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Resolution 2023-32527 RESOLUTION NO. 2023-32527 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING RESOLUTIONS NO 2021-31965 AND NO. 2022-32221, WHICH AUTHORIZED THE CITY MANAGER TO NEGOTIATE AND EXECUTE AN AGREEMENT WITH RED BULL NORTH AMERICA, INC (RED BULL) FOR THE EXCLUSIVE ENERGY DRINK POURING RIGHTS BASED UPON APPROVED ESSENTIAL BUSINESS TERMS; SAID AMENDMENT AUTHORIZING THE SEGREGATION OF THE SPONSORSHIP, SALE AND DISTRIBUTION OF PRODUCTS, AND VENDING EQUIPMENT AND SERVICES COMPONENTS OF THE AGREEMENT; AND FURTHER APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE: (1) THE SPONSORSHIP AGREEMENT WITH RED BULL; (2) THE RED BULL PRODUCT DISTRIBUTION AGREEMENT WITH RED BULL DISTRIBUTION COMPANY, INC.; AND (3) THE RED BULL VENDING AGREEMENT WITH BETTOLI TRADING CORP. D/B/A BETTOLI VENDING FOR A TERM OF FIVE (5) YEARS, COMMENCING RETROACTIVELY AS OF JULY 1, 2022. WHEREAS, the City of Miami Beach (the "City") entered into a sponsorship agreement, dated March 14, 2012 (the "Coca-Cola Agreement"), with Coca-Cola North America, a division of the Coca- Cola Company, and Coca-Cola Refreshments USA, Inc. d/b/a Florida Coca-Cola Bottling Company(the "Bottler") (collectively, "Coca-Cola")for a term beginning January 1, 2012 and ending on December 31, 2021; and WHEREAS, due to the impacts of the COVID-19 pandemic, on January 13, 2021, the Mayor and City Commission adopted Resolution No. 2021-31541, approving an amendment to the Coca-Cola Agreement ("Amendment No. 1"); said Amendment removing the City's requirement to purchase a minimum of 22,500 cases of Coca-Cola product per Agreement Year for the 2020 and 2021 Agreement Years; guaranteeing that the City would receive the full Sponsorship Fee for the 2020 Agreement Year, in the amount of$325,000.00; and reducing the Sponsorship Fee that Coca-Cola would have to pay the City for the 2021 Agreement Year from $325,000.00 to $195,433.33; and WHEREAS, in order to explore all opportunities for a non-alcoholic pouring rights partnership, while ensuring continuity of services and maintenance of existing equipment, on December 8, 2021, the Mayor and City Commission adopted Resolution No. 2021-31966, authorizing the City Manager to negotiate and execute Amendmcent No. 2 to the Coca Cola Agreement, and extending the Coca-Cola Agreement on a month to month basis, commencing on January 1, 2022 and expiring on June 30, 2022 ("Extended Term"), and modifying certain financial terms during the Extended Term, including the removal of the energy beverage category from the scope of the Coca-Cola Agreement; and WHEREAS, Global Spectrum L.P. ("Spectra Partnerships"), the City's municipal sponsorship agency, initiated a selection process to identify and recommend an exclusive, official non-alcoholic beverage partner for the City; and WHEREAS, Spectra Partnerships invited the top three (3) national entities in the non- alcoholic . beverage category to submit "best and final" offers and, subsequent to their submission and presentation, recommended to the City the selection Red Bull North America, Inc. as the City's exclusive energy drink sponsor, to include pouring rights, municipal marketing, vending and dispensing rights on certain City-owned properties, based upon the essential terms set forth in their:proposal (the "Proposal"); and : . . WHEREAS, on December 8, 2021,the Mayor.and City Commission adopted Resolution No. 2021-31965, waiving, by 5/7th vote, the formal competitive .bidding requirement, and authorizing the-City Manager to negotiate an agreement with :Red Bull North America, Inc., a California corporation ("Red BuII") for an exclusive pouring rights energy drink category municipal marketing agreement, for vending and dispensing on certain.City-owned properties, based upon the following essential terms: RED BULL Product YEAR Sponsorship . Rebates Volume Bonus Commitment TOTAL 2022 $75,000 $20,000 $25,000 $135,000 $255,000 2023 . $75,000 $20,000 S25,000. $135,000 $255,000. 2024 $75,000 $20,000 $25,000 $135,000. $255,000 2025 $75,000 $20,000 S25,000 $135,000 $255,000 2026 575,000: $20,000 S25,000 : $135,000 $255,000 $375,000 $100,000 $125,000 $675,000 . $1,275,000 (1) Term: 5 years; . (2) Sponsorship fee: $75,000.00 per year, starting in 2022; (3) Rebate Bonus,: $5/case or gallon purchased, paid quarterly; (4) Volume Bonus: $25,000 paid at 10,000 cases purchased_, and an. additional $25,000 each additional 5,000 cases (5) Full-Service. Vending Rebates - .$5,,/ case for all cases sold through Red Bull's third-party vending supplier; (6) Sampling Product $135,000 (retail value) in sampling product as mutually agreed to between both parties so.as not to affect existing product sales; - (7) Complimentary Product up to 625.cases:(15;000 x 8.4 oz cans) of free product (not cash convertible); (8). Value of sponsorship over term of the Agreement (for cash and non-cash), in the amount of . $1,275,000.00, inclusive of - the annual sponsorship fees ($375,000.00); can rebates ($100,000.00); volume bonus ($125,000.00); and sample/ complimentary product value ($675,000.00); and WHEREAS, following the December 8, 2021 meeting,the.City and Red Bull entered into further negotiations, and agreed to provide Red Bull with additional benefits in order to incentivize Red Bull to bring large events, meetings and sampling activations to Miami Beach; to increase awareness of the partnership; to increase brand awareness around both brands; and to drive sales, therefore increasing revenues for both the City and Red Bull; and WHEREAS, on July 20, 2022, the Mayor and City Commission adopted Resolution No. 2022-32221, amending Resolution No. 2021-31965; said amendment approving the foregoing additional essential business terms for the agreement: • Rebate Opportunity. Red Bull shall pay the City the rebate amount of $5 per case on product purchased in the vending machines, which rebate is in addition to the rebate offered in the original Proposal for product sales, paid quarterly; • Waiver of Special Event Permit and/or Permit Application Fees. Red Bull shall have the use for up to two (2) mutually agreed upon events per year, based on availability, for a value of up to a maximum of $25,000 per event, all in accordance with the City Code, and will not include the waiver of any hard costs, all of which shall be the responsibility of Red Bull; • Up to two (2) Product Sampling Permits per Month. Red Bull shall have the right to use a maximum of twenty-four (24) product sampling permits per year, which will not include all other .fees and costs of production, including but not limited to taxes, police, security, sanitation, etc., all of which shall be the responsibility of Red Bull; said permit waivers having a value to Red Bull, in the amount not to exceed $60,000, based upon 24 waivers per year, with an approximate value of$2,500.00 each; and • Advertising Benefits. Red Bull shall have the following advertising benefits, which do not have an actual out-of-pocket expense to the City: (1) one (1) royalty free advertisement in any City-produced event collateral as the "Official Energy Drink of Miami Beach"; (2) one (1) royalty free Red Bull PSA or message per year to be aired on MBTV; and (3) one (1) royalty free Red Bull PSA or message per year to be aired on the Miami Beach trolley video screens; and WHEREAS, during one of the final negotiation meetings with Red Bull, in November 2022, Red Bull advised that they had changed their operating model and that Red Bull could only include the sponsorship component of the transaction in the Red Bull agreement and that purchase of products as well as the vending services would need to be contracted with an authorized distributor of Red Bull products; and WHEREAS, the City and Red Bull negotiated a Sponsorship Agreement, which removed the sale and distribution of Red Bull Products, as well as the vending machine services, from the original agreement, a copy of which is attached to the City Commission Memorandum accompanying this Resolution, entitled "Red Bull Pouring Rights Sponsorship Agreement"; and WHEREAS, the City and Red Bull Distribution Company, Inc., a Delaware corporation, an authorized distributor of Red Bull products, have reached an agreement for the purchase and distribution of Red Bull products, a copy of which is attached to the City Commission Memorandum accompanying this Resolution, entitled "Red Bull Pouring Rights Distribution Agreement"; and WHEREAS, the City and Bettoli Trading Corp. have negotiated a vending service agreement for Red Bull products, a copy of which is attached to the City Commission Memorandum accompanying this Resolution, entitled "Red Bull Pouring Rights Vending Agreement"; and WHEREAS, based upon the foregoing, the City Manager recommends authorizing the Administration to segregate the purchase and distribution of Red Bull products and the vending services of Red Bull products from the Sponsorship Agreement; and approve and authorize the City Manager to execute the: (1) Red Bull Sponsorship Agreement with. Red Bull; (2) Red Bull Product Distribution Agreement with Red Bull Distribution. Company,. Inc.; and (3) the Red Bull Vending Agreement with Bettoli Trading Corp. d/b/a Bettoli Vending. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby amend Resolutions No. 2021-31965 and No. 2022-32221, which authorized the City Manager to negotiate and execute an agreement with Red Bull North America, Inc. (Red Bull) for the exclusive energy drink pouring rights based upon approved essential business terms; said amendment authorizing the segregation of the sponsorship, sale and distribution of products, and vending equipment and services components of the agreement; and further approve and authorize the City Manager to execute the: (1) Red Bull Sponsorship Agreement with Red Bull; (2) Red Bull Product Distribution Agreement with Red Bull Distribution Company, Inc.; and (3) the Red Bull Vending Agreement with Bettoli Trading Corp. d/b/a Bettoli Vending for a term of five (5)years, commencing retroactively as of July 1, 2022. PASSED and ADOPTED this 27th day of March, 2023. ATTEST: / Dan Gelber, Mayor MAR 3 1 2023 Rafael E. Granado, City Clerk lgoR ORp1ED4, APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION 3— Z3 City Attorney., D • Resolutions -C7 K MIAMIBEACH COMMISSION MEMORANDUM • TO: Honorable Mayor and Members of the City Commission FROM: Alina T. Hudak, City Manager • DATE: March 27,2023 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,AMENDING RESOLUTIONS NO 2021-31965 AND NO. 2022-32221, WHICH AUTHORIZED THE CITY MANAGER TO NEGOTIATE AND EXECUTE AN AGREEMENT WITH RED BULL NORTH AMERICA, INC (RED BULL) FOR THE EXCLUSIVE ENERGY DRINK POURING RIGHTS BASED UPON APPROVED ESSENTIAL BUSINESS TERMS; SAID AMENDMENT AUTHORIZING THE SEGREGATION OF THE SPONSORSHIP, SALE AND DISTRIBUTION OF PRODUCTS, AND VENDING EQUIPMENT AND SERVICES COMPONENTS OF THE AGREEMENT; AND FURTHER APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE: (1) THE SPONSORSHIP AGREEMENT WITH RED BULL; " (2) THE RED BULL PRODUCT DISTRIBUTION AGREEMENT WITH RED BULL DISTRIBUTION COMPANY, INC.; AND (3) THE RED BULL VENDING AGREEMENT • WITH BETTOLI TRADING CORP. D/B/A BETTOLI VENDING FOR A TERM OF FIVE (5)YEARS, COMMENCING RETROACTIVELYAS OF JULY 1,2022. RECOMMENDATION The Administration recommends that the Mayor and Commission adopt the resolution, authorizing and approving the City Manager to execute three separate agreements in order to fulfill the original proposal and business terms put forth by Red Bull North America, for exclusive pouring rights in the energy drink category. BACKGROUND/HISTORY On December 8,2021 the Mayor and Commission approved. Resolution 2021-31965 (attached), waiving, by 5/7th vote, the formal competitive bidding requirement, finding such waiver to be in the best interest of the city, and authorizing the City Manager to negotiate an agreement with Red Bull North America, for an exclusive municipal marketing pouring rights agreement in the energy drink category for vending and dispensing on certain city-owned properties, based upon the essential terms set forth in the city commission memorandum accompanying the item resolution, for a term of five (5) years; and further, authorizing the City Manager to finalize and execute the agreements., subject to form approval by the City Attorney. The Administration and Red Bull North America began contract negotiations and in addition to the agreed upon terms set forth in the December 8, 2021 agenda item, the Administration wanted to include additional benefits to Red Bull North America, as it was deemed to be favorable to both entities in terms of financial impact and brand awareness. 0 In addition to the business terms outlined in the December 8, 2021 Commission agenda, the Administration requested to add the following items to the final agreement, which having a financial component, required approval from the Mayor and Commission: Page 336 of 1292 Advertising&Sponsorship Rights 1. Special Event Permit Fee Waiver waiver of any Special Event Permit and/or Permit Application Fees for Red Bull North America's use for two (2) mutually agreed upon event(s) 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 shall be the responsibility of Red Bull North America. Rights may not be transferred or assigned and do not carry over into future Years. The Administration is in support of this benefit as Red Bull North America is globally recognized as producing some of the top events and brand activations, and this will incentivize them to bring those events to Miami Beach. • 2. Product Sampling Up to two (2) royalty free Product Sampling permits per month (up to $2,500 per permit per month, and up to $60,000 per Agreement Year),to a maximum of twenty-four (24) permits per Year. Permit waiver shall only cover permit fee costs for which the City has no hard cost. If Red Bull North America does not use all twenty-four(24) 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 Red Bull North America. Rights may not be transferred or assigned and do not carryover into future Years. The Administration is in support of this benefit as Red Bull North.America sampling activations are highly engaging and recognizable and will not only bring awareness to our new partnership, but will bring brand awareness to the Red Bull North America brand with the intent of driving sales at City owned venues, resulting in higher consumption and financial rebates back to the City. 3. Vending Sales Rebates — Red Bull North America will contract with a third-party vendor to execute city wide vending services. The City will receive a vending rebate of$5 /per case for each - case sold in vending machines placed on City property or within City venues. The Administration is in support of this benefit as it was not included as part of the initial agreement and will further increase revenues to the City by allocating $5 from every case of Red Bull sold in vending machines,back to the City in the form of a rebate. 4. Advertising Benefits. Red Bull North America shall have the following advertising benefits, which do not have an actual out-of-pocket expense to the City: (1)one (1) royalty free advertisement in any City-produced event collateral as the "Official Energy Drink of Miami Beach"; (2) one (1) royalty free Red Bull North America PSA or message per year to be aired on MBTV; and (3)one (1) royalty free Red Bull North'America PSA or message per year to be aired on the Miami Beach trolley video screens,with above advertising benefits having no additional costs to the City; and The Administration was in support of all of the above-mentioned advertising benefits as they would draw ' attention to our new partnership, while elevating the Miami Beach brand and driving consumption and sales, resulting in higher revenues for the City. On July 20, 2022, the Mayor and Commission adopted Resolution No 2022-32221 (attached) authorizing Page 337 of 1292 the City Manager to include the additional business terms in the agreement with Red Bull North America. As negotiations continued, the Administration was made aware by Red Bull North America in November 2022, that due to a change in their corporate structure, the City would be required to enter into three separate agreements in order to fulfill the original pouring rights proposal put forth, as Red Bull North America was no longer the distributor of their products, nor did they have an internal vending arm of their corporate entity. As such, the Administration worked with Red Bull North America to source two suitable, Red Bull authorized vendors who would be able to fulfill the Distribution (product purchase) and Vending portions of the original proposal. ANALYSIS The Administration and Red Bull North America have worked together to source and negotiate with two third party vendors who have agreed to the business and financial terms set forth in the original Red Bull North American exclusive pouring rights proposal, and who have also agreed to the legal terms and requirements necessary to enter into a legally binding agreement with the City. As such, the Administration is recommending that the Mayor and Commission approve and authorize the City Manager to negotiate the following agreements: • 1) Execute an agreement with Red Bull North America for the sponsorship and marketing components of the proposal-draft contract attached as"Red Bull Pouring Rights Sponsorship Agreement". 2) Execute an agreement with Red Bull Distribution Company for the purchase and distribution of product, as per the financial terms set forth in the original proposal - draft contract attached as "Red Bull Pouring Rights Distribution Agreement". 3) Execute an agreement with Bettoli Trading Corp.,for the vending machine services portion of Resolution No 2022-32221 -draft contract attached as "Red Bull Pouring Rights Vending Agreement". SUPPORTING SURVEY DATA N/A FINANCIAL INFORMATION The business and financial terms of the original Red Bull North American proposal would not change with this resolution. All three parties have agreed to the original terms set forth below, and are included within their respective agreements: Term: 5 years Sponsorship fee: $75,000 per year paid within 30 days of contract execution. Commissions/Pricing/Rebates: Rebate Bonus: $5 per case purchased, paid quarterly. Volume Bonus: $25,000 paid at 10,000 cases, additional $25,000 for each additional 5,000 cases. Pricing-$36/case for 24 x 8.4 oz cans Sample Product— 15,000 cans at $3/can for CMB employees, and 30,000 cans at $3/can at mutually agreed upon occasions. Page 338 of 1292 RC'LTtSQLL Volume Product YEAR Sponsorship Rebates Bonus Commitment TOTAL 2022 $75,000 $20,000 $25,000 $135,000 $255,000 2023 $75,000 $20,000 $25,000 $135,000 $255,000 2024 $75,000 $20,000 $25,000 $135,000 $255,000 2025 $75,000 $20,000 $25,000 $135,000 $255,000 2026 $75,000 $20,000 $25,000 $135,000 $255,000 $375,000 $100,000 $125,000 $675,000 $1,275,000 Applicable Area Citywide Is this a"Residents Right Does this item utilize G.O. to Know" item, pursuant to Bond Funds? City Code Section 2-14? No No Strategic Connection Non-Applicable Legislative Tracking Marketing and Communications ATTACHMENTS: Description ❑ Resolution 2021-31965 ❑ Resolution 2022-32221 ❑ Red Bull Pouring Rights Sponsorship Agreement ❑ Red Bull Pouring Rights Distribution Agreement ❑ Red Bull Pouring Rights Vending Agreement ❑ Resolution Page 339 of 1292 RESOLUTION NO. 2021-31965 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, WAIVING, BY 5/7TH VOTE, THE FORMAL COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY, AND AUTHORIZING THE CITY MANAGER TO NEGOTIATE AN AGREEMENT WITH RED BULL NORTH AMERICA, INC. (RED BULL), AS THE EXCLUSIVE ENERGY DRINK SPONSOR, TO INCLUDE POURING RIGHTS, MUNICIPAL MARKETING, VENDING AND DISPENSING ON CERTAIN CITY-OWNED PROPERTIES, BASED UPON THE ESSENTIAL TERMS SET FORTH IN THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION, FOR A TERM OF FIVE (5) YEARS; AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE AGREEMENT, SUBJECT TO FORM APPROVAL BY THE CITY ATTORNEY. WHEREAS, the City's municipal sponsorship agency, Global Spectrum L.P. ("Spectra Partnerships"), worked with City staff to identify priorities for their efforts in securing municipal marketing partners, and identified non-alcoholic beverage partnerships as a target category, and; WHEREAS, Spectra Partnerships initiated a selection process to identify and recommend an exclusive / official non-alcoholic beverage partner for the City, with the goal of identifying a partner that would be interested in a brand affiliation relationship with the City, and providing a marketing benefit to both parties, as well as revenue generation for the City; and WHEREAS, Spectra Partnerships initiated a process that involved the initial identification of potential respondents; an invitation for those companies to submit proposals; the selection of the best potential partnership offers for the submission of a "best and final" offer; and the recommendation of a final offer for the City to consider; and WHEREAS, Spectra Partnerships invited the top three (3) national entities in the non- alcoholic beverage category to submit "best and final" offers and, subsequent to their submission and presentation, recommended to the City the selection Red Bull North America, Inc. (Red Bull) as the City's exclusive energy drink sponsor to include pouring rights, municipal marketing, vending and dispensing rights on certain city-owned properties, based upon the essential terms set forth in their proposal, attached as Exhibit "A" to the City Commission Memorandum accompanying this Resolution (the "Proposal"); and WHEREAS, Spectra Partnerships analyzed the Proposal and advised City staff that an agreement with Red Bull would provide a financial and marketing benefit of more than $1,275,000 to the City over the proposed five-year term of the partnership (cash and non - cash value); and WHEREAS, based upon the foregoing, the City Manager recommends waiving, by 5/7th vote, the formal competitive bidding requirement, as permitted in Section 2-367(e) of the City Code, and authorizing the City Administration to negotiate an agreement with Red Bull for a term of five (5) years, based upon the essential terms set forth in the City Commission Memorandum accompanying this Resolution. Page 340 of 1292 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby waive, by 5/7th vote, the formal competitive bidding requirement, finding such waiver to be in the best interest of the City, and authorize the City Manager to negotiate an agreement with Red Bull North America, Inc. (Red Bull), as the exclusive energy drink sponsor, to include pouring rights, municipal marketing, vending and dispensing rights on in certain city-owned properties, based upon the essential terms set forth in the City Commission Memorandum accompanying this Resolution, for a term of five (5) years; and further authorize the City Manager and City Clerk to execute the agreement, subject to form approval by the City Attorney. PASSED and ADOPTED this 8th day of December 2021. ATTEST: _ "" P- IW :PP 1R.11ER! - Dan Gelber, Mayor R, ,,y� H 2n�c'= Raf el E. anado, City Clerk DEC 1 3 2021 APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ta.kAtt Page 341 of 1292 L fcity Attorney Date Resolutions -R7 AB MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Aline T. Hudak, City Manager DATE: December 8, 2021 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, WAIVING, BY 5/7TH VOTE, THE FORMAL COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY, AND AUTHORIZING THE CITY MANAGER TO NEGOTIATE AN AGREEMENT WITH RED BULL NORTH AMERICA, INC. (RED BULL), AS THE EXCLUSIVE ENERGY DRINK SPONSOR, TO INCLUDE POURING RIGHTS, MUNICIPAL MARKETING, VENDING AND DISPENSING ON CERTAIN CITY-OWNED PROPERTIES, BASED UPON THE ESSENTIAL TERMS SET FORTH IN THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION, FOR A TERM OF FIVE (5) YEARS; AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE AGREEMENT, SUBJECT TO FORM APPROVAL BY THE CITYATTORNEY. RECOMMENDATION The administration recommends waiving, by 5/7th vote, the formal competitive bidding requirement, as permitted in Section 2-367(e) of the City Code, and authorizing the City Administration to negotiate an agreement with Red Bull for a term of five (5)years, based upon the essential terms set forth in the City Commission Memorandum accompanying this Resolution. BACKGROUND/HISTORY The City has an agreement for pouring rights with Coke Florida as the non-alcoholic beverage partner. Pouring rights refers to dispensed non-alcohol beverages or beverages sold via concession, as compared to those being sold through a vending machine. This agreement was approved by the Commission on March 14, 2012 and is set to expire on December 31, 2021. The City's municipal sponsorship consultant, Spectra Partnerships, initiated a selection process for new non-alcoholic beverage partnership opportunities for the City. Spectra Partnerships has developed and cultivated successful non-alcoholic beverage partnerships for 150+ clients across North America and has identified multiple opportunities to grow the financial, brand, product, and sustainability contributions for both the City and its residents and visitors. Current Opportunities: Comparable to the previous partnership, the selected entity would have exclusive category FRigit 3l 6f0f24 vending and pouring rights at all pre-determined City owned facilities, including those currently managed by third parties, including, but not limited to the Miami Beach Convention Center, the North Beach Bandshell and Flamingo Park Tennis Center as examples. The management or contracted companies for these respective City facilities will be required to comply with any of the City's selected category sponsors, with all revenues relating to sponsorship and commissions, as well as marketing support, to benefit the City directly. Process: Spectra Partnerships managed the process relating to the exclusive beverage partner program on behalf of the City, beginning with initial identification of potential respondents; an invitation for those companies to submit proposals; the selection of the best potential partnership offers for the submission of a"best and final" offer; and the recommendation of a final offer for the City to consider. Spectra Partnerships' involvement has included being the day to day contact for proposers as well as facilitating all administrative functions, analysis of comparable partnerships, negotiation on sponsorship deal points, and providing these potential partners with information relating to the City and opportunities. Spectra Partnerships also gathered information on current venues, volumes, and deal structures. Proposal Components: Spectra Partnerships advised prospective proposers of the City's interest in an energy drink partner and the availability of opportunities from this partnership. Spectra Partnerships also advised the prospective proposers of the City's interest in securing a partner that provided an annual sponsorship fee, a comprehensive marketing plan, and a sustainability and recycling strategy to enhance the presence of both the partner brand and the Miami Beach brand to ensure the executed agreement was a 360 degree integrated plan, and not simply an exchange of money. Red Bull North America, Inc. (Red Bull)submitted a five-year proposal. ANALYSIS Best and Final Offers: Based on Spectra Partnerships review, Red Bull presented a proposal that provided a combination of an annual "sponsorship"fee, commissions on sales, and a rebate program. Red Bull also provided preferred product pricing, as it was essential that proposed pricing be competitive with current pricing in the overall market and at City of Miami Beach venues. The proposal also delineated potential marketing opportunities from the partnership. Below are the major components of the proposal: Term: • 5 years Sponsorship fee: • $75,000 per month paid within 30 days of contract execution. Commissions/ Pricing / Rebates: • Rebate Bonus: $5 per case purchased, paid quarterly. Volume Bonus: $25,000 paid at 10,000 cases, additional $25,000 for each additional 5,000 cases. • Pricing -$36/case for 24 x 8.4 oz cans • Sample Product— 15,000 cans at$3/can for CMB employees, and 30,000 cans at$3/can at mutually agreed upon occasions. X iVfc4211454 Sustainability: • 80% renewable energy in the manufacturing process. • Red Bull cans are made of up to 100% recycled aluminum. • Red Bull cans are 100% recyclable. Secondary packaging (carton and foil) is made up of up to 100% recycled material and is 100% recyclable. Marketing: • Red Bull offers some of the world's most recognizable branded events and marketing efforts and will look to partner with the City across multiple activations which could include F1, athlete collaborations, and the Red Bull Air Force. Red Bull is committed to exploring all activations with the City as they are currently building out their 2022 and beyond activation strategy. PROPOSAL: Exhibit A outlines the sponsorship proposal submitted by Red Bull. The proposal delineates the general responsibilities of each party during the term of the Agreement. As noted, several points remained under discussion at the time this agenda item went to print, pending further clarification and agreement by Red Bull's and the City's legal teams on proposed language submitted by all parties and to be confirmed in the verbiage included in the final contract. The final contract will also include all confirmed locations of potential vending equipment. Estimated Total Value: Red Bull was founded in 1984 and controls the largest share of the energy drink category in the global beverage industry with over 7.9 billion cans sold in 2020. As reflected in the attached proposal, the estimated total value of the proposed energy drink sponsorship partnership with Red Bull over the term of the agreement is approximately $1,275,000, inclusive of the annual sponsorship fees ($375,000), can rebate ($100,000), volume bonus ($125,000) and sample product value ($675,000). The following charts provide a breakdown of the value of the proposed partnership between the City of Miami Beach and Red Bull (cash and non-cash): RED BULL Volume Product YEAR-, ponsorship Rebates I Bonus Commitment I TOTal, 2022 $75,000 $20,000 $25,000 $135,000 $255,000 2023 $75,006T $ @,@@® P 25,000 01)35,000 $,255,000I 2024' , $75,000 $20,000 $25,000 $135,000 $255,000 2025 $75,000 r Mo),000 $25,000 01135,000 $*255,000 ', 2026'. $75,000 $20,000 $25,000 $135,000 $255,000 $375,000J1 N00,000 0125,000-1 $675,000f0I,275,000 Requirements of City: Page Mtnfof39I4 As is common in these types of partnerships, there are certain expectations with regards to the non-alcoholic beverage partner's role. In addition to supporting the efforts of expanding the sales of the products through city-owned vending locations and venues, support will include: recognition of the partnership as the official energy drink of Miami Beach; exclusive sampling rights on public rights of way, with a waiver of certain permit and application fees for a limited number of sampling events on public property (mutually agreed upon and to be determined in the final contract); recognition of the integrated logo, with a right to use the logo; City use of only Red Bull energy drink products at City events (the agreement negotiated will be subject to any existing contractual rights that the city has with other parties, and will allow the City a certain number of waivers per year. Spectra Partnerships, in conjunction with the administration, recommends that the City enter negotiations with Red Bull as the City's official energy drink partner, pursuant to the proposal in Exhibit A. SUPPORTING SURVEY DATA N/A Applicable Area Citywide Is this a "Residents Right Does this item utilize G.O. to Know" item, pursuant to Bond Funds? City Code Section 2-14? No No Strategic Connection Non-Applicable Legislative Tracking Marketing and Communications • ATTACHMENTS: Description ❑ Exhibit A- Red Bull Proposal ❑ Resolution FPage31228fc1 4 _.__ __ __ , ,,.. al'2 F:b r 1' V "Y MY� ;r 7 Id "';.Vh1M , 5 . 5. !:. .t' - �1 ',,.lhs� D.A�f'Fk'.t •...¢ 7 -i: N��� 1rSG JI'.y� ..'1,....*'':-,,, ,-,.; ''''''''':',,--.- 7 �� �J� R � y,ED,,,,/,, � ii��� am°,-, :::—; � 7Pt r'f�r� i ��� �,y� �'^� ''�`�� �� ��� � r l�F. w {,w'^;.�,'ug� iim o , a PR r.P S �I N1E TM E NITS .�Fc,M6�o' .; ," i'A }, " „a t' "�� , �/ * ,,,, :F^ff / i u, 1 ailµ„ 1 ` _ s.,. 'i ai5 ;ro'�' S`n.�;y s I': {� ,la„ I..t �� —^oti l,r f,J i`/;,- f ,,,r;1 •l �'a. . N.. ^• " F , f ',. V f%r ,- ,,,��.. f. ro!.L, ens ht �'W" r. x i 1 f..'1 1 I ,:' ,,i i;i.'.'/t, t 1 �. oat,Ao. .: µ'. — _—.✓ _� a� `� Yam. IC CASH COST OF GOLDS ' 1 ! [ITI MAR'KETING SUPPORT , — 4 �q _r r k > 3 l �hw 1 1 .wr r. �' Y. si'li r I 4 ;V } 1 �rm r. ? 'd� , a w"a 'A f��� {� • qw ._-'� I `� s 1. r.:et_ ,_,, if _ ' 1i , ,. pc Jo- anti � J ,,/ •1 ; , ti= Mite ....9 f '�:..%" 3 iI fr '• d1" Lac' a r" . ��$,Ii � `� r, ���' .v: '".---•-. if . • v 0 5 • 4 r ar s,gqs f liI I EVENT CAR ( ' 1 COMPLIANCE PAYMENT 4 75K0 REBATE EST.20K MERCHANDISING POS N/A ATHLETE ACTIVATIONS II/r'-''7 REVENUE INCREASE EST.360K4 SAMPLE PRODUCT 135K ,-' EVENT ENHANCEMENT-3 100K 1 Fl ACTIVATION '': a 1I1111 { , * J r • 4 •Fl1� EST. 100K M EST. 790K INCREASE FROM ENERGY CATEGORY w 4 i � ti ...................... _. __ _ _ _s__ _ _ ' 1 _______,,...,. ... „..,,,,-6 ri ';',.e.",,, ;,, t.' -4 lw ,.., _ a AAe:>.a,xb dltkse ' . m _ - - --- -1 t .. 4 " Ka -4.avi tq Olfk Y ,ur'. ti '' ' i "'...-,:4::* �.i9 aa► ��! 4 IM•jIr F t r iA lr: Pago $M240$f1 4 ?,-:_tr.--.$ :.4. ,S .1.‘ ("'--.---.A Mit , , -y ,. A - - Tourine. d ,1 '.�_ .3Hycarbonated. +' ' ..,C 7 , : . _. _ .i. ',.,'..ir ."-':. '..c rbc (ASH & , COST OF GOODS , • f ,r i „., ,r. e ( Ce R .ri t:t.-' :;7-:c''''' E RG� in ° iy 0 , 1, J _ 1 Dr • i . AL o ''.0Yd 'rI Vitalizs4ody and, ' • Rag@ /25)6fl$4 4 J 'r y^ Y !1 e . •11OF GOODS dWM' fr •. f" i4. 4 t, { '! • n 4 a wS .,'"V I. CASH COST OF GOODS SAMPLE PRODUCT EXECUTION BONUS I APPROVED DISTRIBUTORS ; . CITY OF MB EMPLOYEES ,,,,:,..mura.:1: • $75K PAID WITHIN 30 DAYS OF - BREAKTHRU BEVERAGE �R„*�'` I • • LLg • 15K CANS @ $3 A CAN CONTRACT EXECUTION 4' , • RBDC � d'�ii ,,t • SYSCO CITY OF MB CONSUMERS REBATE . )� P-';°,...., - •• 30K CANS-@ $3 A CAN • $5 PER CASE PURCHASED, PAID w PRICING • r : • MUTUALLY-AGREED UPON N30 QUARTLERY 41" • $36/CASE `='� :• - OCASSIONS AS TO;NOT _ . 7' • 24 8.4 OZ CANS . CANABALIZE SALES . VOLUME BONUS u , r . $.25,000 PAID AT 10K CASES, � ,i VENDING ADDITIONAL $25,000 EACH ' ' 3RD PARTY VENDOR SELECTION . - ' . ADDITONAL 5K CASES UP TO SPECTRA I3@Q@ 44§6)6fl 44 4 IIler, SALES INCREASE sok PROFIT PROJECTION - UPDATED 16 OZ MONSTER CURRENT Ill' 65KCONSIDERATIONS SELLING $1.43 ASSUMES AVERAGE SELLING PRICE OF$4.5 ® NI .?ER �) PROFIT ON 600 CASES SITUATION ,,, , COST PER CAN PER 16 OZ MONSTER CAN t$n i e ".® AT$4.5 PER CAN • MONSTER NOT AVAILABLE AT ALL OUTLETS OR EXECUTED WELL DURING EVENT LANDSCAPE. 8.4 OZ RED BULL CONSIDERATIONS , ; 432K PROPOSED ;. `� . - = 1: 4. ASSUMES AVERAGE SELLING PRICE OF$4.5 SELLING S1 ,•� • ® � � �.� ��1- PROFIT ON�1(CASES ® PER 8.4.SITUATION30 COST PER CAN RedD,,l a ! SOLD 50PERNSSUN CONSUMERS • FOR PRICAL DO SF APPEN IX COUNTS USED •-.41i�-•. Page gobf12424Wili - • •.f - 1 A h t I 4. ,�, Taurine. , �',' -,it ., f I. 'yklycarbonofed. 'r r . 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Iir rlY�,r/�UUt '� ;1 '`a@ ,`,\}} t I 1-}�'1�y '`�; \{ `I. vtv ' '` •44 l •~I j r".rr r , -r t;.;S ",•*''� , i !. j�,}� 1 f !1�, � f `,,! r % 4 . F��e "t1. Y h, - ' h Il a �, c F Y 4D, r;, ::�✓' rs1Zry. tr ` C`' I• • ��'v kc-s:t� ky f ►• Z` '? 4,7 :: . . r,,-� ;1, c , c. - ._,,:4.92.:c!{l r" �^ � - /it f A �'j �' r_ .� '4I A Y !..'.\,� -I '�,� i _t l ,T, 7.1...,,mmK.-mi. '.''',,,W,J0, ;14:1C1'-;;-A.. -- 1... 4^ } !1), Y I h 41 Tourine. )=i ,fly carbonated. ' ', � 1 n t 5(1 • ;r d tp t S USTAINABILITY , ., .. - 9 J1.., .,. .J� ..F f. 1 it '' k 'Af d-L 3 iir 1 7. A. , I A r ?ti t2+ S V y; r1. 1,)r �o ;r -)r • `¢ r.0' + Itahz� •y,crn 1.', Vital ie ody and ;o •. ,- -_ fir,. Page 304®bfl 3484 ilir SUSTAINABILITYAT RED BULL siv4 . _ . .. . s<,-,,,, WE USE MORE THAN 80%RENEWABLE ENERGY AND ARE EXPANDING THE USE CONTINUOUSLY. _ ...,, , . \f) 1 J x\ •+�.• / ! • t J ✓ OUR CANS ARE MADE OF UP TO 100%RECYCLED ALUMINUM. REGARDING c a. , ENVIRONMENTAL n4 R. En4,,!, RESPONSIBILITY... 'h i' RED BULL CANS THEMSELVES ARE 100% RECYCLABLE. 'i . ' 6 WE ARE CALCULATING SOUR If' ' ENVIRONMENTAL FOOTPRINT i _ j t' `a ' • r`" '` THROUGHOUT THE SUPPLY CHAIN ,t>, E.0, J AND ARE TRYING TO REDUCE IT SECONDARY PACKAGING,SUCH AS THE CARTON AND FOIL,IS MADE UP OF UP TO t,: CONTINUOUSLY. 100% RECYCLED MATERIAL,AND IS 100%RECYCLABLE. � . '', :q; i' /% r'. ":'1::'''' , ' ,',,, '' %:- i / 1 ). , , :Vitalizes body and j P q Mictifl1484 i;Z:1_1 11 'h Taurine. + ,,it''y CofbOROf77 ed. ti 'J•e d`'i a p -7-. ' r A ti.f2t:WHAT IS IN THE CAN , - , i- , . i.vt,•`c,..,..-,:-,'',;,';?i.',.',.,' ( 14.,i ,ac?,—'..'....0-*,.q.0..;),',,, 'I ,CAN ? ; rig 1 r , ;f 1 r n 4. x c;c y t S1 = E'ERG pp i Rt eo • 5( o ` ital'z== o•y_and"i• Vitalizes body andii -: ' • Sege ?�$2o f 4 WHAT'S IN THE CAN? 0 __ _ ., ' 13 : , A . , . , ., , , , . . . , TAURINE B-VITAMINS CAFFEINE SUGAR An amino acid found naturally B-Vitamins play an important Caffeine's primary site of Well known carbohydrates in the human body and role in energy-yielding action in the human body is the (basic nutrients)that are involved in a wide range of I metabolism,such as the build central nervous system where it consumed in the daily diet. Ebiological processes. up and breakdown of stimulates cognitive functions. I � carbohydrates and proteins. v f:. TAURINE IS PRESENT IN FOOD 0), o CAFFEINE IS FOUND NATURALLY THE SUGARS IN RED BULL ARE LIKE SCALLOPS,POULTRY AND �' EVEN BABY FOOD. Q IN OVER 60 PLANTS WORLDWIDE REAL SUGARS 4 _ - ice_ CAFFEINE CONTENT OF POPULAR BEVERAGES ' THE AMOUNT OF CAFFEINE IN A CAN OF RED BULL IS SIMILAR TO THE AMOUNT IN A HOME BREWED CUP OF COFFEE 450 4.15 400mg FDA,Health Canada, EFSA's opinion on safe moderate daily consumption for healthy adults 400 -- 350 330 W ,z 300 ct in. v 250 210 200mg FDA,Health Canada, EFSA's opinion on safe single serving for healthy adults a 200 --- - 180 150 100 95 80 so 47 34 32 Ir If l SC CIO . LARGE COFFEE HOUSE DRIP MEDIUM COFFEE HOUSE DRIP ENERGY SHOT SMALL COFFEE HOUSE DRIP HOAlE-BREWED DRIP COFFEE . RED RULE ENERGY DRINK SLACK YEA TYPICAL COLA ORGANICS DI RED BULL SIMPLY COLA 20 FL 02 , 16 FL OZ 2FL0Z 8F10Z - ' - - •8FLOZ BA FLO2 8FL02 12FLOZ 8 FL OZ • http://ndb.nal.usda.gov/ndb/search/list?glookup=19902 Page Ma4Dbf13484 SUGAR CONTENT OF POPULAR BEVERAGES • ONE CAN OF RED BULL CONTAINS ABOUT THE SAME AMOUNT OF SUGAR AS A GLASS OF APPLE JUICE 60 56 53 52 50 46 40 39 40 35 32 Q 30 27 0 0 I 20 16 10 Ii CRAN•GRAPE TUNE BLENDED FRUITNICE OTHER ENERGY DRINK. DEYIEY SODA COLA RED FULL ENERGY DRINK SPORTS DRINK VITAMIN ENHANCED WATER RED DULL ENERGY DRINK NGIIT SWEETENED TEA COCONUT WATER 15.2FLOZ 16FL0Z I6FL0Z IDFLOZ 12FLOZ I2FLOZ '20FL0Z 20F10Z 9,4FL0Z 16100Z 11FL0Z " • Source:Source:Food Chemistry,H.A.Belitz;W.Grosch,P.Schieberle,third edition(2004),Springer•Verlag,Stiftung Warentest(7/2012);USDA Nutrient Database Pug@ N�5)bfl 0g4 TRUSTED THIRD PARTY CERTIFICATION -' , r_ONAi L '"'' RED BULL 1 1 i , C v*dW PRODUCTS ARE r,., ...is an independent and accredited non- , :. , ,. ,� governmental organization whose mission is "to , �.p ,� protect and improve global human health". —OR S'1" Rc © MEANING OUR { `,, r t: PRODUCTS ARE TESTED :z 14 FOR OVER 270 ATHLETIC f � �� � RED BULL HAS BEEN NSF CERTIFIED . .�.- i .e t ,Qt, BANNED SUBSTANCES FOR SPORT SINCE 2006. ,� , �d�11x FROM THE WADA, NFL, •i t Red Bull is the first and only energy drink to have AND MLB PROHIBITED this certification. "vt SUBSTANCES LISTS.® a, For more information visit www.nsfsport.com 1Jl 1 J °� certified for Sporty Paw IIMEabfl'24Q4 `:?.---Z-1--.5 \„.91,29i . la l' t4 • r�' ,I aaTaurine. . -: ' . 44. � r ,5,iycarbonated.. , f ` �` ,`'1 r Js:, r Q r', a ,./.,y,,w Y ;a R t . ENERGY CATEGORY . , . .f' 7.b tk.%) j �R V - .. 3/ --: :-." iro I''.::?Iii;'10 Ilit; PERFORMANCE . , ,..,. . ,....., ..,•4C,.' p; , f.,el, - .4.. .,,,' ,'„, JTillkf f 1 J 1 f 1 A PI- r. + 'Cr L. I . , L f)l e ita IZ- ody and tr,1' , Vitah{z s body and th . , - " • ' 1 r 5 ENERGY LEADS TOTAL BEVERAGE GROWTH YTD oi. ENERGY UP A FULL $ SHARE POINT OF TOTAL BEVERAGE M I NT E L CATEGORY $ GROWTH - MULO+C 0 $ SHR CHANGE VS YA $503 M $314 M , $152M $140M $105M .. $89M I -4 J + :, ' ; , m : $3 3 M -$87M SPARKLING ENERGY CSD BOTTLED WATER WATER COFFEE ISOTONICS TEA JUICE 1 .0 0.3 0.2 0.0 -0.3 -0.1 -0.1 ! -1 .1 IURCE:RI MUtO+C Y10 W.E 5.19.2019 • pir RED BULL HOLDS 6/ 10 TOP ENERGY SUBBRANDS ALL SKU AND PACKS SIZES TOP 10 ENERGY SUBBRANDS YTD #1 #2 #3 #4 #5 #60 #8 #9 #10 . •: fPUf _ . "Ilj ` . 1 31; THE ` !m 5 / � � - { U�e k. a'1.y1.I- �'�- . in ,. D M C i .rye a y� 4 rrNC:/ {tHE jL` 4f ;� ' i.EDITION S PL_I,1�{J1 [rIto ''SUG'' ,i 'W I �I • c. EDI:':'3PJ Ziii. 'TtQN ,.,.. •- Z ., ... I s..,.,,t :i.,. fil , ,,, ra ` NITER sr-,-.,�- ', `'�-tY �,", ZI ``i iZ '1c�! 1i01 .,a4.e�,,l►%"•� ',,, ',,"'' At '', -------; ENERGY DRIN< ¢{� dp" e J El ENERGY DiR!( W ENERGY DRINK ` R1IoU1'11)4,: , 11: ,•7. dred.v _ r,47;;:a1 ..Ise:.J,:t III)vn:..k.4,4,pe' t• YTD ;ALES $392 MM $232 MM $118 MM $103 MM $47 MM $33 MM $32 MM $28 MM $26 MM $26 MM V WTD 99 99 95 97 79 86 86 79 80 75 DIST IURCE: IRI Total US MULO+C YTD WK DATA ENDING 02-23-20 P&P f2494f1 AV& 4,,,, cm. IIIWitk RED BULL LARGEST SINGLE SERVE BRAND IN US MULOC o RED BULL DRIVING MOST /o GROWTH, MONSTER AND MTN DEW DECLINING TOP FIVE SINGLE SERVE BEVERAGE BRANDS - FY 2019 #1 i #2 #3 .; #4 #5 *4k !; I ( , a ,i ce,e,46-x- . ,,,,,fre _, Red Bull® oMILY GATORADE �� SALES $4.5 B $3.8 B $3.1 B $2.7 B $2.0 B CHG +7.1 % -1 .0% +2.3% +3.9% '` -3.8% 1 $CHG +$93 M -$38 M ` +$70 M +$102 M -$80 M JRCE:IRI TOTAL US MULO+C YTD DATA ENDING 12.29.2019 27 Mgt Utobf as 4 RESOLUTION NO. 2022-32221 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,AMENDING RESOLUTION NO 2021- 31965, AND APPROVING THE NEGOTIATED TERMS OF THE CITY'S AGREEMENT WITH RED BULL NORTH AMERICA, INC FOR THE EXCLUSIVE ENERGY DRINK POURING RIGHTS CATEGORY, AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE FINAL AGREEMENT WITH RED BULL NORTH AMERICA, CONSISTENT WITH THE TERMS SET FORTH HEREIN. WHEREAS, the City of Miami Beach (the "City") entered into a sponsorship agreement, dated March 14, 2012 (the "Agreement"), with Coca-Cola North America, a division of the Coca- Cola Company, and Coca-Cola Refreshments USA, Inc. d/b/a Florida Coca-Cola Bottling Company (the "Bottler") (collectively, "Coca-Cola") for a term beginning January 1, 2012 and ending on December 31, 2021; and WHEREAS, on March 1, 2017, the Mayor and City Commission adopted Resolution No. 2017-29774, approving the assignment of the Bottler's interest in the Agreement to Coca-Cola Beverages Florida, LLC, as the successor Bottler, in connection with the sale of Bottler's assets to the successor Bottler; and WHEREAS,the parties executed an assignment and assumption agreement,dated March 29, 2017, assigning Bottler's interest in the Agreement to the successor Bottler; and WHEREAS, on January 13, 2021, the Mayor and City Commission adopted Resolution No. 2021-31541, approving an amendment to the Agreement ("Amendment No. 1"); said Amendment removing the City's requirement to purchase a minimum of 22,500 cases of Coca- Cola product per Agreement Year for the 2020 and 2021 Agreement Years; guaranteeing that the City would receive the full Sponsorship Fee for the 2020 Agreement Year, in the amount of $325,000.00; and reducing the Sponsorship Fee that Coca-Cola would have to pay the City for the 2021 Agreement Year from $325,000.00 to $195,433.33; and WHEREAS, the Agreement expired on December 31, 2021; and WHEREAS, in order to explore all opportunities for a non-alcoholic pouring rights partnership,while ensuring continuity of services and maintenance of existing equipment, the City and Coca-Cola agreed to extend the Agreement, on a month to month basis, commencing on January 1, 2022, for a period not to exceed six (6) months (June 30, 2022), and to remove the energy beverage category from the scope of the Agreement; and WHEREAS,Spectra Partnerships initiated a selection process to identify and recommend an exclusive/official non-alcoholic beverage partner for the City, with the goal of identifying a partner that would be interested in a brand affiliation relationship with the City, while removing all plastics included in the proposals for the soda and water categories, and providing a marketing benefit to both parties, as well as revenue generation for the City; and Page 373 of 1292 WHEREAS, Spectra Partnerships initiated a process that involved the initial identification of potential respondents; an invitation for those companies to submit proposals; and invited entities in the nonalcoholic beverage category to submit"best and final" offers; and WHEREAS, subsequent to their submission and presentation, Spectra Partnerships recommended to the City the selection of Red Bull North America as the City's exclusive Energy Drink beverage sponsor; and advised City staff that an agreement with Red Bull North America would provide a financial, marketing and in-kind benefit of an approximate amount of $1,275,000.00 to the City over the proposed five-year term of the partnership (cash and non-cash value); and WHEREAS, on December 8, 2021, the Mayor and City Commission adopted Resolution No. 2021-31965, waiving, by 5/7th vote, the formal competitive bidding requirement, and authorizing the City Manager to negotiate an agreement with Red Bull North America, for an exclusive pouring rights energy drink category municipal marketing agreement, for vending and dispensing on certain City-owned properties, based upon the following essential terms: RED'BULL Product YEAR ' Sponsorship Rebates Volume.Bonus Commitment TOTAL 2022 $75,000 S20,000 . S25,000 S135,000 ' ` $255,000 2023 ' $75,000 $20,000 S25,000 S135,000 $255,000 2024 $75,000 $20,000* S25,000 $135,000 $255,000 2025 $75,000 $20,000 S25,000 S135,000 $255,000 2026 , $75,000 $20,000 S25,000 $135,000 $255,000 $375,000 $100,000 $125,000 $675,000 $1,275,000 (1) Term: 5 years; (2) Sponsorship fee*: $75,000.00 per year, starting in 2022; (3) Rebate Bonus-: $5/case or gallon purchased, paid quarterly; (4) Volume Bonus: $25,000 paid at 10,000 cases purchased, and an additional $25,000 each additional 5,000 cases (5) Full-Service Vending Rebates - $5 / case for all cases sold through Red Bull's third-party vending supplier; (6) Sampling Product-$135,000(retail value)in sampling product as mutually agreed to between both parties so as not to affect existing product sales; (7) Complimentary Product - up to 625 cases (15,000 x 8.4 oz cans) of free product (not cash convertible); (8) Value of sponsorship over term of the Agreement (for cash and non-cash), in the amount of$1,275,000.00, inclusive of the annual sponsorship fees ($375,000.00); can rebates ($100,000.00); volume bonus ($125,000.00); and sample / complimentary product value ($675,000.00); and Page 374 of 1292 WHEREAS,following the March 9, 2022 City Commission meeting, the City and Red Bull North America entered into further negotiations, and agreed to additional essential business terms,which include providing Red Bull North America with certain benefits in order to incentivize Red Bull North America to bring large events, meetings and sampling activations to Miami Beach; increase awareness of the partnership; increase brand awareness around both brands; and drive sales, therefore increasing revenues for both the City and Red Bull North America; and WHEREAS, in addition to the benefits outlined in their Proposal, the City and Red Bull North America have agreed to the following additional essential business terms: 1. Waiver of Special Event Permit and/or Permit Application Fees. Red Bull North America shall have the use for up to two (2) mutually agreed upon event(s) per year, based on availability,for a value of up to a maximum of$25,000.00 per event, all in accordance with the City Code, and will not include the waiver of any hard costs, all of which shall be the responsibility of Red Bull North America; and 2. Two(2) Product Sampling Permits per Month. Red Bull North America shall have the right to use a maximum of twenty four (24) product sampling permits per year, which will not include all other fees and costs of production, including but not limited to taxes, police, security, sanitation, etc., all of which shall be the responsibility of Red Bull North America; • said permit waivers having a value to Red Bull North America, in the amount not to exceed $60,000.00, based upon 24 waivers per year (maximum two per month), with an approximate value of$2,500.00 each; and 3. Vending Services and Rebates. Red Bull North America will contract with a third-party vendor to execute city wide vending services. The City will receive a vending rebate of$5 /per case for each case sold in vending machines placed on City property or within City venues; and 4. Advertising Benefits. Red Bull North America shall have the following advertising benefits, which do not have an actual out-of-pocket expense to the City: (1) one (1) royalty free advertisement in any City-produced event collateral as the"Official Energy Drink of Miami Beach"; (2) one (1) royalty free Red Bull North America PSA or message per year to be aired on MBTV; and (3)one (1) royalty free Red Bull North America PSA or message per year to be aired on the Miami Beach trolley video screens,with above advertising benefits having no additional costs to the City; and WHEREAS, based upon the foregoing, the City Manager recommends approving the additional essential business terms for the agreement with Red Bull North America. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby amend Resolution No. 2021-31965, and approve the negotiated terms of the City's Agreement with Red Bull North America for the exclusive energy drink pouring rights category; and further authorize the City Manager and City Clerk to execute the final agreement with Red Bull North America, consistent with the terms set forth herein. Page 375 of 1292 PASSED and ADOPTED this 20 day of July 2022. ATTEST: JUL 2 5 2022 Dan Gelber, Mayor Raf el . Granado, City Clerk k1NCORP OKAYED; i APPROVED AS TO 14"' FORM&LANGUAGE " H 6`''`�' FOR EXECUTION — I --t2 City Attorney Ott Date Page 376 of 1292 Resolutions-C7 J MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Alina T. Hudak, City Manager DATE: July 20, 2022 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING RESOLUTION NO 2021-31965, AND APPROVING THE NEGOTIATED TERMS OF THE CITY'S AGREEMENT WITH RED BULL NORTH AMERICA, INC. FOR THE EXCLUSIVE ENERGY DRINK POURING RIGHTS CATEGORY, AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE FINAL AGREEMENT WITH RED BULL NORTH AMERICA, CONSISTENT WITH THE TERMS SET FORTH HEREIN. RECOMMENDATION The Administration recommends that the Mayor and Commission adopt the Resolution. BACKGROUND/HISTORY On December 8, 2021 the Mayor and Commission approved Resolution 2021-31965 (attached), waiving, by 5/7th vote, the formal competitive bidding requirement, finding such waiver to be in the best interest of the city, and authorizing the City Manager to negotiate an agreement with Red Bull North America, for an exclusive municipal marketing pouring rights agreement in the energy drink category for vending and dispensing on certain city-owned properties, based upon the essential terms set forth in the city commission memorandum accompanying the item resolution, for a term of five (5) years; further, authorizing the City Manager to finalize and execute the agreements, subject to form approval by the City Attorney. The Administration and Red Bull North America began contract negotiations and in addition to the agreed upon terms set forth in the December 8, 2021 agenda item, the Administration agreed to include additional benefits to Red Bull North America, as it was deemed to be favorable to both entities in terms of financial impact and brand awareness. ANALYSIS In addition to the business terms outlined in the December 8, 2021 Commission Agenda, the Administration would like to add the following items to the final agreement, which having a financial component, require approval from the Mayor and Commission: Advertising& Sponsorship Rights Page 279 of 1502 Page 377 of 1292 1. Special Event Permit Fee Waiver -waiver of any Special Event Permit and/or Permit Application Fees for Red Bull North America's use for two (2) mutually agreed upon event(s) 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 shall be the responsibility of Red Bull North America. Rights may not be transferred or assigned and do not carry over into future Years. The Administration is in support of this benefit as Red Bull North America is globally recognized as producing some of the top events and brand activations, and this will incentivize them to bring those events to Miami Beach. 2. Product Sampling-Up to two(2)royalty free Product Sampling permits per month (up to $2,500 per permit per month, and up to $60,000 per Agreement Year), to a maximum of twenty-four(24)permits per Year. Permit waiver shall only cover permit fee costs for which the City has no hard cost. If Red Bull North America does not use all twenty-four(24) 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 Red Bull North America. Rights may not be transferred or assigned and do not carry over into future Years. The Administration is in support of this benefit as Red Bull North America sampling activations are highly engaging and recognizable and will not only bring awareness to our new partnership, but will bring brand awareness to the Red Bull North America brand with the intent of driving sales at City owned venues, resulting in higher consumption and financial rebates back to the City. 3. Vending Sales Rebates — Red Bull North America will contract with a third-party vendor to execute city wide vending services. The City will receive a vending rebate of $5 /per case for each case sold in vending machines placed on City property or within City venues. The Administration is in support of this benefit as it was not included as part of the initial agreement and will further increase revenues to the City by allocating $5 from every case of Red Bull sold in vending machines, back to the City in the form of a rebate. 4. Advertising Benefits. Red Bull North America shall have the following advertising benefits, which do not have an actual out-of-pocket expense to the City: (1) one (1) royalty free advertisement in any City-produced event collateral as the "Official Energy Drink of Miami Beach"; (2)one (1) royalty free Red Bull North America PSA or message per year to be aired on MBTV; and (3)one (1)royalty free Red Bull North America PSA or message per year to be aired on the Miami Beach trolley video screens, with above advertising benefits having no additional costs to the City,and Page 280 of 1502 Page 378 of 1292 The Administration is in support of all of the above-mentioned advertising benefits as they will draw attention to our new partnership,-while elevating the Miami Beach brand and driving consumption and sales, resulting in higher revenues for the City. SUPPORTING SURVEY DATA N/A FINANCIAL INFORMATION The contained items will have the following financial impact Special Event Permit - up to $25,000 per permit x 2 permits = $50,000 in fee waivers per . Contract Year. This benefit has no negative financial impact, as these waived fees would be unrecognized revenues. These waivers cannot be used for any hard costs or where the City has an expense to be paid. Sampling Permits-up to$2,500 per permit x 24 permits =$60,000 in waived fees per Contract Year. This benefit has no negative financial impact. Vending Rebates—the City will receive a cash rebate of$5 I case sold in every Red Bull North American vending machine placed throughout the City and City venues. Advertising Benefits - $0.00 - the City has no costs associated with these benefits and this benefit will only increase brand awareness, which in turn can help increase sales of Red Bull North America product, resulting in higher revenues due to the City under the agreement. CONCLUSION The Administration recommends amending Resolution 2021-31965, approving the final essential negotiated terms of the City's agreement with Red Bull North America Inc., for the exclusive Energy Drink category, and further, to authorize the City Manager and City Clerk to execute the final agreement, consistent with the terms set forth herein. Applicable Area Citywide Is this a"Residents Right Does this item utilize G.O. to Know" Item. pursuant to Bond Funds? City Code Section 2-14? No No Legislative Tracking Marketing and Communications Sponsor Commissioner Alex Fernandez ATTACHMENTS: Description Resolution 2021-31965 Page 281 of 1502 Page 379 of 1292 RESOLUTION NO. 2021-31965 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, WAIVING, BY 517TH VOTE, THE FORMAL COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY, AND AUTHORIZING THE CITY MANAGER TO NEGOTIATE AN AGREEMENT WITH RED BULL NORTH AMERICA, INC. (RED BULL), AS THE EXCLUSIVE ENERGY DRINK SPONSOR, TO INCLUDE POURING RIGHTS, MUNICIPAL MARKETING, VENDING AND DISPENSING ON CERTAIN CITY-OWNED PROPERTIES, BASED UPON THE ESSENTIAL TERMS SET FORTH IN THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION, FOR A TERM OF FIVE (5) YEARS; AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE AGREEMENT, SUBJECT TO FORM APPROVAL BY THE CITY ATTORNEY. WHEREAS, the City's municipal sponsorship agency, Global Spectrum L.P. ("Spectra Partnerships"), worked with City staff to identify priorities for their efforts in securing municipal marketing partners, and identified non-alcoholic beverage partnerships as a target category, and; WHEREAS, Spectra Partnerships initiated a selection process to identify and recommend an exclusive / official non-alcoholic beverage partner for the City, with the goal of identifying a partner that would be interested in a brand affiliation relationship with the City, and providing a marketing benefit to both parties, as well as revenue generation for the City; and WHEREAS, Spectra Partnerships initiated a process that involved the initial identification of potential respondents; an invitation for those companies to submit proposals; the selection of the best potential partnership offers for the submission of a "best and final"offer; and the recommendation of a final offer for the City to consider, and WHEREAS, Spectra Partnerships invited the top three (3) national entities in the non- alcoholic beverage category to submit "best and final" offers and, subsequent to their submission and presentation, recommended to the City the selection Red Bull North America. Inc. (Red Bull) as the City's exclusive energy drink sponsor to include pouring rights, municipal marketing, vending and dispensing rights on certain city-owned properties, based upon the essential terms set forth in their proposal, attached as Exhibit "A" to the City Commission Memorandum accompanying this Resolution(the"Proposal"); and WHEREAS, Spectra Partnerships analyzed the Proposal and advised City staff that an agreement with Red Bull would provide a financial and marketing benefit of more than $1,275,000 to the City over the proposed five-year term of the partnership(cash and non -cash value); and WHEREAS, based upon the foregoing, the City Manager recommends waiving, by 5/7th vote, the formal competitive bidding requirement, as permitted in Section 2-367(e) of the City Code, and authorizing the City Administration to negotiate an agreement with Red Bull for a term of five (5) years, based upon the essential terms set forth in the City Commission Memorandum accompanying this Resolution. Page 283 of 1502 Page 380 of 1292 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby • waive, by 5/7t vote, the formal competitive bidding requirement, finding such waiver to be in the best interest of the City, and authorize the City Manager to negotiate an agreement with Red Bull North America, Inc. (Red Bull), as the exclusive energy drink sponsor, to include pouring rights, municipal marketing, vending and dispensing rights on in certain city-owned properties, based upon the essential terms set forth in the City Commission Memorandum accompanying this Resolution, for a term of five (5) years; and further authorize the City Manager and City Clerk to execute the agreement, subject to form approval by the City Attorney. PASSED and ADOPTED this 8th day of December 2021. ATTEST: - �i • ► , ,_ ..; Dan Gelber, Mayor Raf I . nado, City Clerk DEC 1 3 2021 • APPROVE: ) AS TO FORM & LANGUAGE & FOR EXECUTION . 1 10 tt-k2(2.1 Page 284 of 1502 4(City AIlorney i Dote Page 381 of 1292 9D Resolutions-R7 AB MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Aline T. Hudak, City Manager DATE: December 8, 2021 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, WAIVING, BY 5/7TH VOTE, THE FORMAL COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY, AND AUTHORIZING THE CITY MANAGER TO NEGOTIATE AN AGREEMENT WITH RED BULL NORTH AMERICA, INC. (RED BULL), AS THE EXCLUSIVE ENERGY DRINK SPONSOR, TO INCLUDE POURING RIGHTS, MUNICIPAL MARKETING, VENDING AND DISPENSING ON CERTAIN CITY-OWNED PROPERTIES, BASED UPON THE ESSENTIAL TERMS SET FORTH IN THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION, FOR A TERM OF FIVE (5) YEARS; AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE AGREEMENT, SUBJECT TO FORM APPROVAL BY THE CITYATTORNEY. RECOMMENDATION The administration recommends waiving, by 5/7th vote, the formal competitive bidding requirement, as permitted in Section 2-367(e) of the City Code, and authorizing the City Administration to negotiate an agreement with Red Bull for a term of five (5)years, based upon the essential terms set forth in the City Commission Memorandum accompanying this Resolution. BACKGROUND/HISTORY The City has an agreement for pouring rights with Coke Florida as the non-alcoholic beverage partner. Pouring rights refers to dispensed non-alcohol beverages or beverages sold via concession,as compared to those being sold through a vending machine. This agreement was approved by the Commission on March 14, 2012 and is set to expire on December 31, 2021. The Citys municipal sponsorship consultant, Spectra Partnerships, initiated a selection process for new non-alcoholic beverage partnership opportunities for the City. Spectra Partnerships has developed and cultivated successful nonalcoholic beverage partnerships for 150+ clients across North America and has identified multiple opportunities to grow the financial, brand, product, and sustainability contributions for both the City and its residents and visitors. Current Opportunities: Comparable to the previous partnership, the selected entity would have exclusive category Rep2i3120foia3B4 Page 382 of 1292 vending and pouring rights at all pre-determined. City owned facilities, including those currently managed by third parties, including, but not limited to the Miami Beach Convention Center, the North Beach Bandshell and Flamingo Park Tennis Center as examples. The management or contracted companies for these respective City facilities will be required to comply with any of the Citys selected category sponsors, with all revenues relating to sponsorship and commissions,as well as marketing support, to benefit the City directly. Process: Spectra Partnerships managed the process relating to the exclusive beverage partner program on behalf of the City, beginning with initial identification of potential respondents; an invitation for those companies to submit proposals; the selection of the best potential partnership offers for the submission of a"best and final" offer, and the recommendation of a final offer for the City to consider. Spectra Partnerships' involvement has included being the day to day contact for proposers as well as facilitating all administrative functions, analysis of comparable partnerships, negotiation on sponsorship deal points, and providing these potential partners with information relating to the City and opportunities. Spectra Partnerships also gathered information on current venues, volumes, and deal structures. • Proposal Components: Spectra Partnerships advised prospective proposers of the Citys interest in an energy drink partner and the availability of opportunities from this partnership. Spectra Partnerships also advised the prospective proposers of the City's interest in securing a partner that provided an annual sponsorship fee, a comprehensive marketing plan, and a sustainability and recycling strategy to enhance the presence of both the partner brand and the Miami Beach brand to ensure the executed agreement was a 360 degree integrated plan, and not simply an exchange of money. Red Bull North America, Inc. (Red Bull)submitted a five-year proposal. ANALYSIS Best and Final Offers: Based on Spectra Partnerships review, Red Bull presented a proposal that provided a combination of an annual"sponsorship"fee, commissions on sales, and a rebate program. Red Bull also provided preferred product pricing, as it was essential that proposed pricing be competitive with current pricing in the overall market and at City of Miami Beach venues. The proposal also delineated potential marketing opportunities from the partnership. Below are the major components of the proposal: Term: • 5 years Sponsorship fee: • $75,000 per month paid within 30 days of contract execution. Commissions/Pricing/Rebates: • Rebate Bonus: $5 per case purchased,paid quarterly. • Volume Bonus: $25,000 paid at 10,000 cases, additional $25,000 for each additional 5,000 cases. • Pricing -$36/case for 24 x 8.4 oz cans • Sample Product- 15,000 cans at$31can for CMB employees, and 30,000 cans at$3/can at mutually agreed upon occasions. • 213324)fot8Qr64 Page 383 of 1292 Sustainability: • 80% renewable energy in the manufacturing process. • Red Bull cans are made of up to 100%recycled aluminum. • Red Bull cans are 100% recyclable. Secondary packaging (carton and foil) is made up of up to 100% recycled material and is 100% recyclable. Maretna: • Red Bull offers some of the world's most recognizable branded events and marketing efforts and will look to partner with the City across multiple activations which could include F1, athlete collaborations, and the Red Bull Air Force. Red Bull is committed to exploring all activations with the City as they are currently building out their 2022 and beyond activation strategy. PROPOSAL: Exhibit A outlines the sponsorship proposal submitted by Red Bull. The proposal delineates the general responsibilities of each party during the term of the Agreement. As noted, several points remained under discussion at the time this agenda item went to print, pending further clarification and agreement by Red Bull's and the City's legal teams on proposed language submitted by all parties and to be confirmed in the verbiage included in the final contract. The final contract will also include all confirmed locations of potential vending equipment. Estimated Total Value: Red Bull was founded in 1984 and controls the largest share of the energy drink category in the global beverage industry with over 7.9 billion cans sold in 2020.As reflected in the attached proposal, the estimated total value of the proposed energy drink sponsorship partnership with Red Bull over the term of the agreement is approximately $1,275,000, inclusive of the annual sponsorship fees ($375,000); can rebate ($100,000), volume bonus ($125,000) and sample product value ($675,000). The following charts provide a breakdown of the value of the proposed partnership between the City of Miami Beach and Red Bull(cash and non-cash): -a.�.rsr -_+ Pt'=°`$.• re f+,".e a: r:may . lY,�."`=`,.rwt 1S'; 34 k r %• c t.��,�,}? 'y�,r+,� 'ea �.. P"• , tr' a-a r.. ` :t1'-p'^h r7• !•• • S3 y . }, - •°` r • ••t'^i, .. ^+ ... a * +. • YEAR 2022 $75,000 $20,000 $25,000 $135,000 $255,000 2023 2024 $75,000 $20,000 $25,000 $135,000 $255,000 2025 2026 $75,000 $20,000 $25,000 $135,000 $255,000 Requirements of City: Rage 215/bfof Page 384 of 1292 As.is common in these types of partnerships, there are certain expectations with regards to the non-alcoholic beverage partners role. In addition to supporting the efforts of expanding the sales of the products through city-owned vending locations and venues, support will include: recognition of the partnership as the official energy drink of Miami Beach; exclusive sampling rights on public rights of way, with a waiver of certain permit and application fees for a limited number of sampling events on public property (mutually agreed upon and to be determined in the final contract); recognition of the integrated logo, with a right to use the logo; City use of only Red Bull energy drink products at City events (the agreement negotiated will be subject to any existing contractual rights that the city has with other parties, and will allow the City a certain number of waivers per year. Spectra Partnerships, in conjunction with the administration, recommends that the City enter negotiations with Red Bull as the City's official energy drink partner, pursuant to the proposal in Exhibit A. SUPPORTING SURVEY DATA N/A Applicable Area Citywide Is this a"Residents Right Does this item utilize G.O. to Know" item,pursuant to Bond Funds? City Code Section 2-14? No No Strategic Connection Non-Applicable Legislative Tracking Marketing and Communications ATTACHMENTS: Description o Exhibit A-Red Bull Proposal o Resolution Ffas a twafdsmr4 Page 385 of 1292 ,. 011*411k, Red Bull® RED BULL ON-PREMISE AGREEMENT This SPONSORSHIP AGREEMENT (the "Agreement") is made and entered into on this day of , 2023, with an effective date of July 1, 2022, (the "Effective Date") by and between Red Bull North America, Inc., a California corporation ("Red Bull"), and the City of Miami Beach, Florida, a Florida municipal corporation (the "City"), each a "party" and collectively the "parties"; WHEREAS, the City owns, operates and controls the venues listed on Exhibit A (together with any future venues, that may be added to the scope of the Agreement by mutual agreement of the parties, and memorialized in writing by the parties (the "Venues") and Red Bull wishes to secure certain marketing/promotional benefits from the City and its Venues with respect to the Energy Drink category, as defined in Subsection 2(h); and WHEREAS, as used herein, unless specifically delegating the authority to the City Commission, any references to the "City" 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 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 retained by the City; and WHEREAS, as used herein, the term "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. For purposes hereof, the term "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. NOW, THEREFORE, in consideration of the covenants and agreements set forth below, the parties hereby agree as follows: 1. Term. The "Term" of this Agreement shall commence on July 1, 2022 and remain in effect until June 30, 2027, unless terminated earlier in accordance with the terms herein, with each twelve-month period from the Effective Date, a "Contract Year". 2. Marketing Benefits. The City shall (and shall cause the Venues to) provide Red Bull with each of the promotional/marketing benefits described below with respect to the Energy Drink category (the "Marketing Benefits"): (a) Distribution. Subject to the Permitted Exceptions delineated in Exhibit C, the City shall only distribute Red Bull Energy Drink, Red Bull Sugarfree and Red Bull Editions (the "Products") of the Energy Drink category at all service points of the Venues, including, without limitation: catering/conference services, beverage carts, vending and employee-only areas of the Venues. {RB FORM 00019956 V12};GNT changes 5.11.22 1 Page 386 of 1292 (b) Visibility. The City agrees to prominently display a minimum of one Red Bull Display Equipment (as defined in Exhibit B) at each Venue, pursuant to the terms set forth on Exhibit B (the "Red Bull Display Equipment Terms & Conditions"). The City agrees to comply with the "Red Bull Display Equipment Terms & Conditions". (c) Menu Placement. The City shall list the Products in all of its menus at the Venues; provided, that, the City shall not make any product functionality, performance and/or similar claims with respect to the Products on its menus or any other promotional items. (d) Perfect Serve. The City shall use reasonable efforts to serve the Products in a full, chilled can when ordered. (e) Right Price. Each Venue shall be permitted to upcharge the resale price per can of Products at a price per can that does not exceed the price of the average imported beer; provided, however, that the maximum suggested retail price per can of Products shall not exceed $10.00. (f) Sampling Activations. as outlined in Exhibit C. (g) Events. All marketing events and promotions shall be mutually agreed upon, in writing, by the City and Red Bull. (h) Exclusivity. Except with respect to the Permitted Exceptions, delineated in Exhibit C, the City grants to Red Bull the exclusive right to sell beverages within the "Energy Drink" category with the City and within each Venue. As referenced in the Agreement "with the city" or "at the City" or "the City and the Venues", 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. Subject to the exceptions delineated in this Agreement, the City and Venues shall not: (a) offer, distribute, sample, sell, feature or promote (or permit such activities by any third party) any Energy Drinks other than the Products; or (b) grant any promotional, advertising or marketing rights to any other manufacturer or distributor of Energy Drinks. "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, that the isotonic category of beverages shall be excluded from the exclusivity rights granted under this Agreement. Furthermore, the City will use commercially reasonable efforts to ensure that unauthorized Energy Drink sampling efforts are prohibited at the Venues. Red Bull agrees that the City is allowed competitive sponsor permit waivers to offer, distribute, sample, sell, feature or promote competing energy drink brands as outlined in Exhibit C. (I) Additional Benefits. The City shall provide Red Bull with the additional benefits set forth in Exhibit C, attached hereto. 3. Purchase of Products. The City shall purchase the Products exclusively from an authorized Red Bull distributor of the City's choice (each, an "Authorized Distributor") pursuant to a separate agreement with the City ("Third-Party Products Distribution Agreement".)All Products shall be delivered in aluminum cans. 4. Payments; Rebates. Red Bull shall make the following payments and provide Products to the City as set forth below: (a) (intentionally omitted) {RB FORM 00019956 V12} 2 Page 387 of 1292 (b) Complimentary Product Free of Charge (Charities/Employees/Consumers). With timing as agreed in writing (email OK) from time to time, Red Bull agrees to provide up to a total of 625 Cases for City employees (15,000 x 8.4 oz cans), and 1,250 Cases (30,000 x 8.4 oz cans) for Miami Beach consumers, with an estimated retail value of up to $135,000.00, during the Term at no additional charge to City, provided, however, that the City will administer all requests through a central contact appointed in writing by the City Manager (email OK) so that City may prioritize the requests. The City acknowledges and agrees that unrequested Product in any Contract Year shall not be carried over to the subsequent Contract Year or be redeemable for cash payment. Product may be chosen from 4 SKU distribution. (c) Marketing Payments. Subject to Section 7, Red Bull shall pay the City the following amounts (the "Marketing Payments") to be paid in equal installments on or before the following "Payment Dates" (with the period in between each Payment Date below, an "Installment Period") based on invoices to be submitted by the City: Year Invoice Date(s) Payment Amount per Contract Year Contract Year 1 July 1, 2022 or Date of Execution of $75,000 Agreement Contract Year 2 July 1, 2023 $75,000 Contract Year 3 July 1, 2024 $75,000 Contract Year 4 July 1, 2025 $75,000 Contract Year 5 July 1, 2026 $75,000 (d) Rebate Opportunity. Red Bull shall pay the City the rebate amounts set forth below, paid quarterly, within thirty (30) days from the end of each quarter (each quarter ending on the last day of each of the following months (September, December, March, June) based on invoices to be submitted by the City. This rebate amount shall apply to all Product that the City purchases directly from Red Bull, as well as on all Product purchased by/through any Red Bull Authorized Distributor, including Vending Machine sales as outlined in Exhibit B. Vending Machine sales shall also be reported and paid on a quarterly basis. Contract Year Quarterly Rebate Amount 1 Number of Quarterly Rebate Cases Contract Year 1 $5/case Contract Year 2 $5/case Contract Year 3 $5/case Contract Year 4 $5/case Contract Year 5 $5/case (e) Additional Volume Bonus Rebate Opportunity. If the aggregate amount of cases of Products purchased by the City and all Venues from the applicable Authorized Distributor(s) including Vending Contractors, meets the targets set forth below for a particular Contract Year, then Red Bull shall pay the City the rebate amounts set forth below within thirty (30) days from the last day of each Contract Year based on invoices submitted by the City: Contract Year ' Yearly Case ' Sales Goal /Yearly Rebate Amount/Number of Yearly Rebate Cases Contract Year 1 $25,000 paid for the first 10,000 cases, and $25,000 for each additional 5,000 cases Contract Year 2 $25,000 paid for the first 10,000 cases, and {RB FORM 00019956 V12} 3 Page 388 of 1292 $25,000 for each additional 5,000 cases Contract Year 3 $25,000 paid for the first 10,000 cases, and $25,000 for each additional 5,000 cases Contract Year 4 $25,000 paid for the first 10,000 cases, and $25,000 for each additional 5,000 cases Contract Year 5 $25,000 paid for the first 10,000 cases, and $25,000 for each additional 5,000 cases (f) Reports/Payments. (1) Reports. Within sixty (60) days from the end of each quarter, Red Bull shall provide the City with a report identifying the number of purchases of Product made by the City and its Venues; identifying the origin of the orders by each Venue or Special Event Permit user; gross metered receipts, prices charged; together with the payments due to the City pursuant to the Agreement, together with the rebate payments due to the City pursuant to the Agreement, all certified to be correct by Red Bull. Payments to the City shall be grossed up to include any applicable government imposed sales and use taxes. (2) Payments. Promptly following execution of this Agreement, Red Bull accounts payable will send an email to the City's designated email address inviting the City to set up an account with Red Bull's online system, including the submission of the City's Form W-9 (for domestic accounts only). Once registered, the City may then submit invoices through Red Bull's system. Red Bull shall issue a Form 1099, where applicable in connection with any payments made to a domestic account pursuant to this Agreement. Red Bull shall make all payments due to the City pursuant to this Agreement via electronic transfer to such bank account in the name of the City identified from time to time by the City in writing to Red Bull and verified by Red Bull upon receipt of a voided check or bank letter verifying such bank account. (g) Use Fee/Tax. Red Bull shall include sales and use taxes with the payment of Commissions and other consideration or any other fees payable by Red Bull to the City under this Agreement, and be responsible for any deficiency amounts which may be due to the State of Florida Department of Revenue, including any associated penalties and interest. Red Bull shall not be charged by the City common area maintenance fees, taxes or other charges related to Red Bull's occupation of the space related to the Red Bull Display Equipment. Notwithstanding the foregoing, Red Bull shall be responsible for personal property taxes related to any Red Bull Display Equipment. Additionally, in the event that Miami-Dade County assesses ad-valorem taxes related to the use of spaces being occupied by Red. Bull Display Equipment, Red Bull shall be responsible for paying or reimbursing the City for said taxes. The provisions of this Subsection (g) shall survive expiration or early termination of the Agreement. 5. Third Party Control of Venue. In the event that a third party secures control of any Venue for a special event, the City must use commercially reasonable efforts to ensure that such third party complies with the terms and conditions of this Agreement. 6. Audit and Inspections. (a) Maintenance and Examination of Records. Red Bull shall maintain current, accurate, and complete financial records on an accrual basis of accounting related to its operations pursuant to this Agreement. Systems and procedures used to maintain these records shall include a system of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to inspection and audit, by the City Manager or designee upon reasonable prior request and during normal business hours. Such records and accounts shall include a breakdown of gross {RB FORM 00019956 V12} 4 Page 389 of 1292 receipts from the purchase of Products pursuant to the Agreement, received by Red Bull and by Red Bull's Authorized Distributor; expenses including, without limitation, Marketing Payments, Rebates, commissions and expenses, and profit and loss statements, and such records shall be maintained as would be required by an independent CPA in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. (b) Inspection and Audit. Red Bull shall maintain its financial records pertaining to its operations under the Agreement for a period of three (3) years after the conclusion of the Term, and such records shall be open and available to the City Manager or designee, as they may deem necessary. Red Bull shall maintain all such records at Red Bull's place of business; however, all such records shall be relocated, at Red Bull's expense, to a location within the City of Miami Beach, within ten (10) days' written notice from the City Manager or designee that the City desires to review said records. The City Manager or designee shall be entitled to audit Red Bull's records pertaining to its operation as often as it deems reasonably necessary throughout the Term of the Agreement, and three (3) times within the three (3) year period following termination of the Agreement, regardless of whether such termination results from the natural expiration of the Term or for any other reason. The City shall be responsible for paying all costs associated with such audits, unless the audit(s) reveals a deficiency of five percent (5%) or more in Red Bull's statement of gross receipts for any year or years audited, in which case the firm shall pay to the City, within thirty (30) days of the audit being deemed final (as specified below), the cost of the audit and a sum equal to the amount of the deficiency revealed by the audit, plus interest; provided, however, the audit shall not be deemed final until Red Bull has received the audit and has had a reasonable opportunity to review the audit and discuss the audit with the City. Nothing contained within this Section shall preclude the City's audit rights for resort tax collection purposes. Red Bull shall submit at the end of each Contract Year, a certified audited annual statement of gross receipts related to the Agreement, in a form consistent with generally accepted accounting principles. It is Red Bull's intent to stay informed of comments and suggestions by the City regarding Red Bull's performance under the Agreement. Within thirty (30) days after the end of each Contract Year, Red Bull and the City may meet to review the parties' performance under the Agreement. At the meeting, Red Bull and the City may discuss quality, operational, maintenance and any other issues regarding a party's performance under the Agreement. (c) 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 Red Bull, its officers, agents and employees, lobbyists, City staff and elected officials to ensure compliance with the contract documents and to {RB FORM 00019956 V12} 5 Page 390 of 1292 detect fraud and corruption. Pursuant to Section 2-378 of the City Code, the City is allocating a percentage of its overall annual contract expenditures to fund the activities and operations of the Office of Inspector General. (3) Upon ten (10) days written notice to Red Bull, Red Bull 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 Red Bull 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 Red Bull's possession, custody or control which in the Inspector General's sole judgment, pertain to performance of the contract, including, but not limited to original estimate files, change order estimate files, worksheets, proposals and agreements from and with successful subcontractors and suppliers, all project-related correspondence, memoranda, instructions, financial documents, construction documents, (bid/proposal) and contract documents, back-change documents, all documents and records which involve cash, trade or volume discounts, insurance proceeds, rebates, or dividends received, payroll and personnel records and supporting documentation for the aforesaid documents and records. (5) Red Bull 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: i. If this Agreement is completely or partially terminated, Red Bull shall make available records relating to the work terminated until three (3) years after any resulting final termination settlement; and ii. Red Bull 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 Red Bull, its officers, agents, employees, subcontractors and suppliers. Red Bull shall incorporate the provisions in this section in all subcontracts and all other agreements executed by Red Bull 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 Red Bull or third parties. 7. Non-Performing Contract Year. In the event that the cumulative volume of cases of Product purchased by the City and the Venues from Red Bull during a particular Contract Year, materially decreases, by thirty percent (30%) or more, below the base volume of cases of Product purchased by the City and the Venues for the first Contract Year ("Base Contract Year") (a "Non-Performing Contract Year"), Red Bull shall be entitled to a reimbursement for the proportionate share of Marketing Payment previously advanced by Red Bull but not earned by the City. The amount of the Marketing Payment deemed earned by the City for the Non-Performing Contract Year shall be determined by multiplying the Marketing Payment amount by the fraction equal to the volume of cases purchased during the Non-Performing Contract Year, {RB FORM 00019956 V12} 6 Page 391 of 1292 divided by the number of cases of Product purchased during the Base Contract Year. The refund amount owed to Red Bull shall be the difference between the Marketing Payment and the amount of the Marketing Payment earned by the City for the Non-Performing Contract Year. 8. Employees and Independent Contractors. (a) In connection with the performance of its responsibilities hereunder, Red Bull may hire its own employees who will be employees of Red Bull and not employees or agents of the City. Additionally, Red Bull's vendors (i.e., entities who provide Products and/or Vending Machines to Red Bull) shall not be considered agents or employees of the City. Red Bull 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. (b) Red Bull shall ensure that all its employees, contractors and vendors while working at or within the Venues observe all the graces of personal grooming. Red Bull shall hire people to work in its operations who are neat, clean, well-groomed and shall comport themselves in a professional and courteous manner and ensure that its contractors and vendors comply with same. (c) Level 1 Background Check Screening Process. With respect to any persons hired by Red Bull or contractor under Red Bull's control (collectively, "Red Bull personnel"), who provide services at the City's Venues, Red Bull 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"). Red Bull shall ensure that Red Bull personnel meet the Statutory Screening Standards prior to commencing to perform any work and/or services under this Agreement. Red Bull 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. Red Bull agrees to notify the City immediately upon becoming aware that one of the Red Bull 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 Red Bull 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 Red Bull in default. Red Bull 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 injury or damages arising out of its failure to comply with this requirement. Red Bull shall employ personnel competent to perform the work specified herein. The City reserves the right to request the removal of Red Bull's personnel from performing services under this Agreement where Red Bull'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. Red Bull's personnel must wear photo identification at all times. Notwithstanding the foregoing, Red Bull's Authorized Distributors shall be responsible for complying with these Statutory Screening Standards under their separate agreement with the City. If Red Bull materially fails to comply with this provision the City may default Red Bull pursuant to Section 9 herein. 9. Default/Termination. Subsections (a) through (c) shall constitute events of default under this Agreement. An event of default by Red Bull 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 (d). An {RB FORM 00019956 V12} 7 Page 392 of 1292 event of default by City shall entitle Red Bull to exercise any and all remedies described as Red. Bull's remedies under this Agreement including, but not limited to, those set forth in Subsection (e). (a) Bankruptcy. If either the City or Red Bull 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 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. (b) Default in Payment. Any payment which Red Bull is required to make to City which is not paid on within thirty (30) days of its due date, such payment shall be subject to interest at the rate of eighteen percent (18%) per annum. If such failure continues thirty (30) days after written notice thereof from the City, then the City may, 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 Red Bull 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 Red Bull cures any default pursuant to this Subsection, it shall promptly provide City with written notice of same. (d) City's Remedies for Red Bull's Default. If any of the events of default, 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 Red Bull a notice of termination of this Agreement. If such notice is given, the term of this Agreement shall terminate upon the date specified in such notice from City to Red Bull. On the date so specified, Red Bull shall then quit and surrender the Venues to City pursuant to the provisions of Subsection (g). Upon the termination of this Agreement, all rights and interest of Red Bull in and to the Venues and to this Agreement, and every part thereof, shall cease and terminate and City may, in addition to any other rights and remedies it may have, retain all sums paid to it by Red Bull under this Agreement. 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 Red Bull; 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 Red Bull's default. (e) If an event of default by the City, as set forth in this Section 9, shall occur, Red Bull 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 and/or sue for damages. Said {RB FORM 00019956 V12} 8 Page 393 of 1292 termination shall become effective upon receipt of a written notice of termination by the City, but in no event shall Red Bull specify a termination date that is less than sixty (60) days from the date of the written termination notice. On the date specified in the notice, Red Bull shall quit and surrender the Venues to the City pursuant to the provisions of Subsection (g). Upon any termination of this Agreement under this Subsection, Red Bull shall be entitled to collect the proportionate share of any previously advanced but unearned Marketing Payments, as described in Section 4, for the remainder of the Contract Year for the effective date of the termination. The amount of such reimbursement will be the result of multiplying, the total amount of the Marketing Payment to the City in the Contract Year in which the Agreement is terminated by a fraction, the numerator of which is the number of months remaining in the Contract Year in which the Agreement is terminated, at the time such termination occurs, and the denominator of which is 12 (twelve). Red Bull's sole remedy for a breach of contract by the City shall be to terminate the Agreement and collect the proportionate share of the unearned Marketing Payments. (f) Termination for Convenience/Partial Termination. (1) Termination for Convenience by the City. The City may also, for its convenience and without cause, terminate the Agreement at any time during the term by giving written notice to Red Bull of such termination; which shall become effective within one (1) year following receipt by Red Bull of such notice. Additionally, in the event of a public health, welfare or safety concern, as determined by the City Manager, in the City Manager's sole discretion, the City Manager, pursuant to a verbal or written notification to Red Bull, may immediately suspend the services under this Agreement for a time certain. If the Agreement is terminated for convenience by the City, Red Bull shall be reimbursed for all Monetary Funding previously advanced by Red Bull but not earned by City pursuant to the terms of this Agreement, calculated by multiplying the total among of such funds paid to City in the contract Year in which the Agreement is terminated by a fraction, the numerator of which is the number of months remaining in the contract Year in which the Agreement is terminated, on the date of termination, and the denominator of which is twelve (12); following which the City shall be discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this Agreement. (2) Red Bull acknowledges that the City, at the City's sole discretion, may close all or a portion of the Venues, In such a case, then the parties agree that the portion of the Agreement referencing said individual Venue shall be partially terminated for convenience, without cause and without penalty to either party, and only as to the Venues, or portion thereof, which have been closed; provided, however, that Red Bull would be entitled to a reimbursement, calculated pursuant to Section 7, in the event that the Contract Year during the closure becomes a Non-Performing Contract Year. (3) Except as provided in the preceding Subsections (1) and (2), in the event of termination or partial termination by City of the Agreement pursuant to this Subsection, Red Bull herein acknowledges and agrees that it shall not have any claim, demand, or cause of action of whatsoever kind or nature, against the City, its agents, servants, and employees (including, but not limited to, claims for interference in business or damages for interruption of services or interference of Red Bull's operations). (g) Surrender of Venues. At the expiration of this Agreement, or in the event of termination or partial termination of the Agreement, Red Bull shall surrender any Venues in which Red Bull has installed Red Bull Display Equipment in the same condition as the Venues were prior to the Effective Date of this Agreement, reasonable wear and tear excepted. Red Bull shall remove all of its Red Bull Display Equipment and any and all other equipment, fixtures, personal property, etc. installed by Red Bull upon thirty (30) days written notice from the City Manager or his designee unless a longer time period is agreed to by the City. Red Bull's obligation to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy of the Venues (or portions thereof) after termination (or partial {RB FORM 00019956 V12} 9 Page 394 of 1292 termination) of the Agreement shall constitute trespass by the Red Bull and may be prosecuted as such. In addition, the Red Bull shall pay to the City one thousand dollars ($1,000.00) per day as liquidated damages for such trespass and holding over. (h) Remedies in the event of a Default. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL RED BULL 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 OR LIMIT ANY LIABILITY UNDER ANY APPLICABLE LAW OR STATUTE WHICH SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED. 10. Trademarks. Neither the City nor Red Bull may use the other's trademarks, any logos, designs or slogans related to Red Bull Products, venues, brands or operations of the other without express prior written consent of the other party. No joint Red Bull/City logo shall be created pursuant to this Agreement. 11. Representations & Warranties. Red Bull and the City each represent and warrant to the other that: (a) it has all necessary power and legal authority to enter into and perform its obligations hereunder; and (b) it is not party to any other written or oral agreement that conflicts with such party's obligations to the other or restricts such party's performance of this Agreement. 12. No Partnership. This Agreement is not intended to (and does not) create an agency, joint venture, partnership or similar relationship between the parties. Each party will act solely as an independent contractor and neither party will have the right to act for or bind the other party in any way. 13. Extension; Right of First Refusal. (Intentionally Omitted) 14. Indemnification. Red Bull shall defend, indemnify and hold harmless the City, and its officers, employees, agents, and contractors from and against any and all demands, actions, damages, 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: (i) Red Bull's breach of its representations or warranties (or those of its employees, contractors or agents); (ii) Red Bull's negligence or willful misconduct (or those of its employees, contractors or agents); (iii) Red Bull's infringement or alleged infringement of a third party's intellectual property rights; and/or (iv) the consumption of the Products as delivered. This section shall survive the expiration or other termination of this Agreement. 15. Insurance Requirements. Red Bull 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 for bodily injury and property damage. This policy must also contain coverage for premises operations, products, completed operations and contractual liability for indemnification obligations under an "insured contract." (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 Red Bull'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 Property Damage $1,000,000 per accident {RB FORM 00019956 V12} 10 Page 395 of 1292 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 ten (10) days written notice of cancellation to both the City's Risk Manager and City Manager's designee to the extent provided under the policies or at law (to be submitted to the addresses set forth in Section 23 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. (d) Certificates must be sent directly to certificates-miamibeachriskworks.com. Please ask vendors to include the following information when sending the insurance certificates: • Include the Contract's#and Red Bull'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 do Exigis Insurance Compliant Services P.O. Box 947 Murrieta, CA 92564 (e) 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 Red Bull and following 10 days for Red Bull to cure, immediately terminate the Agreement; or(ii) the City, in its sole discretion, may, following written notice to Red Bull and 10 days for Red Bull to cure, obtain the insurance itself, in which case said insurance shall be charged back to Red Bull. (f) Prior to the Commencement Date of this Agreement, Red Bull shall provide City with a Certificate of Insurance for each such policy. Said policies of insurance shall be primary to and contributing with any other insurance maintained by Red Bull or City. Red Bull 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. (g) Subrogation. The terms of insurance policies referred to herein shall preclude subrogation claims against Red Bull, the City and their respective officers, employees, and agents. 16. 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$10,000.00. Red Bull hereby expresses its willingness to enter into this Agreement with Red Bull's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of$10,000.00. Accordingly, and notwithstanding any other term or condition of this Agreement, Red Bull hereby agrees that the City shall not be liable to Red Bull for damages in an amount in excess of$10,000.00 for any action for breach of contract or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida Statutes. {RB FORM 00019956 V12} 11 Page 396 of 1292 17. Laws. In its performance of the Services, Red Bull 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. 18. No Discrimination. In connection with the performance of the Services, Red Bull 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, Red Bull 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. 19. Reserved. 20. Red Bull's Compliance with Public Records Law. (a) Red Bull shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be amended from time to time. (b) 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. (c) Pursuant to Section 119.0701 of the Florida Statutes, if Red Bull meets the definition of "Contractor" as defined in Section 119.0701(1)(a), Red Bull 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 Red Bull 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 Red Bull or keep and maintain public records required by the City to perform the service. If Red Bull transfers all public records to the City upon completion of the Agreement, Red Bull shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If Red Bull keeps and maintains public records upon completion of the Agreement, Red Bull 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. {RB FORM 00019956 V12} 12 Page 397 of 1292 (d) 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 Red Bull of the request, and Red Bull must provide the records to the City or allow the records to be inspected or copied within a reasonable time. (2) Red Bull's failure to comply with the City's request for records shall constitute a breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate the Agreement; (2) avail itself of the remedies set forth under the Agreement; and/or (3) avail itself of any available remedies at law or in equity. (3) If Red Bull fails to provide the public records to the City within a reasonable time may be subject to penalties under s. 119.10. (e) Civil Action. (1) If a civil action is filed against a Red Bull to compel production of public records relating to the City's contract for services, the court shall assess and award against Red Bull the reasonable costs of enforcement, including reasonable attorneys' fees, if: a. The court determines that Red Bull 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 Red Bull has not complied with the request, to the City and to Red Bull. (2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of public records and to Red Bull at Red Bull's address listed on its contract with the City or to Red Bull'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) If Red Bull complies with a public records request within 8 business days after the notice is sent is not liable for the reasonable costs of enforcement. (f) IF RED BULL HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, OR AS TO RED BULL'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY OF MIAMI BEACH ATTENTION: RAFAEL E. GRANADO, CITY CLERK 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 E-MAIL: RAFAELGRANADO(c MIAMIBEACHFL.GOV PHONE: 305-673-7411 {RB FORM 00019956 V12} 13 Page 398 of 1292 21. Force Majeure. (a) A "Force Maleure" event is an event that (i) in fact causes a delay in the performance of Red Bull 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 Red Bull'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 (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 which matured prior to the occurrence of a Force Majeure event shall not be subject to the Force Majeure provisions. (e) Notwithstanding any other provision to the contrary herein, in the event of a Force Majeure occurrence, the City may, at the sole discretion of the City Manager, suspend the City's payment obligations under the Agreement, and may take such action without regard to the notice requirements herein. Additionally, in the event that an event of Force Majeure delays a party's performance under the Agreement for a time period greater than ninety (90) days, the City may, at the sole discretion of the City Manager, terminate the Agreement on a given date, by giving written notice to Red Bull of such termination. If the Agreement is terminated pursuant to this section, Red Bull shall be paid for any outstanding invoices and shall also be entitled to collect the proportionate share of any previously advanced but unearned Marketing Payments for the remainder of the Contract Year for the effective date of the termination. The amount of such reimbursement will be the result of multiplying, the total amount of the Marketing Payment to the City in the Contract Year in which the Agreement is terminated by a fraction, the numerator of which is the number of months remaining in the Contract Year in which the Agreement is terminated, at the time such {RB FORM 00019956 V12} 14 Page 399 of 1292 termination occurs, and the denominator of which is 12 (twelve), following which the City shall be discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this Agreement. In no event will any condition of Force Majeure extend this Agreement beyond its stated term. (f) Waiver of Loss from Hazards. Each party hereby expressly waives all claims against the other for loss or damage sustained by it resulting from a Force Majeure event, and each party hereby expressly waives all rights, claims, and demands against the other and forever releases and discharges the other from all demands, claims, actions and causes of action arising from any of the aforesaid causes. 22. E-Verify. (a) To the extent that Red Bull provides labor, supplies, or services under this Agreement, Red Bull shall comply with Section 448.095, Florida Statutes, "Employment Eligibility" ("E-Verifv Statute"), as may be amended from time to time. Pursuant to the E-Verify Statute, commencing on January 1, 2021, Red Bull 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, as related to this Agreement Red Bull 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 Red Bull enters into a contract with an approved subcontractor, the subcontractor must provide Red Bull with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. Red Bull 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) TERMINATION RIGHTS. (1) If the City has a good faith belief that Red Bull 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 Red Bull for cause, and the City shall thereafter have or owe no further obligation or liability to Red Bull. (2) If the City has a good faith belief that a subcontractor has knowingly violated the foregoing Subsection 1(a), but Red Bull otherwise complied with such subsection, the City will promptly notify Red Bull and order Red Bull to immediately terminate the contract with the subcontractor. Red Bull's failure to terminate a subcontractor shall be an event of default under this Agreement, entitling City to terminate Red Bull'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 Red Bull 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 Red Bull under the foregoing Subsection (b)(1), Red Bull may not be awarded a public contract for at least 1 year after the date of termination of this Agreement. (6) Red Bull is liable for any additional costs incurred by the City as a result of.the termination of this Agreement under this Section 22. {RB FORM 00019956 V12} 15 Page 400 of 1292 23. Notices. All notices from the City to the Red Bull shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt to the Red Bull at the following address: Red Bull North America, Inc. 1630 Stewart Street Santa Monica, CA 90404 Attention: General Counsel E-Mail: legal@us.redbull.com **** All notices from the Red Bull 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: Matt Kenny— Marketing and Communications Department Assistant Director E-Mail: MattKenny@miamibeachfl.gov With copies to: City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attention: City Manager Red Bull 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. 24. Miscellaneous. (a) Amendments. This Agreement may only be amended by mutual written agreement between 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. (b) No Waiver. The failure of either party to enforce any provision or condition contained in this Agreement at any time will not be construed as a waiver of that condition or provision nor will it operate as a forfeiture of any right of future enforcement of the condition or provision. (c) Assignments. A party may not assign this Agreement without the prior written consent of the other. (d) LawNenue. This Agreement, and the parties' conduct arising out of or related to it, shall be governed by Florida law, without regard to its choice of law rules. Venue for any action to enforce the terms and conditions of the Agreement shall be in Miami-Dade County, Florida. (e) Attorneys' Fees. If it becomes necessary for City or Red Bull to enforce their respective rights under this Agreement or any part hereof through litigation, Red Bull 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. *SIGNATURE PAGE TO FOLLOW* {RB FORM 00019956 V12} 16 Page 401 of 1292 CITY OF MIAMI BEACH RED BULL NORTH AMERICA, INC. By: By: Name: Name: Date: Date: (AB FORM 00019956 V 12} 17 Page 402 of 1292 EXHIBIT A List of Venues 1. Venues. • 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 • All 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 A-1, 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 Café (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 Venues where the City is the owner and operator ("Future Venues"), unless otherwise not permitted under a Third-Party Agreement, as defined below. • Additional Venues may be added by mutual agreement of the parties. 2. Permitted Exceptions. Venues 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 public/private partnership, Development Agreement, Concession Agreement, Lease, Operation and Management,Agreement, License, Use Agreement, Easement Agreement, Revocable Permit, Sidewalk Café Permit or any other form of agreement (collectively, "Third-Party Agreements"); in which case such, such City Property or Third-Party Agreements will not be subject to the exclusivity rights granted to Red Bull under this Agreement ("Permitted Exceptions"). Additional Venues may be added by mutual agreement of the parties, and as may be permitted under Third Party Agreements. {RB FORM 00019956 V12} 18 Page 403 of 1292 EXHIBIT A-1 List of City Garages 1. 7th Street Garage, 200 7th Street (G1) 2. 12th Street Garage, 512 12th 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 23rd 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 Vending Machines at G8 will not be permitted unless the private entity that operates the project agrees. {RB FORM 00019956 V12} 19 Page 404 of 1292 EXHIBIT B Product List and Pricing The list of Products and any changes or updates to the Red Bull list of Products shall be provided to the City Manager's designee in writing (without the need to amend the Agreement) prior to implementing any change so that the City is aware of the list of available Products at all times. The initial Products list is attached hereto as Exhibit B-1. Red Bull shall cause its Authorized Distributors to sell its Products to the City and all Venues covered by this Agreement at $36 / case for 24 x 8.4 oz cans, provided however that, subject to the restrictions set forth in the following paragraph, Red Bull may at Red Bull's sole discretion change such pricing at any time and from time to time on 30 days written notice. Upon the City's request, Red Bull shall substantiate the basis for any increase in the pricing, when the total increase exceeds 4% from the prior Year's price or cumulatively increases by more than 4% per Year. Any increases in the pricing for the Products, which exceed 4% from the prior Year's price or cumulatively increases by more than 4% per Year, shall require the prior written approval of the City Manager, which approval shall not be unreasonably withheld. If the parties cannot reach an agreement as to the price increases, either party may terminate the Agreement upon providing the other party with ninety (90) days written notice. {RB FORM 00019956 V12} 20 Page 405 of 1292 EXHIBIT B Red Bull Display Equipment Terms & Conditions: The following Terms and Conditions shall apply to all Red Bull display equipment, including, without limitation, Red Bull branded coolers, ice barrels, Edge Lit signs, metal back bar displays, chalkboards, and metal signs (the "Red Bull Display Equipment") and Vending Machines. 1. Red Bull Display Equipment will be placed at prominent locations at the Venues at the sole discretion of the City Manager or designee, but with meaningful consultation and input from the local Red Bull account manager. Red Bull, at the request of the City Manager or designee, shall remove or relocate Red Bull Display Equipment. 2. Red Bull shall retain ownership of all items of Red Bull Display Equipment that Red Bull owns or leases and permits the City (and the Venues) to use, and Red Bull shall be entitled to remove them upon the earlier of the conclusion of the Term or termination of this Agreement pursuant to Section 9(g) of the Agreement. 3. Service/maintenance. Red Bull shall, at no cost to the City, maintain any Red Bull Display Equipment in the City's or any Venue's possession, in good working order, and in good condition and repair, free of damage or graffiti, ordinary wear and tear excepted, including, without limitation, performing normal servicing ,and repairs, as needed. Red Bull will also provide the City with a telephone number to request emergency repairs and receive technical assistance related to the Red Bull Display Equipment after business hours. Red Bull will promptly respond to each City request within forty-eight (48) hours and will use reasonable efforts to remedy the related Red Bull Display Equipment problem as soon as possible, but no later than five (5) working days. Red Bull will notify the City should a maintenance issue with equipment not be remedied in a timely manner. 4. The City shall (and shall cause the Venues to) use Red Bull Display Equipment only to store and display Red Bull Products and shall not use Red Bull Display Equipment to store or display any other item or for any other purpose. 5. The City shall(and shall cause the Venues to) display on Red Bull Display Equipment in the City's or any Venue's possession only the proprietary marks which Red Bull may, from time to time, designate, and shall not alter or remove such marks, nor display other trademarks, service marks, trade names, words, designs, graphics, three-dimensional objects, symbols, logos, or other identifications mark or commercial symbol of any kind. 6. the City shall not (and shall cause the Venues not to) sell, lease, give away or otherwise dispose of or use any Red Bull Display Equipment for any purpose not permitted by these Terms & Conditions. 7. the City agrees that a breach of any of the above Terms & Conditions shall constitute a material breach of this Agreement. 8. (intentionally omitted) 9. Equipment. (a) Red Bull will loan to City, at no charge, appropriate Red Bull Display Equipment and Vending Machines for dispensing the Products at the Venues. The Red Bull Display Equipment and Vending Machines will be exclusively used to display and merchandise the Products as reasonably determined by Red Bull, at a location to be determined by the City, and City will not use the Red Bull Display Equipment or {RB FORM 00019956 V12} 21 Page 406 of 1292 Vending Machines to display, stock, advertise, sell or maintain any other products (including on the exterior of the Red Bull Display Equipment or Vending Machines). Title to such Red Bull Display Equipment and Vending Machines will remain vested in Red Bull or its affiliate and the City will permit Red Bull to arrange for removal of all Red Bull Display Equipment and Vending Machines upon expiration or earlier termination of this Agreement pursuant to Section 9(g) of the 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, Red Bull and City will work in good faith to negotiate the economic terms for implementation of the new technology equipment prior to implementation. If no agreement is reached, Red Bull shall continue to be responsible for maintaining the existing Red Bull Display Equipment and Vending Machines pursuant to the terms of the Agreement. (b) Vending Machines. With respect to the vending machine equipment placed at the Venues, at the sole discretion of the City Manager or designee (the "Vending Machines"), Red Bull's Authorized Distributor 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. Red Bull 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) Removal/Relocation of Red Bull Display Equipment and Vending Machines. Red Bull acknowledges that there may be circumstances under which the City Manager may require the removal or relocation of any or all of the Red Bull Display Equipment and/or Vending Machines. As such, Red Bull agrees that any or all of its Red Bull Display Equipment will be removed by Red Bull from their approved locations upon fifteen (15) days written notice to Red Bull and said removal shall be done in compliance with the applicable section(s) as set forth herein, and without liability to the City. Red Bull's Authorized Distributor will be responsible for removing or relocating the Vending Machines that are placed on the Venues by the Authorized Distributor pursuant to the Third-Party Distributor Agreement. (d) Hurricane Evacuation Plan. Red Bull agrees that upon the issuance of a Hurricane Warning by the Miami-Dade County Office of Emergency Management, it shall ensure that,all exterior Red Bull Display Equipment shall be secured. Additionally, and notwithstanding the foregoing, Red Bull agrees that upon receipt of notification from the City Manager or designee, whether in writing or verbally, which may be communicated to Red Bull via telephone, fax and/or email, all exterior Red Bull Display Equipment shall be removed from their approved locations and stored at a private, off-site location, within 24 hours of said notification. Red Bull's Authorized Distributor will be responsible for complying with this subsection in connection with the Vending Machines placed on the City Venues by the Authorized Distributor pursuant to the Third-Party Distributor Agreement. (e) Red Bull's failure to remove the Red Bull Display Equipment, or any and all other items placed on the Venues by Red Bull upon notice from the City Manager or designee within the time period provided in this Subsection, may, at the City's sole discretion, constitute an automatic default of the Agreement under which the City may, upon written notice to Red Bull, immediately terminate this Agreement. (f) Electrical service, including maintenance of outlets, shall be provided by the City at the Venues at no cost to Red Bull, if and where feasible. No water service will be provided by the City in connection with the operation of Red Bull Display Equipment and Vending Machines under this Agreement. If not currently existing, requests for installation of new and/or additional outlets shall be submitted in writing to the City Manager or designee, for review and approval. If approved by the City Manager or designee, installation of new and/or additionally outlets will be performed by the City and/or an electrical contractor approved by the City, in writing, to perform said work on the City's behalf, at Red Bull's sole cost {RB FORM 00019956 V12} 22 Page 407 of 1292 and expense. (g) Schedule of Operation. The Red Bull Display Equipment and Vending Machines shall be made available to patrons twenty-four (24) hours a day, seven days a week, based on the particular hours of operation of each individual Venue, events of force majeure permitting. (h) Product Reallocation. The City shall have the option of changing the Product type sold at the Venues or Vending Machines. For the sake of example, but without limitation, if the City shall be permitted to have a greater amount of one Product, or remove a certain Product and replace it with another available Product for the Venues, including Vending Machines as requested by the City. {RB FORM 00019956 V12} 23 Page 408 of 1292 EXHIBIT B-1 8.4 OZ only Red Bull Energy Drink Red Bull Sugarfree Red Bull Yellow Edition Red Bull Red Edition Red Bull Blue Edition Red Bull Coconut Edition {RB FORM 00019956 V12} 24 Page 409 of 1292 EXHIBIT C 1. Additional Benefits: (a) Waiver of Special Event Permit and/or Permit Application Fees for Red Bull's use for up to two (2) mutually agreed upon events per Contract 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 Venues 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 shall be the responsibility of Red Bull North America. Rights may not be transferred or assigned and do not carry over into future Contract Years. b) Up to two (2) royalty free Product sampling permits per month, to a maximum of twenty-four (24) per Contract Year. Permit waiver shall only cover permit fee costs for which the City has no hard cost. If Red Bull North America does not use all twenty-four (24) permits by the end of the Contract Year, any remaining permits will not roll-over to the following Contract 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 Red Bull North America. Rights may not be transferred or assigned and do not carry over into future Contract Years. For the first Contract Year, Red Bull acknowledges that it has already received, retroactively, two (2) of their sampling permits, in connection with the Red Bull's sampling activation on May 3-4, 2022. These rights may not be transferred or assigned and do not carry over into future Contract Years. 2. Everything set forth in Section 2 of the Agreement and this Exhibit C applies to the following listed Venues, including for events taking place at those Venues— Consumer-facing Venues: Execution Mandated Back of House (BOH) vending machine with min 4 SKU distribution (meaning Red Bull Energy Drink, Red Bull Sugar Free, Red Bull Tropical and 1 additional Red Bull Edition of the Miami Beach Convention Center/Carl Fisher Clubhouse City's choosing) Miami Beach Golf Club 4 SKU distribution Flamingo Park Tennis Center 4 SKU distribution Flamingo Park Aquatics Center 4 SKU distribution North Shore Tennis Center 4 SKU distribution Miami Beach Bandshell 4 SKU distribution Normandy Shores Golf Club 4 SKU distribution 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 (this one may be removed/modified under the agreement) 4 SKU distribution All City of Miami Beach Administrative Departments.with the following City Departments housing the following described vending machines: Police Department (address) 0 vending machine with min 4 SKU, {RB FORM 00019956 V12} 25 Page 410 of 1292 served at subsidized rate vending machine with min 4 SKU, Fire Department (address) served at subsidized rate Facilities and Fleet Management(address) 4 SKU distribution For the avoidance of doubt,the requirements set forth in Section 2 of the Agreement and this Exhibit C shall apply to the following City-sponsored events (City-Sponsored Events): high 5s @all POD (point of distribution)—See Section 2(b), (c), (d), right price and Miami Beach Live consumption activation Culture Crawl high 5s @all POD Fire on the Fourth high 5s @all POD Veterans Day Parade high 5s @all POD Summer Concert Series high 5s @all POD Cinema Series at Soundscape Park high 5s @all POD For the avoidance of doubt, the above applies to private/buyout events taking place at the above consumer facing Venues. The above list allows Red Bull to activate at all of the above identified City-Sponsored events and spaces at Red Bull's cost, under the title of"Official Energy Drink of Miami Beach". The parties acknowledge and agree that none of the provisions of this Agreement shall be interpreted to prevent the City from being able to sell other non-competing sponsorships at all events City-wide and at all City-owned or operated properties. 3. Advertising & Sponsorship Rights: (a) Recognition of Red Bull as the "Official Energy Drink Red Bull" of the City. Official status will give Official Status Recognition for City across all energy drink categories. Example: "Red Bull Official Energy Drink of Miami Beach", or"Red Bull Official Energy Drink of South Beach". (b) Royalty free advertisement in any City-produced Event collateral produced for City-Produced Events as the "Official Energy Drink of Miami Beach". This shall not include any naming or title sponsorship of City-Produced Events. 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; (c) Minimum of one (1) royalty free Red Bull PSA or message per Contract Year to be shown on MBTV; (d) Minimum of one (1) royalty free Red Bull PSA or message per Contract Year to be shown on the Miami Beach Trolley video screens; (e) Red Bull shall have the right to modify, change, alter or remove its branding and promotional messages appearing on the signage once per month and any such changes or removal requested by Red Bull will be at Red Bull's sole cost and expense. {RB FORM 00019956 V12} 26 Page 411 of 1292 (f) All PSA or other promotional messages shall require the prior written approval of the City Manager's designee. 4. "Special Promotional Events, Public Special Events, Private Events and Charitable Events": (a) Special Promotional Events; Public Special Events (1) 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 Venue that are sponsored by a manufacturer, distributor, or marketer of Competitive Products under a sponsorship agreement with the owner or operator of the subject Special Promotional Event (not including in any instance the City or its affiliates or agents) and which do not require a Special Event Permit. (2) 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. (3) The term "Special/Public Promotional Events Exemptions" shall refer to those exceptions granted under the Agreement, for each Contract Year, to permit the following Special Promotional events at the following Venues: a. Three (3) events at the Miami Beach Golf Club b. Three (3) events at the Normandy Shores Golf Club c. Three (3) events at the Miami Beach Convention Center d. Three (3) additional Special Promotional Events or Public Special Events (4) The City will provide Red Bull with no less than ten (10) calendar days prior written notice of each event which it intends to designation as a Special Promotional Event or other Public Special Event. (5) The private, personal consumption of Competitive Products by athletes, coaching staff, musicians, actors, comedians, or other entertainment personalities appearing or performing for the City or at a Venue is allowed and will not require an exemption or other consent by Red Bull under the Agreement. The 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 container/glass. (b) Product availability at the City or Venues for private events. A private event at the City or a Venue shall mean the use of the City or a Venue, either through the rental of the Venue 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 Energy Drink beverages may be distributed or sampled at no cost by the user of the City property or Venue for private events, provided that Products will continue to be the only Energy Drink beverage sold by the City or at the Venue, including the related concession operations at the Venue. (c) 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 Venues or at City-Permitted Special Events shall be handled as follows: {RB FORM 00019956 V12} 27 Page 412 of 1292 Competitive Energy Drink beverages may be distributed or sampled at no cost by the charitable organization using the City property or Venue, provided that Red Bull Products will continue to be the only Energy Drink beverage sold by the City or at the Venue, including the related concession operations at the Venue. {RB FORM 00019956 V12} 28 Page 413 of 1292 RED BULL PRODUCT DISTRIBUTION AGREEMENT This RED BULL PRODUCT DISTRIBUTION AGREEMENT (the "Agreement") is made and entered into on this day of , 2023, with an effective date of July 1, 2022, (the "Effective Date") by and between Red Bull Distribution Company, Inc., a Delaware corporation ("Distributor"), and the City of Miami Beach, Florida, a Florida municipal corporation (the "City"), each a "party" and collectively the "parties". WHEREAS, the City owns, operates and controls the venues listed on Exhibit A("List of Venues", each a"Venue",and collectively the"Venues"),together with any Future Venues (as defined in Exhibit A) that may be added to the scope of the agreement between Red Bull North America, Inc. ("Red Bull") and the City, pursuant to which Red Bull has secured certain marketing/promotional benefits from the City and its Venues with respect to Red Bull Products, as defined in Subsection 2(a) herein (the "Red Bull Agreement"); and WHEREAS, as used herein, unless specifically delegating the authority to the City Commission, any references to the "City" 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 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 retained by the City. NOW, THEREFORE, in consideration of the covenants and agreements set forth below, the parties hereby agree as follows: 1. Term. The "Term" of this Agreement shall commence on July 1, 2022 and remain in effect until June 30, 2027, unless terminated earlier in accordance with the terms herein, with each twelve- month period from the Effective Date, a "Contract Year". 2. Purchase and Distribution of Products. (a) Purchase of Products. The City may purchase from Distributor Red Bull Energy Drink, Red Bull Sugar Free,Red Bull Editions and such other Red Bull products as made available by Red Bull from time to time (collectively, the"Products") at the price negotiated between City and Red Bull under the Red Bull Agreement, as more particularly set forth in the Red Bull Agreement. Distributor shall deliver the Products to the Venues as outlined in Exhibit A.. All Products shall be delivered in shrink-wrapped cardboard cases of aluminum cans. (b) Invoices. Invoices shall be sent to the City to the following address: City of Miami Beach Attn: Matt Kenny— Marketing and Communications '1700 Convention Center Drive Miami Beach, FL 33139, USA {RB00054012 V2} Page 414 of 1292 At the City's sole and absolute discretion,the City shall make all payments due to Distributor via check or via electronic transfer to such bank account in the name of the Distributor identified from time to time by the Distributor in writing to the City and verified by the City upon receipt of a voided check or bank letter verifying such bank account. (c) Use Fee/Tax. Distributor acknowledges that the City is a municipal corporation, organized under the laws of the State of Florida and, as such, is exempt from payment of sales tax in connection with the purchase of Products from Distributor. 3. Audit and Inspections. (a) Maintenance and Examination of Records. Distributor shall maintain current, accurate, and complete financial records on an accrual basis of accounting related to its operations pursuant to this Agreement. Systems and procedures used to maintain these records shall include a system of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to inspection and audit, by the City Manager or designee upon reasonable prior request and during normal business hours. Such records and accounts shall include a breakdown of gross receipts from the purchase of Products pursuant to the Agreement, received by Distributor; expenses including, without limitation, Marketing Payments, Rebates, commissions and expenses, and profit and loss statements, and such records shall be maintained as would be required by an independent CPA in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. (b) Inspection and Audit. Distributor shall maintain its financial records pertaining to its operations under the Agreement for a period of three (3) years after the conclusion of the Term, and such records shall be open and available to the City Manager or designee, as they may deem necessary. Distributor shall maintain all such records at Distributor's place of business; however, all such records shall be relocated, at Distributor's expense, to a location within the City of Miami Beach, within ten (10) days'written notice from the City Manager or designee that the City desires to review said records. (c) The City Manager or designee shall be entitled to audit Distributor's records pertaining to its operation as often as it deems reasonably necessary throughout the Term of the Agreement, and three(3)times within the three (3)year period following termination of the Agreement, regardless of whether such termination results from the natural expiration of the Term or for any other reason. The City shall be responsible for paying all costs associated with such audits, unless the audit(s) reveals a deficiency of five percent (5%) or more in Distributor's statement of gross receipts for any year or years audited, in which case the firm shall pay to the City, within thirty (30) days of the audit being deemed final (as specified below), the cost of the audit and a sum equal to the amount of the deficiency revealed by the audit, plus interest; provided, however, the audit shall not be deemed final until Distributor has received the audit and has had a reasonable opportunity to review the audit and discuss the audit with the City. Nothing contained within this Section shall preclude the City's audit rights for resort tax collection purposes. (d) It is Distributor's intent to stay informed of comments and suggestions by the City regarding Distributor's performance under the Agreement. Within thirty (30) days after the end of each Contract Year, Distributor and the City may meet to review the parties' performance under the Agreement. At the meeting, Distributor and the City may discuss quality, operational, maintenance and any other issues regarding a party's performance under the Agreement. (e) Inspector General Audit Rights. {RB00054012 V2} Page 415 of 1292 (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 Distributor, its officers, agents and employees, lobbyists, City staff and elected officials to ensure compliance with the contract documents and to detect fraud and corruption. Pursuant to Section 2-378 of the City Code, the City is allocating a percentage of its overall annual contract expenditures to fund the activities and operations of the Office of Inspector General. (3) Upon ten (10) days written notice to Distributor, Distributor 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 Distributor 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 Distributor's possession, custody or control which in the Inspector General's sole judgment, pertain to performance of the contract, including, but not limited to original estimate files, change order estimate files, worksheets, proposals and agreements from and with successful subcontractors and suppliers, all project-related correspondence, memoranda, instructions, financial documents, construction documents, (bid/proposal) and contract documents, back-change documents, all documents and records which involve cash, trade or volume discounts, insurance proceeds, rebates, or dividends received, payroll and personnel records and supporting documentation for the aforesaid documents and records. (5) Distributor 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: i. If this Agreement is completely or partially terminated, Distributor shall make available records relating to the work terminated until three (3) years after any resulting final termination settlement; and • {RB00054012 V2} Page 416 of 1292 ii. Distributor 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 Distributor, its officers, agents, employees, subcontractors and suppliers. Distributor shall incorporate the provisions in this section in all subcontracts and all other agreements executed by Distributor 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 Distributor or third parties. 4. Employees and Independent Contractors. (a) In connection with the performance of its responsibilities hereunder, Distributor may hire its own employees who will be employees of Distributor and not employees or agents of the City. Additionally, Distributor's vendors (i.e., entities who provide Products to Distributor) shall not be considered agents or employees of the City. Distributor 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. (b) Distributor shall ensure that all its employees, contractors and vendors while working at or within the Venues observe all the graces of personal grooming. Distributor shall hire people to work in its vending operation who are neat, clean, well-groomed and shall comport themselves in a professional and courteous manner and ensure that its contractors and vendors comply with same. (c) Level 1 Background Check Screening Process. Distributor 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"). Distributor shall ensure that each employee and/or contractor meets the Statutory Screening Standards prior to commencing to perform any work and/or services under this Agreement. Distributor 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. Distributor agrees to notify the City immediately upon becoming aware that one of its employees and/or contractors 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 Distributor to notify the City of such arrest or conviction within two business days of being put on notice or within thirty (30) days of the occurrence of qualifying arrest resulting in charges or conviction, shall constitute grounds for the City, at its sole option, to place Distributor in default. Distributor 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 injury or damages arising out of its failure to comply with this requirement. Distributor shall employ personnel competent to perform the work specified herein. The City reserves the right to request the removal of Distributor's employee from performing services under this Agreement where the employee's performance or actions are deemed, at the sole discretion of the City Manager's designee, to be {RB00054012 V2} Page 417 of 1292 inappropriate or disrespectful of the City's property or policies. Distributor's personnel must wear photo identification at all times. (d) If Distributor materially fails to comply with the provisions of this Section, the City may default Distributor pursuant to Section 5 herein. 5. Default/Termination. Subsections (a) through (c) shall constitute events of default under this Agreement. An event of default by Distributor 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 (d). An event of default by City shall entitle Distributor to exercise any and all remedies described as Distributor's remedies under this Agreement including, but not limited to, those set forth in Subsection (e). (a) Bankruptcy. If either the City or Distributor 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 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. (b) Default in Payment. Any payment which the City is required to make to Distributor which is not paid on within thirty (30) days of its due date, such payment shall be subject to interest at the rate of twelve percent (12%) per annum. (c) Non-Monetary Default. In the event that Distributor 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 Distributor cures any default pursuant to this Subsection, it shall promptly provide City with written notice of same. (d) City's Remedies for Distributor's Default. If any of the events of default, as set forth in this Section 5, 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 Distributor a notice of termination of this Agreement. If such notice is given,the term of this Agreement shall terminate upon the date specified in such notice from City to Distributor. On the date so specified, Distributor shall then quit and surrender the Venues to City pursuant to the provisions of Subsection (g). Upon the termination of this Agreement, all rights and interest of Distributor in and to the Venues and to this Agreement, and every part thereof, shall {RB00054012 V2} Page 418 of 1292 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 Distributor; 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 Distributor's default. (e) If an event of default by the City, as set forth in this Section 5, shall occur, Distributor 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 and/or sue for damages. Upon any termination of this Agreement under this Subsection, Distributor shall be entitled to collect any outstanding payments due to Distributor in connection with the sale and delivery of Product ordered by the City pursuant to this Agreement through the date of termination. Distributor's sole remedy for a breach of contract by the City shall be to terminate the Agreement and collect any balance owed to Distributor in connection with the sale and delivery of Product ordered by the City pursuant to this Agreement. (f) Termination for Convenience/Partial Termination. (1) Termination for Convenience by the City. The City may also, for its convenience and without cause, terminate the Agreement at any time during the term by giving written notice to Distributor of such termination; which shall become effective within thirty days(30)days following receipt by Distributor of such notice, or such other longer period of time as the City may determine in the notice of termination ("Notice of Termination"). During the period of time set forth in the Notice of Termination, the City, at its option, may not purchase any Product. Additionally, in the event of a public health, welfare or safety concern, as determined by the City Manager, in the City Manager's sole discretion, the City Manager, pursuant to a verbal or written notification to Distributor, may immediately suspend the services under this Agreement for a time certain. If the Agreement is terminated for convenience by the City, the City shall pay Distributor any outstanding payments due to Distributor in connection with the sale and delivery of Products ordered by the City pursuant to this Agreement through the date of termination;following which the City shall be discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this Agreement. (2) Distributor acknowledges that the City, at the City's sole discretion, may close all or a portion of the Venues, In such a case, then the parties agree that the portion of the Agreement referencing said individual Venue shall be partially terminated for convenience, without cause and without penalty to either party, and only as to the Venues, or portion thereof, which have been closed. (3) Except as provided in the preceding Subsections (1) and (2), in the event of termination or partial termination by City of the Agreement pursuant to this Subsection, Distributor herein acknowledges and agrees that it shall not have any claim,demand,or cause of action of whatsoever kind or nature, against the City, its agents, servants, and employees (including, but not limited to, claims for interference in business or damages for interruption of services or interference in its vending operations by Distributor or its vendors). (g) Reserved. (h) Remedies in the event of a Default. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL DISTRIBUTOR OR THE CITY BE LIABLE FOR ANY SPECIAL, {RB00054012 V2} Page 419 of 1292 INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS. HOWEVER, NOTHING IN THIS PARAGRAPH SHALL BE DEEMED TO EXCLUDE OR LIMIT ANY LIABILITY UNDER ANY APPLICABLE LAW OR STATUTE WHICH SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED. 6. Trademarks. Neither the City nor Distributor may use the other's trademarks, any logos, designs or slogans related to Distributor Products, venues, brands or operations of the other without express prior written consent of the other party. 7. Representations &Warranties. Distributor and the City each represent and warrant to the other that: (a) it has all necessary power and legal authority to enter into and perform its obligations hereunder; and (b) it is not party to any other written or oral agreement that conflicts with such party's obligations to the other or restricts such party's performance of this Agreement. 8. No Partnership. This Agreement is not intended to(and does not)create an agency,joint venture, partnership or similar relationship between the parties. Each party will act solely as an independent contractor and neither party will have the right to act for or bind the other party in any way. 9. Extension; Right of First Refusal. (Intentionally Omitted) 10. Indemnification. Distributor shall defend, indemnify and hold harmless the City, and its officers, employees, agents, and contractors from and against any and all demands, actions, damages, 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 Distributor's: (i) breach of its representations or warranties (or those of its employees, contractors or agents, each as and when performing services or work in connection with this Agreement); (ii) negligence or willful misconduct (or those of its employees, contractors or agents); and/or (iii) infringement or alleged infringement of a third party's intellectual property rights. This section shall survive the expiration or other termination of this Agreement. 11. Insurance Requirements. Distributor 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 for bodily injury and property damage. This policy must also contain coverage for premises operations, products, completed operations and contractual liability for indemnification obligations under an "insured contract." (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 Distributor'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 Property Damage $1,000,000 per accident Proof of these coverages must be provided by submitting certificates of insurance to the City's Risk Manager and City Manager's designee, respectively. All policies must provide ten (10) days written notice of cancellation to both the City's Risk Manager {RB00054012 V2} Page 420 of 1292 and City Manager's designee to the extent provided under the policies or at law(to be submitted to the addresses set forth in Section 19 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. (d) Certificates must be sent directly to certificates-miamibeach(a�riskworks.com. Please ask vendors to include the following information when sending the insurance certificates: • Include the Contract's#and Distributor'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 do Exigis Insurance Compliant Services P.O. Box 947 Murrieta, CA 92564 (e) 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 Distributor and following 10 days for Distributor to cure, immediately terminate the Agreement; or (ii) the City, in its sole discretion, may, following written notice to Distributor and 10 days for Distributor to cure, obtain the insurance itself, in which case said insurance shall be charged back to the Distributor. (f) Prior to the Commencement Date of this Agreement, Distributor shall provide City with a Certificate of Insurance for each such policy. Said policies of insurance shall be primary to and contributing with any other insurance maintained by Distributor or City. (g) Distributor 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. (h) Subrogation. The terms of insurance policies referred to herein shall preclude subrogation claims against Distributor, 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$25,000.00. Distributor hereby expresses its willingness to enter into this Agreement with Distributor's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of$25,000.00. Accordingly, and notwithstanding any other term or condition of this Agreement, Distributor hereby agrees that the City shall not be liable to Distributor for damages in an amount in excess of $25,000.00 for any action for breach of contract or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida Statutes. {RB00054012 V2} Page 421 of 1292 13. Laws. In its performance of the Services, Distributor 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. 14. No Discrimination. In connection with the performance of the Services, Distributor 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, Distributor 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 policiesbecause 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. Reserved. 16. Distributor's Compliance with Public Records Law. (a) Distributor shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be amended from time to time. (b) 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. (c) Pursuant to Section 119.0701 of the Florida Statutes, if Distributor meets the definition of"Contractor" as defined in Section 119.0701(1)(a), Distributor 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 Distributor 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 Distributor or keep and maintain public records required by the City to perform the service. If Distributor transfers all public records to the City upon completion of the Agreement, Distributor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If Distributor keeps and maintains public records upon completion of the Agreement, Distributor 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 {RB00054012 V2} Page 422 of 1292 is compatible with the information technology systems of the City. (d) 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 Distributor of the request, and Distributor must provide the records to the City or allow the records to be inspected or copied within a reasonable time. (2) Distributor's failure to comply with the City's request for records shall constitute a breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate the Agreement; (2) avail itself of the remedies set forth under the Agreement; and/or(3) avail itself of any available remedies at law or in equity. (3) If Distributor fails to provide the public records to the City within a reasonable time may be subject to penalties under s. 119.10. (e) Civil Action. (1) If a civil action is filed against a Distributor to compel production of public records relating to the City's contract for services, the court shall assess and award against Distributor the reasonable costs of enforcement, including reasonable attorneys'fees, if: a. The court determines that Distributor 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 Distributor has not complied with the request, to the City and to Distributor. (2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of public records and to Distributor at Distributor's address listed on its contract with the City or to Distributor'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) If Distributor complies with a public records request within 8 business days after the notice is sent is not liable for the reasonable costs of enforcement. (f) IF DISTRIBUTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, OR AS TO DISTRIBUTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY OF MIAMI BEACH {RB00054012 V2} Page 423 of 1292 ATTENTION: RAFAEL E. GRANADO, CITY CLERK 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 E-MAIL: RAFAELGRANADO(aMIAMIBEACHFL.GOV PHONE: 305-673-7411 17. Force Majeure. (a) A"Force Maleure" event is an event that (i) in fact causes a delay in the performance of Distributor 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 Distributor'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 (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 which matured prior to the occurrence of a Force Majeure event shall not be subject to the Force Majeure provisions. (e) In the event that an event of Force Majeure delays a party's performance under the Agreement for a time period greater than ninety (90) days, the City may, at the sole discretion of the City Manager,terminate the Agreement on a given date, by giving written notice to Distributor of such termination. If the Agreement is terminated pursuant to this section, Distributor shall be paid for any {RB00054012 V2} Page 424 of 1292 outstanding invoices. In no event will any condition of Force Majeure extend this Agreement beyond its stated term. (f) Waiver of Loss from Hazards. Each party hereby expressly waives all claims against the other for loss or damage sustained by it resulting from a Force Majeure event, and each party hereby expressly waives all rights, claims, and demands against the other and forever releases and discharges the other from all demands, claims, actions and causes of action arising from any of the aforesaid causes. 18. E-Verify. (a) To the extent that Distributor provides labor, supplies, or services under this Agreement, Distributor 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, Distributor 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, Distributor 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 Distributor enters into a contract with an approved subcontractor, the subcontractor must provide Distributor with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. Distributor 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) Termination Rights. (1) If the City has a good faith belief that Distributor 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 Distributor for cause, and the City shall thereafter have or owe no further obligation or liability to Distributor. (2) If the City has a good faith belief that a subcontractor has knowingly violated the foregoing Subsection (a), but Distributor otherwise complied with such subsection, the City will promptly notify Distributor and order Distributor to immediately terminate the contract with the subcontractor. Distributor's failure to terminate a subcontractor shall be an event of default under this Agreement, entitling City to terminate Distributor'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 Distributor 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 Distributor under the foregoing Subsection (b)(1), Distributor may not be awarded a public contract for at least 1 year after the date of termination of this Agreement. {RB00054012 V2} Page 425 of 1292 (6) Distributor is liable for any additional costs incurred by the City as a result of the termination of this Agreement under this Section 18. 19. Notices. All notices from the City to the Distributor shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt to the Distributor at the following address: Red Bull Distribution Company, Inc. 1630 Stewart Street Santa Monica, CA 90404 Attn: General Counsel All notices from the Distributor 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: Matt Kenny— Marketing and Communications E-Mail: MattKenny@miamibeachfl.gov With copies to: City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attention: City Manager Distributor 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. 20. Miscellaneous. (a) Entire Agreement/Amendments. 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 only be amended by mutual written agreement between 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. (b) No Waiver. The failure of either party to enforce any provision or condition contained in this Agreement at any time will not be construed as a waiver of that condition or provision nor will it operate as a forfeiture of any right of future enforcement of the condition or provision. (c) Assignments. A party may not assign this Agreement without the prior written consent of the other. (d) Law/Venue. This Agreement, and the parties' conduct arising out of or related to it, shall be governed by Florida law, without regard to its choice of law rules. Venue for any action to enforce the terms and conditions of the Agreement shall be in Miami-Dade County, Florida. (e) Attorneys' Fees. If it becomes necessary for City or Distributor to enforce their respective rights under this Agreement or any part hereof through litigation, Distributor and City agree that the prevailing party shall be entitled to recover from the other party all costs and expenses of such {RB00054012 V2} Page 426 of 1292 litigation, including a reasonable attorneys'fee and costs, for all trial and appellate proceedings. CITY OF MIAMI BEACH, FLORIDA RED BULL DISTRIBUTION COMPANY, INC. By: By: Name: Name: Date: Date: {RB00054012 V2} Page 427 of 1292 EXHIBIT A List of Venues 1. Venues. • Miami Beach City Hall • Miami Beach City Departments including those located outside City Hall (Police, Fire, Emergency Management, Property Management, etc.) • 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 • All 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 A-1, 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 Café (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 Venues where the City is the owner and operator ("Future Venues"), unless not permitted under a Third-Party Agreement, as defined below. • Additional Venues may be added by mutual agreement of the parties. 2. Permitted Exceptions. Venues 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 Development Agreement, public/private partnership, Concession Agreement, Lease, Operation and Management Agreement, License, Use Agreement, Easement Agreement, Revocable Permit, Sidewalk Cafe Permit or any other form of agreement (collectively, "Third-Party Agreements"); in which case such City Property or Third-Party Agreements will not be subject to the exclusivity rights granted to Distributor under this Agreement ("Permitted Exceptions"). Additional Venues may be added by mutual agreement of the parties, and as may be permitted under Third Party Agreements. {RB00054012 V2} Page 428 of 1292 EXHIBIT A-1 List of City Garages 1. 7th Street Garage, 200 7th Street (G1) 2. 12th Street Garage, 512 12th 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 23rd Street (G 12) *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 Vending Machines at G8 will not be permitted unless the private entity that operates the project agrees. {RB00054012 V2} Page 429 of 1292 Red t3ull® RED BULL VENDING AGREEMENT This RED BULL VENDING AGREEMENT (the "Agreement") is made and entered into on this day of , 2023, with an effective date of July 1, 2022, (the "Effective Date") by and between Bettoli Trading Corp., a Florida corporation d/b/a Bettoli Vending ("Distributor"), and the City of Miami Beach, Florida, a Florida municipal corporation (the "City"), each a "party" and collectively the "parties". WHEREAS, the City owns, operates and controls the venues listed on Exhibit A ("List of Venues"), together with any future venues that may be added to the scope of the agreement between Red Bull North America, Inc. ("Red Bull") and the City, pursuant to which Red Bull has secured certain marketing/promotional benefits from the City and its Venues with respect to Red Bull Products, as defined in Subsection 2(a) herein (the "Red Bull Agreement"); and WHEREAS, as used herein, unless specifically delegating the authority to the City Commission, any references to the "City" 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 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 retained by the City. NOW, THEREFORE, in consideration of the covenants and agreements set forth below, the parties hereby agree as follows: 1. Term. The "Term" of this Agreement shall commence on July 1, 2022 and remain in effect until June 30, 2027, unless terminated earlier in accordance with the terms herein, with each twelve-month period from the Effective Date, a "Contract Year". 2. Products, Distribution and Maintenance of Vending Operation. (a) Products Distribution. As referred to in this Agreement, "Products" shall refer to the following Red Bull products: Red Bull Energy Drink, Red Bull Sugar free and Red Bull Editions. A copy of the Product list and Pricing as of the effective date of this Agreement is attached hereto as part of Exhibit B ("Product List and Pricing"). Distributor shall keep the Vending Equipment (as defined in Exhibit C) stocked with Products. All Products shall be dispensed in aluminum cans. (b) Right Price. Distributor agrees to sell the Products stocked in the Vending Equipment based upon the Pricing set forth in Exhibit B-1, attached hereto. (c) Vending Operation. Distributor shall operate and maintain the Vending Equipment as more particularly described in Exhibit C. (d) City Business Tax Receipts. Distributor shall obtain and maintain current and in good standing throughout the Term of this Agreement, at its sole cost and expense, any Business Tax Receipts required by City law, as amended from time to time, for its proposed uses. For purposes of this Agreement, Distributor shall obtain the applicable "Coin Vending Distributor" and/or "25 Cents and Over Machine" category City Business Tax Receipts. (e) Inspection. Distributor agrees that the Vending Machines and their locations may be inspected at any time during days and hours of operation by the City Manager or his designee, or by any {RB FORM 00019956 V12};GNT changes 5.11.22 1 Page 430 of 1292 other municipal, County, State officer, or agency having responsibilities for inspections of such operations. Distributor 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 Distributor from any obligation hereunder. (f) Reports/Payments. (1) Reports. Within sixty (60) days from the end of each quarter, Distributor shall provide the City with a report identifying the number of purchases of Product made by the City and its Venues; identifying the origin of the orders by each Venue; gross metered receipts, prices charged, all certified to be correct by Distributor. (2) Invoices shall be sent to the City to the following address: City of Miami Beach Attn: Matt Kenny— Marketing and Communications 1700 Convention Center Drive Miami Beach, FL 33139, USA At the City's sole and absolute discretion, the City shall make all payments due to Distributor via check or via electronic transfer to such bank account in the name of the Distributor identified from time to time by the Distributor in writing to the City and verified by the City upon receipt of a voided check or bank letter verifying such bank account. (g) Use Fee/Tax. Distributor shall be responsible for remitting any applicable sales and use taxes to the State of Florida relating to its operations. Distributor shall not be charged by the City common area maintenance fees, taxes or other charges related to Distributor's occupation of the space allocated to its equipment at the Venues. Notwithstanding the foregoing, Distributor shall be responsible for personal property taxes related to the Vending Equipment and any other equipment placed at any of the Venues. Additionally, in the event that Miami-Dade County assesses ad-valorem taxes related to the use of spaces being occupied by the Vending Equipment, Distributor shall be responsible for paying or reimbursing the City for said taxes. The provisions of this Subsection (g) shall survive expiration or early termination of the Agreement. 3. Audit and Inspections. (a) Maintenance and Examination of Records. Distributor shall maintain current, accurate, and complete financial records on an accrual basis of accounting related to its operations pursuant to this Agreement. Systems and procedures used to maintain these records shall include a system of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to inspection and audit, by the City Manager or designee upon reasonable prior request and during normal business hours. Such records and accounts shall include a breakdown of gross receipts from the purchase of Products pursuant to the Agreement, received by Distributor; expenses including, without limitation, Marketing Payments, Rebates, commissions and expenses, and profit and loss statements, and such records shall be maintained as would be required by an independent CPA in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. (b) Inspection and Audit. Distributor shall maintain its financial records pertaining to its operations under the Agreement for a period of three (3) years after the conclusion of the Term, and such {RB FORM 00019956 V12} 2 Page 431 of 1292 records shall be open and available to the City Manager or designee, as they may deem necessary. Distributor shall maintain all such records at Distributor's place of business; however, all such records shall be relocated, at Distributor's expense, to a location within the City of Miami Beach, within ten (10) days' written notice from the City Manager or designee that the City desires to review said records. (c) The City Manager or designee shall be entitled to audit Distributor's records pertaining to its operation as often as it deems reasonably necessary throughout the Term of the Agreement, and three (3) times within the three (3) year period following termination of the Agreement, regardless of whether such termination results from the natural expiration of the Term or for any other reason. The City shall be responsible for paying all costs associated with such audits, unless the audit(s) reveals a deficiency of five percent (5%) or more in Distributor's statement of gross receipts for any year or years audited, in which case the firm shall pay to the City, within thirty (30) days of the audit being deemed final (as specified below), the cost of the audit and a sum equal to the amount of the deficiency revealed by the audit, plus interest; provided, however, the audit shall not be deemed final until Distributor has received the audit and has had a reasonable opportunity to review the audit and discuss the audit with the City. Nothing contained within this Section shall preclude the City's audit rights for resort tax collection purposes. (d) It is Distributor's intent to stay informed of comments and suggestions by the City regarding Distributor's performance under the Agreement. Within thirty (30) days after the end of each Contract Year, Distributor and the City may meet to review the parties' performance under the Agreement. At the meeting, Distributor and the City may discuss quality, operational, maintenance and any other issues regarding a party's performance under the Agreement. (e) 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 Distributor, its officers, agents and employees, lobbyists, City staff and elected officials to ensure compliance with the contract documents and to detect fraud and corruption. Pursuant to Section 2-378 of the City Code, the City is allocating a percentage of its overall annual contract expenditures to fund the activities and operations of the Office of Inspector General. (3) Upon ten (10) days written notice to Distributor, Distributor 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 Distributor its officers, agents and employees, lobbyists, City staff and {RB FORM 00019956 V12} 3 Page 432 of 1292 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 Distributor's possession, custody or control which in the Inspector General's sole judgment, pertain to performance of the contract, including, but not limited to original estimate files, change order estimate files, worksheets, proposals and agreements from and with successful subcontractors and suppliers, all project-related correspondence, memoranda, instructions, financial documents, construction documents, (bid/proposal) and contract documents, back-change documents, all documents and records which involve cash, trade or volume discounts, insurance proceeds, rebates, or dividends received, payroll and personnel records and supporting documentation for the aforesaid documents and records. (5) Distributor 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, Distributor shall make available records relating to the work terminated until three (3) years after any resulting final termination settlement; and ii. Distributor 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 Distributor, its officers, agents, employees, subcontractors and suppliers. Distributor shall incorporate the provisions in this section in all subcontracts and all other agreements executed by Distributor 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 Distributor or third parties. 4. Employees and Independent Contractors. (a) In connection with the performance of its responsibilities hereunder, Distributor may hire its own employees who will be employees of Distributor and not employees or agents of the City. Additionally, Distributor's vendors (i.e., entities who provide Products to Distributor) shall not be considered agents or employees of the City. Distributor 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. (b) Distributor shall ensure that all its employees, contractors and vendors while working at or within the Venues observe all the graces of personal grooming. Distributor shall hire people to work in its vending operation who are neat, clean, well-groomed and shall comport themselves in a professional and courteous manner and ensure that its contractors and vendors comply with same. (c) Level 1 Background Check Screening Process. Distributor shall conduct a full Level I {RB FORM 00019956 V12} 4 Page 433 of 1292 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"). Distributor shall ensure that each employee and/or contractor meets the Statutory Screening Standards prior to commencing to perform any work and/or services under this Agreement. Distributor 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. Distributor agrees to notify the City immediately upon becoming aware that one of its employees and/or contractors 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 Distributor to notify the City of such arrest or conviction within two business days of being put on notice or within thirty (30) days of the occurrence of qualifying arrest resulting in charges or conviction, shall constitute grounds for the City, at its sole option, to place Distributor in default. Distributor 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 injury or damages arising out of its failure to comply with this requirement. Distributor shall employ personnel competent to perform the work specified herein. The City reserves the right to request the removal of Distributor's employee from performing services under this Agreement where the employee'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. Distributor's personnel must wear photo identification at all times. (d) If Distributor materially fails to comply with the provisions of this Section, the City may default Distributor pursuant to Section 5 herein. 5. Default/Termination. Subsections (a) through (c) shall constitute events of default under this Agreement. An event of default by Distributor 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 (d). An event of default by City shall entitle Distributor to exercise any and all remedies described as Distributor's remedies under this Agreement including, but not limited to, those set forth in Subsection (e). (a) Bankruptcy. If either the City or Distributor 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 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. (b) Default in Payment. Any payment which the City is required to make to Distributor which is not paid on within forty-five (45) days of its due date, such payment shall be subject to interest at the rate of twelve percent (12%) per annum. (c) Non-Monetary Default. In the event that Distributor 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 {RB FORM 00019956 V12} 5 Page 434 of 1292 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 Distributor cures any default pursuant to this Subsection, it shall promptly provide City with written notice of same. (d) City's Remedies for Distributor's Default. If any of the events of default, as set forth in this Section 5, 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 Distributor a notice of termination of this Agreement. If such notice is given, the term of this Agreement shall terminate upon the date specified in such notice from City to Distributor. On the date so specified, Distributor shall then quit and surrender the Venues to City pursuant to the provisions of Subsection (g). Upon the termination of this Agreement, all rights and interest of Distributor in and to the Venues 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 Distributor; 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 Distributor's default. (e) If an event of default by the City, as set forth in this Section 5, shall occur, Distributor 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 and/or sue for damages. Said termination shall become effective upon receipt of a written notice of termination by the City, but in no event shall Distributor specify a termination date that is less than sixty (60) days from the date of the written termination notice. On the date specified in the notice, Distributor shall quit and surrender the Venues to the City pursuant to the provisions of Subsection (g). Upon any termination of this Agreement under this Subsection, Distributor shall be entitled to collect any outstanding payments due to Distributor in connection with the sale and delivery of Product ordered by the City pursuant to this Agreement through the date of termination. . Distributor's sole remedy for a breach of contract by the City shall be to terminate the Agreement and collect any balance owed to Distributor in connection with the sale and delivery of Product ordered by the City pursuant to this Agreement. (f) Termination for Convenience/Partial Termination. (1) Termination for Convenience by the City. The City may also, for its convenience and without cause, terminate the Agreement at any time during the term by giving written notice to Distributor of such termination; which shall become effective within thirty days (30) days following receipt by Distributor of such notice, or such other longer period of time as the City may determine in the notice of termination ("Notice of Termination"). During the period of time set forth in the Notice of Termination, the City, at its option, may not purchase any Product. Additionally, in the event of a public health, welfare or safety concern, as determined by the City Manager, in the City Manager's sole discretion, the City Manager, pursuant to a verbal or written notification to Distributor, may immediately suspend the services under this Agreement for a time certain. If the Agreement is terminated for convenience by the City, the City shall pay Distributor any outstanding payments due to Distributor in connection with the sale and delivery of Products ordered by the City pursuant to {RB FORM 00019956 V12} 6 Page 435 of 1292 this Agreement through the date of termination; following which the City shall be discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this Agreement. (2) Distributor acknowledges that the City, at the City's sole discretion, may close all or a portion of the Venues, In such a case, then the parties agree that the portion of the Agreement referencing said individual Venue shall be partially terminated for convenience, without cause and without penalty to either party, and only as to the Venues, or portion thereof, which have been closed. (3) Except as provided in the preceding Subsections (1) and (2), in the event of termination or partial termination by City of the Agreement pursuant to this Subsection, Distributor herein acknowledges and agrees that it shall not have any claim, demand, or cause of action of whatsoever kind or nature, against the City, its agents, servants, and employees (including, but not limited to, claims for interference in business or damages for interruption of services or interference in its vending operations by Distributor or its vendors). (g) Surrender of Venues. At the expiration of this Agreement, or in the event of termination or partial termination of the Agreement, Distributor shall surrender the Venues in the same condition as the Venues were prior to the Effective Date of this Agreement, reasonable wear and tear excepted. Distributor shall remove all its Snack Machines, Change Machines, and any and all other equipment, fixtures, personal property, etc. upon thirty (30) days written notice from the City Manager or his designee unless a longer time period is agreed to by the City. Distributor's obligation to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy of the Venues (or portions thereof) after termination (or partial termination) of the Agreement shall constitute trespass by the Distributor and may be prosecuted as such. In addition, the Distributor shall pay to the City one thousand dollars ($1,000) per day as liquidated damages for such trespass and holding over. (h) Remedies in the event of a Default. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL DISTRIBUTOR 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 OR LIMIT ANY LIABILITY UNDER ANY APPLICABLE LAW OR STATUTE WHICH SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED. 6. Trademarks. Neither the City nor Distributor may use the other's trademarks, any logos, designs or slogans related to Distributor Products, venues, brands or operations of the other without express prior written consent of the other party. 7. Representations &Warranties. Distributor and the City each represent and warrant to the other that: (a) it has all necessary power and legal authority to enter into and perform its obligations hereunder; and (b) it is not party to any other written or oral agreement that conflicts with such party's obligations to the other or restricts such party's performance of this Agreement. 8. No Partnership. This Agreement is not intended to (and does not) create an agency, joint venture, partnership or similar relationship between the parties. Each party will act solely as an independent contractor and neither party will have the right to act for or bind the other party in any way. 9. Extension; Right of First Refusal. (Intentionally Omitted) 10. Indemnification. Distributor shall defend, indemnify and hold harmless the City, and its officers, employees, agents, and contractors from and against any and all demands, actions, damages, 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 Distributor's: (i) breach of its representations or warranties (or those of its employees, contractors or agents); (ii) negligence or willful misconduct (or those {RB FORM 00019956 V12} 7 Page 436 of 1292 of its employees, contractors or agents); and/or (iii) infringement or alleged infringement of a third party's intellectual property rights; or otherwise related to the services performed by Distributor under this Agreement.. This section shall survive the expiration or other termination of this Agreement. 11. Insurance Requirements. (a) Distributor shall maintain, at its sole cost and expense, the following types of insurance coverage at all times throughout the term of this Agreement. (1) Commercial General Liability in the minimum amount of One Million Dollars ($1,000,000) per occurrence for bodily injury and property damage. This policy must also contain coverage for premises operations, products, completed operations and contractual liability for indemnification obligations under an "insured contract." (2) Workers Compensation Insurance and Employers Liability Insurance shall be provided as required under the Laws of the State of Florida. (3) Automobile Insurance for any vehicles used for, or associated with Distributor'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 Property Damage $1,000,000 per accident (b) 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 ten (10) days written notice of cancellation to both the City's Risk Manager and City Manager's designee to the extent provided under the policies or at law (to be submitted to the addresses set forth in Section 19 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. (c) Certificates must be sent directly to certificates-miamibeach@riskworks.com. Please ask vendors to include the following information when sending the insurance certificates: • Include the Contract's#and Distributor'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 (d) 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 Distributor and following 10 days for Distributor to cure, immediately terminate the Agreement; or (ii) the City, in its sole discretion, may, following written notice to Distributor and 10 days for Distributor to cure, obtain the insurance itself, in which case said insurance shall be charged back to the Distributor. {RB FORM 00019956 V12} 8 Page 437 of 1292 (e) Prior to the Commencement Date of this Agreement, Distributor shall provide City with a Certificate of Insurance for each such policy. Said policies of insurance shall be primary to and contributing with any other insurance maintained by Distributor or City. (f) Distributor 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. (g) Subrogation. The terms of insurance policies referred to herein shall preclude subrogation claims against Distributor, 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$10,000.00. Distributor hereby expresses its willingness to enter into this Agreement with Distributor's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of$10,000.00. Accordingly, and notwithstanding any other term or condition of this Agreement, Distributor hereby agrees that the City shall not be liable to Distributor for damages in an amount in excess of $10,000.00 for any action for breach of contract or claim for breach of contract arising out of the performance or non- performance of any obligations imposed upon the City by this Agreement. Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida Statutes. 13. Laws. In its performance of the Services, Distributor 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. 14. No Discrimination. In connection with the performance of the Services, Distributor 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, Distributor 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. Distributor 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.gov) in addition to the below requirements for the Vending Machines and placement. (a) 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. (b) The controls shall be operable with one hand and not require tight grasping, pinching, or twisting of the wrist. {RB FORM 00019956 V12} 9 Page 438 of 1292 (c) The force required to activate the controls shall not be greater than five (5) pounds of force. (d) 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. Distributor's Compliance with Public Records Law. (a) Distributor shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be amended from time to time. (b) 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. (c) Pursuant to Section 119.0701 of the Florida Statutes, if Distributor meets the definition of "Contractor" as defined in Section 119.0701(1)(a), Distributor 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 Distributor 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 Distributor or keep and maintain public records required by the City to perform the service. If Distributor transfers all public records to the City upon completion of the Agreement, Distributor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If Distributor keeps and maintains public records upon completion of the Agreement, Distributor 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. (d) 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 Distributor of the request, and Distributor must provide the records to the City or allow the records to be inspected or copied within a reasonable time. (2) Distributor's failure to comply with the City's request for records shall constitute a breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate the Agreement; (2) avail itself of the remedies set forth under the Agreement; and/or (3) avail itself of any available remedies at law or in equity. (AB FORM 00019956 V12) 10 Page 439 of 1292 (3) If Distributor fails to provide the public records to the City within a reasonable time may be subject to penalties under s. 119.10. (e) Civil Action. (1) If a civil action is filed against a Distributor to compel production of public records relating to the City's contract for services, the court shall assess and award against Distributor the reasonable costs of enforcement, including reasonable attorneys' fees, if: (a) The court determines that Distributor 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 Distributor has not complied with the request, to the City and to Distributor. (2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of public records and to Distributor at Distributor's address listed on its contract with the City or to Distributor'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) If Distributor complies with a public records request within 8 business days after the notice is sent is not liable for the reasonable costs of enforcement. (f) IF DISTRIBUTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, OR AS TO DISTRIBUTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY OF MIAMI BEACH ATTENTION: RAFAEL E. GRANADO, CITY CLERK 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 E-MAIL: RAFAELGRANADO(a�MIAMIBEACHFL.GOV PHONE: 305-673-7411 17. Force Majeure. (a) A "Force Majeure" event is an event that (i) in fact causes a delay in the performance of Distributor 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 {RB FORM 00019956 V12} 11 Page 440 of 1292 technological impossibility, inclement weather, or failure to secure any of the required permits pursuant to the Agreement. (b) If the City or Distributor'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 (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 which matured prior to the occurrence of a Force Majeure event shall not be subject to the Force Majeure provisions. (e) Notwithstanding any other provision to the contrary herein, in the event of a Force Majeure occurrence, the City may, at the sole discretion of the City Manager, suspend the City's payment obligations under the Agreement, and may take such action without regard to the notice requirements herein. Additionally, in the event that an event of Force Majeure delays a party's performance under the Agreement for a time period greater than ninety (90) days, the City may, at the sole discretion of the City Manager, terminate the Agreement on a given date, by giving written notice to Distributor of such termination. If the Agreement is terminated pursuant to this section, Distributor shall be paid for any outstanding invoices and shall also be entitled to collect the proportionate share of any previously advanced but unearned Marketing Payments for the remainder of the Contract Year for the effective date of the termination. The amount of such reimbursement will be the result of multiplying, the total amount of the Marketing Payment to the City in the Contract Year in which the Agreement is terminated by a fraction, the numerator of which is the number of months remaining in the Contract Year in which the Agreement is terminated, at the time such termination occurs, and the denominator of which is 12 (twelve), following which the City shall be discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this Agreement. In no event will any condition of Force Majeure extend this Agreement beyond its stated term. (f) Waiver of Loss from Hazards. Each party hereby expressly waives all claims against the other for loss or damage sustained by it resulting from a Force Majeure event, and each party hereby expressly waives all rights, claims, and demands against the other and forever releases and discharges the other from all demands, claims, actions and causes of action arising from any of the aforesaid causes. {RB FORM 00019956 V12} 12 • Page 441 of 1292 18. E-Verifv. (a) To the extent that Distributor provides labor, supplies, or services under this Agreement, Distributor 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, Distributor 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, Distributor 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 Distributor enters into a contract with an approved subcontractor, the subcontractor must provide Distributor with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. Distributor 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) Termination Rights. (1) If the City has a good faith belief that Distributor 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 Distributor for cause, and the City shall thereafter have or owe no further obligation or liability to Distributor. (2) If the City has a good faith belief that a subcontractor has knowingly violated the foregoing Subsection 1(a), but Distributor otherwise complied with such subsection, the City will promptly notify Distributor and order Distributor to immediately terminate the contract with the subcontractor. Distributor's failure to terminate a subcontractor shall be an event of default under this Agreement, entitling City to terminate Distributor'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 Distributor 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 Distributor under the foregoing Subsection (b)(1), Distributor may not be awarded a public contract for at least 1 year after the date of termination of this Agreement. (6) Distributor is liable for any additional costs incurred by the City as a result of the termination of this Agreement under this Section 18. 19. Notices. All notices from the City to the Distributor shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt to the Distributor at the following address: Mr. Maurizio Bettoli, President Bettoli Trading Corp. 6095 N.W. 167th Street, Unit D-4 Hialeah, Florida 33015 {RB FORM 00019956 V12} 13 Page 442 of 1292 All notices from the Distributor 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: Matt Kenny— Marketing and Communications Department Assistant Director E-Mail: MattKenny@miamibeachfl.gov • With copies to: City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attention: City Manager Distributor 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. 20. Miscellaneous. (a) Amendments. This Agreement may only be amended by mutual written agreement between 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. (b) No Waiver. The failure of either party to enforce any provision or condition contained in this Agreement at any time will not be construed as a waiver of that condition or provision nor will it operate as a forfeiture of any right of future enforcement of the condition or provision. (c) Assignments. A party may not assign this Agreement without the prior written consent of the other. (d) Law/Venue. This Agreement, and the parties' conduct arising out of or related to it, shall be governed by Florida law, without regard to its choice of law rules. Venue for any action to enforce the terms and conditions of the Agreement shall be in Miami-Dade County, Florida. (e) Attorneys' Fees. If it becomes necessary for City or Distributor to enforce their respective rights under this Agreement or any part hereof through litigation, Distributor 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. CITY OF MIAMI BEACH, FLORIDA BETTOLI TRADING, CORP. By: By: Name: Name: Date: Date: (RB FORM 00019956 V12} 14 Page 443 of 1292 EXHIBIT A List of Venues 1. Venues. • 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 • All 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 A-1, 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 Venues where the City is the owner and operator ("Future Venues"), unless not permitted under a Third-Party Agreement, as defined below. • Additional Venues may be added by mutual agreement of the parties. 2. Permitted Exceptions. Venues 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 Development Agreement, Public/Private projects, Concession Agreement, Lease, Operation and Management Agreement, License, Use Agreement, Easement Agreement, Revocable Permit, Sidewalk Café Permit or any other form of agreement (collectively, "Third-Party Agreements"); in which case such City Property or Third-Party Agreements will not be subject to the exclusivity rights granted to Distributor under this Agreement ("Permitted Exceptions"). Additional Venues may be added by mutual agreement of the parties, and as may be permitted under Third Party Agreements. {RB FORM 00019956 V12} 15 Page 444 of 1292 EXHIBIT A-1 List of City Garages 1. 7th Street Garage, 200 7th Street (G1) 2. 12th Street Garage, 512 12th 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 23rd 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 Vending Machines at G8 will not be permitted unless the private entity that operates the project agrees. {RB FORM 00019956 V12} 16 Page 445 of 1292 EXHIBIT B Product List and Pricing The list of Products and any changes or updates to the Red Bull list of Products shall be provided to the City Manager's designee in writing prior to implementing any change so that the City is aware of the list of available Products at all times. The initial list of Products to be sold in the Vending Machines and associated prices is attached hereto as Exhibit B-1. The Vending prices for the Products may be increased consistent with any price increases for the Products, as permitted under the Red Bull Agreement ("Red Bull Pricing Increases"). Any increases, other than Red Bull Pricing Increases, shall be subject to the approval of the City Manager. {RB FORM 00019956 V12} 17 Page 446 of 1292 EXHIBIT B-1 Miami Beach Red Bull Prices Drink Price Convention Center Price Red Bull Original 8oz $3.50 $5.00 Red Bull Sugar Free 8oz $3.50 $5.00 Red Bull Watermelon 8oz $3.50 $5.00 Red Bull Dragon Fruit 8oz $3.50 $5.00 Red Bull Tropical 8oz $3.50 $5.00 Red Bull Coconut Berry 8oz $3.50 $5.00 Reb Bull Peach Nectarine 8oz $3.50 $5.00 Red Bull Blueberry 8oz $3.50 $5.00 Red Bull Fig Apple 8oz $3.50 $5.00 Red Bull Zero 8oz $3.50 $5.00 Red Bull Strawberry Apricot 8oz $3.50 $5.00 {RB FORM 00019956 V12} 18 Page 447 of 1292 EXHIBIT C Red Bull Vending Equipment Terms & Conditions: The following Terms and Conditions shall apply to Distributor's operation of the vending machines approved for use in this Agreement by Red Bull (the "Vending Machines"). 1. The Vending Machines will be placed at locations within the Venues, to be determined at the sole discretion of the City Manager or designee. The initial list of locations is attached hereto as Exhibit C-1. 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 C-1, executed by the City Manager or designee, without the need to amend the Agreement. Distributor, at the request of the City Manager or designee, shall remove or relocate the Vending Machines. 2. Distributor shall retain ownership of all items of Vending Machines that Distributor permits the City (and the Venues) to use, and Distributor shall be entitled to remove them upon the earlier of the conclusion of the Term or termination of this Agreement pursuant to Section 5(g) of the Agreement. 3. Service/maintenance. Distributor shall maintain, at no cost to the City, any Vending Machines in the City's or any Venue's possession, in good working order, and in good condition and repair, free of damage or graffiti, ordinary wear and tear excepted, including, without limitation, performing normal servicing and repairs, as needed. Distributor will also provide the City with a telephone number to request emergency repairs and receive technical assistance related to the Vending Machines after business hours. Distributor will promptly respond to each City request within forty-eight (48) hours and will use reasonable efforts to remedy the related Vending Machine problem as soon as possible, but no later than five (5) working days. Distributor will notify the City should a maintenance issue with equipment not be remedied in a timely manner. 4. The City shall not alter or remove Red Bull proprietary marks, nor display other trademarks, service marks, trade names, words, designs, graphics, three-dimensional objects, symbols, logos, or other identifications mark or commercial symbol of any kind on the Vending Machines. 5. the City shall not (and shall cause the Venues not to) sell, lease, give away or otherwise dispose of or use any Vending Machines for any purpose not permitted by these Terms & Conditions. 6. the City agrees that a breach of any of the above Terms & Conditions shall constitute a material breach of this Agreement. 7. Equipment. (a) Distributor will loan to the City, at no charge, appropriate Vending Machines for dispensing the Products at the Venues. The Vending Machines will be exclusively used to display and merchandise the Products as reasonably determined by Distributor, at a location to be determined by the City, and City will not use the Vending Machines to display, stock, advertise, sell or maintain any other products (including on the exterior of the Vending Machines). Title to such Vending Machines will remain vested in Distributor and the City will permit Distributor to arrange for removal of all Vending Machines upon expiration or earlier termination of this Agreement pursuant to Section 5(g) of the Agreement. (b) Vending Machines. With respect to the operation of the Vending Machines placed at the Venues, at the sole discretion of the City Manager or designee, Distributor will have the additional {RB FORM 00019956 V12} 19 Page 448 of 1292 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. (1) Removal/Relocation of Vending Machines. Distributor acknowledges that there may be circumstances under which the City Manager may require the removal or relocation of any or all of the Vending Machines. As such, Distributor agrees that any or all of its Vending Machines will be removed by Distributor from their approved locations upon fifteen (15) days written notice to Distributor and said removal shall be done in compliance with the applicable section(s) as set forth herein, and without liability to the City. (2) Hurricane Evacuation Plan. Distributor agrees that upon the issuance of a Hurricane Warning by the Miami-Dade County Office of Emergency Management, it shall ensure that all exterior Vending Equipment, and any and all other items used in the vending operations shall be secured. Additionally, and notwithstanding the foregoing, Distributor agrees that upon receipt of notification from the City Manager or designee, whether in writing or verbally, which may be communicated to Red Bull via telephone, fax and/or email, all exterior Vending Machines, and any and all other items used in the vending operations shall be removed from their approved locations and stored at a private, off-site location, within 24 hours of said notification. Distributor's failure to remove Vending Machines, or any and all other items used in the vending operations upon notice from the City Manager or designee within the time period provided in this Subsection, may, at the City's sole discretion, constitute an automatic default of the Agreement under which the City may, upon written notice to Distributor, immediately terminate this Agreement. (c) Electrical service, including maintenance of outlets, shall be provided by the City at the Venues at no cost to Distributor, if and where feasible. No water service will be provided by the City in connection with the operation of Vending Machines under this Agreement. If not currently existing, requests for installation of new and/or additional outlets shall be submitted in writing to the City Manager or designee, for review and approval. If approved by the City Manager or designee, installation of new and/or additionally outlets will be performed by the City and/or an electrical contractor approved by the City, in writing, to perform said work on the City's behalf, at Distributor's sole cost and expense. (d) Schedule of Operation. The Vending Machines shall be made available to patrons twenty- four (24) hours a day, seven days a week, based on the particular hours of operation of each individual Venue, events of force majeure permitting. (e) Product Reallocation. The City shall have the option of changing the Product type sold at the Venues or Vending Machines. For the sake of example, but without limitation, if the City would like to have a greater amount of one Product, or remove a certain Product and replace it with another available Product, Distributor shall reallocate the inventory for those Venues or Vending Machines as requested by the City. {RB FORM 00019956 V12} 20 Page 449 of 1292 • EXHIBIT C-1 Approved Locations`for Vending Machines (Name 'Addressl ._.. 'City — CITY OF MIAMI BEACH FLAMINGO 1200'MERIDICAN AVE MIAMI BEACH CITY OF MIAMI BEACH 17TH ST PK GARAG i 640 17TH ST MIAMI BEACH ;CITY OF MIAMI BEACH 13th ST GARAGE 1301 COLLINS AVE - MIAMI BEACH CITY OF MIAMI BEACH FLAMINGO 111 JEFFERSON AVE 'MIAMI BEACH (CITY OF MIAMI BEACH 17th ST GARAGE 640 17TH ST GARAGE MIAMI.BEACH. 'CITY OF MIAMI BEACH FLAMINGO 111 JEFFERSON ST ` 'MIAMI BEACH •CITY OF MIAMI BEACH FLAMINGO 1200 MERIDIAN AVE ' MIAMI BEACH CITY OF MIAMI BEACH 17th ST GARAGE 1640 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 1200 FAIRWAY DR IMIAMI BEACH 1 ;CITY MIAMI BEACH PARKING GARAG 1661 PENNSYLVANIA AVE MIAMI BEACH (CITY OF MIAMI BEACH POLICE 11100 WASHINGTON AVE _ 'MIAMI BEACH 'CITY MIAMI BEACH_ 16 WASHINGTON AVE • MIAMI BEACH (CITY OF MIAMI BEACH SCOTT RAKOW YOUTH CT 12700 SHERIDAN AVE - 'MIAMI BEACH —1 'CITY MIAMI BEACH SUNSET PARK 1832 BAY DR MIAMI BEACH [CITY OF MIAMI BEACH CITY HALL BLDG 11700 CONVENTION CENTER DR 'MIAMI BEACH 1.CITY OF MIAMI BEACH SUNSET HA 1900 PURDY AVE MIAMI BEACH 'CITY OF MIAMI BEACH 7th ST GARAGE 1210 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 11200 MERIDICAN AVE !MIAMI BEACH I CITY OF MIAMI BEACH CITY HALL BLDG 1700 CONVENTION CENTER DR MIAMI BEACH NORTH SHORE YOUTH CENTER 1501 72ND ST !MIAMI BEACH {RB FORM 00019956 V12} 21 Page 450 of 1292