or perceived race,color, national origin,religion,sex,intersexuality,gender identity,sexual orientation, marital and familial status,age,disability, ancestry, height,weight, hair texture and/or hairstyle, domestic partner status, labor organization membership, familial situation, or.political affiliation. 15. . Compliance with American with Disabilities Act(ADA)and any other applicable accessibility standards. Pepsi shall.comply with all current and applicable American with Disabilities Act regulations, as required under the ADA of 1990 and Revised ADA Regulations Implementing Title II and Title III (www.ada.cov)in addition to the below requirements for the Vending Machines and placement. • Highest operable part of controls(coin slot, paper currency slot,change dispenser, etc.)shall be a maximum of 48"high and the lowest operable part shall be a minimum of 15 high. • The controls shall be operable with one hand and not require tight grasping, pinching, or twisting of the wrist. • The force required to activate the controls shall not be greater than five(5)pounds 20 ed PEPSI BEVERAGES COMPANY of force:. . • Clear floor space (minimum of 30" by 48") that-allows a forward or parallel approach by a person using a wheelchair shall be provided at controls, dispensers,.etc. 16. Pepsi's Compliance with Public Records Law. (A) Pepsi shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be amended from time to time. 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. (B) Pursuant to Section 119.0701 of the Florida Statutes, if Pepsi meets the definition of "Contractor"as defined in Section 119.0701(1)(a), Pepsi shall: (1) Keep and maintain public records required by the City to perform the service; : (2) Upon request from the City's custodian of public records, provide the City with a copy of the_requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida, Statutes or as otherwise provided.by law; (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law, for the duration of the contract term and following completion of the Agreement if Pepsi does not transfer the records to the City; (4) Upon completion of the Agreement, transfer, at.no cost to the City, all public records in'possession of Pepsi or keep and maintain public records required by the City. to perform the service. If Pepsi transfers all public records to the City upon completion of. the Agreement, Pepsi shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If Pepsi keeps and . maintains public records .upon completion .of the Agreement, Pepsi 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. (C) : Request for Records; Noncompliance. (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 Pepsi of the request,and Pepsi must provide the records to the City or allow the records to be inspected or copied within a reasonable time. (2) Pepsi'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 inequity. 21 PEPSI BEVERAGES COMPANY (3) If Pepsi•fails to provide the public records to the City within'a reasonable time may be subject to penalties under s. 119.10. (D) Civil Action. (.1) If a civil action is filed against a Pepsi to compel production of public records relating to the City's contract for services,the court shall assess and award against Pepsi the reasonable costs of enforcement, including reasonable attorneys'fees, if: a. The court determines that Pepsi 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 Pepsi has not . complied with the request,to the City and to Pepsi. (2) A notice complies with subparagraph (1)(b) if it is sent to thecity's custodian of public records and to Pepsi at Pepsi's address listed on its contract with the.City-or to Pepsi'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. (3) A Pepsi 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. • . (E) If Pepsi has questions regarding the application of chapter 119, Florida statutes, or as to Pepsi's duty to provide public records relating • to this agreement, contact the custodian of public records at: • City Off Miami Beach Attention: Rafael E. Granado, City Clerk 1700 Convention Center Drive Miami Beach, Florida 33139 E-MAIL: RAFAELGRANADOMIIIIAMIBEACHFL:GOV PHONE: 305.673-7411 17. Force Majeure. (A) A"Force Majeure" event is an event that(i) in fact causes a delay.in the'performance of Pepsi 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 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. • (B) If the City or Pepsi'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 any case within fifteen 22 ed PEPSI BEVERAGES COMPANY (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. (C) 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. . (D) . 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 earned prior to the occurrence of a Force.Majeure event shall not be subject to the Force Majeure provisions. . (E) In no event will any condition of Force Majeure extend this Agreement beyond its stated. term. 18. E-Verifv. (A) To the extent that Pepsi provides labor,supplies,or services under this Agreement, Pepsi 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, Pepsi 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, Pepsi 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 Pepsi enters into a contract with an approved subcontractor, the subcontractor must provide Pepsi with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. Pepsi shall maintain a copy of such affidavit for the duration of the contract or such other extended period as may be required under this Agreement. (B) 1. If the City..has a good faith belief that Pepsi has knowingly violated Section 448.09(1), Florida Statutes,which prohibits any person from knowingly employing, hiring, recruiting, or referring an alien who is not duly authorized to work by the immigration laws or the Attorney General of the United States, the City shall terminate this Agreement with Pepsi for cause, and the City shall thereafter have or owe no further obligation or liability to Pepsi. 23 . frid PEPSI BEVERAGES COMPANY 2. If the City has a good faith belief that a subcontractor has knowingly violated the foregoing Subsection A, but Pepsi otherwise complied with such Subsection, the City will promptly notify Pepsi and order Pepsi to immediately terminate the { contract with the subcontractor. Pepsi's failure to.terminate a subcontractor shall be an event of default under this Agreement, entitling City to terminate Pepsi's. contract for cause. 3. A contract terminated under the foregoing Subsection (B)(1) or (B)(2) is not in breach of contract and may not be considered as such. . 4. The City or Pepsi or a subcontractor may file an action with the Circuit or County Court to challenge a termination under the foregoing Subsection (B)(1) or (B)(2) no later than 20 calendar days after the date on which the contract was terminated. 5. If the City terminates the Agreement with Pepsi under the foregoing Subsection (B)(1), Pepsi may not be awarded a public contract for at least 1 year after the date of termination of this Agreement. 6. Pepsi is liable for any additional costs incurred by the City as a result of the termination of this Agreement under this Section. 19. Assignment/Subcontract. (1) Assignment,or transfer of Agreement. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or otherwise transferred by either party (whether by operation of law or otherwise) without the prior written consent of the other party, provided, however, that Pepsi may be permitted to assign and transfer this Agreement in whole to one of its Affiliates; provided,further,(1)that Pepsi is not in default of its obligations under this Agreement; (2)the Affiliate is capable of fully performing all obligations of the assignor hereunder and(3)agrees, in writing to perform all of the obligations and assume all liabilities of the assignor hereunder (the "minimum transfer requirements"). Pepsi shall notify the City of any proposed assignment in writing, at least sixty (60) days prior to the proposed effective date of such assignment. Pepsi shall provide the City Manager with any information related to the assignment and the qualifications of the proposed Affiliate transferee. Provided that the minimum transfer. requirements are met,the City Manager,on behalf of the City, shall have the authority to approve such assignment and transfer,which approval shall be memorialized in the form of an amendment to the Agreement executed by the City, Pepsi and the'Affiliate.transferee. (2) Subcontract/Partial transfer of any portion of the work and/or services. Pepsi shall not subcontract or transfer any portion of the work and/or services under this Agreement without the prior written consent of the City Manager, which consent, if provided at all, shall be at the sole discretion of the City Manager; provided, however, that Pepsi shall be authorized to subcontract or transfer a portion of the work and/or services under the Agreement to one of its Affiliates; provided; however, (1)that Pepsi notifies the City of such subcontract/partial transfer to a Pepsi- - Affiliate and (2) Pepsi remains the responsible party for the work or services being performed by its Affiliate, as if Pepsi was the party performing the work and/or services. Grey.Hawk Leasing LLC is hereby approved as a subcontractor of Pepsi related to the installation of the Vending Machines. 20. Governing Law/Venue. The laws of the state of Florida govern all matters arising out of this Agreement. Venue for any action to enforce the terms and.conditions of the Agreement shall be in Miami-Dade County, Florida. 24 Irid PEPSI BEVERAGES COMPANY 21. Attorneys' Fees. If it becomes necessary for City or Pepsi to enforce their respective rights under this Agreement or any part hereof through litigation; Pepsi and City agree that the prevailing party shall be entitled to recover from the other party all costs and expenses of such litigation, including a reasonable attorneys'fee and costs, for all trial and appellate proceedings. 22. No Third Party Beneficiary. Nothing in this Agreement shall confer upon any person or entity, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement. 23. Waiver. No failure or delay of either party to exercise any rights or remedies under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any rights or remedies preclude any further or other exercise of the same or any other rights or remedies. Any waiver must be in writing and signed by the party waiving the rights. 24. Relationship of the Parties. The parties are independent contractors with respect to each other. Nothing contained in this Agreement creates a joint venture partnership between the parties. 25. Construction. City and Pepsi acknowledge that both parties participated equally in the. negotiation of this Agreement and that,accordingly,in interpreting.this Agreement,no weight shall be placed upon which party hereto or its counsel drafted the provision being interpreted. 26. Entire Agreement. This Agreement contains the entire agreement between the parties hereto regarding the subject matter hereof and supersedes all other agreements between the parties. :This Agreement may be amended or modified only by a writing signed by each of the parties. Unless specifically delegating the authority to the City Commission, the City Manager shall be authorized to execute any amendments to the Agreement on behalf of the City:' 27. Representations. Each of the undersigned parties, represent and warrant to the other that(1)the execution,delivery and performance of this Agreement will not violate any agreements with, or rights of, third parties or any statute,rule or regulation applicable to the party or any of its properties,assets or.operations(including without limitation any financial reporting and disclosure requirements promulgated by the Securities and Exchange.Commission), (2)it is duly authorized and empowered to bind itself to the terms and conditions of this Agreement for the duration of the Term and (3) it possesses legal authority to enter into and perform the terms and conditions of this Agreement. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as ,- - of the date set forth below. PepsiCo Beverage Sales, LLC City of Miami Beach, Florida By: 11 By: Print Name: Hekan Guvenc Print me: hiiNj1 i • UD14'a . Title: Sr.Sales Manager Titl . OI 1-'' rCse - Date: 03/10/2023 Date: 3�j 4(23 APPROVED AS TO FORM & LANGUAGE 95 & FOR EXECUTION Ofb14.3 Dote Cl?Aliorn y jj . co PEPSI BEVERAGES COMPANY Exhibit A . Product and Prices The initial pricing schedule for Packaged Products is set forth below, which may be changed by Pepsi each Year during the Term,provided,however,price increases in any Year shall not exceed 4%from the prior Year.:;Pepsi shall provide the City with an updated Exhibit A in the event of any.. such change in the pricing. On invoice Item Description _ Case Count Case Cost• Unit Cost 12 oz.Aluminum CSD Cans 24 $ 12.40 $ 0.52. 12.oz.Aluminum Lipton Cans 24 $ 12.40 $ 0.52 12 oz.Aluminum Dr. Pepper-Cans 24 $ 12.40 $ .0.52 16oz.Proud Source Water 24 $ 28.35 $ 1.18 20oz Gatorade,Gatorade Zero 24 $ 25.75 $ 1.07. 16oz Aluminum Mt Dew Kickstart 12 $ 13.40 $ 1.12 16 oz.Aluminum Bubly Sparkling Water 12 $ 11.00 $ 0.92 13.7oz Starbucks Frappuccino 12 $ 25.75 S. 2.15. 7.5 oz.Can Schweppes Ginger,Tonic 24 $ 12.80 $ 0.53. 12oz Tropicana Premium Juices 12 $ 18.00 0 $ 1.50 . 26 . • frod PEPSI BEVERAGES COMPANY FOUNTAIN PRICING .. On Invoice Price per Per Oz. Item Description Gallons Gallon BIB Price Cost Pepsi,Diet Pepsi,Wild Cherry Pepsi 5 •$ 18.34 $ 91.70 $ 0.024 Sierra Mist,Dew,Dt.Dew,Mug. 5 $ 18.34 $ . 91.70 $ . 0.024: Tropicana lemonade&Fruit Punch 5 $ 18.34 $ 91.70 $ .0.024 Dr Pepper,Dt.Dr Pepper,Crush 5 $ 18.34 $ 91.70 $ 0.024 Brisk(Lemon,Unsweet,Raz) 5 $ 18.34 $ 91.70. $ .0.024 Upton Tea (Sweet,Green Tea,Peach) S $ 18.34 $ 91.70 $ 0.024 Upton Tea(Unsweet) 5 $ 18.34 $ 91.70 $ 0.024 Dole Homestyle Lemonade 3 $ 18.34 $ 55.02 $ 0.024 Gatorade 3 $ 23.46 $ 70.38 $ . 0.031 Mixers(GingerAle&Tonic) 3 $ 18.34 $ 55.02 $: 0.024 . Dole Juices(Orange,Cranberry,Apple) .3 $ 35.28 $ 105.84 $ 0.046 $1 per case rebate plus$0.75 per case marketing rebate generated for each gallon,purchased during contract term . 5 gallon box counts as 5 units, 3 gallon box 3 units for rebate calculation ','osegiao 27 fild PEPSI'BEVERAGES COMPANY Exhibit B Advertising&Sponsorship Rights 1. Recognition of PepsiCo as the "Official Non-Alcoholic Beverage Sponsor".of the City. Official status will Official Status Recognition for City,across all non-alcoholic beverage categories, with the exception of the Energy Drink, hot tea, hot and iced coffee and hot cocoa categories.. Example:"Pepsi:The Official Soft Drink of Miami Beach",or"Gatorade Official Sports Drink of South Beach". 2. Joint PepsiCo/City Logo placement on City and City-related websites:(Miami Beach Convention Center, Miami Beach Golf Club, Normandy Shores Golf Club, .City.website, etc. to such extent as permitted by any federal or state regulations on .gov domains. 3. Waiver of any Special Event Permit and/or Permit Application Fees for PepsiCo's use for one (1) mutually agreed upon event per Year, based on availability and-meeting all approvals as set forth in the City's Special Event Permit approval process. 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. The.City shall only waive fees up to a maximum of$25,000.per event, and solely for permit or square footage fees for which the City has no hard cost. All other costs and.ancillary fees including, but not limited to, production, taxes, security, audio/visual, decoration, parking or food and beverage shallbe the responsibility of.PepsiCo. Rights may not be transferred or assigned and do not carry over into future Years. 4.. Waiver of any rental or use fees for PepsiCo's use of certain Miami Beach Convention Center Facilities (ballroom space or meeting room space) for one (1) mutually agreed upon event per Year, based on existing bookings and building availability, up,to a maximum.of$25,000 per event. Waiver shall pertain to the costs associated solely with room rental fees for which there-is no hard cost to City or third-party-management company. All other costs and ancillary fees:including, but not limited to, taxes,:security, audio/visual, decoration, .parking or food and beverage shall be the responsibility of PepsiCo. Rights may not be transferred or assigned and do not carry over into future Years 5. Up to one (1) royalty free Product sampling permit per month, to a maximum of twelve: (12) per Year. Permit waiver shall only cover permit fee costs for which the City has no ', hard cost. If PepsiCo does not use all twelve.(12).permits by the end of the Year, any remaining permits will not roll-over to the following Year and will be•forfeited. All other fees and costs of production, including, but not limited to, taxes; security, audio/visual, decoration or food and beverage shall be the responsibility of Pepsi. Rights may not be transferred or assigned and-do not carry over into future Years. 6. Mutual agreement on the development and use of a joint logo between PepsiCo and the City: Upon expiration or early termination .of.the Agreement, neither party may use the joint logo without the written consent of the other. 7. Rights to use mutually agreed upon joint logo on any point of sale, marketing materials, and/or signage that may be mutually agreed upon. . 8. Royalty free advertisement in any City-Produced Event or collateral produced for City- Produced Event as the "Official Non-Alcohol Beverage of Miami Beach". This-shall not 28 . co PEPSI BEVERAGES COMPANY • include any naming or title sponsorship of City-Produced Event or Miami Beach Magazine. As referred to herein, a City-produced Event shall mean any event where the City is the. sole producer and the entity whose name is on the Special Event Permit; 9. Minimum of one(1)royalty free PepsiCo PSA or message per Year to be shown on MBTV; 10. Minimum of one(1) royalty free PepsiCo PSA or message per Year to be shown on the Miami Beach Trolley video screens; 11. City grants to Pepsi: up to Twelve(12) rounds of golf each Agreement Year(max of six (6) during peak season; no more than six (6) at Miami Beach Golf Course.) Such right does not roll over and may not be transferred or assigned. 12. Subject to the.City's prior written approval, Pepsi shall have the right to modify, change, alter or remove its branding and promotional messages appearing on the signage, and any such changes or removal requested by Pepsi will be at Pepsi's sole cost and expense. • 29 eld PEPSI BEVERAGES COMPANY Exhibit C Special Promotional Events, Public Special Events, Private Events and Charitable Events. 1. Special Promotional Events;Public Special Events (a) The term "Special Promotional Events" shall refer to concerts;. theatrical or comedic . performances; conventions; trade shows; religious. events;. athletic events;. live performance events; sporting events; or other special events occurring at a Facility that are sponsored by a manufacturer, distributor,ormarketer of Competitive Products under a sponsorship agreement with the owner or operator of the subject Event (not including. an anyy instance the City or its:affiliates or agents) and which do not require a Special Event Permit. (b) The term "Public Special Events" shall refer to City-approved public events (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, which may include,without limitation, the following events: Art Basel,Super Bowl, Orange Bowl, F1, and SOBEWFF (c) The term"Special/Public Promotional Events Exemptions"shall refer to those exceptions. granted under the Agreement, for each Year, to permit the following Special Promotional Events at the following Facilities: a. Three(3)events at the Miami Beach Golf Club b. Three(3)events at the Normandy Shores Golf Club . c. Four(4)events at the Miami Beach Convention Center d. Four(4)additional Special Promotional Events or Public Special Events. (d) The City will provide PepsiCo with no less than thirty(30)calendar days prior written notice of each, event which it intends to designation as a Special Promotional Event or Public. Special Event. (e) The private, personal consumption of Competitive Products by athletes, coaching staff, musicians, actors, comedians, or other entertainment personalities .appearing or performing at a Facility is allowed and will not be considered a Special.Promotional Event. City shall use reasonable efforts to ensure that the consumption is limited to private areas,:. or that the public consumption of the Competitive Product is not apparent from the exterior. of the beverage container/glass. ' 2. 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) (such as a corporation) which is not open or accessible'to the general public either free or via a . purchased.ticket: Product availability and exclusivity at private events shall be handled as follows Competitive Products may be distributed or sampled at no cost by the user of the City property or Facility for private events, provided that Products will continue to be the only Beverage sold by the City or at the Facility, including the related concession operations at the Facility. 30 . filo PEPSI BEVERAGES COMPANY 3. Charitable Events. Product availability, as it relates to charitable events (including, events produced by non-for- profit entities with valid tax exemption from the IRS) at Facilities or at City-Permitted Special Events, shall be handled as follows: Competitive Products may be distributed or sampled at no cost by the user of the City;property:. or Facility for private events, provided that Products will continue to be the only Beverage sold by the City or at the Facility, including the related concession operations at the Facility. • • • 31 elo PEPSI BEVERAGES COMPANY EXHIBIT D City Garages 1.. 7th Street Garage, 200 7th Street(G1) 2. 12 'Street Garage, 512 12t Street(G2) 3. 13th Street Garage,.1301 Collins Avenue(G3) 4. .Anchor.Garage, 1557 Washington Avenue(G4) 5. 17th Street Garage, 640 17th Street(G5) 6. 42nd Street Garage, 400 West 42nd Street(G6) 7. City Hall Garage, 1755 Meridian Avenue(G7) 8. 5th&Alton Garage, 550 Lenox Avenue(G8)* 9. Pennsylvania Avenue Garage,1661 Pennsylvania Avenue(G9) 10. Sunset Harbor Garage, 1900 Bay Road(G10) 11. Convention Center Garage, 1901 Convention Center Drive(G11). 12. Collins Park Garage, 340 23`d Street(G12). *Please note that the City Garage described in the foregoing Section 8(G8) is part of a public private project pursuant to a Third-Party Agreement;therefore the installation.of Pepsi Vending Machines at G8 will not be permitted unless the private entity that operates the project agrees. 32 .PEPSI BEVERAGES COMPANY • EXHIBIT • Vending Locations Name - Addressl City. CITY OF MIAMI BEACH FLAMINGO 1200 MERIDICAN AVE MIAMI BEACH CITY OF MIAMI BEACH 17TH ST PK GARAG 640 17TH ST MIAMI BEACH CITY.OF MIAMI BEACH 13th ST GARAGE . 1301 COLLINS AVE MIAMI BEACH CITY OF MIAMI BEACH FLAMINGO ' 11 JEFFERSON AVE MIAMI BEACH CITY OF MIAMI BEACH 17th ST GARAGE 640 17TH ST GARAGE MIAMI BEACH CITY OF MIAMI BEACH FLAMINGO • '11 JEFFERSON ST MIAMI BEACH • CITY OF MIAMI BEACH FLAMINGO 1200 MERIDIAN AVE MIAMI BEACH CITY OF MIAMI BEACH 17th ST GARAGE 640 SW 17TH AVE MIAMI BEACH CITY OF MIAMI BEACH C.HALL GARAGE 1755 MERIDIAN AVE MIAMI BEACH. CITY OF MIAMI BEACH C.HALL GARAGE 1755 MERIDIAN.AVE 'MIAMI BEACH CITY OF MIAMI BEACH POLICE , • 1100.WASHINGTON AVE MIAMI BEACH CITY MIAMI BEACH FAIRWAY.PARK 200 FAIRWAY DR. MIAMI BEACH CITY MIAMI BEACH PARKING GARAG • 1661 PENNSYLVANIA AVE MIAMI BEACH CITY OF MIAMI BEACH POLICE 1100 WASHINGTON AVE . MIAMI BEACH CITY MIAMI BEACH 16 WASHINGTON AVE _ MIAMI BEACH CITY OF MIAMI BEACH SCOTT RAKOW YOUTH CT 2700 SHERIDAN AVE MIAMI BEACH CITY MIAMI BEACH SUNSET PARK 1832 BAY DR MIAMI BEACH CITY OF MIAMI BEACH CITY HALL-BLDG 1700 CONVENTION CENTER DR MIAMI BEACH CITY OF MIAMI BEACH SUNSET HA 1900 PURDY AVE MIAMI BEACH CITY OF MIAMI BEACH 7th ST GARAGE 210 7TH ST • MIAMI BEACH CITY OF MIAMI BEACH SCOTT RAKOW YOUTH CT 2700 SHERIDAN AVE MIAMI BEACH ' CITY OF MIAMI BEACH 1701 MERIDIAN AVE ' MIAMI BEACH CITY OF MIAMI BEACH MAURICE 18TH PURDY AVE MIAMI BEACH CITY OF MIAMI BEACH FLAMINGO 1200 MERIDICAN AVE MIAMI BEACH CITY OF MIAMI BEACH CITY HALL BLDG 1700 CONVENTION CENTER DR MIAMI BEACH NORTH SHORE YOUTH CENTER 501 72ND ST MIAMI BEACH • • • • • J.)