Supplemental 4-13-2011-OCR(P MIAMIBEACH
City Commission Meeting
SUPPLEMENTAL MATERIAL
City Hall, Commission Chambers, 3rd Floor, 1700 Convention Center Drive
April 13,201 1
Mayor Matti Herrera Bower
Vice-Mayor Jonah Wolfson
Commissioner Jorge Exposito
Commissioner Michael G6ngora
Commissioner Jerry Libbin
Commissioner Edward L. Tobin
Commissioner Deede Weithorn
City Manager Jorge M. Gonzalez
City Attorney Jose Smith
City Clerk Robert E. Parcher
Visit us at www.miamibeachfl.gov for agendas and video "streaming" of City Commission Meetings.
SUPPLEMENTAL AGENDA
,
C7 - Resolutions
ATTENTION ALL LOBBYISTS
Chapter 2, Article VII, Division 3 of the City Code of Miami Beach entitled "Lobbyists" requires the
registration of all lobbyists with the City Clerk prior to engaging in any lobbying activity with the City
Commission, any City Board or Committee, or any personnel as defined in the subject Code
sections. Copies of the City Code sections on lobbyists laws are available in the City Clerk's office.
Questions regarding the provisions of the Ordinance should be directed to the Office of the City
Attorney.
A Resolution Approving And Authorizing The Mayor And City Clerk To Execute An Agreement
With Atkins North America, Inc., As The Successor In Interest To Post, Buckley, Schuh &
Jernigan, Inc. For Design, Bid And Award, And Construction Administration Services, In The
Negotiated Not-To-Exceed Amount Of $330,000, And $39,000 For Reimbursable Expenses,
For A Total Not To Exceed Amount Of $369,000, For The South Pointe Park Pier Project,
Pursuant To Request For Qualifications (RFQ) No. 04-1 011 I ; With Previously Appropriated
Funding From Fund 303.
(Capital Improvement Projects)
(Resolution, Letter from Atkins, & Certificate of Corporation)
Supplemental Agenda, April 13, 201 1
C7 - Resolutions (Continued)
C7G A Resolution Accepting The Recommendation Of Gallagher Benefit Services, Inc., The City's
Consultant Of Record, Pursuant To That Certain Request For Proposals Issued By Gallagher On
Behalf Of The City For A Voluntary Benefits Program For Full-Time And Part-Time Employees, And
Authorizing The City Manager To Negotiate And, If Successful, Execute Agreements For The City's
Voluntary Benefits Program With The Following Companies; 1 .) Preferred Legal And U.S. Legal, For
Discount Legal Service Programs; 2.) Trustmark, For Accident, Critical Illness And Universal Life
Plans; And 3.) Colonial Life &Accident Insurance Company, For A Hospital Indemnity Plan; Further
Authorizing The Administration To Work Directly With The Selected Individual Plan Carriers To Select
One (1) Enrollment Firm To Provide Annual Enrollment Support And Benefit Materials For All Of The
City's Benefit Programs, At No Cost To The City; And Further Referring The Discussion Of A Potential
New Voluntary Benefit Offering For Active City Employees, Providing For An Unsecured Loan
Program Repaid Through Payroll Deductions, To The City's Finance And Citywide Projects
Committee.
(Human Resources)
(Resolution)
R7 - Resolutions
R7C A Resolution Approving And Authorizing The Mayor And City Clerk To Execute An Agreement
Between The City And Broward Stage Door Theater, Inc. For The Operation And Management Of A
Portion Of The Byron Carlyle Theater, Pursuant To Request For Proposals No. 24-09/10; Said
Agreement Having An Initial Term Of Five (5) Years, Commencing On May 1,201 1, And Ending On
April 31, 2016, With An Option To Extend The Agreement For Up To Five (5) Additional Years (In
Either One Year Or Multi-Year Increments, As Determined By The City), At The City Sole Discretion.
(Tourism & Cultural Development)
(Memorandum, Resolution & Agreement)
R9 - New Business and Commission Requests
R9F The Committee Of The Whole Will Meet During Lunch Recess Of The April 13, 2011 City
Commission Meeting At The City Manager's Large Conference Room To Discuss Status Of Pending
Legislation Currently Before The Florida Legislature. (Page)
(Economic Development)
(Memorandum)
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF MIAMI
BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND ClTY
CLERK TO EXECUTE AN AGREEMENT WlTH ATKINS NORTH AMERICA, INC., AS
THE SUCCESSOR IN INTEREST TO POST, BUCKLEY, SCHUH & JERNIGAN, INC.,
FOR DESIGN, BID AND AWARD, AND CONSTRUCTION ADMINISTRATION
SERVICES, IN THE NEGOTIATED NOT-TO-EXCEED AMOUNT OF $330,000, AND
$39,000 FOR REIMBURSABLE EXPENSES, FOR A TOTAL NOT TO EXCEED
AMOUNT OF $369,000, FOR THE SOUTH POINTE PARK PIER PROJECT,
PURSUANT TO REQUEST FOR QUALIFICATIONS (RFQ) NO. 04-10111; WlTH
PREVIOUSLY APPROPRIATED FUNDING FROM FUND 303.
WHEREAS, on July 14, 2010, the Mayor and City Commission approved the issuance of
Request for Qualifications (RFQ) No. 04-1 011 1, for the Design, Bid, Award, and Construction
Administration Services for the South Pointe Pier Project (the l'RFQ1'); and
. .. .
WHEREAS, the RFQ was issued on November 12, 2030, with an opening date of
December 13,2010; and . . . .
WHEREAS, at its March 9, 201 1 meeting, the City Commission approved Resolution No.
201 1-27606, authorizing the Administration to enter into negdiafions with the top-ranked firm of
Post, Buckley, Schuh & Jernigan, Inc.; to negotiate with the .second-ranked firm of Bermello
Ajamil & Partners, Inc. should negotiations with the top-ranked firm be unsuccessful; and to
negotiate with the third-ranked firm of the Keith and Schnars, shou should negotiations with the
first or second-ranked firms be unsuccessful; and
WHEREAS, the Administration has successfully negotiated the attached Agreement with
Post, Buckley, Schuh & Jernigan, Inc., in the amount of $330,000, of which $270,000 is for
design, $5,000 is for bidlaward services, and $55,000 is for construction administration services,
plus an additional amount of $39,000 for approved reimbursables; and
WHEREAS, Post, Buckley, Shuh & Jernigan, Inc.(PBS '& J) submitted its response to the
RFQ as PBS & J and Atkins North America, Inc.; PBS & J was acquired by Atkins North
America, Inc. on October I, 2010; and
WHEREAS, Atkins North America, Inc. is the successor in interest to PBS & J.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE
ClTY OF MIAMI BEACH, FLORIDA, that the Mayor and City:f2ammission hereby approve and
authorize the Mayor and City Clerk to execute an Agreement with Atkins North America, Inc., as
the successor in interest to Post, Buckley, Schuh & Jernigarr, Iric,, for design, bid and award,
and construction administration services, in the negotiated amol.int 6f $330,000, and $39,000 for
reimbursable expenses for a total not-to-exceed amount of $369,000 for the South Pointe Park
Pier Project, pursuant to Request for Qualifications (RFQ) No. 04-10/11; with previously
appropriated funding from fund 303.
PASSED AND ADOPTED THIS DAY OF 201 1.
ATTEST: ,
MAYOR CITY CLI€~~ROVED AS To
FORM & LANGUAGE
Agenda Item C7C
Date q-/3-11
RECEIVED
April 06, 2011 205 1 APR -7
Atkins North America, Inc.
2001 Northwest 107th Avenue
Miami, Florida 331 72-2507
Telephone: +1.305.592.7275
www.atkinsglobal.com/northamerica
City of Miami Beach GI1 '!' Gi- rIiANi BEACH
@f'lTAL iEPROY EMENT Capital Improvement Projects 0 Ice PROJECTS 1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Matilde E. Reyes, R.A.
Sr. Capital Projects Coordinator
Re: Company Change of Name from Post, Buckley, Schuh & Jernigan, Inc., d/b/a PBS&J
to Atkins North America, Inc.
Dear Ms. Reyes:
As you may know from previous correspondence, effective April 1, 2011, Post, Buckley, Schuh &
Jernigan, Inc., d/b/a PBS&J ("PBS&J") changed its name to Atkins North America, Inc. ("Atkins"). By
this letter, we formally request that our future contract be structured to reflect our new company
name.
I am providing you with the following information to effect the change of name.
1. By this letter, I confirm that PBS&J changed its legal name to Atkins North America, Inc.,
effective April 1, 20 1 1.
2. As an officer of the company, I confirm that this change of name will have no impact on our
future contract with the City. Our business address, corporate structure, federal tax ID
number, personnel and management will remain unchanged. Atkins North America, Inc.
remains incorporated in Florida and remains a wholly-owned subsidiary of The PBSJ
Corporation (which, like PBS&J, completed a name change effective April 1, 2011 to The
Atkins North America Holdings Corporation).
3. A copy of the certification from the Florida Secretary of State evidencing the name change
and its effective date are attached as Exhibit 1.
4. Our insurance coverage remains unchanged.
Please do not hesitate to contact me if you require any additional information in support of this name
change.
Sincerelv vours. A
William P. Pitcher, P.E.
Vice President, Port and Coastal Engineering Practice
Cc: Ken Jones / Atkins
Cc: Humberto Alonso / Atkins
Cc: J.R. Steele / Atkins
Enclosure: Exhibit 1
I certify the attached is a true and correct copy of the Articles of Incorporation, as
amended to date, of ATMJNS NORTH AMERICA, INC., a corporation organized
under the laws of the State d Florida, as shown by the records of this office.
"Pke document number of this corporation is 233840.
Given under my hand and the
Great Seal of the State d Florida
at Tallahasset;, the Capita!, this the
Fifieentk day of Februaoy, 201 1
CR2E022 (0167)
THIS PAGE INTENTIONALLY LEFT BLANK
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF
GALLAGHER BENEFIT SERVICES, INC., THE CITY'S CONSULTANT OF
RECORD, PURSUANT TO THAT CERTAIN REQUEST FOR PROPOSALS
ISSUED BY GALLAGHER ON BEHALF OF THE CITY FOR A VOLUNTARY
BENEFITS PROGRAM FOR FULL-TIME AND PART-TIME EMPLOYEEES, AND
AUTHORIZING THE ClTY MANAGER TO NEGOTIATE AND, IF SUCCESSFUL,
EXECUTE AGREEMENTS FOR THE CITY'S VOLUNTARY BENEFITS
PROGRAM WlTH THE FOLLOWING COMPANIES; 1.) PREFERRED LEGAL
AND U.S. LEGAL, FOR DISCOUNT LEGAL SERVICE PROGRAMS; 2.)
TRUSTMARK, FOR ACCIDENT, CRITICAL ILLNESS AND UNIVERSAL LlFE
PLANS; AND 3.) COLONIAL LlFE & ACCIDENT INSURANCE COMPANY, FOR
A HOSPITAL INDEMNITY PLAN; FURTHER AUTHORIZING THE
ADMINISTRATION TO WORK DIRECTLY WlTH THE SELECTED INDIVIDUAL
PLAN CARRIERS TO SELECT ONE (I) ENROLLMENT FIRM TO PROVIDE
ANNUAL ENROLLMENT SUPPORT AND BENEFIT MATERIALS FOR ALL OF
THE CITY'S BENEFIT PROGRAMS, AT NO COST TO THE CITY; AND
FURTHER REFERRING THE DISCUSSION OF A POTENTIAL NEW
VOLUNTARY BENEFIT OFFERING FOR ACTIVE ClTY EMPLOYEES,
PROVIDING FOR AN UNSECURED LOAN PROGRAM REPAID THROUGH
PAYROLL DEDUCTIONS, TO THE CITY'S FINANCE AND CITYWIDE
PROJECTS COMMITTEE.
WHEREAS, the City currently provides its full-time employees access to a voluntary
benefits program administered by a broker, Comprehensive Companies, which has been
providing these benefits since 1991 ; and
WHEREAS, these options are provided at no cost to the City and are fully- funded by
employee contributions; and
WHEREAS, the employees are provided voluntary benefit options which include
universal life, disability, critical life insurance, a cancer policy, and discount legal services; and
WHEREAS, at the direction of the City Administration, the City's Consultant, Gallagher
Benefits Services, Inc. (Gallagher), issued a Request for Proposals (RFP) for a voluntary
benefits program for both the City's full-time and part-time employees, including a request for
enrollment support to be provided by one (1) independent enrollment firm selected among the
carrier(s), at no cost to the City; and
WHEREAS, as a result of the RFP, the City received responses from eight (8) individual
voluntary benefit plan carriers, and two (2) brokers (the brokers submitted a joint response); and
WHEREAS, the proposed voluntary benefits plans included discount legal services,
accident and critical illness plans, a hospital indemnity plan, and universal life plans; and
WHEREAS, as the proposals submitted for critical illness coverage include coverage for
cancer, Gallagher recommended the City not provide duplicate coverage for just one (I)
condition, resulting in the elimination of an offering of an individual cancer policy; and
WHEREAS, based on the proposals received pursuant to the RFP, Gallagher
recommends that the City enter into agreements for a voluntary benefits program, fully-funded
by employee contributions with the following firms: 1 .) Preferred Legal Plan and U.S. Legal (the
Agenda Item C7 G
Date ?-/3-//
incumbent), for a choice of discount legal plans; 2.) Trustmark, for Accident, Critical Illness and
Universal Life Plans; and 3.) Colonial Life & Accident lnsurance Company (through brokers
Citrin Financial and Pearl Benefit Group), for a Hospital Indemnity Plan; and
WHEREAS, the Administration has reviewed the recommendations made by Gallagher
and recommends accepting its recommendations; and
WHEREAS, the Administration will also work directly with the selected individual plan
carriers to select one (I) enrollment firm to provide annual enrollment support and customized,
printed benefit communication materials for all of the City's benefit programs, at no cost to the
City; and
WHEREAS, the Administration has also been made aware of a new additional voluntary
benefit, providing for an unsecured loan program for active employees repaid through payroll
deductions and would recommend that this be referred to the City's Finance and Citywide
Projects Committee for further discussion.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby accept the recommendation of Gallagher Benefit Services, Inc., the City's
Consultant of Record, pursuant to that certain request for proposals issued by Gallagher on
behalf of the City for a voluntary benefits program for full-time and part-time employees, and
authorizes the City Manager to negotiate and, if successful, execute agreements for the City's
voluntary benefits program with the following companies; 1 .) Preferred Legal and U.S. Legal, for
discount legal service programs; 2.) Trustmark, for Accident, Critical Illness and Universal Life
Plans; and 3.) Colonial Life & Accident lnsurance Company for a Hospital lndemnity Plan;
further authorizing the Administration to work directly with the selected individual plan carriers to
select one (I) enrollment firm to provide annual enrollment support and benefit materials for all
of the City's benefit programs, at no cost to the City; and further referring the discussion of a
potential new voluntary benefit offering for active City employees, providing for an unsecured
loan program repaid through payroll deductions, to the City's Finance and Citywide Projects
Committee.
PASSED and ADOPTED this day of ,2011.
MAYOR
Mattie Herrera Bower
ATTEST:
CITY CLERK
Robert Parcher
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
COMMISSION ITEM SUMMARY
2ondensed Title:
A Resolution Of The Mayor And City Commission of The City Of Miami Beach, Florida, Approving and 1
Authorizing The Mayor and City Clerk To Execute an Agreement Between The City and Broward Stage Door
Theater Company, Inc. For The Operation and Management of a portion of The Byron Carlyle Theater,
Pursuant to Request For Proposals No. 24-09/10; Said Agreement Having an Initial term of Five (5) Years,
Commencing on May 1, 2011, And Ending on April 31, 2016, with an Option To Extend the Agreement for up
to Five (5) additional years (in either One Year or Multi-Year Increments, as determined by the City), at the
City's sole discretion.
Key Intended Outcome Supported:
Maximize Miami Beach as a Brand Destination and Diversify Business Base in Miami Beach
Supporting Data (Surveys, Environmental Scan, etc.): The 2009 Community Satisfaction Survey
indicated that respondents attended performances at the Byron Carlyle Theater less than I time (0.64) per
year on average.
Issue: .--. -.
Shall the Mayor and the City Commission authorize the Mayor and City Clerk to enter into a Management
Agreement with the Broward Stage Door Theater Co, Inc for the Byron Carlyle Theater?
Item SummarylRecommendation:
I On February 3, 2010, the Mayor and City Commission approved the issuance of Request for proposals (RFP) I
No. 24-09/10, for ~anagement andlor ~evelo~ment of the Byron Carlyle Theater Complex. The RFP was
issued on February 18, 2010, with an opening date of April 19, 2010. A pre-proposal conference to provide
information to the proposers submitting a response was held on March 8, 2010. Additionally, four (4) site visits
were offered to potential proposers on March 8, 2010, March 23, 2010, March 30, 2010, and April 8, 2010.
This item was presented to the Finance and Citywide Projects Committee at their regular meeting July 29,
2010. The Administration expressed concern with entering into a long-term agreement (initial term of five (5)
years, with an option to renew for an additional five (5) year term) essentially rent free. The Committee
discussed the item and unanimously recommended awarding the management agreement to Broward Stage
Door Theatre Company with benchmarks included. On October 27, 2010, the City Commission adopted
Resolution No. 201 0-27538 authorizing the Administration to negotiate with Stage Door Theater. The parties
have reached agreement and a copy of the Management Agreement is attached for your review.
ACCEPT THE CITY MANAGER'S RECOMENDATION.
Advisory Board Recommendation:
1 The Finance and Citywide Projects Committee discussed the item at their July 29, 2010 meeting and I
unanimously recommended aw&ding the management agreement to Broward stage Door Theatre company
with benchmarks included.
Financial Information:
I I
City Clerk's Office Legislative Tracking: I Max Sklar, TCD Director, Ext. 61 16 1
Source of
Funds:
OBPl
w
AGENUk lTEM R7C
DATE -
Financial Impact Summary: Each fiscal year of the Theater's operation has yielded operating deficits for the
Byron Carlyle, with the largest being $195,000 in 2006. It is projected that the Theater will have an operating
loss of almost $41,886 in the current fiscal year. The Administration's intent is to eliminate the City's financial
obligation while also activating the theater with the privatization of the Byron Carlyle.
1
Total
Amount Account Approved
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.rniarnibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: April 13, 201 1
SUBJECT: A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY
OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE
MAYOR AND ClTY CLERK TO EXECUTE AN AGREEMENT BETWEEN
THE CITY AND BROWARD STAGE DOOR THEATER COMPANY, INC.
FOR THE OPERATION AND MANAGEMENT OF A PORTION OF THE
BYRON CARLYLE THEATER, PURSUANT TO REQUEST FOR
PROPOSALS NO. 24-09/10; SAID AGREEMENT HAVING AN INITIAL
TERM OF FlVE (5) YEARS, COMMENCING ON MAY 1, 2011, AND
ENDING ON APRIL 31, 2016, WITH AN OPTION TO EXTEND THE
AGREEMENT FOR UP TO FlVE (5) ADDITIONAL YEARS (IN EITHER ONE
YEAR OR MULTI-YEAR INCREMENTS, AS DETERMINED BY THE CITY),
AT THE CITY'S SOLE DISCRETION.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
FUNDING
Each fiscal year of the Theater's operation has yielded operating deficits for the Byron Carlyle,
with the largest being $195,000 in 2006. It is projected that the Theater will have an operating
loss of almost $42,000 in the current fiscal year. The Administration's intent is to eliminate the
City's financial obligation while also activating the theater with the privatization of the Byron
Carlyle.
KEY INTENDED OUTCOME SUPPORTED
Maximize Miami Beach as a Brand Destination and Diversify Business Base in Miami Beach.
ANALYSIS
The Byron Carlyle Theater Complex (the "Theater"), located at 500 71'' Street, between Byron
Avenue and Carlyle Avenue, originally opened in December 1968 as twin cinemas hosting
first-run movies in the heart of North Beach. A total of 994 seats were originally built, with the
large auditorium having a capacity of 590 seats. In the mid-1970s, the Theater was re-
developed into a multiplex cinema; the larger auditorium to the west was subdivided into five
(5) smaller theaters. Following the opening of the Regal Cinemas on Lincoln Road, the theater
was closed by its owner, Wometco Enterprises, and the City of Miami Beach purchased it in
2001, for $1.7 million.
Stage Door Theater Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
April 13, 2011
Page 2
The North Beach Town Center Plan, adopted in July, 2007, identifies a wide range of
strategies to attract new development. The most important of the strategies identified includes
the assemblage of one or two sites large enough to provide the critical mass of activity
necessary to serve as anchors to support smaller site development in the district; to program
the Byron Carlyle Theater and the North Beach Bandshell as cultural anchors to bookend both
sides of the district; and to provide convenient public parking to lower the cost of development.
The Byron Carlyle Theater property was identified as an important piece of the Town Center
redevelopment strategy because of the location, size, public ownership and potential to
provide a cultural anchor. Undoubtedly, cultural facilities are proven magnets for economic
revitalization, both for the business community and for residential development by making the
community more attractive. Indeed, the purchase and renovation of the theater was intended
for economic development purposes, as well as to assist the local talent by providing a venue
for rehearsal, performances, office space, and to ensure that, once established, the arts would
be able to remain in a rejuvenated North Beach. However, for the Byron Carlyle Theater to
succeed in this role, a few of the other supporting elements of the plan should be underway.
BACKGROUND
Issuance of RFP/2008:
In May of 2008, the City Commission directed the Administration to research and propose
alternatives for the privatization of the Byron Carlyle Theater. Subsequently, at the July 9,
2008 Finance and Citywide Projects Committee meeting, the Committee recommended the
issuance of a Request for Proposals (RFP) and directed staff to place this item on the July 16,
2008 City Commission agenda. RFP No. 39-07/08 was issued on July 22, 2008 and two
proposals were received. The evaluation committee unanimously recommended to reject both
proposals and to request the re-issuance of a new RFP for the Management and/or
Development of the Byron Carlyle Theater Complex. The Finance and Citywide Projects
Committee considered this matter at its meeting on March 10, 2009, and also recommended
that the City reject both proposals and issue a new RFP. It was recommended that the new
RFP should encourage potentially different uses for the facility, and should request superior
evidence of financial capacity of the proposers and demonstrated capacity to sustain the
proposed programming.
Neighborhoods and Community Affairs Commiffee/2009:
This subject was discussed again at the October 2009 Neighborhoods and Community Affairs
Committee meeting following a discussion at the September 9, 2009 City Commission meeting
regarding the potential marketing of the property by a broker for either rental or sale. At the
time, the City had just received an "Opinion of Value" for the property.
Much of the subsequent Committee discussion centered on reactivating a movie theater
operation at the Byron Carlyle with potentially some food, beverage and alcohol component,
rather than selling the facility. Also discussed was the possibility of removing Global Spectrum
from managing the facility to make it less expensive for users to rent, as well as whether or not
the City should assume responsibility for directly programming the facility, instead of operating
it as a rental facility. The Administration advised the Committee that eliminating Global
Spectrum andlor having the City program the facility would require additional staff, which
carries a cost that is not currently funded.
The Committee directed staff to return to the Neighborhoods/Community Affairs Committee
with its suggestions for the programming and management of the Byron Carlyle Theater, such
as having an organization selected to be responsible for also making the facility available for
Stage Door Theater Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
April 13, 2011
Page 3
other programming. It was understood by staff that the expectation was that the organization
selected would assume all costs, providing a savings to the City.
At the January 19, 2010, Neighborhoods and Community Affairs Committee, the
Administration reviewed the history of this item and also explained that a number of
organizations toured the facility. Some of the organizations were referred by members of the
City Commission, while others were initiated through the Tourism and Cultural Development
Department. Committee members present also clarified to the Administration that they would
also consider subsidizing costs at the Byron if a resident company were able to activate the
space regularly. The Committee unanimously recommended that the Administration
immediately issue an RFP for management and/or development of the Byron Carlyle Theater.
Additionally, the Committee unanimously recommended the Administration simultaneously
work with the City's broker in order to determine if there is a commercial client interested in
leasing or purchasing the facility. All options would be presented to the City Commission for
consideration.
SCOPE OF SERVICES
Based on the direction provided at the Neighborhoods and Community Affairs Committee, the
City issued RFP No. 24-09/10.
Summary:
The City was interested in proposals for use of the existing theater portion of the building as a
theater or with some similar cultural use. Proposers were encouraged to submit proposals that
would address the needs of the community and provide both daytime and nighttime uses if
possible. The City would also'consider proposals that incorporate the closed, western portion
of the building, or for only the western portion of the building, for a use compatible to the
theater use. The City was open to proposals that considered the use of the current theater
facility on the eastern portion of the complex only, the unrenovated western portion of the
facility only, or for the overall complex. Proposers had the ability to submit proposals for the
use or development of the entire complex or only for one of the two portions of the complex.
Collaborations among theater, film, dance, and other performing and/or presenting cultural
organizations are encouraged.
The proposer would be responsible for any and all renovation or alteration to the portions of
the facility requested via this RFP, including funding for any renovation or alteration;
maintenance and equipment; marketing; coordination of utilization; and any and all other
responsibilities as may be required for the proposed use.
It was anticipated that the successful proposer would negotiate with the City for a long-term
contract with an initial term of five (5) years, with an option to renew for an additional five (5)
year term, at the City's sole discretion.
RFP PROCESS
On February 3, 2010, the Mayor and City Commission approved the issuance of Request for
proposals (RFP) No. 24-09/10, for Management and/or Development of the Byron Carlyle
Theater Complex. RFP No. 24-0911 0 was issued on February 18, 2010, with an opening date
of April 19, 201 0. A pre-proposal conference to provide information to the proposers submitting
a response was held on March 8, 2010. Additionally, four (4) site visits were offered to
potential proposers on March 8, 2010, March 23, 2010, March 30, 2010, and April 8, 2010.
Stage Door Theater Managemenf Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
April 13, 201 1
Page 4
Based on presentations made and the proposals submitted, the Evaluation Committee
unanimously recommended the Administration to initiate discussions with the two (2) top
ranked proposers: Broward Stage Door Theatre Co, Inc and New Theatre.
FINANCE AND CITYWIDE PROJECTS COMMITTEE RECOMMENDATION
This item was presented to the Finance and Citywide Projects Committee at their regular
meeting July 29, 2010. The Administration expressed concern with entering into a long-term
agreement (initial term of five (5) years, with an option to renew for an additional five (5) year
term) essentially rent free. The Scope of Services for this RFP sought proposals with cultural
themed uses for the facility.
The Committee discussed the item and unanimously recommended awarding the
management agreement to Broward Stage Door Theatre Company with benchmarks included.
Broward Stage Door Theatre Co, Inc.
Broward Stage Door Theatre Co, lnc ("Stage Door Theatre") is a non-profit 501(c)3 that was
formed in 1993. The Stage Door Theatre proposes to operate a professional theatre company
in the eastern portion of the Byron Carlyle Theater. The Stage Door Theatre proposes a high
quality state-of-the-art performing arts facility that will operate with the needs of the residents,
city businesses, tourism, and the general public in mind.
The performance schedule includes both matinees and evenings, keeping the facility operating
both weekdays and weekend. Programming at the theatre would include both musicals and
plays, with an awareness of family values and appropriate content for a municipal venue. The
Stage Door Theatre is best known for productions of large scale musicals, but has also
received critical acclaim for dramas as well.
Stage Door Theatre has managed its current location in Coral Springs for seventeen (17)
years. It successfully operated a second location in Wilton Manors for seven (7) years. The
Stage Door has a proven record of marketing prowess and has shown its ability to develop
and maintain a new and loyal audience base. The organization is familiar with the need to
generate revenue and create financial stability. Even though the Stage Door Theatre is a
501(c)3 nonprofit corporation, it does not rely on grants and it is fully funded by its revenues.
As a team, Derelle Wilson Bunn and David R. Torres, have produced over 200 shows. They
have also produced on the national tour level, and Off-Broadway.
The Stage Door Theatre's goal is to establish the Byron Carlyle as a facility that contributes to
the vibrancy and beauty of the area, while becoming a destination which will further the
economic growth and development of the surrounding community.
MANAGEMENT AGREEMENT
On October 27, 2010, the City Commission adopted Resolution No. 2010-27538 authorizing
the Administration to negotiate with Stage Door Theater. The parties have reached agreement
on the following terms, which are included in the attached contract:
Initial Term: An initial term of five (5) years, commencing on May 1, 2011
(Commencement Date), and ending on the April 30, 2016
(Expiration Date).
Stage Door Theater Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
April 13, 201 1
Page 5
Renewal Term:
Scope of Services:
The City has the option of renewing the Agreement, at its sole
discretion, and provided that State Door is in good standing, free
of default, and has met its annual benchmarks, for up to five (5)
years. The option to renew may be exercised in five (5) one (1)
year terms, or in multi-year terms (as the City determines), by
providing at least 365 days notice to Stage Door.
In the event Stage Door decides not to renew the Agreement, it
shall also provide the City with at least 365 days notice prior to
the expiration of the initial term.
Stage Door agrees to operate, manage, maintain, promote and
market the Facility in a manner consistent with other similar first
class facilities. Subject to the terms of the Agreement, Stage
Door shall be, as agent for the City, the sole and exclusive
manager of the City to operate, manage, maintain, promote and
market the Facility during the Term.
Stage Door shall use the Facility solely and exclusively as the
headquarters for its not-for-profit live theatrical production
company. The Facility shall be used only as a live theatrical
entertainment venue and public auditorium, or any combination
thereof, and for such ancillary uses as are customarily related to
such primary use, including, without limitation, broadcasting,
recording, filming, private parties or functions, food and beverage
concessions, in each case in conjunction with an Event or rental
function then being held; and sale of merchandise related to any
Event then being held.
Stage Door agrees to honor all Events or rentals which have
been booked prior to the date of approval of this Agreement. City
shall remit to Stage Door all rental revenues (if any) from the
agreements that have already been booked prior to the Approval
Date.
The Facility does not include dedicated parking for the building.
Patrons of Events may park in public parking lots and garages if
and to the extent available, upon paying the applicable parking
charges.
No other uses shall be permitted without the prior written
approval of the City Manager, which approval may be granted or
withheld in hislher sole discretion.
Stage Door shall operate the Facility on a year round basis,
subject to closures for reasonable periods for rehearsal, set
design, repairs, maintenance and alterations. All Events and all
rentals shall conclude prior to 1:00 a.m. unless otherwise
approved by the City Manager
Stage Door agrees to maintain the Facility (including, without
limitation, all structural components thereof and all electrical,
Stage Door Theater Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
April 13, 207 I
Page 6
HVAC, life safety, mechanical, plumbing and other systems and
equipment) in a good and clean condition consistent with other
similar first class facilities and in compliance with all
Governmental Requirements, ordinary wear and tear, and
casualty loss excepted. Maintenance responsibility shall include,
without limitation, preventative and any and all other maintenance
and as required in Exhibit "F" of the Agreement.
Stage Door shall not make any additions, improvements, or
alterations to the Facility without the City Manager's prior written
consent. The costs of all Alterations made by Stage Door shall
be borne solely by Stage Door from its own funds and shall not
constitute Operating Expenses.
It is understood by the parties that Stage Door shall not be
responsible, nor required to pay for, any other costs related to
major capital improvements or infrastructure (i.e. including, but
not limited to, plumbing and sewer lines, major electrical,
structural, HVAC, roof, etc.) with regard to the Facility.
Required Number of Events: In order to ensure the continuous operation of the Facility, Stage
Door is required to have at least 200 Events, (75 Events for the
first Contract Year of the Term, at the Facility for each Contract
Year (and proportionately for any partial Contract Year) during
the Term. The aforesaid 200 Events shall be calculated by
counting each separate Event in a Run.
Public Benefits Program:
Resident Ticket Program:
Stage Door agrees to provide a discount ticket program available
only to City of Miami Beach residents (meaning individuals who
permanently reside in the City of Miami Beach), by which a ten
percent (10%) discount off of the full face value pricing shall be
made available to such City of Miami Beach residents in advance
of ticket sales to the general public.
Stage Door shall operate a ticket program available to children
under the age of twelve (12) years old by which tickets will be
sold for sixteen dollars ($16).
Summer Camp Program:
If it is financially feasible, Stage Door shall, in its sole and
reasonable discretion, develop, market, and operate a summer
camp program for children in musical theater, stage production,
andlor theatrical stage set design. Programs may include writing,
directing and acting, and performing in a musical production.
Summer camp programs may be offered in 4 and 8 week
sessions to children of all ages.
Young Ambassador Program:
Stage Door shall create and promote a free Young Ambassador
Program for Miami Beach students with an interest in the
performing arts in order to create a first person perspective of
Stage Door Theater Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
April 13, 201 1
Page 7
their experiences in theater and the arts. Selected students will
contribute to establishing a vital informational link to their peers
regarding the arts both locally and nationally. In addition, the
ambassadors will attend performances presented by Stage Door,
free of charge, in order to expand their interest in the arts, and
be asked to provide reviews for postings on social media sites
such as Facebook, Twitter, etc. Ambassadors will receive
community service hours for their participation in the Program.
Senior/Student Tickets:
Stage Door shall participate in Golden Ticket and Culture Shock
programs offered by Miami-Dade County.
City Event:
Stage Door shall participate in "Sleepless Night" and offer a
FREE performance(s) during the event. If at any time during the
Term of this Agreement, the City, in its sole discretion,
determines not to produce and/or sponsor "Sleepless Night,"
then Stage Door's obligation in this subsection shall apply to any
such successor event, as the City may determine, in its sole
discretion.
Complimentary Tickets:
City shall be entitled to receive fourteen (14) complimentary
tickets for each Run at the Facility that is open to the general
public, including those presented or promoted by Stage Door and
including third party rentals subject to the provisions of this
Agreement. City may not engage in the sale or re-sale of the
complimentary tickets. Under no circumstances shall City be
entitled to "roll over" or "carry forward" any unused or un-retrieved
complimentary tickets
Base Use Fee:
Operating Expenses:
Capital Fund:
Valet Parking:
For the Term of the Agreement, Stage Door shall pay City a
nominal annual Use Fee for the right to use the Facility, in the
amount of One Dollar ($1.00), which shall be payable in advance
without demand, commencing on the Commencement Date and
thereafter on the first day of each Agreement Year.
Stage Door shall pay all costs and expenses related to Operating
Expenses.
To help defray the cost of certain major capital repairs and
replacements to the Facility, Stage Door shall make annual
contributions to a Capital Fund to be held and disbursed by City.
The annual contribution shall be $5,000 Dollars, paid in equal
monthly $5,000 installments.
City reserves to itself and its contractors and designees (i) all
rights to provide valet parking to the Facility, and (ii) all proceeds
from the valet parking operations. Stage Door may pre-purchase
parking controlled by the City or pre-purchase valet parking. The
Stage Door Theater Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
April 13, 201 I
Page 8
City Manager shall have the authority to negotiate and enter into
such agreements with respect thereto, as the City Manager
deems acceptable.
If the City exercises its right to provide valet parking to the
Facility, then Stage Door shall have no right to provide valet
parking or to contract with other parties for valet parking with
respect to the Facility. However, if the City chooses not to offer
valet parking services at the Facility, then Stage Door shall have
first right of refusal to provide valet parking or to contract with a
third party for valet parking at the Facility, at Stage Door's
expense.
Exterior Signage:
Interior Signage:
City reserves the name-in-title rights (i.e., the right to name the
Facility) and all revenue derived therefrom. Notwithstanding the
preceding sentence, Stage Door shall be permitted to change
the name of the Facility to "Miami Beach Stage Door Theater" if
and only if the City Commission approves and adopts an
ordinance amending Chapter 82, Article VI, Sections 82-501
through 82-505, as same may be amended from time to time
(hereinafter, the "City's Naming Ordinance1'), exempting the
Facility from the requirements of the City's Naming Ordinance.
Notwithstanding the preceding paragraph, the City Commission's
consent and approval shall be required if Stage Door seeks to
change the name of the Facility to anything other than "Miami
Beach Stage Door Theater," and any such name change must
be approved by a 517 vote of the City Commission.
Stage Door agrees that if the name-in-title is changed to "Miami
Beach Stage Door Theater," Stage Door shall bear all costs (as
part of Operating Expenses) to obtain and install new signage
and to remove the existing signage. Further, if the name-in-title
is approved, as stated herein, Stage Door agrees to utilize the
full name of the Facility in its publications, advertising,
promotions, websites, announcements, and other similar and
related materials referring solely to the Facility, unless the use of
the full name-in-title is otherwise unfeasible due to size or space
limitations on such publications, advertising, promotions,
websites, announcements, and other similar and related
materials, or outside of its direct control. All exterior signage
shall be subject to the City Manager's prior written approval as to
size, location, materials and aesthetics. Stage Door shall have
no right to install any other signage on the exterior of the Facility,
except that Stage Door may use the existing marquis sign to
advertise upcoming Events.
Stage Door shall be entitled to all permanent (meaning for a
specific area such as a VIP lounge together with a duration in
excess of twelve (12) months) interior signage (and all proceeds
derived therefrom shall be Operating Revenues); provided,
however, that the names affixed thereon (including, without
Stage Door Theater Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
April 13, 2011
Page 9
limitation, any sponsorship names) are subject to the City
Manager's prior written approval, which shall not unreasonably
be withheld, conditioned or delayed. In no event may any such
signage include the names of any company selling the following
types of products ("Prohibited Names"): guns, tobacco or sexual
products.
Nothing contained herein shall preclude Stage Door from
allowing sponsors from using temporary banners and temporary
signage within the Facility with respect to any Event, so long as
the banners and signage do not include any Prohibited Names.
Stage Door shall be entitled to all interior signage (and all
proceeds derived therefrom shall be Operating Revenues).
Annual Plan:
Use by City:
Commencing upon May I, 2012, Stage Door shall provide to the
City on or before June lSt of each year thereafter, an annual
management plan, which shall include the annual operating
budget for the then current Fiscal Year. The annual plan shall
include information regarding Stage Door's anticipated
operations for such Fiscal Year, including planned operating and
maintenance activities, anticipated capital improvements and
capital equipment purchases and an anticipated budget
therefore, anticipated Events at the Facility (to the extent known
at such time), and planned equipment and furnishings
purchases.
Accompanying the Stage Door's proposed annual budget shall
be the Facility Programmatic Plan for the next fiscal year,
detailing the then-known activities planned, and the number of
residents and visitors anticipated to be impacted.
Accompanying Stage Door's proposed annual budget shall be a
detailed list of then-known major capital repairs anticipated for
the Facility.
The City shall have the right to use the Facility, or any part
thereof, subject to availability, for the benefit of the community
for such purposes including, but not limited to, meetings, City-
sponsored special events, Sleepless Night (or a successor
event), receptions, and other purposes, as deemed necessary by
the City Manager, in hislher sole and absolute discretion, without
the payment of any rental or use fee, except the direct out-of-
pocket expenses incurred in connection with such uses shall be
paid by the City. City uses of the Facility shall not be competitive
with, nor conflict with, Events booked or sponsored by Stage
Door, and shall be booked in advance upon reasonable notice.
Additionally, upon execution of this Agreement, Stage Door
acknowledges and herein agrees to honor all pre-existing
scheduled events.
Stage Door Theater Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
April 73, 2077
Page 70
Stage Door Employees: Stage Door shall assign to the Facility a competent full-time staff
member experienced in the operations of similar facilities, who
will be located full time on-site during the Term. The full-time
staff member will be supervised by a general manager who is
experienced in operating and managing similar facilities. Prior to
Stage Door's appointment of the staff member, Stage Door shall
consult with the City Manager with respect to the qualifications of
the staff member proposed by Stage Door. The staff member
shall be accessible to the City Manager at all reasonable times to
discuss the management, operation, and maintenance of the
Facility.
Advisory Board: Within thirty (30) days after the Effective Date, Stage Door shall
establish an Advisory Oversight Board dedicated to providing
oversight to the operation of the Facility. The City Manager
andlor hislher authorized designee shall be a member on the
Advisory Oversight Board.
ADMINISTRATION RECOMMENDATION
The Administration recommends that the Mayor and City Commission of the City of Miami
Beach, Florida adopt the Resolution and approve the attached Management Agreement
between the City and Stage Door Theater for the Byron Carlyle Theater.
T:\AGENDA\2011\4-13-1 I\Stage Door Agreement for Byron - Merno.doc
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND ClTY COMMISSION OF THE ClTY
OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE
MAYOR AND ClTY CLERK TO EXECUTE AN AGREEMENT BETWEEN
THE ClTY AND BROWARD STAGE DOOR THEATER COMPANY, INC.
FOR THE OPERATION AND MANAGEMENT OF A PORTION OF THE
BYRON CARLYLE THEATER, PURSUANT TO REQUEST FOR
PROPOSALS NO. 24-09/10; SAID AGREEMENT HAVING AN INITIAL
TERM OF FlVE (5) YEARS, COMMENCING ON MAY I, 2011, AND
ENDING ON APRIL 31, 2016, WITH AN OPTION TO EXTEND THE
AGREEMENT FOR UP TO FlVE (5) ADDITIONAL YEARS (IN EITHER ONE
YEAR OR MULTI-YEAR INCREMENTS, AS DETERMINED BY THE CITY),
AT THE CITY'S SOLE DISCRETION.
WHEREAS, the City purchased the Byron Carlyle Theater in 2001 and renovated the
facility into a performance theater; and
WHEREAS, the City's intent was for the Byron Carlyle to serve as a catalyst to the
redevelopment of the 71'' Street corridor in North Beach; and
WHEREAS, since reopening the Byron Carlyle in 2003, the City has subsidized the
operating deficit of the facility; and
WHEREAS, bookings at the Byron Carlyle have historically not been strong enough to
activate the space and neighborhood regularly; and
WHEREAS, the Neighborhoods and Community Affairs Committee, at its meeting on
January 19, 201 0, unanimously recommended that the Administration issue a Request for
Proposals for the management of the Byron Carlyle; and
WHEREAS, on February 3, 2010, the Mayor and City Commission approved the
issuance of Request for Proposals (RFP) No. 24-09/10 for the Management andlor
Development of the Byron Carlyle Theater (the RFP); and
WHEREAS, on October 27, 2010, the City Commission adopted Resolution No.
201 0-27538, authorizing the Administration to negotiate with Broward Stage Door Theater
Company, Inc., as the top ranked proposer pursuant to the RFP; and
WHEREAS, the City Manager recommends that the Mayor and City Commission
approve the attached Management Agreement between the City and Broward Stage Door
Theater Company, Inc.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND ClTY
COMMISSION OF THE ClTY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve the Agreement between the City and Broward Stage Door
Theater Company, Inc. for the operation and management of a portion of the Byron Carlyle
Theater, pursuant to Request for Proposals No. 24-0911 0, and authorize the Mayor and City
Clerk to execute said Agreement, having an initial term of five (5) years, commencing on
May 1,201 1, and ending on April 31,2016, with an option to extend the Agreement for up to
five (5) additional years (in either one year or multi-year increments, as determined by the
City), at the City's sole discretion.
PASSED AND ADOPTED this day of ,2011.
ATTEST: MAYOR:
JMGIHFIMS
T:\AGENDA\2011\4-13-1 l\Stage Door Agreement for Byron - Reso.doc
WPRCI1IEDASrn I..
FORM & LANGUAGE ' 8 - -
MANAGEMENT AGREEMENT BETWEEN
THE ClTY OF MIAMI BEACH, FLORIDA
BROWARD STAGE DOOR THEATER COMPANY, INC.
FOR THE MANAGEMENT OF A PORTION OF THE BYRON-CARLYLE THEATER
THIS AGREEMENT, is made and executed as of this day of ,201 1 (Effective
Date), by and between the ClTY OF MlAMl BEACH, a municipal corporation organized and existing
under the laws of the State of Florida whose address is 1700 Convention Center Drive, Miami
Beach, Florida 33139 (City), and the BROWARD STAGE DOOR THEATER COMPANY, INC., a
Florida not-for-profit corporation whose principal address is, 1922 N.W. 83rd Drive, Coral Springs,
Florida 33071 (Stage Door).
BACKGROUND
City is the owner of the Byron Carlyle Theater (the Theater), located at 500 71'' Street, Miami
Beach, Florida 33141 ; including that portion of the Theater that is subject to the Agreement and
which is more particularly described and depicted in Exhibit "AY'attached hereto and made a part
hereof (the "Facility").
Stage Door is a professional theatrical entertainment not-for-profit (501(c)3) company
engaged in the business of producing live theatrical productions, and operating, maintaining, and
managing live entertainment facilities, including operations and marketing services for such facilities.
At its regular meeting on October 27, 2010, the Mayor and City Commission approved
Resolution No. 201 0-27538, approving and authorizing the City Administration to negotiate an
agreement with Stage Door, as the successful proposer pursuant to Request for Proposals No. 24-
0911 0, for the management of the Facility.
City desires to engage Stage Door, and Stage Door desires to accept the engagement, to
provide management services for the Facility on the terms and conditions set forth herein.
NOW THEREFORE, recognizing the aforestated recitals as true and correct and
incorporating herein, and in consideration of the mutual covenants and conditions herein contained,
it is agreed by the parties hereto as follows:
SECTION 1. Definitions.
For purposes of this Agreement, the following terms have the meanings referred to in this Section 1 :
"Affiliate(s)" -- an entity that directly or indirectly, through one or more intermediaries, controls
or is controlled by, or is under common control with, a specified entity. For purposes of this
definition, "control" means ownership of equity securities or other ownership interests which
represent more than 51 % of the voting power in the controlled entity.
''W -- as defined in the first paragraph of this Agreement.
"City Commission" -- the governing and legislative body of the City.
"Citv Aareements" -- those existing agreements between the City and a third party relating to
the Facility that are listed on Exhibit "B."
"Citv Manager" -- the chief executive officer of the City or such person as may from time to
time be authorized in writing by such administrative official to act for himlher with respect to any or
all matters pertaining to this Agreement.
"Commencement Date" -- as defined in Section 2.
"Contract Year" - each one year period beginning May I St, and ending April 3oth
"Effective Date" - provided that this Agreement has been approved by the City Commission
and executed by City and Stage Door, the date as defined in the first paragraph of this Agreement.
"Event" - -- all uses which involve a scheduled beginning and ending time, typically all within
the same day (or for evening Events, typically commencing in the evening and concluding before
1:00 a.m. of the succeeding day unless otherwise approved in writing by City Manager). With
respect to a "Run" (as such term is hereafter defined), each show within the Run shall constitute an
Event.
"Event Ex~enses" -- any and all expenses incurred or payments made by Stage Door in
connection with the occurrence of an Event at the Facility, including, but not limited to, costs for
staffing (including ushers, ticket takers, security and other Event staff) and costs relating to set-up
and clean-up.
"Expiration Date" -- as defined in Section 2.
"Facility" -- as defined in the Background Section of this Agreement and as depicted in
Exhibit "A hereto.
"Fiscal Year" -- each one year period beginning July lSt and ending June 3oth.
iiGovernmental Reauirements" -- all laws, ordinances, rules, regulations, statutes, policies
and procedures (including administrative guidelines), and other legal requirements of any
governmental body or authority or any agency thereof (including, without limitation, federal, State,
County, and municipal).
"Staae Door" -- as defined in the first paragraph of this Agreement.
"Net O~eratina LossIProfit" --with respect to a Fiscal Year, the excess, if any, of Operating
Expenses for such Fiscal Year over Operating Revenues for such Fiscal Year, in the case of a loss,
and the excess, if any, of Operating Revenues for such Fiscal Year over Operating Expenses for
such Fiscal Year, in the case of a profit.
"Operating Expenses" -- any and all expenses and expenditures of whatever kind or nature
incurred, directly or indirectly, by Stage Door in promoting, operating, maintaining, insuring and
managing the Facility, including, but not limited to: employee compensation and related expenses
(e.g., base salaries, bonuses, severance and car allowances), employee benefits and related costs
(e.g., relocation and other related expenses pursuant to Stage Door's relocation policy, parking and
other fringe benefits), supplies, materials and parts costs, costs of any interns and independent
contractors, advertising, all costs of maintaining the Facility as required by this Agreement,
marketing and public relations costs and commissions, janitorial and cleaning expenses, data
processing costs, dues, subscriptions and membership costs, amounts expended to procure and
maintain permits and licenses, sales taxes imposed upon ticket sales or rentals, special
assessments imposed upon the Facility by any governmental entity, professional fees directly
relating to the operation of the Facility, printing and stationery costs, Event Expenses, postage and
freight costs, equipment rental costs, computer equipment leases and line charges, telephone
switch and telecommunications services, repairs and maintenance costs (e.g., elevators and
HVAC), artist and talent fees, costs, and expenses, show settlement charges, security expenses,
travel and entertainment expenses in accordance with Stage Door's normal policies, the cost of
employee uniforms, safety and medical expenses, exterminator and waste disposal costs, costs
relating to the maintenance of signage inventory and systems, the cost of compliance with
Governmental Requirements, all utility costs, all premiums for insurance carried by Stage Door
pursuant to Section 14, and all other costs of operating and maintaining the Facility. Operating
Expenses shall not, however, include any costs of litigation between City and Stage Door, or any
other costs that are specified in this Agreement as costs to be paid by City. All Operating Expenses
shall be determined in accordance with generally accepted accounting principles consistently
applied and recognized on a full accrual basis.
"Operating Revenues" -- any and all revenues of every kind or nature derived from operating,
managing or promoting the Facility, including, but not limited to: license and concession fees,
rentals, revenues from merchandise sales, advertising sales, equipment rentals, box office
revenues, food service and concession revenues (however, if such revenues are collected in the
first instance by and retained by the concessionaire, only the amount of such revenues paid by the
concessionaire to the Facility shall be included as Operating Revenues), commissions or other
revenues from decoration and set-up, security and other subcontractors (however, if such revenues
are collected in the first instance by and retained by such subcontractors, only the amount of such
revenues paid by such contractors to the Facility shall be included as Operating Revenues),
miscellaneous operating revenues, revenues generated from separate agreements with Stage Door
Affiliates pertaining to the Facility, sponsorship revenues, and interest revenues, all as determined in
accordance with generally accepted accounting principles and recognized on a full accrual basis.
For the sake of clarity, the parties acknowledge that revenues from the sale of tickets for Events at
the Facility are not Operating Revenues, but are instead revenues of the promoter and/or performer
of each such Event. To the extent that Stage Door collects such ticket sale revenue on behalf of a
promoter and/or performer, such ticket sale revenue shall be the source of funds from which Stage
Door collects the rental charges and other event reimbursements owed by the promoter and/or
performer for use of the Facility, which such charges and reimbursements are Operating Revenues
hereunder. Operating Revenues shall not, however, include any revenue from valet parking or any
other parking charges with respect to the Facility or Events and shall not include any revenues from
name-in-title rights (i.e., the right to name the Facility and signage related thereto), all of which are
specifically reserved to City."Renewal Term" -- as defined in Section 2.
"Run" - -- A sequence of performances of the same production.
"Term" -- as defined in Section 2; provided, however, if this Agreement is extended for a
Renewal Term, all references to "Term" contained herein shall also include the Renewal Term.
SECTION 2. TERM.
2.1 Initial Term. This Agreement shall be for an initial term of five (5) years, -
commencing on May 1,201 1 (Commencement Date), and ending on the April 30,201 6 (Expiration
Date), unless earlier terminated pursuant to the provisions of this Agreement.
2.2 Renewal Term(s1. At its sole option and discretion, the City may extend this -
Agreement for up to five (5) additional one (1) year terms, and/or multi-year terms, but in no event to
exceed five (5) years in total, (each such one year term, or multi-year term, as the case may be, a
Renewal Term), by providing Stage Door with not less than 365 days prior written notice prior to the
Expiration Date, or the expiration date of a Renewal Term, as the use may be, and provided further
that Stage Door has met all of the following conditions:
(i) not less than 545 days nor more than 730 days prior to the Expiration Date, or
not less than 545 days nor more than 730 days prior to the anticipated expiration date of the
then current Renewal Term, Stage Door shall provide the City with written notice (the
Exercise Notice) stating that Stage Door desires to exercise the renewal option for a
Renewal Term. Time shall be of the essence with respect to the Exercise Notice and if
Stage Door fails to provide the written notice, as and when required, the renewal option shall
expire and shall not thereafter be exercisable; and
(ii) both at the time that Stage Door delivers its Exercise Notice and at the time
the Renewal Term (for which the option is being exercised) would otherwise commence,
Stage Door shall not be in default under this Agreement; and
(iii) Stage Door shall have achieved, complied with, and/or otherwise met all of
the benchmarks set forth in Exhibit "C" hereto, no later than ninety (90) days prior to the
Expiration Date, or within ninety (90) days of the expiration of the then current Renewal
Term, as the case may be, and which compliance therewith by Stage Door shall be
demonstrated and evidenced to the reasonable satisfaction of the City Manager or hidher
designee. As to this condition (iii) only, in the event that Stage Door has not achieved with,
and/or otherwise met all of the benchmarks in Exhibit "C" hereto within the prescribed time,
or has not demonstrated sufficient evidence of compliance therewith (to the reasonable
satisfaction of the City Manager or hislher designee), then the City Commission, at its sole
option and discretion, may waive the requirements of condition (iii), and proceed to extend
this Agreement.
In the event the conditions of (i) through (iii) are not met, then this Agreement shall expire at
the end of the Initial Term (i.e. on the originally stated Expiration Date), or upon expiration of the
then current applicable Renewal Term, as the case may be, and the provisions of Section 31 hereof
shall apply.
2.2.1 Notwithstanding anything in this Section 2, in the event Stage Door decides -
not to renew the Agreement, it shall provide the City Manager with written notice of its intent
not to renew at least 365 days prior to the Expiration Date, or the expiration date of the then
current Renewal Term, as the case may be.
SECTION 3. BYRON CARLYLE THEATER FACILITY.
The Facility subject to this Agreement shall be those facilities and spaces more specifically
described in Exhibit "A, attached and incorporated herein. Subject to the terms of this Agreement,
Stage Door shall have the primary use and sole occupation of the Facility and shall be responsible
for its management and maintenance, as further set forth herein.
SECTION 4. OPERATION AND MANAGEMENT OF THE BYRON CARLYLE.
4.1 General Scope. City hereby engages Stage Door to operate, manage, maintain, -
promote and market the Facility during the Term, upon the terms and conditions hereinafter set
forth.
4.2 Manager of the Facility. Stage Door accepts the engagement and agrees to operate, -
manage, maintain, promote and market the Facility in a manner consistent with other similar first
class facilities. Subject to the terms of this Agreement, Stage Door shall be, as agent for the City,
the sole and exclusive manager of the City to operate, manage, maintain, promote and market the
Facility during the Term. In such capacity, except as otherwise expressly reserved under this
Agreement to the City, andlor except for such matters as are subject to the approval of the City or
City Manager, Stage Door shall have exclusive authority over the management and operation of the
Facility and all activities therein, subject to subsections 4.2.1, 4.2.2 and 4.2.3 hereof.
4.2.1 Permitted Uses. Stage Door shall use the Facility solely and exclusively as -
the headquarters for its not-for-profit live theatrical production company. The Facility shall
be used only as a live theatrical entertainment venue and public auditorium, or any
combination thereof, and for such ancillary uses as are customarily related to such primary
use, including, without limitation, broadcasting, recording, filming, private parties or
functions, food and beverage concessions, in each case in conjunction with an Event or
rental function then being held; and sale of merchandise related to any Event then being
held. The Facility does not include dedicated parking for the building. Patrons of Events
may park in public parking lots and garages if and to the extent available, upon paying the
applicable parking charges.
Such uses shall include only the following (the "Permitted Uses"):
aJ Performance theater;
Carpentry shop;
Carpentry and set storage;
Theatrical equipment storage;
Rehearsal space;
fi Stage Door's administrative offices;
g) Cafeteria for Stage Door's employees;
hJ Food and beverage concession;
u Sale of merchandise related to an Event then being held;
il Private parties and/or functions in conjunctions with an Event then
being held;
kJ As an ancillary use, third party rentals as may occur from time to
time.
No other uses shall be permitted without the prior written approval of the City
Manager, which approval may be granted or withheld in hidher sole discretion. Any such
other use which the City Manager approves must, however, be in accordance with (i) the
Articles of Incorporation and other charter documents of Stage Door; (ii) all laws and
regulations applicable to not-for-profit entities; (iii) all applicable Governmental
Requirements; and (iv) all ad valorem tax exempt uses of property under Chapter 196,
Florida Statutes.
4.2.2 Prohibited Uses. It is understood and agreed that the Facility shall be used -
by Stage Door during the Term only for the stated purposes in subsection 4.2.1, and for no
other purposes or uses whatsoever. Notwithstanding anything contained in subsection
4.2.1, or any other term or condition of this Agreement: (1) Stage Door will not make or
permit any use of the Facility that, directly or indirectly, is forbidden by any Governmental
Requirement, or that may be dangerous to life, limb or property; and (2) Stage Door may not
commit waste on the Facility, use the Facility for any illegal purpose, commit a nuisance on
the Facility, or allow any toxic, hazardous or dangerous substance to be brought into the
Facility or stored therein (other than small quantities of materials customarily used in the
operation of a live theatrical performance venue, which shall be used and stored in
compliance with applicable law). In the event that Stage Door uses the Facility for any
purposes not expressly permitted herein, then the City through its City Manager may declare
this Agreement in default and, in addition to all other remedies available to City, restrain
such improper use by injunction or other legal action, with or without notice to Stage Door.
4.3 Cessation/Suspension of Approved Use(s) and/or Business Activity(ies1. -
Notwithstanding anything contained in this Agreement, and except for the Permitted Uses
expressly set forth in subsection 4.2.1 (a) - (k), in the event that another particular use($ and/or
business activity(ies) has been approved by the City Manager, and the City Manager thereafter,
upon reasonable inquiry, determines that the continuation of such use@) and/or activity(ies) is, or
may be, inconsistent, contrary to, and/or detrimental to the Permitted Uses set forth in this
Agreement, andlor to the health, safety andlor welfare of the residents of and visitors to the City of
Miami Beach, then the City Manager, upon thirty (30) days prior written notice to Stage Door of
same, may revoke, suspend, andlor otherwise disallow the objectionable uses(s) andlor business
activity(ies), and Stage Door shall immediately cease and desist in providing, andlor continuing with,
said use(s) andlor business activity(ies) within the time period and in the manner prescribed in the
City's notice. In the alternative, the City Manager and/or his designee may allow Stage Door to
continue with the subject use(s), or business activity(ies), subject to such additional guidelines, as
may be determined and established by the City Manager, in hislher sole and reasonable discretion
and judgment.
SECTION 5. SCOPE OF SERVICES.
5.1 General. Stage Door shall perform and furnish management services, personnel, -
and systems and materials, as are appropriate or necessary to operate, manage, supervise,
maintain, promote and market the Facility in a manner consistent with the operations, management,
promotions and marketing of other similar first-class facilities.
5.2 Reauired Number of Events; Continuous Operation; Conclusion of Events. In order -
to ensure the continuous operation of the Facility, and commencing on the May 1,201 2, Stage Door
shall cause at least 200 Events to be held at the Facility for each Contract Year (and proportionately
for any partial Contract Year) during the Term. The aforesaid 200 Events shall be calculated by
counting each separate Event in a Run. Notwithstanding the preceding sentence, and the City's
acknowledgment that, during the first Contract Year (i.e. May 1,201 1 -April 30,2012) Stage Door
may require start-up time within which to promote and advertise its first season, Stage Door shall
cause at least 75 Events to be held at the Facility for the first Contract Year.
Stage Door shall cause the Facility to be open on a year round basis, subject to closures for
reasonable periods for rehearsal, set design, repairs, maintenance and alterations. All Events and
all rentals shall conclude prior to 1:00 a.m. unless otherwise approved by the City Manager, in
writing; provided, however, that Stage Door's employees andlor contractors may be permitted to
remain at the Facility beyond 1 :00 AM in the event that same is necessary for purposes of taking
down andlor dismantling a production, cleaning the Facility after a performance, etc., so long as
Stage Door's activities at the Facility during this time do not disrupt andlor negatively impact the
surrounding neighborhood. In the event of such disruption, the City Manager and/or hislher
designee shall have the right to either strictly enforce the hours of operation, or impose reasonable
guidelines upon Stage Door as a condition to keeping the Facility open for the aforestated purposes
(beyond 1.00 AM).
Booking Policies. The City and Stage Door agree and acknowledge that the Facility must
primarily be used by Stage Door to produce and present in-house live theatrical productions, but that
Stage Door may also, from time to time, rent the Facility to third party presenters consistent with the
terms herein. In booking the Facility, Stage Door will use such booking policies as are established
by the City and provided in Exhibit "Dm hereto. Except as otherwise provided herein, Stage Door
2
shall have the sole authority to approve the scheduling of any Event in the Facility and Events
requiring or having co-promotions. Stage Door shall have no obligation, however, to book any type
or category of Events (or specific Event) that are unprofitable, as reasonably determined by Stage
Door. Notwithstanding the preceding, or any other term or condition of this Agreement, the City
Manager shall have the right to prohibit certain Events or uses from occurring at the Facility, upon
the City Manager's reasonable determination that such Event or use might present unreasonable
safety concerns, or violate (or otherwise not comply with) Governmental Requirements. Notice of
any such determination shall be sent by written notice to Stage Door within thirty (30) days after the
City Manager has received the quarterly booking report from Stage Door that specifies the potential
Event.
Attached hereto as Exhibit "E" is a list of Events or rentals which have been booked priorto
the date of approval of this Agreement by the Mayor and City Commission (the Approval Date).
Stage Door shall honor all such bookings and City shall remit to Stage Door all rental revenues (if
any) from the agreements that have already been booked prior to the Approval Date.
5.3 Specific Services. Without limiting the generality of the foregoing, Stage Door shall -
perform all of the following services, all without the necessity of first obtaining City's approval (except
where otherwise expressly required in this Agreement), and all of which shall be performed by Stage
Door in a manner consistent with the management and operation of other similar first class facilities:
5.3.1 employ, supervise, and direct all employees and personnel consistent with -
the provisions of this Agreement. All employees shall be employees of Stage Door, its
Affiliates or third parties, and not of City. Stage Door shall be solely responsible for assuring
that the Facility is adequately staffed with competent, qualified personnel to fulfill its
responsibilities under this Agreement;
5.3.2 administer relationships with all third parties (including, without limitation, -
entering into contracts and licenses for the food and beverage concessionaire at the Facility)
for the use, maintenance and operation of the Facility, initiate and participate in any and all
negotiations, renewals and extensions relating to such third party relationships, and enforce
contractual agreements concerning any such third party relationships;
5.3.3 negotiate, execute in its name as agent for the City, deliver and administer -
any and all licenses, occupancy agreements, sponsorship agreements (excluding name-in-
title agreements), rental agreements, booking commitments, concession agreements
(excluding valet parking agreements), supplier agreements, service contracts (including,
without limitation, contracts for cleaning, decorating and set-up, emergency services, general
maintenance and maintenance and inspection of HVAC and other systems and elevators,
stage equipment, fire control panel and other safety equipment, staffing and personnel
needs, including guards and ushers, telephone, extermination and other services which are
necessary or appropriate, and all other contracts and agreements in connection with the
management, maintenance, promotion and operation of the Facility; provided that (1) if any
such license, agreement, commitment or contract has a term that extends beyond the
remaining Term, such license, agreement, commitment or contract shall provide that it is
automatically assigned to City as of the expiration or termination date of this Agreement and
that the City Manager may terminate any such agreement without payment thereafter at any
time upon not less than ten (10) days written notice; (2) Stage Door shall have the sole
authority to approve the scheduling of any Event to be held at the Facility, subject to the
limitations and requirements of this Agreement; and (3) any contract entered into between
Stage Door and a subsidiary and/or Affiliate company shall be at terms and for prices
customarily charged by such subsidiary and/or Affiliate company for comparable goods and
services elsewhere at rates that are competitive within the industry;
5.3.4 maintain the Facility (including, without limitation, all structural components -
thereof and all electrical, HVAC, life safety, mechanical, plumbing and other systems and
equipment) in a good and clean condition consistent with other similar first class facilities
and in compliance with all Governmental Requirements, ordinary wear and tear, and
casualty loss excepted. Maintenance responsibility shall include, without limitation,
preventative and any and all other maintenance and as required in Exhibit "F" to this
Agreement (entitled "City of Miami Beach Minimum Specifications for Maintenance of the
Miami Beach Byron Carlyle Theater"). Stage Door shall maintain in full force and effect
service contracts with qualified and licensed service providers with respect to HVAC, roof
and elevator systems unless Stage Door warrants and represents to City Manager, in
writing, that Stage Door has sufficient trained and qualified employees (in each case with
not less than one year's experience) to maintain such systems and that any warranties will
not be voided as a result thereof.
Stage Door shall keep on-site maintenance manuals and records reflecting all of
Stage Door's maintenance activities, all of which shall be available for inspection by the City
Manager upon request. Stage Door shall submit to City Manager periodic (not less than
quarterly) reports specifying all maintenance work performed during such period, which
reports shall be used by the City's Property Management Division (or its consultant) as part
of an annual City maintenance inspection and review.
Stage Door warrants and represents to City that, prior to the Effective Date, Stage
Door inspected the Facility, and Stage Door hereby accepts the Facility "as-is, where-is
and with all faults."
5.3.5 rent, lease, or purchase all equipment and maintenance supplies necessary -
or appropriate for the operation and maintenance of the Facility;
5.3.6 establish and adjust prices, rates and rate schedules for the aforesaid -
licenses, agreements and contracts, and any other commitments relating to the Facility to be
negotiated by Stage Door in the course of its management, operation, booking and
promotion of the Facility; provided, however, that Stage Door shall, on or before the
Commencement Date, submit its proposed initial rates and rate schedule to the City
Manager for hisfher review and approval (which reviewfapproval shall not be unreasonably
withheld, conditioned or delayed) and, thereafter Stage Door shall consult with the City
Manager about any adjustments to the rates and rate schedules at the Facility to be made
by Stage Door, prior to Stage Door's implementation of same;
5.3.7 pay when due, on behalf of the City, all Operating Expenses from Stage -
Door's own funds;
5.3.8 after consultation with the City Manager and the City Attorney, and subject to -
approval by the City Attorney or his designee, institute as agent for the City, the costs of
which shall be included as Operating Expenses, such legal actions or proceedings
necessary or appropriate in connection with the operation of the Facility (using legal counsel
approved by the City Attorney), including, without limitation, to collect charges, rents or other
revenues due to the City or to cancel, terminate or sue for damages under, any license, use,
advertisement or concession agreement for the breach thereof or default thereunder by any
licensee, user, advertiser, or concessionaire at the Facility; institute on Stage Door's own
behalf (and not as agent for City) without consultation or approval of the City, the costs of
which shall be included as Operating Expenses, such legal actions or proceedings
necessary or appropriate in connection with the operation of the Facility, including, without
limitation, to collect charges, rents or other revenues due to the City or Stage Door or to
cancel, terminate or sue for damages under, any license, use, advertisement or concession
agreement for the breach thereof or default thereunder by any licensee, user, advertiser, or
concessionaire at the Facility;
5.3.9 maintain a master set of all Event records, booking records and schedules for -
the Facility (which shall be available for inspection by the City Manager upon request);
5.3.10 provide day-to-day administrative services in support of its management
activities to ensure that the Facility shall be operated, managed, and maintained and
performed in a first class manner consistent with similar first class facilities including, but not
limited to, acquisition of services, equipment, supplies and facilities; maintenance and
property management; personnel management; record-keeping; collections and billing; and
similar services;
5.3.1 1 engage in advertising, solicitation, and promotional activities necessary to
effectively market the Facility and Events. In connection with its activities under the terms of
this Agreement, Stage Door will be permitted to use the logo and brand identity of the City of
Miami Beach, and of the Facility, as approved by the City Manager;
5.3.12 operate the Facility's telephone switch and telecommunications services;
5.3.13 act as a collection agent for the City on sales taxes from operation of the
Facility and remit to the State of Florida such sales taxes;
5.3.14 comply with all City Agreements;
5.3.15 Except as otherwise approved by the City Manager, Stage Door shall not
license or allow the use of any portion of the Facility to other than short-term users (i.e., less
than sixty (60) consecutive days). Stage Door shall require that all users of the Facility
provide certificates of insurance evidencing appropriate insurance and any other insurance
required by the applicable license, use or occupancy agreement. Copies of these
certificates shall be furnished to the City Manager prior to any Event or use. Such insurance
shall be kept in force at all times by all licensees, users, lessees and concessionaires. All
liability policies shall name the City and Stage Door as additional insureds. Stage Door shall
also require all users of the Facility to execute (among the terms of the license or occupancy
agreement) an agreement to indemnify, defend and hold harmless the City. Stage Door's
standard license or occupancy agreement shall, at a minimum, include the insurance and
indemnity requirements contained herein; shall further be subject to the prior review and
approval of the City Manager and City Attorney's Office; and - if and when approved -shall
be attached as Exhibit "G" hereto.
5.3.16 Free Com~limentarv Tickets. City shall be entitled to receive fourteen (14) -
complimentary tickets for each Run at the Facility that is open to the general public, including
those presented or promoted by Stage Door and including third party rentals subject to the
provisions of this Agreement. City may not engage in the sale or re-sale of the
complimentary tickets. Under no circumstances shall City be entitled to "roll over" or "carry
forwardJJ any unused or un-retrieved complimentary tickets; such that, in case of any Event
for which City neglects or otherwise fails to secure the complimentary tickets for any reason
other than Stage Door's failure to comply with its obligations under this subparagraph,
including reasons that were completely outside the parties' reasonable control, then, City
shall be deemed irrevocably to have waived its right or entitlement to those particular
complimentary tickets and City shall not be entitled to any remuneration for any lost
opportunity. Stage Door shall have sole and exclusive control over seating location
decisions for complimentary tickets so long as the complimentary tickets are seats within the
top 30% tiered price level (and thus the location may change from Event to Event). On or
prior to the Commencement Date, Stage Door shall provide a contact to the City from whom
the City can conveniently secure the complimentary tickets.
5.3.1 7 Resident Ticket Program. Stage Door shall operate a discount ticket program -
available only to City of Miami Beach residents (meaning individuals who permanently reside
in the City of Miami Beach), by which a ten percent (10%) discount off of the full face value
pricing shall be made available to such City of Miami Beach residents ("Resident Tickets") in
advance of ticket sales to the general public. Stage Door reserves the right to require proof
of City residency including, but not limited to, government photo ID, utility bill, school ID or
other similarly credible indicia of residency. For these purposes, the foregoing Resident
Tickets shall be subject to the following rules: 1) Resident Tickets shall be made available to
City of Miami Beach residents at least two (2) calendar days preceding the date upon which
tickets first go on sale to the general public and shall remain available for the full duration of
the sale period; 2) All tickets shall be sold on a first come, first served basis and shall be
available at the Facility box office; 3) The type and location of seating for all tickets shall be
determined by Stage Door, in its sole discretion, but shall include a full range of all ticket
prices; and 4) Stage Door shall have the right to promulgate additional reasonable rules
concerning such sales so long as same are consistent with the terms hereof to assure the
efficient operation of the program and compliance with these terms and conditions.
5.3.1 8 Stage Door shall operate a ticket program available to children under the age
of twelve (12) years old by which tickets will be sold for sixteen dollars ($1 6).
5.3.19 If it is financially feasible, Stage Door shall, in its sole and reasonable
discretion, develop, market, and operate a summer camp program for children in musical
theater, stage production, andlor theatrical stage set design. Programs may include writing,
directing and acting, and performing in a musical production. Summer camp programs may
be offered in 4 and 8 week sessions to children of all ages.
5.3.20 Stage Door shall create and promote a free Young Ambassador Program for
Miami Beach students with an interest in the performing arts in order to create a first person
perspective of their experiences in theater and the arts. Selected students will contribute to
establishing a vital informational link to their peers regarding the arts both locally and
nationally. In addition, the ambassadors will attend performances presented by Stage Door,
free of charge, in order to expand their interest in the arts, and be asked to provide reviews
for postings on social media sites such as Facebook, Twitter, etc. Ambassadors will receive
community service hours for their participation in the Program.
5.3.21 Stage Door shall participate in Golden Ticket and Culture Shock programs
offered by Miami-Dade County.
5.3.22 Stage Door shall participate in "Sleepless Night" and offer a FREE
performance(s) during the event. If at any time during the Term of this Agreement, the City,
in its sole discretion, determines not to produce andlor sponsor "Sleepless Night," then
Stage Door's obligation in this subsection shall apply to any such successor event, as the
City may determine, in its sole discretion.
SECTION 6. COMPENSATION TO THE CITY FOR USE OF THE FACILITY (USE FEE).
6.1 Base Use Fee. For the Term of the Agreement, Stage Door shall pay City a nominal -
annual Use Fee for the right to use the Facility, in the amount of One Dollar ($1.00), which shall be
payable in advance without demand, commencing on the Commencement Date and thereafter on
the first day of each Contract Year. If the Commencement Date occurs on a day other than the first
day of a calendar month, the first Contract Year shall include the partial month on which the
Commencement Date occurs and the following twelve (12) calendar months. The Base Use Fee
(and all other amounts due hereunder) shall be paid to City in legal tender of the United States of
America at the following address: Tourism and Cultural Development Department, 1700 Convention
Center Drive, Miami Beach, Florida 331 39; or at such other place that City may from time to time
designate by notice in writing.
6.2 Additional Fees and Charne. In addition to the Base Use Fee as set forth in -
subsection 6.1, Stage Door shall also be responsible for payment of the following Additional Fees
and Charges:
6.2.1 Taxes; Imposition. Stage Door shall be responsible for all property tax -
payments, taxes and impositions. The parties anticipate that the Byron Carlyle
Theater is tax exempt; however, in the event that any property tax payment (or any
other tax and/or imposition) is required in connection with the Facility, or in
connection with Stage Door's use of the Facility and its operations thereon, then
Stage Door shall be solely responsible for such payment(s).
6.2.2 Operating Expenses. Stage Door shall pay all costs and expenses related to -
Operating Expenses. Stage Door hereby irrevocably and unconditionally guarantees
to the City that Operating Revenues shall at all times be sufficient to pay as and
when due all Ope,rating Expenses and any and all other amounts that Stage Door is
obligated to pay pursuant to this Agreement, and further covenants and agrees that if
at any time there are insufficient Operating Revenues to pay all of the foregoing
amounts, as and when required, Stage Door shall immediately pay the difference
from Stage Door's own funds. This obligation is absolute and unconditional and
shall even apply if Operating Revenues are reduced or limited by facts or
circumstances not contemplated by the parties or for reasons beyond the parties'
control. The provisions of this Section 6.2.2 shall survive any termination or
expiration of this Agreement.
6.2.3 Establishment and Use of Capital Fund; Contributions. To help defray the -
cost of certain major capital repairs and replacements to the Facility (including,
without limitation, all structural components thereof, and all HVAC, life safety,
mechanical or other systems, plumbing and sewer lines, roof, etc.), Stage Doorshall
make annual contributions to a fund (the "Capital Fund") to be held and disbursed by
City, at the sole and reasonable discretion of the City Manager and hislher designee.
The annual contribution shall be Five Thousand Dollars ($5,000) for each
Contract Year throughout the Term. Contributions to the Capital Fund shall be made
in equal monthly installments, commencing on the Commencement Date, and shall
be due on or before the first day of each calendar month thereafter throughout the
Term.
All disbursements from the Capital Fund shall be subject to the approval of
the City Manager. The Fund shall be divided into a Capital Sub-Account. The Sub-
Account shall be held in an interest-bearing bank account established by the City
with all interest being added to, and constituting a part of, the applicable Sub-
Account.
Nothing in this Section 6.2.3 shall limit Stage Door's obligation to maintain the
Facility as required by this Agreement. The Capital Fund is intended only to address
specific major capital repairs and improvements and such items are not all-inclusive.
Additional work and additional funds will be required.
Notwithstanding the preceding paragraph, or this subsection 6.2.3, Stage Doorshall
not be responsible for paying for major capital improvements or infrastructure within
the Facility.
6.2.4 Sales Tax. Stage Door shall pay and include any and all additional sums for -
applicable sales and use tax, now or hereafter prescribed by State, federal or local
law, concurrent with and to the extent any sales tax is imposed in connection with
any payment due hereunder by Stage Door.
SECTION 7 - INTENTIONALLY OMITTED
SECTION 8. RIGHTS RESERVED TO CITY
8.1 Riahts of Entry. Representatives, contractors and employees of the City shall have -
the right to enter all portions of the Facility to inspect same, to observe the performance of Stage
Door of its obligations under this Agreement, to install, remove, adjust, repair, replace or otherwise
handle any equipment, utility lines, or other matters in, on, or about the Facility, or to do any act or
thing which the City may be obligated or have the right to do under this Agreement. Nothing
contained in this subparagraph is intended or shall be construed to limit any other rights of the City
under this Agreement. The City shall not unreasonably interfere with the activities of Stage Door
hereunder, and the City's actions shall be conducted such that disruption of Stage Door's work shall
be kept to a minimum and there shall be no disruption of any Event by City (the City's actions in its
proprietary capacity of the foregoing, shall not diminish any rights of City in its governmental
capacity). Nothing in this subsection shall be construed to impose upon the City any independent
obligation to make repairs, replacements, alterations, additions or improvements or perform any
maintenance or create any independent liability for any failure to do so.
8.2 Valet Parkinq. City reserves to itself and its contractors and designees (i) all rights to -
provide valet parking to the Facility, and (ii) all proceeds from the valet parking operations. City and
its contractors and designees shall have the right to use the driveway entrance and areas located
outside the entrance to the Facility for the valet parking operations, and Stage Door shall not
interfere with valet parking operations. Stage Door may pre-purchase parking controlled by the
City or pre-purchase valet parking. The City Manager shall have the authority to negotiate and
enter into such agreements with respect thereto, as the City Manager deems acceptable.
If the City exercises its right to provide valet parking to the Facility, then Stage Door shall
have no right to provide valet parking or to contract with other parties for valet parking with respect
to the Facility. However, if the City chooses not to offer valet parking services at the Facility, then
Stage Door shall have first right of refusal to provide valet parking or to contract with a third party for
valet parking at the Facility, at Stage Door's sole cost and expense.
8.3 Sianane. The following provisions shall govern the name-in-title rights, interior -
naming rights, and the related signage rights with respect to the Facility:
8.3.1 Name-in-Title Rinhts; Exterior Sianane. City reserves the name-in-title rights (i.e., the -
right to name the Facility) and all revenue derived therefrom. Notwithstanding the preceding
sentence, Stage Door shall be permitted to change the name of the Facility to "Miami Beach
Stage Door Theater" if and only if the City Commission approves and adopts an ordinance
amending Chapter 82, Article VI, Sections 82-501 through 82-505, as same may be
amended from time to time (hereinafter, the "City's Naming Ordinance"), exempting the
Facility from the requirements of the City's Naming Ordinance.
Stage Door shall own and retain all ownership rights to the name "Miami Beach
Stage Door Theater;" provided, however, that, throughout the Term (or other duration) of this
Agreement, Stage Door does herebv grant, permit, and consent to the Citv's right to use
landlor reproduce) the "Miami Beach Stage Door Theater" name, at no charge, for purposes
consistent with the intent and stated uses of the Agreement including, without limitation, for
the purpose of identifving and promoting the Facilitv, and/or for such other public purposes
as the Citv Manager, in hidher sole and reasonable discretion, mav deem necessarv. In the
event that this Agreement is terminated and/or otherwise expires, then the Citv shall
discontinue the use of the name "Miami Beach Stage Door Theater" for the Facilitv, effective
contemporaneous with the date that Stage Door ceases to manaqe and operate the Facilitv.
Notwithstanding the preceding paragraph, the City Commission's consent and
approval shall be required if Stage Door seeks to change the name of the Facility to anything
other than "Miami Beach Stage Door Theater," and any such name change must be
approved by a 517 vote of the City Commission.
Stage Door agrees that if the name-in-title is changed to "Miami Beach Stage Door
Theater," Stage Door shall bear all costs (as part of Operating Expenses) to obtain and
install new signage and to remove the existing signage. Further, if the name-in-title is
approved, as stated herein, Stage Door agrees to utilize the full name of the Facility in its
publications, advertising, promotions, websites, announcements, and other similar and
related materials referring solely to the Facility, unless the use of the full name-in-title is
otherwise unfeasible due to size or space limitations on such publications, advertising,
promotions, websites, announcements, and other similar and related materials, or outside of
its direct control. All exterior signage shall be subject to the City Manager's prior written
approval as to size, location, materials and aesthetics. Stage Door shall have no right to
install any other signage on the exterior of the Facility, except that Stage Door may use the
existing marquis sign to advertise upcoming Events.
8.3.2 lnterior Namin~ Rights; lnterior Signage. Stage Door shall be entitled to all -
permanent (meaning for a specific area such as a VIP lounge together with a duration in
excess of twelve (1 2) months) interior signage (and all proceeds derived therefrom shall be
Operating Revenues); provided, however, that the names affixed thereon (including, without
limitation, any sponsorship names) are subject to the City Manager's prior written approval,
which shall not unreasonably be withheld, conditioned or delayed. In no event may any such
signage include the names of any company selling the following types of products
("Prohibited Names"): guns, tobacco or sexual products.
Nothing contained herein shall preclude Stage Door from allowing sponsors from
using temporary banners and temporary signage within the Facility with respect to any
Event, so long as the banners and signage do not include any Prohibited Names.
Stage Door shall be entitled to all interior signage (and all proceeds derived
therefrom shall be Operating Revenues).
8.3.3 General Reauirements. All signage (whether interior, exterior, permanent andlor -
temporary) shall comply with all applicable Governmental Requirements, and shall be
maintained by Stage Door in good condition.
SECTION 9. NON-FUNDING BY CITY.
9.1 City shall have no obligation to provide funds for the payment of Operating Expenses. -
9.2 City will have no funding or other payment obligations with respect to the Facility or its -
Operating Expenses or its operations other than the costs which the City has specifically agreed to
pay under the terms of this Agreement. Additionally, Stage Door and City have entered into this
Agreement with the expectation and belief that, as of the Effective Date, no governmental body will
impose any ad valorem taxes upon the Facility nor any sales, income, excise or other taxes.
Notwithstanding the preceding sentence, the City makes no representation to Stage Door - either
express or implied -that any or all of such taxes may or may not be imposed at any time during the
Term of this Agreement.
SECTION 10. RECEIPTS AND DISBURSEMENTS.
10. Stage Door shall establish and maintain in one or more depositories, one or more -
operating, payroll and other bank accounts for the operation and management of the Facility, as
Stage Door shall determine. All Operating Revenues collected by Stage Door from the operation of
the Facility shall be deposited into the accounts and all Operating Expenses shall be paid by Stage
Door as agent for the City from the accounts. Any amounts remaining in the operating accounts
upon expiration or termination of this Agreement for any reason, after payment of all other amounts
that Stage Door is required to pay under this Agreement through the date of expiration or
termination, shall be promptly paid to Stage Door.
SECTION 11. ALTERATIONS, MAINTENANCE, AND REPAIRS.
11 .I Stage Door shall not make any additions, improvements, or alterations (collectively -
"Alterations") to the Facility without the City Manager's prior written consent. The costs of all
Alterations made by Stage Door shall be borne solely by Stage Door from its own funds and shall
not constitute Operating Expenses. The City Manager shall not unreasonably withhold, condition or
delay hislher consent to any Alterations except that the City Manager may withhold consent, in
hislher sole and absolute discretion, with respect to any Alterations that change the structural
elements or life-saving systems or that affect the exterior of the Facility; Notwithstanding anything to
the contrary, however, Stage Door shall not under any circumstances be permitted to make any
Alterations that: (i) adversely affect the structural portions of the Facility, or (ii) fail to comply with
any applicable Governmental Requirements; or (iii) interfere in any material manner with the proper
functioning of any mechanical, electrical, plumbing, HVAC, life safety or other systems, facilities or
equipment of the Facility.
Except as required pursuant to Section 5.4, it is understood by the parties hereto that
the Stage Door shall not be responsible, nor required to pay for, any other costs related to capital
improvements or infrastructure (i.e. including, but not limited to, plumbing and sewer lines, major
electrical, structural, HVAC, roof, etc.) with regard to the Facility.
I 1.2 Stage Door shall obtain all required permits for Alterations performed by, through or -
under Stage Door and shall perform or cause to be performed such Alterations in compliance with
all Governmental Requirements. Under no circumstances shall Stage Door make any Alterations
which incorporate any Hazardous Substances including, without limitation, asbestos-containing
construction materials, into the Facility. Any request for City Manager's consent to any proposed
Alterations by, through or under Stage Door shall be made in writing and shall contain plans or other
written materials describing the work in detail reasonably satisfactory to City Manager, provided that
architectural plans shall not be required unless required for the issuance of a building permit. City
Manager shall provide or deny consent within twenty (20) business days following receipt of Stage
Door's written request, the failure to provide or deny consent within such twenty (20) business day
period shall be deemed a consent. Should the work proposed by Stage Door and consented to by
City Manager modify the basic floor plan of the Facility and the building permit therefor require
architectural plans, then Stage Door shall, at its expense, furnish City with as-built drawings and
CAD disks for such work. Unless City Manager otherwise agrees in writing, all Alterations made or
affixed to the Facility (excluding moveable trade fixtures, equipment, personal property and furniture)
(including without limitation, all upgrades constructed pursuant to subparagraph (b)), shall become
the property of City and shall be surrendered with the Facility at the expiration or termination of this
Agreement. With respect to Alterations costing in excess of $200,000 City Manager may require
Stage Door to obtain a payment bond for the work.
11.3 Maintenance. The Stage Door shall, at its sole cost and expense, have sole -
responsibility for maintenance and repair of all facilities, improvements, and facilities and utilities
infrastructure equipment at the Facility. Stage Door shall, at its sole cost and expense, and to the
satisfaction of the City, keep and maintain the Facility, and all improvements thereon, in good, clean,
and sanitary order. Stage Door shall, at its sole cost and expense, have the sole responsibility for
maintaining the grounds of the Byron Carlyle Theater. To that end, the parties herein acknowledge,
and Stage Door herein agrees to be bound by, the minimum maintenance standards set forth in
Exhibit "F" to this Agreement, entitled "City of Miami Beach Minimum Specifications for Maintenance
of the Miami Beach Byron Carlyle Theater." It is further understood that Stage Door shall provide
the City with a quarterly maintenance report, in a format to be approved by the City Manager.
11.4 Personal Propertv. A list of City owned personal property included in the -
Agreement for use by Stage Door during the Term hereof is attached and incorporated herein as
Exhibit "H". Stage Door hereby accepts such equipment in its "as-is" condition, and without any
warranty(ies), whether express or implied, by the City. Stage Door shall maintain all City owned
equipment and, at its sole cost and expense, acquire and maintain all replacement and such other
equipment as may be necessary to maintain the Facility in a condition which satisfies those
maintenance standards set forth in Exhibit "G", but shall not have an obligation to improve the
condition of the personal property beyond the "as-is" condition in which it was accepted, all of which
shall be noted on the inventory. Stage Door shall have the right, at the initial inventory and at any
point thereafter, to decline the use and responsibility for any personal property not useful for its
operation of the Facility, and may turn such personal property over to the City in the condition in
which it was accepted. The City shall have the right to periodically take an inventory of any or all
City-owned equipment at the Facility.
SECTION 12. RECORDS, AUDITS AND REPORTS.
12.1 Records and Audits. -
12.1 .I Stage Door shall keep full and accurate accounting books and records
relating to all Operating Revenues and Operating Expenses, all in accordance with generally
accepted accounting principles. Stage Door shall give the City's authorized representatives
access to such books and records during reasonable business hours and upon reasonable
advance notice. All books and records shall be made available on-site at the Facility or
electronically. Stage Door shall keep and preserve for at least three (3) years following each
Fiscal Year, or for as long as such records are required to be retained pursuant to Florida
Public Records Law (whichever is longer), all sales slips, rental agreements, purchase order,
sales books, credit card invoices, bank books or duplicate deposit slips, and other evidence
of Operating Revenues and Operating Expenses for such period. In addition, on or before
120 days following each Fiscal Year (commencing [FILL IN] ), Stage Door shall
furnish to the City a line item (i.e., by categories) statement of Operating Costs and
Operating Revenues (and profit or loss) for the Facility for the preceding Fiscal Year, and
including the number of tickets sold and Events held, prepared in accordance with generally
accepted accounting principles certified as accurate by Stage Door's Chief Accounting
Officer or Chief Financial Officer.
12.2 The City Manager shall have the right at any time, and from time to time, to -
cause independent auditors or the City's own accountants or auditors to audit all of the
books of Stage Door relating to Operating Revenues, Operating Expenses, tickets and
Events including, without limitation, cash register tapes, credit card invoices, duplicate
deposit tapes, and invoices. No costs incurred by the City in conducting such audit shall be
considered an Operating Expense.
12.3 Annual Plan. Commencing upon May 1, 2012, Stage Door shall provide to -
the City on or before June lSt of each year, an annual management plan, which shall include
the annual operating budget for the then current Fiscal Year but may not have a complete
booking plan or event schedule. The annual plan shall include information regarding Stage
Door's anticipated operations for such Fiscal Year, including planned operating and
maintenance activities, anticipated capital improvements and capital equipment purchases
and an anticipated budget therefor, anticipated Events at the Facility (to the extent known at
such time), and planned equipment and furnishings purchases. Stage Door shall have the
right from time to time to make any changes it deems necessary or appropriate to any such
annual plan so long as the annual plan is consistent with Stage Door's fulfillment of its
obligations hereunder.
12.4 Programmatic Plan. -
Accompanying the Stage Door's proposed annual budget shall be the Facility
Programmatic Plan for the next fiscal year, detailing the then-known activities planned, and
the number of residents and visitors anticipated to be impacted.
12.5 Maior Capital Repairs. -
Accompanying Stage Door's proposed annual budget shall be a detailed list of then-
known major capital repairs anticipated for the Facility.
SECTION 13. INDEMNIFICATION.
13.1 Indemnification. -
13.1 .I Stage Door shall indemnify, hold harmless and defend (with counsel
approved by the City Attorney) the City, its officers, agents, servants and employees
from and against any and all claims, liabilities, demands, causes of action, costs and
expenses (including reasonable attorneys' fees at trial and all levels of appeal) of
whatsoever kind or nature ("Claims") arising out of (i) error, omission or negligent act
or willful misconduct of Stage Door, its agents, servants, contractors, or employees;
(ii) any default by Stage Door under this Agreement; or (iii) any other claim arising,
directly or indirectly, from the operation or management of the Facility or any Event
held therein or rental or use of the Facility; provided that there is expressly excluded
from the foregoing obligations any Claims to the extent resulting from the gross
negligence or willful misconduct of the City, its officers, agents (excluding Stage
Door), contractors (excluding Stage Door) and employees or the use of the Facility
by the City, its officers, agents (excluding Stage Door), and employees, pursuant to
Section 16 hereof.
13.1.2 In addition, Stage Door shall indemnify, hold harmless and defend the City,
its officers, agents, servants and employees, from and against any claim, demand or
cause of action of whatever kind or nature arising out of any misconduct of Stage
Door not included in the paragraph in the subsection above and for which the City,
its officers agents, servants or employees, are alleged to be liable. This subsection
shall not apply, however, to any such liability as may be the result of the gross
negligence or willful misconduct of the City, its officers, agents, servants or
employees.
13.1.3 The provisions of this Section 13 shall survive expiration or termination of this
Agreement.
SECTION 14. INSURANCE REQUIREMENTS.
Stage Door shall maintain, at Stage Door's sole cost and expense, the following types of insurance
coverage at all times throughout the Term of this Agreement:
14.1. General liability insurance with not less than the following limits: -
General aggregate $2,000,000
Products (completed operation
aggregate) $2,000,000
Personal and advertising (injury) $1,000,000
(Per occurrence) $1,000,000
Fire damage $ 100,000
Medical Expense $ 5,000
Liquor Liability (aggregate) $2,000,000
(Per occurrence) $1,000,000
14.2 Workers Compensation lnsurance shall be required under the Laws of the State of -
Florida.
14.3 Automobile lnsurance 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 $ 500,000 per accident
14.4 Fire lnsurance for the Theater shall be the responsibility of the City. -
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days written notice to City and then subject to the prior
written approval of the City's Risk Manager. Stage Door shall provide the City with a Certificate of
lnsurance for each such policy, which shall name the City as an additional named insured. All such
policies shall be obtained from companies authorized to do business in the State of Florida with an
A.M. Best's lnsurance Guide (latest edition) rating acceptable to the City's Risk Manager, and any
replacement or substitute company shall also be subject to the approval of the City's Risk Manager.
Should Stage Door fail to obtain, maintain or renew the policies of insurance referred to above, in
the required amounts, the City may, at its sole discretion, obtain such insurance, and any sums
expended by City in obtaining said insurance, shall be repaid by Stage Door to City, plus ten percent
(1 0%) of the amount of premiums paid to compensate City for its administrative costs. If Stage Door
does not repay City's expenditures within fifteen (15) days of demand, the total sum owed shall
accrue interest at the rate of twelve percent (12%) until paid, and such failure shall be deemed an
event of default hereunder.
14.5 Stage Door shall be the named insured under all such policies. The City shall be an -
additional insured under the insurance policies described in subsections 14.1,14.2, 14.4, and 14.5
hereof, as its interests may appear, and all such insurance policies shall contain a provision
covering the indemnification liabilities hereunder.
14.6 Builder's Risk. Stage Door shall also carry Builder's Risk Insurance during any -
period of construction of Alterations or any other period of construction by, through or under Stage
Door.
14.7 The terms of insurance policies referred to in Section 14 shall preclude subrogation -
claims against Stage Door, the City and their respective officers, employees and agents.
SECTION 15. OWNERSHIP OF ASSETS.
15.1 owners hi^. The ownership of the Facility and all buildings and real estate, all -
existing (and replacements thereof) technical and office equipment and facilities, furniture, displays,
fixtures, vehicles and similar tangible property located at the Facility shall remain with the City.
Ownership of and title to all intellectual property rights of whatsoever value held in the City's name
shall remain in the name of the City. The ownership of consumable assets (such as office supplies
and cleaning materials), personal property, equipment and fixtures purchased with Operating
Revenues or City funds shall remain with the City, but such assets purchased with Operating
Revenues may be utilized and consumed by Stage Door in the performance of services under this
Agreement. The ownership of data processing programs and software owned by the City shall
remain with the City, and the ownership of data processing programs and software owned by Stage
Door shall remain with Stage Door. Stage Door shall not take or use, for its own purposes,
customer lists or similar materials developed by the City for the use of the Facility, unless prior
written consent is granted by the City Manager. Ownership of equipment, furnishings, materials, or
fixtures not considered to be real property purchased by Stage Door with Operating Revenues for
use at and for the Facility shall vest in the City automatically and immediately upon purchase or
acquisition, except for those items which by the terms of this Agreemept shall remain the property of
Stage Door. The assets of the City as described herein shall not be pledged, liened, encumbered or
otherwise alienated or assigned. Notwithstanding anything to the contrary contained in this
Agreement, any personalty, furnishings, and movable equipment that is not a fixture and is not
integral to the operation of the Facility purchased by Stage Door and used at the Facility shall be the
sole property of Stage Door.
SECTION 16. USE BY THE CITY
The City shall have the right to use the Facility, or any part thereof, subject to availability, for
the benefit of the community for such purposes including, but not limited to, meetings, City-
sponsored special events, Sleepless Night (or a successor event), receptions, and other purposes,
as deemed necessary by the City Manager, in hislher sole and absolute discretion, without the
payment of any rental or use fee, except the direct out-of-pocket expenses incurred in connection
with such uses shall be paid by the City. City uses df the Facility shall not be competitive with, nor
conflict with, Events booked or sponsored by Stage Door, and shall be booked in advance upon
reasonable notice. Additionally, upon execution of this Agreement, Stage Door acknowledges and
herein agrees to honor all pre-existing scheduled events (see Exhibit "E"), whether booked by the
City or otherwise, at the Facility, whether or not such events actually occur on or after the Effective
Date and Stage Door's possession and use of the Facility for the purposes set forth herein.
SECTION 17. ASSIGNMENTISUBLET.
7 I Except as otherwise specifically provided in this Section 17, Stage Door may not
voluntarily or by operation of law, assign, encumber, pledge or otherwise transfer all or any part of
Stage Door's interest in this Agreement or subcontract its management duties hereunder without the
City's prior written consent, which may be granted or withheld in City's sole and absolute discretion.
Any attempt by Stage Door to assign all or any part of its interest and any attempt to subcontract its
management duties hereunder without first having obtained City's priorwritten approval shall be void
and of no force or effect. In the event of any assignment, transfer, encumbrance or subcontract,
Stage Door shall nevertheless remain liable for all obligations hereunder and the transferee shall be
jointly and severally liable for all obligations thereafter arising under this Agreement. Any transfer of
a controlling interest in Stage Door (whether in a single transaction or multiple transactions) shall be
considered an assignment of this Agreement. Stage Door specifically recognizes that City selected
Stage Door to be the manager of the Facility as a result of the City's evaluation of Stage Door's
specific qualifications and experience in operating similar first class facilities.
17.2 The provisions of subsection 17.1 above shall not prevent Stage Door in the
performance of its management duties hereunder to grant licenses and concessions and rental
agreements for Events and entering into a concessions agreement for the concession operations at
the Facility.
SECTION 18. SECURITY.
Stage Door shall provide reasonable security to protect the Facility and its equipment,
materials and facilities, including any City equipment, furnishings, and fixtures used by Stage Door,
and shall be solely responsible to the City for any loss or damage to any City equipment, furnishings,
and fixtures so used by Stage Door.
SECTION 19. PERMITS; LICENSES; TAXES; APPLICABLE LAWS.
Stage Door agrees to obtain and pay for all permits and licenses necessary for the conduct
of its business and agrees to comply with all laws governing the responsibility of an employer with
respect to persons employed by Stage Door. Stage Door shall also be solely responsible for
payment of any and all taxes levied on the Facility and its operations. In addition, Stage Door shall
comply with all rules, regulations and laws of the City; Miami-Dade County; the State of Florida; and
the U.S. Government now in force or hereafter to be adopted.
SECTION 20. UTILITIES; RESPONSIBILITY FOR TAXES AND ASSESSMENTS.
20.1 Utilities. -
Stage Door shall be solely responsible for and shall pay (whether to the City or
directly to the utility) before delinquency, any and all charges for utilities used at the Facility
(including, without limitation, water, electricity, gas, heating, cooling, cable, internet,
telephone, sewer, trash collection, etc.).
20.2 Procedure If Taxes Assessed. -
Stage Door agrees to, and shall pay before delinquency, all taxes and assessments
of any kind assessed or levied, whether upon Stage Door or the Facility, by reason of this
Agreement or by reason of any use(s) and/or activity(ies) of Stage Door upon or in
connection with the Facility. The parties acknowledge that Stage Door's operation and use
of the Facility is for public purposes, and therefore anticipate that, as of the Effective Date,
no ad valorem taxes should be assessed by the Miami-Dade County Tax Appraiser. If,
however, taxes are assessed by the Property Tax Appraiser, Stage Door shall be solely
responsible for payment of same.
SECTION 21 FORCE MAJEURE.
21 .I No party will be liable or responsible to the other party for any delay, damage, loss, -
failure, or inability to perform caused by "Force Majeure" if notice is provided to the other
party within ten (1 0) days of date on which such party gains actual knowledge of the event of
"Force Majeure" that such party is unable to perform. The term "Force Majeure" as used in
this Agreement means the following: an act of God, strike, war, public rioting, lightning, fire,
storm, flood, explosions, epidemics, landslides, lightening storms, earthquakes, floods,
storms, washouts, civil disturbances, explosions, and any other cause whether of the kinds
specifically enumerated above or otherwise which is not reasonably within the control of the
party whose performance is to be excused and which by the exercise of due diligence could
not be reasonably prevented or overcome (it being acknowledged that under no
circumstances shall a failure to pay amounts due and payable hereunder be excusable due
to a Force Majeure).
21.2 Neither party hereto shall be under any obligation to supply any service or services if -
and to the extent and during any period that the supplying of any such service or services or
the provision of any component necessary therefore shall be prohibited or rationed by any
Governmental Requirements.
21.3 In the event of substantial damage to or destruction of the Facility by reason of fire, -
storm or other casualty or any eminent domain action or other regulatory action that, in either
case, shall render a substantial part of the Facility inoperable for a period of at least ninety
(90) days or in Stage Door's reasonable opinion the Facility can no longer be operated in a
reasonably profitable manner as a result of the damages or action for a period of at least
ninety (90) days from the happening of the fire, other casualty or regulatory action, either
party may terminate this Agreement upon written notice to the other. Upon any such
termination, the provisions of Section 31 shall apply; and provided City shall receive the
entire amount of all insurance proceeds or eminent domain award as applicable.
SECTION 22. INSPECTION.
Stage Door agrees that the Facility may be inspected at any time upon reasonable notice by
authorized representatives of the City, or by any other State, County, Federal or municipal officer or
agency having responsibilities for inspections of such operations and/or Facility. Stage Door agrees
to undertake immediately the correction of any deficiency cited by such inspectors on the Facility,
which is properly the responsibility of Stage Door pursuant to this Agreement.
SECTION 23. WAIVER OF INTERFERENCE.
Stage Door hereby waives all claims for compensation for loss or damage sustained by
reasons of any interference with its operation and management of the Facility by any public agency
or official as a result of their enforcement of any laws or ordinances or of any of the rights reserved
to the City herein. Any such interference shall not relieve Stage Door from any obligation hereunder.
SECTION 24. NO LIENS.
Stage Door agrees that it will not suffer, or through its actions or anyone under its control or
supervision, cause to be filed upon the Facility any lien or encumbrance of any kind. In the event
any lien is filed, the Stage Door agrees to cause such lien to be discharged within ten (10) days
therefrom, and in accordance with the applicable law and policy. If this is not accomplished, the City
may automatically terminate this Agreement, without further notice to Stage Door.
SECTION 25. STAGE DOOR EMPLOYEES, MANAGERS AND BOARD OF DIRECTORS.
25.1 The City and Stage Door recognize that in the performance of this Agreement, it shall -
be necessary for Stage Door to retain qualified individuals to effectuate and optimize Stage Door's
management and operation of the Facility. Stage Door shall select, train, and employ at the Facility
such number of employees as is necessary or appropriate for Stage Door to satisfy its
responsibilities hereunder. Stage Door shall recruit employees consistent with standards employed
at comparable first class facilities, and Stage Door shall have authority to hire, terminate and
discipline any and all personnel employed by Stage Door working at the Facility. Any such
personnel, whether employees, agents, independent contractors, volunteers, and/or other,
employed, retained, or otherwise engaged by Stage Door for such purpose(s), shall not be deemed
to be agents, employees, partners, joint ventures, or associates of the City, and shall not obtain any
rights or benefits under the civil service or pension ordinances of the City or any rights generally
afforded classified or unclassified employees of the City; further they shall not be deemed entitled to
the Florida Worker's Compensation benefits as employees of the City. Additionally, Stage Door,
andlor its employees shall never have been convicted of any offense involving moral turpitude or
felony. Failure to comply with this subsection shall constitute cause for termination of this
Agreement.
25.2 Stage Door shall assign to the Facility a competent full-time staff member -
experienced in the operations of similar facilities, who will be located full time on-site during the
Term. The full-time staff member will be supervised by a general manager who is experienced in
operating and managing similar facilities. From time to time the staff member may provide
assistance in connection with consulting andlor management services provided by Stage Door or
any of its Affiliates at other facilities managed, owned or leased by Stage Door or any of its Affiliates
so long as such assistance does not affect in any material respect the responsibilities and duties of
the staff member to the Facility. Prior to Stage Door's appointment of the staff member, Stage Door
shall consult with the City Manager with respect to the qualifications of the staff member proposed
by Stage Door. The staff member shall be accessible to the City Manager at all reasonable times to
discuss the management, operation, and maintenance of the Facility. "Accessible" shall mean
available either in person, by telephone, andlor e-mail during business and/or operation hours and
within a reasonable time frame during non-business hours in the event of emergency. The City
Manager may also request that the staff member be replaced and Stage Door shall duly consider all
such requests but shall not be obligated to replace the staff member.
25.3 Within thirty (30) days after the Effective Date, Stage Door shall establish an Advisory -
Oversight Board dedicated to providing oversight to the operation of the Facility. The City Manager
andlor hislher authorized designee shall be a member on the Advisory Oversight Board.
SECTION 26. NO IMPROPER USE.
Stage Door will not use, nor suffer or permit any person to use in any manner whatsoever,
the Facility for any purpose in violation of any Federal, State, County, or municipal ordinance, rule,
order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or
adopted. Stage Door shall not use the Facility for any unlawful purpose and shall comply with all
laws, permitting, and licensing requirements now in force or hereafter adopted, applicable to the
Facility or the activities, uses, andlor business(es) conducted on the Facility. Stage Door agrees not
to knowingly use the Facility for, or to permit operation of any offensive or dangerous activity,
nuisance or anything against public policy. Any criminal activity in the Facility knowingly caused
by or knowingly permitted by Stage Door shall result in automatic termination of this
Agreement. Except as may result from acts of force majeure, Stage Door agrees that it will not
allow the Facility to become unoccupied or vacant. Stage Door shall take appropriate precautions to
prevent fire on the Facility, maintaining existing fire detection devices and extinguishing equipment
at all times.
SECTION 27. NO DANGEROUS MATERIALS.
Stage Door agrees not to use or permit in the Facility the storage of illuminating oils, oil
lamps, turpentine, gasoline (except for small containers [5 gallons or less] for machinery), benzine,
naphtha, or other similar substances, or explosives or any kind, or any substance or thing prohibited
in the standard policies of fire insurance companies in the State of Florida.
SECTION 28. NO CLAIM AGAINST CITY OFFICERS, EMPLOYEES, INDIVIDUALS.
It is expressly understood and agreed by and between the parties hereto that all individuals,
employees, officers, and agents of the City are acting in a representative capacity and not for their
own benefit; and that neither Stage Door nor any occupant shall have any claim against them or any
of them as individuals in any event whatsoever in conjunction with any acts or duties which are
reasonably related to the performance of their duties.
SECTION 29. DEFAULT AND TERMINATION.
29.1. Staae Door's Defaults. The occurrence of any one or more of the following events -
shall constitute an Event of Default by Stage Door.
29.1.1 The failure by Stage Door to make any payment required to be made by
Stage Door as and when due, which continues for more than ten (1 0) days after
written notice from City;
29.1.2 The failure or inability by Stage Door to observe or perform any of the
covenants or provisions of this Agreement to be observed or performed by Stage
Door, other than as specified in other subparagraphs of this subsection 29.1, which
continues for more than thirty (30) days after written notice from City Manager;
provided, however, if the nature of the failure is such that more than such period is
reasonably required for its cure, then Stage Door shall not be deemed to have
committed an Event of Default if Stage Door commences the cure within such period
and thereafter diligently pursues the cure to completion and actually completes the
cure within an additional sixty (60) day period;
29.1.3 Except as permitted pursuant to Section 17 of this Agreement, the
assignment, encumbrance, pledge, or transfer of this Agreement, whether voluntarily
or by operation of law, or any subcontract of Stage Door's duties hereunder, which
continues for more than fifteen (1 5) business days after written notice thereof from
City Manager;
29.1.4 (i) The making by Stage Door of any general assignment for the benefit of
creditors; (ii) the filing by or against Stage Door of a petition to have Stage Door
adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts
discharged or a petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Stage Door, the same is
dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take
possession of substantially all of Stage Door's assets located at the Facility or of
Stage Door's interest in this Agreement, if possession is not restored to Stage Door
within sixty (60) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Stage Door's assets located at the Facility or of Stage Door's
interest in this Agreement, where the seizure is not discharged within sixty (60) days.
29.2 Citv's Remedies. -
29.2.1 If an Event of Default by Stage Door occurs, then in addition to any other
remedies available to City, City may exercise the following remedies:
(i) City may terminate this Agreement by written notice to Stage Door, in
which case this Agreement shall terminate and Stage Door shall immediately
surrender possession of the Facility to City. Upon termination, City shall be
entitled to recover from Stage Door: (1) Operating Expenses that remain
unpaid through the date of termination; (2) all other amounts that Stage Door
is required to pay under this Agreement through the date of termination.
(ii) City may seek specific performance of any of Stage Door's
obligations hereunder or seek injunctive relief;
(iii) City may exercise any other remedies available at law or in equity.
29.2.2 The various rights and remedies reserved to City in this Agreement or
otherwise shall be cumulative and, except as otherwise provided by Florida law, City
may pursue any or all of its rights and remedies at the same time.
29.3 Stage Door's Remedies. If an Event of Default by City occurs, then Stage Door may -
exercise either of the following remedies:
29.3.1 Stage Door may terminate this Agreement by written notice to City, in which
case this Agreement shall terminate and Stage Door shall immediately surrender
possession of the Facility to City. Upon termination, Stage Door shall be entitled to
recover from City all amounts owed by City to Stage Door as of the termination date
and the provisions of Section 31 shall apply; or
29.4 Late Payments. Any payment owed to City or Stage Door under this Agreement -
including, without limitation, any other payment owed to City or Stage Door under this Agreement
that is not received by City or Stage Door within ten (1 0) days following notice of such amount being
due shall bear interest at the rate of 15% per annum ("Default Rate") from the date due until fully
paid.
29.5 IN THE EVENT THAT STAGE DOOR CEASES TO BE A NOT-FOR-PROFIT -
CORPORATION, THIS AGREEMENT SHALL BE AUTOMATICALLY TERMINATED.
SECTION 30. [INTENTIONALLY DELETEDISECTION 31. TERMINATION.
31 .I Effect of Termination. In the event this Agreement expires or is terminated for any -
reason: (1) All Operating Expenses and all other obligations for the period up to the date of
expiration or termination shall be paid using funds on deposit in the account(s) described in
subsection 10.1 and to the extent such funds are not sufficient, Stage Door shall pay all such
amounts from its own funds; (2) After all amounts referenced in subparagraph (1) have been paid,
Stage Door may retain all remaining Operating Revenues (if any). Upon the expiration of this
Agreement or a termination for any reason, all further obligations of the parties hereunder shall
terminate except for the obligations which for all periods up to the date of expiration or termination
and such other obligations as are stated to survive or be performed after such expiration or
termination. All of the foregoing reimbursement and the payment obligations are to be made within
thirty (30) days after the termination date. The provisions of this Section regarding the above
reimbursement and payment obligations of the City shall survive the termination of this Agreement.
31.2 Surrender of Facilitv. Upon termination or expiration of this Agreement Stage Door -
shall surrender and vacate the Facility upon the effective date of such termination (or expiration).
The Facility and all equipment and furnishings shall be returned to the City in a good and clean
condition consistent with other similar first class facilities and in compliance with all Governmental
Requirements, ordinary wear and tear, and casualty loss excepted.
SECTION 32. NOTICES.
All notices from the City to Stage Door shall be deemed duly served if mailed by registered or
certified mail to Stage Door at the following address:
Broward Stage Door Theater Company, lnc.
1922 N.W. 83'* Drive
Coral Springs, Florida
Attention: David R. Torres, President and Derelle W. Bunn, Director
All notices from Stage Door to the City shall be deemed duly served if mailed to:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Max Sklar, Tourism and Cultural Development Director
Stage Door and the City may change the above mailing addressed at any time upon giving the other
party written notification. All notice under this Agreement must be in writing.
SECTION 33. NO DISCRIMINATION.
The Stage Door agrees that there shall be no discrimination as to race, color, national origin,
religion, gender identity, sexual orientation, marital and familiar status, or disability in the operations
referred to by this Agreement; and further, there shall be no discrimination regarding any use,
service, maintenance or operation of the Facility. All facilities located on the Facility shall be made
available to the public, subject to the right of Stage Door to establish and enforce reasonable rules
and regulations to provide for the safety, orderly operation and security of the facilities.
33.1 No Discrimination in Employment; Affirmative Action. In connection with the -
performance of work under this Agreement, Stage Door shall not refuse to hire, discharge, refuse to
promote or demote, or to discriminate in matters of compensation against, any person otherwise
qualified, solely because of race, color, national origin, religion, gender identity, sexual orientation,
marital and familiar status, or disability.
SECTION 34. LIVING WAGE.
This Agreement is subject to, and Stage Door shall be required to comply throughout the
Term hereof with, the provisions of the City's Living Wage requirements, as codified in Sections 2-
407 through 2-41 0 of the City Code (as same may be amended from time to time).
SECTION 35. EQUAL BENEFITS FOR DOMESTIC PARTNERS
This Agreement is subject to, and Stage Door shall be required to comply throughout the
Term hereof with, the requirements of Section 2-373 of the City Code entitled, "Requirement for city
contractors to provide equal benefits for domestic partners" (as same may be amended from time to
time). The Agreement is deemed to be a "covered contract," as defined in Section 2-373(a)(6) of
the City Code, and shall require Stage Door to providetits employees working pursuant to this
Agreement (whether working within the City of Miami Beach city limits, or within the United States,
but outside the City limits, if such employees are directly performing work pursuant to this
Agreement) "Equal Benefits" (as defined in Section 2-373(a)(8) of the City Code) to its employees
with spouses and its employees with "domestic partners" (as defined in Section 2-373(a)(7) of the
City Code). Failure by Stage Door to comply with the requirements of Section 2-373 of the City
Code (as same may be amended from time to time) shall be deemed to be a material breach of this
Agreement which may result in termination of the Agreement, with all monies due or to become due
under the Agreement to be returned by the City. The City may also pursue any and all remedies at
law or in equity for such breach. Failure to comply with Section 2-373 may also subject Stage Door
to debarment, in accordance with the procedures provided in Sections 2-397 through 2-406 of the
City Code.
SECTION 36. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only if in so doing the City can place a limit on
its liability for any cause of action for money damages due to an alleged breach by the City of this
Agreement, so that its liability for any such breach never exceeds the sum of $10,000. Stage Door
hereby expresses his willingness to enter into this Agreement with Stage Door's recovery from the
City for any damage action for breach of contract to be limited to a maximum amount of $10,000,
less the amount of all funds actually paid by the City to Stage Door pursuant to this Agreement.
Accordingly, and notwithstanding any other term or condition of this Agreement, Stage Door
hereby agrees that the City shall not be liable to the Stage Door for damages in an amount in
excess of $1 0,000, which amount shall be reduced by the amount actually paid by the City to Stage
Door pursuant to this Agreement, for any action or claim for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this Agreement.
Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability as set forth in Section 768.28, Florida Statutes.
SECTION 37. NOT A LEASE.
It is expressly understood and agreed that no part, parcel, building, structure, equipment or
space is leased to Stage Door; that this Agreement is a management agreement and not a lease;
and that Stage Door's right to operate and manage the Facility shall continue only so long as the
Stage Door complies with the undertakings, provisions, agreements, stipulations and conditions of
this Agreement.
SECTION 38. MISCELLANEOUS
38.1 VenueIWaiver of Juw Trial. This Agreement shall be governed by, and construed in -
accordance with, the laws of the State of Florida, both substantive and remedial, without regard to
principals of conflict of laws. The exclusive venue for any litigation arising out of this Agreement
shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of
Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND STAGE DOOR
EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY
CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
38.2 No Partnership or Joint Venture. Nothing herein contained is intended or shall be -
construed in any way to create or establish the relationship of partners or a joint venture between
the City and Stage Door. None of the officers, agents or employees of Stage Door shall be or be
deemed to be employees of the City for any purpose whatsoever.
38.3 Entire Agreement. This Agreement and all Exhibits attached hereto contain the -
entire agreement between the parties with respect to the subject matter hereof and supersedes all
prior agreements, understandings, proposals or other expressions of intent with respect thereto. The
Exhibits attached hereto are incorporated into and made a part of this Agreement. No other
agreements, representations, warranties or other matters, whether oral or written, will be deemed to
bind the parties hereto with respect to the subject matter hereof.
38.4 Written Amendments. This Agreement shall not be altered, modified or amended in -
whole or in part, except in writing executed by each of the parties hereto.
38.5 Bindina U~on Successors and Assigns; No Third-Party Beneficiaries. -
38.5.1 This Agreement and the rights and obligations set forth herein shall inure to
the benefit of; and be binding upon, the parties hereto and each of their respective
permitted successors and permitted assigns.
38.5.2 This Agreement shall not be construed as giving any person, other than the
parties hereto and their successors and permitted assigns, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any of the provisions
herein contained, this Agreement and all provisions and conditions hereof being
intended to be, and being, for the sole and exclusive benefit of such parties and their
successors and permitted assigns and for the benefit of no other person or entity.
38.6 Section Headings and Defined Terms. The headings contained herein are for -
reference purposes only and shall not in any way affect the meaning and interpretation of this
Agreement. The terms defined herein and in any agreement executed in connection herewith
include the plural as well as the singular and the singular as well as the plural, and the use of
masculine pronouns shall include the feminine and neuter. Except as otherwise indicated, all
agreements defined herein refer to the same as from time to time amended or supplemented or the
terms thereof waived or modified in accordance herewith and therewith.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original copy of this Agreement, and all of which, when taken together, shall be deemed
to constitute but one and the same agreement.
38.7 Severabilitv. The invalidity or unenforceability of any particular provision, or part of -
any provision, of this Agreement shall not affect the other provisions or parts hereof, and this
Agreement shall be construed in all respects as if such invalid or unenforceable provisions or parts
were omitted.
38.8 Non-Waiver. A failure by either party to take any action with respect to any default or -
violation by the other of any of the terms, covenants, or conditions of this Agreement shall not in any
respect limit, prejudice, diminish, or constitute a waiver of any rights of such party to act with respect
to any prior, contemporaneous, or subsequent violation or default or with respect to any continuation
or repetition of the original violation or default.
38.9 Certain Representations and Warranties. -
38.9.1 The City represents, warrants, and covenants to Stage Door the following: (i)
City has full legal right, power and authority to enter into and perform its obligations
hereunder; and (ii) this Agreement has been duly executed and delivered by the City
and constitutes a valid and binding obligation of the City, enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally or by
general equitable principles.
38.9.2 Stage Door represents and warrants to the City the following: (i) Stage Door
has full legal right, power and authority to enter into and perform its obligations
hereunder, and (ii) this Agreement has been duly executed and delivered by Stage
Door and constitutes a valid and binding obligation of Stage Door, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights
generally or by general equitable principles.
38.1 0 Governing Law. This Agreement will be governed by and construed in accordance
with the internal laws of the State of Florida, without giving effect to otherwise applicable principles
of conflicts of law.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed; all as of this day and year first written above.
Attest: CITY OF MIAMI BEACH
City Clerk Matti Herrera Bower, Mayor
STATE OF FLORIDA
1 SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
, 201 1, by Mayor Matti Herrera Bower and Robert Parcher, City Clerk, or their
designees respectively, on behalf of the CITY OF MIAMI BEACH, known to me to be the persons
described in and who executed the foregoing instrument, and acknowledged to and before me that
they executed said instrument for the purposes therein expressed.
WITNESS my hand and official seal, this day of , 2011.
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
APPROVED AS TO
FORM & LANGUAGE
a FOR EXECUTION
4\12-\1\
Date
43
Attest: BROWARD STAGE DOOR THEATRE
COMPANY, INC.
Secretary President
Print Name Print Name
STATE OF FLORIDA 1
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
,2011, by , on behalf of the BROWARD STAGE
DOOR THEATER COMPANY, INC., known to me to be the persons described in and who executed
the foregoing instrument, and acknowledged to and before me that they executed said instrument
for the purposes therein expressed.
WITNESS my hand and official seal, this day of ,2011.
~otar~ Public, State of Florida at Large
Commission No.:
My Commission Expires:
EXHIBIT "A"
LEGAL DESCRIPTION OF THE FACILITY
LEGAL DESCRIPTION
Portion of the land occupied by Byron Carlyle Theater, more particularly described as
follows:
Lots 11, and 12, TOGETHER WITH: the east 15 feet of lots 1 and 2, all in Block 14,
NORMANDY BEACH SOUTH, recorded in Plat Book 21, at Page 54, Public Records of
Miami-Dade County, Florida, containing 14,092 square feet more or less.
EXHIBIT "B
CITY AGREEMENTS
EXHIBIT "C"
ANNUAL BENCHMARKS
The following benchmarks will be judged against base figures determined at the end of
the first contract year, or partial contract year, and will be assessed at the end of each
contract year thereafter. Stage door should demonstrate the following:
I. By the end of the second year, Stage Door should sell 18,000 tickets annually.
2. Every year thereafter, there should be no less than a 5% increase in ticket sales
annually until the annual number of tickets sold reaches 24,000.
3. The effectiveness of the Young Ambassador Program as determined by an
annual increase of 5% in size of youth audience at Stage Door events.
4. An annual increase of 5% in the number of participants in the Summer Camp
Program. Provided that the Summer Camp program is able to operate without a
loss in revenue.
EXHIBIT "D
BOOKING POLICIES
EXHIBIT "En
PRE-EXISTING BOOKING LIST
April 2011.
4/30 -
Fundarte 511 In Contract $ 500.00 10/20/2010
Give us Hope (Miami
Childrens) 4/10. In Contract $ 600.00 03/30/2010
Lehrman Community Day 4112-
School 4/13 In Contract $ 500.00 03/22/2010
Mav 2011.
Dance Now! Ensemble 516 & 5/7 In Contract $ 500.00 04/12/2010
5/13 - 10/04/2010
Momentum Dance Company 5/15 In Contract $ 800.00
City Theater 5/22 In Contract
October-11
Ability Comedy Explosion Event at Confirmed -
Byron Carlyle 1012 1 hold
%is event's rent is waived by City
Commlsioneks
10/7 -
C.0.M.E Dance 1018. Hold no payment
November 2011.
Sleepless Nights (City of Miami 1113 -
Beach) 1115 Hold no payment
Januarv 2012.
CCHQ Tracy Manning 1/12. Hold no payment
THIS LICENSE AGREEHEMT made this 19*. day of July, 2010 ** by and between GldPal
8p0ctrtm, L. p. , (nLicensorn), and Dace NOW! Ensemble ("~icamee. ")
Diego Salterjni m Hannah Bangartem
ArtbticDiredor
Dance Now! Bnsemble
P.O. Box 416525
Miami Beach, PL 33141
EMGIL: jnfW&ncenowmiami.org
Licensor manages, operates and maintains EFPROef CARLYLE TElWHtE, on behalf of the City of
Miami Beach, a Florida municipal corporation (the "Cityn), under rights granted by and
obligations imposed under an agreement between City and Licensor.
That the Licensor grants unto the Licensee the use and occupancy of BYROB3 CARfiPLg
SWEATRE (Venue), upon the following terms and conditions for the sole purpose of:
Thursday, May 5,201 1 Technical Load In Rate: $550.00
Frlday, May 6,201 1 Technical Rehearsal Rate: $550.00
Satuday, May 7,201 1 Performance at 8:00 pm Rate: $500.00
TERMS AND CONDITIONS
1: Rant: Licensee shall pay rent to Licensor without demand, together with any and
all sales, use and state taxes arising or accruing during the term of the License hold,
plus the percentages and other charges as set forth below on the following basis:
The Licensee hereby covenants and agrees to pay the following minimum rentals, or such
higher rentals as shall be approved by the City Commission on or before 120 days prior
to the date licensee takes occupancy under this license; provided, however, that
licensee's obligation with respect to such higher rentals shall be limited to an
increase of twelve per cent (12%) over the following minimum rentals.
Rent. $1,600.00 (Om %%~nm1Pd Sjj. HUIUdlCQd a011axa) ,Plus liwae Bbrs and Wwt &mmnualr.
The Licensee is subject to the terms and conditions of this LICENSE AGREBYEN!l'. These
Rental Documents comprise Licensee's obligation to rent BXRON CM4Lpfg -TRE and ate in
'full force and effect durbg the rental period. The License Agxeement must be returned
to the Glabal Spectrum office 1901 Convention Center Drive, Miami Beach, F1 33139 along
with payment of a non-refundable 50% deposit payable to TBE MIZIMI BEM3l COXWBlWICRJ
CEBWBR no less than four months (120 days) prior to event date stated on signed Rider to
the Venue Contract. The signed documents and security deposit must be received no later
than 5:00 PM on the due date designated by the invoice or date will be automatically
cancelled.
Should the contract be prepared less than forty-five (45) days prior to tbe
~ncomont of the rental poriod, then the Rental Docummnts imnd p~~t in
full must be remitted no later than 5:00 RM, on the dw data desiaaated Irp the
invoice or the date will automatically be aancerlled. Licensee accepts sole
responsibility for compliance with the terms set forth in this contract.
By signing thim contract, Lic6nsee takes full responsibility and obligation for
all rental monies and additional charges incurred for perEormanco. Licensee is
fully msponsiblo for fuU rentar of any cancellation for the above-mant%oned
date. Licensor will provide Licensee with a written estintaW of all chargsu for
Services provided by Licensor and ncay revise such esUmate from tinm to tinm
In the event: Licensee has not completely vacated the pdses and returned said
PZSQ~S~S bn the COIltr&Ct&, brmiaat%.on -, Id.GOUS0r m;ag additional reIlt
at the ~rovailiw hourly rental rate aa a-roved by City of aaiami Beach for
each day ox portion thereof bayond the contracted evacuation time.
The Liceaae~ is subjeat to the telpll snd ~tior~rr of this LI- and
TO Tdlg VSBUX-. !FImse Ron- Document8 Licensee's &ligation
to rent -on Carlyle Theatre and are in fell faree and effect during the ran-
period. Lieensam a-ta sole responsibility for compliance with tho teans set
forth in this -tract.
2. Premisee and Ilquipaarnt:
a) This Agreement grants unto the Licensee the full use of stage, existing
stage setting, stage properties, stage lights, dressing rooms, "green room",
orchestra pit, orchestra, mezzanine or balcony seats, lobby and entry ways.
The Licensee shall take the premises as they are at the time of occupancy
by the Licensee. In the event the Licensee finds it necessary to remove or
change the location of any stage rigging, settings, curtain or equipment,
the changes shall be made by the Licensee at the Licensee's expense;
provided, however, that no removals or changes shall be made without prior
written consent of the Theater Director. Licensee further agrees to replace
and restore all said stage riggings, settings, curtains or equipment to the
former location and condition in which the Licensee found them.
b) Licensee agrees to pay costs of repair and replacement and all damages of
whatever origin or nature which may occur during the term of this agreement
in order to restore the licensed premises or other parts of the Licensor's
premises affected by the event to a condition equal to that at the time this
agreement became effective. Licensee shall deposit with Licensor the sum of
Five Hundred dollars and no/100 ($500.00) Dollars to ensure performance of
this provision or any other provision of this License Agreement. In the
event the Licensee shall fully and faithfully comply with all of the terms,
covenants, provisions, and conditions of this License, said security shall
be set off against any rent owed to the Licensor at the termination of the
License or returned in full if all obligations are fulfilled. In the event
of any bankruptcy or other insolvency proceeding against Licensee, it is
agreed that all security deposits held hereunder shall be deemed to be
applied by Licensor to rent, sales tax and other charges due at date of
bankruptcy and/or insolvency.
C) Licensee shall not injure, mar, or in any manner deface the premises or any
equipment contained therein and shall not cause or permit anything to be
done whereby the said premises or equipment therein shall be in any manner
injured marred or defaced. Licensee further agrees it will not tape items,
drive or permit to be driven nails, hooks, tracks, or screws into any part
of said building or equipment contained therein and will not make or allow
to be made any alterations of any kind to said building or equipment
contained therein.
3. Services: The Licensor shall furnish air conditioning during show hours only,
house lights, public address system and water by means of the appliances installed for
ordinary purposes, but for no other purposes. Interruptions, delays or failures in
furnishing any of the same caused by anything beyond control of the Licensor shall not
be chargeable to the Licensor. Licensor will provide one daily cleaning of all public
spaces and between show clean-up as possible for events with more than one perfonaance
on a single day. It is agreed that the licensor shall provide at Licensee's sole cost
and expense, ushers, floor managers, off-duty Miami Beach Police Officers, firemen as
nay be required by the Miami Beach Fire Department, stage crew, electricians,
technicians, projectionists, sound system licensor, carpenters, machine licensor, and
any and all help necessary for the promotion and presentation of the event. ?LL1
employees and services not provided by City of Miami Beach are employees of Licensee.
If additional maintenance personnel are required in excess of regular scheduling, due to
Licensee use of the Theatre, Licensee will be solely responsible for all cost relating
to additional maintenance and personnel.
4. Box Office: Licensor at all times reserves the authority, power and right to
control the box office, including but not limited to, ticket: printing, ticket
personnel and ticket sales revenue.
(a) Ticketing: Licensor will order the tickets/create the event through Ticket
Master of Florida as exclusiwm in-house ticketing, distribution and
reporting system. Licensee charge for said distribution will be included in
"House Feesn.
(b) Distzibution: Licensor shall have the right to offer tickets for sales
at all of its approved agencies (Ticket Master of Florida). Licensee may
request that ticket sales privileges be extended to additional. agencies, and
Licensor retains full and final authority to authorize such distribution
approval.
(c) Licsnm Holds: Licensor agrees to put a designated number of tickets on
hold for sale by the Licensee for the purpose of season ticket holders.
Licensee must notify the Licensor prior to putting the event on sale in
writing as to the number of specific seats to be put on hold. Held seat
will not be included in final box office settlement.
Consigtmtant tickQts will be issued and used far trade deals or group smlas
only.
Group sales will be requited to pick-up and pay for tickets at the box
officre.
Additionally, Licensee assumes all responsibility for collection of funds
from such approved agencies. AWY UNSOLD TICKETS CQBRSICietgD TO ADDXFIOBU&
AtZWCIES MYST BE TO LICEMSUR 24 gOURS BEEWtE TBB FIR9T MY OF THE
EVIbLPT. AHY TICXETS NOT SO RE- WXLL BE W%WIDERED SOLD.
(d) Ticket Prices: Licensee agrees that all tickets will be sold at the
advertised prices. Such advertised prices shall be mutually agreed upon in
writing by Licensee and Licensor. Any changes in ticket prices shall
require the prior written approval of Licensor. The approved agency will
charge applicable handling charges.
(e) Licensor will retain a minimum of fourteen (14) complimentary tickets for
each event to be reserved for the City of Miami Beach.
(f) CUataasar Crdt: Licensee shall be responsible for the credit worthiness of
its patrons.
5. Right to Securer Box Offica Receipts: Licensee covenants and agrees to pay the
Licensor on demand all sums due Licensor for any service, accommadations or materials
furnished or loaned by Licensor and to authorize and permit Licensor to take such sums
from any box office receipts or advance receipts belonging to Licensee in an amount
sufficient to secure Licensor against loss in the event Licensee fails to make such
payments. Licensor shall have a first lien and security interest on the box office
receipts of Licensee to secure the payment of any sums due Licensor from Licensee for
the use of the licensed premises, any accommodations, services or materials furnished or
loaned by Licensor, or any amounts due under this License.
6. Enculpa~on d fndsarmification Clauae: Licensee agrees that it will indemnify,
hold and save the City of Miami Beach ("City") and Licensor, their officers, agents,
contractors and employees whole and harmless and at Licensor's option defend same, from
and against aJ-1 claims, demands, actiona, damages, loss, cost, liabilities, expenses and
judgments of any nature recovered from or asserted against Licensors on account of
injury or damage to person or property to the extent that any such damage or injury may
be incident to, arise out of, or be caused, either proximately or remotely, wholly or in
part, by an act, omission, negligence or misconduct on the part of Licensee or any of
its agents, servants, employees, contractors, patrons, guests, licensees or invitee or
of any other person entering upon the Premises licensed hereunder with the express or
implied invitation or permission of Licensee, or when any such injury or damage is the
result, proximate or remote, of the violation by Licensee or any of its agents,
servants, employees, contractors, patrons, guests, licensees or invitee of any law,
ordinance or governmental order of any kind, or when any such injury or damage may in
any other way arise from or out of the occupancy or use by Licensee, its agents,
servants, employees, contractors, patrons, guests, licensees or invitee of the Premises
licensed hereunder. Licensee covenants and agrees that in case Licensor or City shall
be made parties to any litigation against Licensee or in any litigation commenced by any
party other than Licensee relating to this License or to the Premises licensed
hereunder, then Licensee shall and will pay all costs and expenses, including reasonable
attorney's fees and court costs, incurred by or imposed upon Licensor or City by virtue
of any such litigation. These terms of indemnification shall be effective unless such
damage or injury may result from the sole negligence, gross negligence or willful
misconduct of Licensor and/or the City.
7. Ordinances and Regulations: Licensee will comply with all laws, ordinances and
regulations adopted or established by federal, state or local governmental agencies or
bodies; and by all facility rules and regulations as provided by Licensor, and Licensee
will require that its agents and employees likewise comply. Licensee agrees that at all
times it will conduct its activities with full regard for public safety and will observe
and abide by all applicable regulations and requests by duly authorized governmental
agencies responsible fox public safety and by Licensor to assure such safety. Lfcensor
further agrees that all portions of sidewalks, entries, doors, passages, vestibules,
halls, corridors, stairways, passageways, and all ways of access to public utilities of
the premises shall be kept unobstructed by the Licensee and shall not be used for any
purpose other than ingress or egress to and from the premises by Licensee. Licensee
also shall not use or store or permit to be used or stored in or on any part of the
Licensed premises any substances or thing prohibited by law, ordinance, or standard
policies of fire insurance companies operating in the State of Florida, without the
permission of the Licensor. Illuminating oils, candles, oil lamps, turpentine, benzene,
naphtha, or other similar substances or explosives of any kind shall not be placed in or
on the licensed premises. It is further agreed that no inflammdble materials, such as
bunting, tissue paper, crepe paper, etc., will be permitted to be used as decorations,
and decorative materials unless they are treated with flame proofing and are approved by
the appropriate inspector of the City of Miami Beach or Dade County, Florida, before the
same are installed.
In accordance with the City of Miami Beach liquor control regulation ordinance, any
event held at BXROM CARLYLE 'PHgATRE which involves the consumption of alcoholic
beverages must close the event no later than 5:00 A.M. on each event day. Compliance
with this ordinance is mandatory.
8. Aasigmmut and SubI.ett,ing: Licensee shall not assign, transfer, sublet or subject
this agreement or its right, title or interest therein without Licensor's prior written
approval.
9. Rowers to Vacate Premises: Licensor shall retain the right to cause interruption
of any performance in the interest of public safety, and to likewise cause the
termination of such perfoxmance when in the judgment of the Licensor such action is
necessary in the interest of public safety. Should it become necessary in the judgment
of the Licensor to evacuate the premises because of a bomb threat or for other reasons
of public safety, the Licensee will retain possession of the premises, for sufficient
time to complete presentation of its activity without additional rental charge providing
such time does not interfere with another building Licensee. If it is not possible to
complete presentation of the activity, rental. shall be forfeited, prorated, or adjusted
at the discretion of the Licensor based upon the situation, and the Licensee hereby
waives any claim for damages or compensation from the Licensor.
Operator reserves the rights to make such announcements as are deemed necessary at any
time in the interest of public safety. Licensee agrees that it will cooperate with the
delivery of such announcements for public safety, including but not Limited to,
announcements to require patrons to leave their seats or to leave the premises. The
Licensor reserves the right to eject or cause to be ejected from the premises any person
or persons causing a disturbance, and neither the Licensor nor any of its officers,
agents or employees shall be liable to the Licensee for any damages that may be
sustained by the Licensee through the exercise by the Licensor of such right.
10. Cancellation of mtby licensee: In the event of a cancellation by Licensee
of the Event, no deposit refund shall be made. Additionally, Licensee shall be
obligated to pay the full amount of fees contemplated to be due hereunder had the
Event actually occurred. The parties agree that Licensor will be damaged by any such
cancellation, and that the exact amount of such damages would be either impossible or
inconvenient to prove, and that the amounts set forth in the preceding sentence are a
reasonable estimate of the amount of such damages. The parties further agree that
such amount shall constitute cancellation fees, and not a penalty of any kind. The
remedies set forth in this section are in addition to, and not in lieu of, any other
rights or remedies Licensor may have, at law or in equity, in the event of a breach or
cancellation of this Agreement by Licensee.
In the following formula, "x" shall represent the number of calendar days from the
date the Licensor received notice of cancellation from the Licensee to the first day
of the License period and "y" shall represent the percentage of the License fee owed
to the Licensox by the Licensee:
If "x" equals 1,096 or more calendar days, then "y" equals 25% (3+ years)
If 'x" equals 366 to 1,095 calendar days, then "y" equals 50% (over 1 year up to 3
years)
If "x" equals 365 or less calendar days, the "y" equals 100% (1 year or less)
Licensor shall use reasonable efforts to re-rent the Premises, and license fees received
by Licensor in the re-renting of the Premises shall reduce cancellation fees owed by
Licensee by a like amount, with such reduction not to exceed the full amount of the
cancellation fees owed.
11. Default and Licensor's RlloPedies: Default shall be defined as the untimely
performance of any and all clauses in this License or in the event guide which is
incorporated by reference into this License. Licensor may exercise any and all remedies
enumerated or permitted by law. Licensor may hold a landlord's lien on any and all
personal when Licensee is in default and Licensee expressly gives Licensor permission to
remove and store at Licensee's expense, any personal abandoned on the demised premises.
The Licensee shall pay upon demand all Licensor's expenses and costs incurred in
enforcing the Licensee's obligations under this license including but not limited to:
staff and leasing agents retained by Licensor, legal costs, charges and/or expenses,
including reasonable attorney's fees incurred by Licensor Fn any pre-litigation
negotiation, litigation and/or appeal in which the Licensee causes the Licensor to
become involved or concerned. Licensor may resort to any one or more of such remedies
or rights, and adoption of one or more such remedies or rights, shall not necessarily
prevent the enforcement of other remedies or rights concurrently or thereafter.
12. Insurance: As additional consideration over and above the rental payments made by
Licensee herein, Licensee shall, at its own expense, comply with all of the following
insurance requirements of the Licensor. It is agreed by the parties that the Licensee
shall not occupy the predses until proof of the following insurance coverage has been
furnished to the City and Licensor.
a) Commercial general liability insurance, on an occurrence form, in the amount
of Two Million ($2,000,000.00) Dollars per occurrence for bodily injury ,
death, property damage, and personal injury. The policy must include
coverage for premises operations, blanket contractual liability (to cover
indemnification section), products, completed operations and independent
contractors. If the user's activities involve the sale of alcohol, then
liquor liability in the same amount is also required. These policies must
name the City of Miami Beach and Global Spectrum as additional insured.
b) Automobile liability insurance in the amount of One Million ($1,000,000.00)
Dollars per occurrence to provide coverage for any owned and non-owned
vehicles used by the licensee on the Facility premises, including loading
and unloading hazards. This must name the City of Miami Beach and Global
Spectrwn as additional insured.
C) Workers' compensation and employer's liability coverage as required by
Florida Statute.
d) It is understood and agreed that all coverage's provided by the Licensee are
primary to any insurance or self-insurance program the City has for this
Facility and the Licensee and their insurance shall have no right of
recovery or subrogation against the Licensor.
e) All policies must be issued by companies Domicile in the State of Florida
and assigned a rating of A:X or better, per Best's Key Rating Guide, latest
edition.
f) The City must receive thirty (30) days written notice prior to any
cancellation, non-renewal or material change to the required insurance
policies. This written notice must be sent to the City of Miami Beach Risk
Management Division, 1700 Convention Center Drive, Miami Beach, FL 33139.
g) Evidence of the required insurance policies must be provided to Global
Spectrum by submission of an original certificate of insurance thirty (30)
days prior to the license period.
h) Alternate coverage to satisfy these requirements is subject to prior
approval of the Cityr s Risk Manager. Additional insurance coverage, as
determined by the City's Risk Manager, may be required for this license.
13. ZuhinisUative Charges: In the event any check, bank draft or negotiable
instrument given for any money payment hereunder shall be dishonored at any time, for
any reason whatsoever not attributable to Licensor, Licensor shall be entitled, in
addition to any other remedy that may be available to make an administrative charge of
Twenty ($20.00) Dollars for each such check.
14. audit: Licensee shall make available to Licensor, upon request, all records znnd
books related to this Agreement at such time and place as shall be designated by
Licensor for examination thereof for the purpose of an audit to be performed by an
auditor designated by Licensor. Licensee shall inform licensor of all services retained
by it to provide services in connection with Licensee's License of Licensor's premises
pursuant to this Agreement, that they must also agree to the aforesaid provision
relating to audit upon request of Licensor.
IS. Sale of Concessions: Licensor reserves, and at all times shall have the sole
right to food and beverage, sundries, programs, novelties, souvenirs and periodicals and
to rent and sell opera glasses, and other articles, to conduct check rooms, to control
event programs and to supervise the contents thereof, to take photographs, to control or
supervise radio, movie and/or television broadcasting or recording and transcription
rights and equLpment, and other privileges, and Licensee shall not engage in or
undertake the sale of any of the aforesaid articles or privileges, without the express
written consent of Licensor. Licensee agrees to pay to the Licensor 15% of it~
gross sales on ptograms, novelties, souvenirs, etc.
16. Right of Entry: Any duly authorized agent or agents or employees of the Licensor
shall have the right at any time to enter into any and all parts of the premises for the
purpose of inspecting the same, making or causing to be made, necessary repairs thereto,
enforcing all necessary and proper rules for the management and operation of the
premises, and enforcing the Licensee's obligations hereunder.
17. Supply of Keys to Director: The Licensor or his representative shall have
available to him at all times, total and complete access to all portions of the licensed
premises. Licensee shall supply to the Licensor, or his representative, a key or keys
to any and all parts of the premises which Licensee desires to secure under lock, such
keys and locks to be provided for and installed and removed at the sole expense of
Licensee, subject to immediate removal upon termination of this Agreement, or otherwise
at the discretion of the Director. In the event the Director determines it to be
necessary to remove any locks which have been installed by Licensee, the Director may
order such removal, the cost of which shall be borne by Licensee.
18. Wo Box office BaiLaent: In the handling, control, custody and keeping of receipts
and funds, whether the same are received through the box office or otherwise, the
Licensor is acting for the accormaadation and sole benefit of Licensee and that, as to
such receipts and funds, the Licensor shall be responsible only for gross neglect or bad
faith.
19. Licensor's Discretion: Any matter not expressly provided for herein shall be
within the reasonable discretion of the Licensor.
(a) All legal proceedings arising from this license shall be in the courts
situated in Dade County, Florida.
(b) If any section, subsection, clause or provision of this License is held
invalid, the remainder shall not be affected by such invalidity.
(c) This License may only be altered, changed or amended, by an instrument in
writing signed by both parties hereto.
(d) No waiver of any covenant or condition of this License by either party shall
be deemed to imply or constitute a further waiver of the same covenant or
condition or any other covenant or condition of this License.
(e) This License contains and embodies the entire agreement of the parties
hereto and no representations, inducements or agreements oral or otherwise,
between the parties not contained and embodied herein shall be of any force
and effect.
(f) In any conflict between the License and other written provisions the license
shall prevail.
(g) CAECKLIS!F/QI~ESTIONAIRE and RIDER TO VENUE CONTRACT are hereby incosporated
into this agreement by reference unless otherwise amended by separate
addendum.
(h) All federal, state, and local laws and/or regulations related to copyright,
trademarks, etc. must be complied with by the Licensee and all exhibitors
selling such items on the premises. Further, the Licensee agrees to save
and completely hold harmless the City of Miami Beach and Global Spectrum,
and to pay all costs related to any violation of the above.
(i) The licensee acknowledges and understands that this contract in no way
affords any rights and does not authorize any signage to be placed outside
the boundaries of the Theater property.
We strongly suggest that the licensee obtains all appropriate permits and
licenses for off-site signage from the City of Miami Beach Building and/or
Code Enforcement Department.
(j) The Licensee acknowledges and agrees that it is their sole responsibility to
provide appropriate information related to the availability of seating for
patrons with disabilities. Further the Licensee understands and agrees that
information on sqch seating must be included in all promotional and
advertising materials relative to this performance.
21. Oths~: Tema and Condikions: The Licensee shall provide at Licensee's sole cost
and expense, off-duty Mid Beach Police Officers and off-duty Miami Beach Firefighters
and/or Miami Beach Rescue Service as required by the Miami Beach Fire and Police
Departments.
22. Borca Ibajsure: Should Licensee be unable to take possession of the Premises
or present the Event due to an Event of Force Majeure, neither Licensor nor Licensee
shall have any liability under the Agreement and Licensee, as its sole remedy and
relief, shall receive a refund of any uncommitted or cancelable advance payments less
any expenses incurred by Licensor in preparing for the Event. The term "Event of
Force Majeure" shall mean any and all acts of God, strikes, lock-outs, acts of the -
public enemy, laws, rules and regulations of governmental or quasi-governmental
entities, wars or warlike action, arrest or other restraint of government (civil or
military), blockades, insurrections, riots, terrorism or terrorist threats,
epidemics, lightning, earthquakes, hurricanes, storms, floods, washouts, fire or
other casualty, civil disturbances, explosions, threats of bombs or similar
interruptions, confiscation or seizure by any government or public authority, nuclear
reaction, radioactive contamination, accidents, or any other causes, whether of the
kind herein enumerated or otherwise that are not reasonably within the control or
caused by the party claiming the right to delay the performance on account of such
occurrence; provided, however, in no circumstances shall the monetary inability of a
party to perform any obligation contained in this Agreement be construed to be an
Event of Force Majeure. Upon removal or cessation of the Event of Force Majeure, the
parties1 respective rights and obligations hereunder shall be reinstated for any and
all subsequent sessions of the Event remaining in the Term (if any).
LICENSEE: Promoter's Company Name
Date: I
Date:
Print Name / Title i/
LICElYSOWGLLQAL SPECTRUM, L.P.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT made this ath. day of Sept&r, 2010 ** by and between
Global Spectrum, L. P . , ("Licensors1) , and Miami Children's Chom ("'Licensee. ")
Miami Children's Chorus
Timothy A. Sharp
1533 Sunset DAwe #215
Cord Gables, Fl. 33143
3056627494
Licensor manages, operates and maintains BYRON CARLYLE !CHEWRE, on behalf of the City of
Miami Beach, a Florida municipal corporation (the "Cityw), under rights granted by and
obligations imposed under an agreement between City and Licensor.
That the Licensor grants unto the Licensee the use and occupancy of BYRON CARLYLE
THEATRE (Venue), upon the following terms and conditions fox the sole purpose of:
Sunday, April 10,2011
e With Oscar Bscalada"
Performance at 7:00 PM Rate: $500.00
TERMS AND CONDITIONS
1. Rant: Licensee shall pay rent to Licensor without demand, together with any and
all sales, use and state taxes arising or accruing during the term of the License hold,
plus the percentages and other charges as set forth below on the fol'lowing basis:
The Licensee hereby covenants and agrees to pay the following minimum rentals, or such
higher rentals as shall be approved by the City Commission on or before 120 days prior
to the date licensee takes occupancy under this license; provided, however, that
licensee's obligation with respect to such higher rentals shall be limited to an
increase of twelve per cent (12%) over the following minimum rentals.
The Licensee is subject to the terms and conditions of this LICENSE AGREEMENT. These
Rental Documents comprise Licensee's obligation to rent BYRON CARLYLE mTRE and are in
full force and effect during the rental period. The License Agreement must be returned
to the Global Spectrum office 1901 Convention Center Drive, Miami Beach, F1 33139 along
with payment of a non-refundable 50% deposit payable to THE WAMX BEAClB CONVEN!ELON
CENTER no less than four months (120 days) prior to event date stated on signed Rider to
the Venue Contract. The signed documents and security deposit must be received no later
agreed that all security deposits held hereunder shall be deemed to be
applied by Licensor to rent, sales .tax and other charges due at date of
bankruptcy and/or insolvency.
Licensee shall not injure, mar, or in any manner deface the premises or any
equipment contained therein and shall not cause or permit anything to be
done whereby the said premises or equipment therein shall be in any manner
injured marred or defaced. Licensee further agrees it will not tape items,
drive or permit to be driven nails, hooks, tracks, or screws into any part
of said building or equipment contained therein and will not'make ox allow
to be made any alterations of any kind to said building or equipment
contained therein.
3. Services: The Licensor shall furnish air conditioning during show hours only,
house lights, public address system and water by means of the appliances installed for
ordinary purposes, but for no other purposes. Interruptions, delays or failures in
furnishing any of the same caused by anything beyond control of the Licensor shall not
be chargeable to the Licensor. Licensor will provide one daily cleaning of all public
spaces and between show clean-up as possible for events with more than one performance
on a single day. It is agreed that the licensor shall provide at Licensee's sole cost
and expense, ushers, floor managers, off-duty Miami Beach Police Officers, firemen as
may be required by the Miami Beach Fire Department, stage crew, electricians,
technicians, projectionists, sound system licensor, carpenters, machine licensor, and
any and all help necessary for the promotion and presentation of the event. All
employees and services not provided by City of Miami Beach are employees of Licensee.
If additional maintenance personnel are required in excess of regular scheduling, due to
Licensee use of the Theatre, Licensee will be solely responsible for all cost relating
to additional maintenance and personnel.
4. Box Office: Licensor at all times reserves the authority, power and right to
control the box office, including but not limited to, ticket printing, ticket
personnel and ticket sales revenue.
(a) Ticketing: Licensor will order the tickets/create the event through Ticket'
Master of Florida as exclusive in-house ticketing, distribution and
reporting system. Licensee charge for said distribution will be included in
"House Feesf8.
(b) Distribution: Licensor shall have the right to offer tickets for sales
at all of its approved agencies (Ticket Master of Florida). Licensee may
request that ticket sales privileges be extended to additional agencies, and
Licensor retains full and final authority to authorize such distribution
approval.
(c) Licensee Holds: Licensor agrees to put a designated number of tickets on
hold for sale by the Licensee for the purpose of season ticket holders.
Licensee must notify the Licensor prior to putting the event on sale in
writing as to the number of specific seats to be put on hold. Held seat
will not be included in final box office settlement.
Consignment tickets will he issued and used for trade deals or group sales
only.
Group sales will be required to pick-up and pay for tickets at the box
office .
Additionally, Licensee assumes all responsibility for collection of funds
from such approved agencies. ANY UNSOLD TICKETS CONSIGNED TO ADDITIONAL '
further agrees that all portions of sidewalks, entries, doors, passages, vestibules,
halls, corridors, stairways, passageways, and all ways of access to public utilities of
the premises shall be kept unobstructed by the Licensee and shall not be used for any
purpose other than ingress or'egress to and from the premises by Licensee. Licensee
also shall not use ox store or permit to be used or stored in or on any part of the
Licensed premises any substances or thing prohibited by law, ordinance, or standard
policies of fire insurance companies operating in the State of Florida, without the
permission of the Licensor. Illuminating oils, candles, oil lamps, turpentine, benzene,
naphtha, or other similar substances or explosives of any kind shall not be placed in or
on the licensed premises. It is further agreed that no inflammable materials, such as
bunting, tissue paper, crepe paper, etc., will be permitted to be used as decorations,
and decorative materials unless they are treated with flame proofing and are approved by
the appropriate inspector of the City of Miami Beach or Dade County, Florida, before the
same are installed.
In accordance with the City of Miami Beach liquor control regulation ordinance, any
event held at BYRON CARLYLE TLEATRE which involves the consumption of alcoholic
beverages must close the event no later than 5:00 A.M. on each event day. Compliance
with this ordinance is mandatory.
8. Assignment and Subletting: Licensee shall not assign, transfer, sublet or subject
this agreement or its right, title or interest therein without Licensor's prior written
approval.
9. Powers to Vacate Premises: Licensor shall retain the right to cause interruption
of any performance in the interest of public safety, and to likewise cause the
termination of such performance when in the judgment of the Licensor such action is
necessary in the interest of public safety. Should it become necessary in the judgment
of the Licensor to evacuate the premises because of a bomb threat or for other reasons
of public safety, the Licensee will retain possession of the premises, for sufficient
time to complete presentation of its activity without additional renta1,charge providing
such time does not interfere with another building Licensee. If it is not possible to
complete presentation of the activity, rental shall be forfeited, prorated, or adjusted
at the discretion of the .Licensor based upon the situation, and the Licensee hereby
waives any claim for damages or compensation from the Licensor.
Operator reserves the rights to make such announcements as are deemed necessary at any
time in the interest of public safety. Licensee agrees that it will cooperate with the
delivery of such announcements for public safety, including but not limited to,
announcements to require patrons to leave their seats or to leave the premises. The
Licensor reserves the right to eject or cause to be ejected from the premises any person
or persons causing a disturbance, and neither the Licensor nor any of its officers,
agents or employees shall be liable to the Licensee for any damages that may be
sustained by the Licensee through the exercise by the Licensor of such right.
10. Canaellartion of Event by Licensee: In the event of a cancellation by Licensee
of the Event, no deposit refund shall be made. Additionally, Licensee shall be
obligated to pay the full amount of fees contemplated to be due hereunder had the
Event actually occurred. The parties agree that Licensor will be damaged by any such
cancellation, and that the exact amount of such damages would be either impossible or
inconvenient to prove, and that the amounts set forth in the preceding sentence are a
reasonable estimate of the amount of such damages. The parties further agree that
such amount shall constitute cancellation fees, and not a penalty of any kind. The
remedies set forth in this section are in addition to, and not in lieu of, any other
rights or remedies Licensor may have, at law or in equity, in the event of a breach or
cancellation of this Agreement by Licensee.
recovery or subrogation against the Licensor.
e) All policies must be issued by companies Domicile in the State of Florida
and assigned a rating of A:X or better, per Best's Key Rating Guide, latest
edition.
f) The City must receive thirty (30) days written notice prior to any
cancellation, non-renewal or material change to the required insurance
policies. This written notice must be sent to the City of Miami Beach Risk
Management Division, 1700 Convention Center Drive, Miami Beach, FL 33139.
g) Evidence of the required insurance policies must be provided to Global
Spectrum by submission of an original certificate of insurance thirty (30)
days prior to the license period.
h) Alternate coverage to satisfy these requirements is subject to prior
approval of the City's Risk Manager. Additional insurance coverage, as
determined by the City's Risk Manager, may be required for this license.
13. Administrative Charges: In the event any check, bank draft or negotiable
instrument given for any money payment hereunder shall be dishonored at any time, for
any reason whatsoever not attributable to Licensor, Licensor shall be entitled, in
addition to any other remedy that may be available to make an administrative charge of
Twenty ($20.00) Dollars for each such check.
14. Audit: Licensee shall make available to Licensor, upon request, all records and
books related to this Agreement at such time and place as shall be designated by
Licensor for examination thereof for the purpose of an audit to be performed by an
auditor designated by Licensor. Licensee shall inform licensor of all services retained
by it to provide services in connection with Licensee's License of Licensor's premises
pursuant to this Agreement, that they must also agree to the aforesaid provision
relating to audit upon request of Licensor.
15. Sale of Concessions: Licensor reserves, and at all times shall have the sole
right to food and beverage, sundries, programs, novelties, souvenirs and periodicals and
to rent and sell opera glasses, and other articles, to conduct check rooms, to control
event programs and to supervise the contents thereof, to take photographs, to control or
supervise radio, movie and/or television broadcasting or recording and transcription
rights and equipment, and other privileges, and Licensee shall not engage in or
undertake the sale of any of the aforesaid articles or privileges, without the express
written consent of Licensor. Licensee agrees to pay to the Licensor 15% of its
gross sales on programs, novelties, souvenixs , eta.
16. Right of Entry: Any duly authorized agent or agents or employees of the Licensor
shall have the right at any time to enter into any and all parts of the premises for the
purpose of inspecting the same, making or causing to be made, necessary repairs thereto,
enforcing all necessary and proper rules for the management and operation of the ,
premises, and enforcing the Licensee's obligations hereunder.
17. Supply of Keys to Director: The Licensor or his representative shall have
available to him at all times, total and complete access to all portions of the licensed
premises. Licensee shall supply to the Licensor, or his representative, a key or keys
to any and all parts of the premises which Licensee desires to secure under lock, such
keys and locks to be provided for and installed and removed at the sole expense of
Licensee, subject to immediate removal upon termination of this Agreement, or otherwise
advertising materials relative to this performance.
21. Other Perms and Conditions: The Licensee shall provide at Licensee's sole cost
and expense, off-duty Miami Beach Police Officers and off-duty Miami Beach Firefighters
and/or Miami Beach Rescue Service as required by the Miami Beach Fire and Police
Departments.
22. Force Majeure: Should Licensee be unable to take possession of the Premises
or present the Event due to an Event of Force Majeure, neither Licensor nor Licensee
shall have any liability under the Agreement and Licensee, as its sole remedy and
relief, shall receive a refund of any uncommitted or cancelable advance payments less
any expenses incurred by Licensor in preparing for the Event. The term "Event of
Force Majeure" shall mean any and all acts of God, strikes, lock-outs, acts of the
public enemy, laws, rules and regulations of governmental or quasi-governmental
entities, wars or warlike action, arrest or other restraint of government (civil or
military), blockades, insurrections, riots, terrorism or terrorist threats,
epidemics, lightning, earthquakes, hurricanes, storms, floods, washouts, fire or
other casualty, civil disturbances, explosions, threats of bombs or similar
interruptions, confiscation or seizure by any government or public authority, nuclear
reaction, radioactive contamination, accidents, or any other causes, whether of the
kind herein enumerated or otherwise that are not: reasonably within the control or
caused by the party claiming the right to delay the performance on account of such
occurrence; provided, however, in no circumstances shall the monetary inability of a
party to perform any obligation contained in this Agreement be construed to be an
Event of Force Majeure. Upon removal or cessation of the Event of Force Majeure, the
parties' respective rights and obligations hereunder shall be reinstated for any and
all subsequent sessions of the Event remaining in the Term (if any).
LICENSEE: Promoter's Company Name
Miami Children's Chorus, Inc.
October 8,201 0
Date:
Ye?. /Y'. /&
Date:
Timothy A. Sharp / Music Director
Print Name I Title
LZCENSOB GLOBAL SPECTRUM, L.P.
LICENSE AGREWNT
THIS LICENSE AGREEMENT made this loth. day of , Marah 2011 ** by and between
Global spectrum, L . P . , ("Liaensortl) , and Momentum Dance Company ("~f oensee. ")
Delma lles
Momentum Dance Company
P.O. Box 331973
Coconut Orove, Fl. 33233-1 973
305-858-7002 or 305-606-8478
mdanceco@bellsouth.net
Licensor manages, operates and maintains BYRON CARL;IILE THEATRE, on behalf of the City
of Miami Beach, a Florida municipal corporation (the "City"), under rights granted by
and obligations imposed under an agreement between City and Licensor.
That the Licensor grants unto the Licensee the use and occupancy of BYRON CARLYLE
THEATRE (Venue), upon the following terms and conditions for the sole purpose of:
"Carazon Abriendo & Allomenturn Dance Comoanv ~8~. Season Finale "
Thursday, May 12,201 1 Technical Day
Friday, May 13,201 1 Performance at 8:00 PM
Saturday, May 14,209 I Technical Dress
Saturday, May 14y2011 Performance at 8:00 PM
Sunday, May 15,201 1 Performance at 7:00 PM
Rate: $550.00
Rate: $500.00
Rate: $300.00
Rate: $500.00
Rate: $500.00
TERMS AND CONDITIONS
1. Rent: Licensee shall pay rent to Licensor without demand, together with any and
all sales, use and state taxes arising or accruing during the term of the License hold,
plus the percentages and other charges as set forth below on the following basis:
The Licensee hereby covenants and agrees to pay the following minimum rentals, or such
higher rentals as shall be approved by the City Commission on or before 120 days prior
to the date licensee takes occupancy under this license; provided, however, that
licensee's obligation with respect to such higher rentals shall be limited to an
increase of twelve per cent (12%) over the following minimum rentals.
Rent; $2,350.00 (Two Thousand Three Hundred Dollars),Plus House Fees and Labor
Expenses.
The Licensee is subject to the terms and conditions of this LICENSE AGREEMENT. These
Rental Documents comprise Licensee's obligation to rent BYROE CARLYLE THEATRE and are
in full force and effect during the rental period. The License Agreement must be
returned to the Global Spatrum office 1901 Convention Center Drive, Miami Beach, F1
33139 along with payment of a non-refundable 50% deposit payable to THE MEAM1 BEACH
CONVENTTON CENTER no less than three months (90 days) prior to event date stated on
signed Rider to the Venue Contract. The signed documents and security deposit must be
received no later than 5:00 PM on the due date designated by the invoice or date will
be automatically cancelled.
Should the contraat be prepared less than thirty (30) days prior to the
aommenaement of the rental period, then the Rental Documents and prepayment in
full must be remitted no later Chan 5:00 PM, on khe due date designated by the
invoice or the date will automatiaally be aancelled. Licensee accepts sole
responsibility for compliance with the terms set forth in this contract,
By signing this contract, Licensee takes full responsibility and obligation for
all rental monies and additional charges incurred for perfomnae. Liaensee is
fully responsible for full rental of any cancellation for the above-mentioned
date. Licensor will provide Liaensee with a written estimate of all charges for
Services provided by Liaensor and may revise such estimate from time to time
In the event Licaensee has not completely vaaated the premises and returned said
praises by the kntracted termination time, Licensor may assess additional rent
at the prevailing hourly rental rate as approved by tbe City of Miami Beaah for
eaah day or portion thereof beyond the aontraated evacuation time.
The Liaensee is subject to the tenas and conditions of this LLCBNSE AORIEEWEWSP and
RIDW TO THE ~/EST~. These Rental Doouments comprise Liaensee's
obligation to rent Byron Carlyle Tbeatre and are in full force and effeat during
the rental period. Licensee acaepts sole responeibility for oomplianae with the
terms set forth in this contract.
Premises and Equipment:
a) This Agreement grants unto the Licensee the full use of stage, existing
stage setting, stage properties, stage lights, dressing rooms, "green
room", orchestra pit, orchestra, mezzanine or balcony seats, lobby and
entry ways. The Licensee shall take the premises as they are at the time
of occupancy by the Licensee. In the event the Licensee finds it
necessary to remove or change the location of any stage rigging, settings,
curtain or equipment, the changes shall be made by the Licensee at the
Licenseels expense; provided, however, that no removals or changes shall
be made without prior written consent of the Theater Director. Licensee
further agrees to replace and restore all said stage riggings, settings,
curtains or equipment to the former Location and condition in which the
Licensee found them.
b) Licensee agrees to pay costs of repair and replacement and all damages of
whatever origin or nature which may occur during the term of this
agreement in order to restore the licensed premises or other parts of the
Licensor's premises affected by the event to a condition equal to that at
the time this agreement became effective. Licensee shall deposit with
Licensor the sum of Five Hundred dollars and no/100 ($500.00) Dollars to
ensure performance of this provision or any other provision of this
License Agreement. In the event the Licensee shall fully and faithfully
comply with all of the terms, covenants, provisions, and conditions of
this License, said security shall be set off against any rent owed to the
Licensor at the termination of the License or returned in full if all
obligations are fulfilled. In the event of any bankruptcy or other
insolvency proceeding against Licensee, it is agreed that all security
deposits held hereunder shall be deemed to be applied by Licensor to rent,
sales tax and other charges due at date of bankruptcy and/or insolvency.
C) Licensee shall not injure, mar, or in any manner deface the premises or
any equipment contained therein and shall not cause or permit anything to
be done whereby the said premises or equipment therein shall be in any
manner injured marred or defaced. Licensee further agrees it will not
tape items, drive or permit to be driven nails, hooks, tracks, or screws
into any part of said building or equipment contained therein and will not
make or allow to be made any alterations of any kind to said building or
equipment contained therein.
3. Services: The Licensor shall furnish air conditioning during show hours only,
house lights, public address system and water by means of the appliances installed for
ordinary purposes, but for no other purposes. Interruptions, delays or failures in
furnishing any of the same caused by anything beyond control of the Licensor shall not
be chargeable to the Licensor. Licensor will provide one daily cleaning of all public
spaces and between show clean-up as possible for events with more than one performance
on a single day. It is agreed that the licensor shall provide at Licensee's sole cost
and expense, ushers, floor managers, off-duty Miami Beach Police Officers, firemen as
may be required by the Miami Beach Fire Department, stage crew, electricians,
technicians, projectionists, sound system licensor, carpenters, machine licensor, and
any and all help necessary for the promotion and presentation of the event. All
employees and services not provided by City of Miami Beach are employees of Licensee.
If additional maintenance personnel are required in excess of regular scheduling, due
to Licensee use of the Theatre, Licensee will be solely responsible for all cost
relating to additional maintenance and personnel.
4. Box Office: Licensor at all times reserves the authority, power and right to
control the box office, including but not limited to, ticket printing, ticket
personnel and ticket sales revenue.
(a) Tiaksting: Licensor will order the tickets/create the event through
Ticket Master of Florida as exclusive in-house ticketing, distribution and
reporting system. Licensee charge for said distribution will be included
in "House Fees".
(b) Dietribution: Licensor shall have the right to offer tickets for sales
at all of its approved agencies (Ticket Master of Florida). Licensee may
request that ticket sales privileges be extended to additional agencies,
and Licensor retains full and final authority to authorize such
distribution approval.
(c) Liaensee Holds: Licensor agrees to put a designated number of tickets on
hold for sale by the Licensee for the purpose of season ticket holders.
Licensee must notify the Licensor prior to putting the event on sale in
writing as to the number of specific seats to be put on hold. Held seat
will not be included in final box office settlement.
Consignment tiakets will ba issued and used for trade deals or group sales
only.
Group sales will be required to pick-up and pay for tickets at the box
of fiae .
Additionally, Licensee assumes all responsibility for collection of funds
from such approved agencies. ANY UNSOLD TICKETS CONSIGNED TO ADDITIONAL
AOENCIES MUST BE RETURNED TO LICENSOR 24 HOURS BEFORE THE FXRST DAY OF THE
EVENT. ANY TIMETS NOT SO RETURNED WILL BE CONSIDERED SOLD.
(d) Ticket Prices: Licensee agrees that all tickets will be sold at the
3
advertised prices. Such advertised prices shall be mutually agreed upon
in writing by Licensee and Licensor. Any changes in ticket prices shall
require the prior written approval of Licensor. The approved agency will
charge applicable handling charges.
(e) Licensor will retain a minimum of fourteen (14) complimentary tickets for
each event to be reserved for the City of Miami Beach.
(f) Customer Credit: Licensee shall be responsible for the credit worthiness
of its patrons.
5. Bight to Seauro Box Office Reaeipts: Licensee covenants and agrees to pay the
Licensor on demand all sums due Licensor for any service, accommodations or materials
furnished or loaned by Licensor and to authorize and permit Licensor to take such sums
from any box office receipts or advance receipts belonging to Licensee in an amount
sufficient to secure Licensor against loss in the event Licensee fails to make such
payments. Licensor shall have a first lien and security interest on the box office
receipts of Licensee to secure the payment of any sums due Licensor from Licensee for
the use of the licensed premises, any accormnodations, services or materials furnished
or loaned by Licensor, or any amounts due under this License.
6. Exaulpation and Indemnification Clause: Licensee agrees that it will indemnify,
hold and save the City of Miami Beach ("City") and Licensor, their officers, agents,
contractors and employees whole and harmless and at Licensor's option defend same, from
and against all claims, demands, actions, damages, loss, cost, liabilities, expenses
and judgments of any nature recovered from or asserted against Licensors on account of
injury or damage to person or property to the extent that any such damage or injury may
be incident to, arise out of, or be caused, either proximately or remotely, wholly or
in part, by an act, omission, negligence or misconduct on the part of Licensee or any
of its agents, servants, employees, contractors, patrons, guests, licensees or invitee
or of any other person entering upon the Premises licensed hereunder with the express
or implied invitation or permission of Licensee, or when any such injury or damage is
the result, proximate or remote, of the violation by Licensee or any of its agents,
servants, employees, contractors, patrons, guests, licensees or invitee of any law,
ordinance or governmental order of any kind, or when any such injury or damage may in
any other way arise from or out of the occupancy or use by Licensee, its agents,
servants, employees, contractors, patrons, guests, licensees or invitee of the Premises
licensed hereunder. Licensee covenants and agrees that in case Licensor or City shall
be made parties to any litigation against Licensee or in any litigation commenced by
any party other than Licensee relating to this License or to the Premises licensed
hereunder, then Licensee shall and will pay all costs and expenses, including
reasonable attorney's fees and court costs, incurred by or imposed upon Licensor or
City by virtue of any such litigation. These terms of indemnification shall be
effective unless such damage or injury may result from the sole negligence, gross
negligence or willful misconduct of Licensor and/or the City.
7. Ordinances and Regulations: Licensee will comply with a19 laws, ordinances and
regulations adopted or established by federal, state or local governmental agencies or
bodies; and by all facility rules and regulations as provided by Licensor, and Licensee
will require that its agents and employees likewise comply. Licensee agrees that at
all times it will conduct its activities with full regard for public safety and will
. observe and abide by all applicable regulations and requests by duly authorized
governmental agencies responsible for public safety and by Licensor to assure such
safety. Licensor further agrees that all portions of sidewalks, entries, doors,
passages, vestibules, halls, corridors, stairways, passageways, and all ways of access
to public utilities of the premises shall be kept unobstructed by the Licensee and
shall not be used for any purpose other than ingress or egress to and from the prenuises
by Licensee. Licensee also shall not use or store or permit to be used or stored in or
on any part of the Licensed premises any substances or thing prohibited by law,
ordinance, or standard policies of fire insurance companies operating in the State of
Florida, without the permission of the Licensor. Illuminating oils, candles, oil
lamps, turpentine, benzene, naphtha, or other similar substances or explosives of any
kind shall not be placed in or on the licensed premises. It is further agreed that no
inflammable materials, such as bunting, tissue paper, crepe paper, etc., will be
permitted to be used as decorations, and decorative materials unless they are treated
with flame proofing and are approved by the appropriate inspector of the City of Miami
Beach or Dade County, Florida, before the same are installed.
Tn accordance with the City of Miami Beach liquor control regulation ordinance, any
event held at BYROW CARLYLE THEATRE which involves the consumption of alcoholic
beverages must close the event no later than S:00 A.M. on each event day. Compliance
with this ordinance is mandatory.
8. Assignm~nt and Subletting: Licensee shall not assign, transfer, sublet or
subject this agreement or its right, title or interest therein without Licensor's prior
written approval.
9. Powers to Vaaate Prcamises: Licensor shall retain the right to cause interruption
of any performance in the interest of public safety, and to likewise cause the
termination of such performance when in the judgment of the Licensor such action is
necessary in the interest of public safety, Should it become necessary in the judgment
of the Licensor to evacuate the premises because of a bomb threat or for other reasons
of public safety, the Licensee will retain possession of the premises, for sufficient
time to complete presentation of its activity without additional rental charge
providing such time does not interfere with another building Licensee. If it is not
possible to complete presentation of the activity, rental shall be forfeited, prorated,
or adjusted at the discretion of the Licensor based upon the situation, and the
Licensee hereby waives any claim for damages or compensation from the Licensor.
Operator reserves the rights to make such announcements as are deemed necessary at any
time in the interest of public safety. Licensee agrees that it: will cooperate with the
delivery of such announcements for public safety, including but not limited to,
announcements to require patrons to leave their seats or to leave the premises. The
Licensor reserves the right to eject or cause to be ejected from the premises any
person or persons causing a disturbance, and neither the Licensor nor any of its
officers, agents or employees shall be liable to the Licensee for any damages that may
be sustained by the Licensee through the exercise by the Licensor of such right.
10. Cancellation of Event by Liaensee: In the event of a cancellation by Licensee
of the Event, no deposit refund shall be made. Additionally, Licensee shall be
obligated to pay the full amount of fees contemplated to be due hereunder had the
Event actually occurred. The parties agree that Licensor will be damaged by any such
cancellation, and that the exact amount of such damages would be either impossible or
inconvenient to prove, and that the amounts set forth in the preceding sentence are a
reasonable estimate of the amount of such damages. The parties further agree that
such amount shall constitute cancellation fees, and not a penalty of any kind. The
remedies set forth in this section are in addition to, and not in lieu of, any other
rights or remedies Licensor may have, at law or in equity, in the event of a breach
or cancellation of this Agreement by Licensee.
In the following formula, 'x" shall represent the number of calendar days from the
date the Licensor received notice of cancellation from the Licensee to the first day
of the License period and "y" shall represent the percentage of the License fee owed
to the Licensor by the Licensee:
If 'x" equals 150 or more calendar days, then "y" equals 25% (5 months to 1 year)
Sf 'x" equals 75 to 149 calendar days, then 'yN equals 50% (2.5 months to 5 months)
If 'x" equals 1 to 74 or more calendar days, the "y" equals 100% (1 day to 2.5
months 1
Licensor shall use reasonable efforts to re-rent the Premises, and license fees
received by Licensor in the re-renting of the Premises shall reduce cancellation fees
owed by Licensee by a like amount, with such reduction not to exceed the full amount of
the cancellation fees owed.
11. Default and Liaensor's Remedies: Default shall be defined as the untimely
performance of any and all clauses in this License or in the event guide which is
incorporated by reference into this License. Licensor may exercise any and all
remedies enumerated or permitted by law. Licensor may hold a landlord's lien on any and
all personal when Licensee is in default and Licensee expressly gives Licensor
permission to remove and store at Licensee's expense, any personal abandoned on the
demised premises.
The Licensee shall pay upon demand all Licensor1s expenses and costs incurred in
enforcing the Licensee's obligations under this license including but not limited to:
staff and leasing agents retained by Licensor, legal costs, charges and/or expenses,
including reasonable attorney's fees incurred by Licensor in any pre-litigation
negotiation, litigation and/or appeal in which the Licensee causes the Licensor to
become involved or concerned. Licensor may resort to any one or more of such remedies
or rights, and adoption of one or more such remedies or rights, shall not necessarily
prevent the enforcement of other remedies or rights concurrently or thereafter.
12, Insuxanae: As additional consideration over and above the rental payments made
by Licensee herein, Licensee shall, at its own expense, comply with all of the
following insurance requirements of the Licensor. It is agreed by the parties that the
Licensee shall not occupy the premises until proof of the following insurance coverage
has been furnished to the City and Licensor.
a) Commercial general liability insurance, on an occurrence £om, in the
amount of Two Million ($2,000,000.00) Dollars per occurrence for bodily
injury, death, property damage, and personal injury. The policy must
include coverage for premises operations, blanket contractual liability
(to cover indemnification section), products, completed operations and
independent contractors. If the user ls activities involve the sale of
alcohol, then liquor liability in the same amount is also required. These
policies must name the City of Miami Beach and Global Spectrum, L.P. as
additional insured.
b) Automobile liability insurance in the amount of One Million
($1,000,000.00) Dollars per occurrence to provide coverage for any owned
and non-owned vehicles used by the licensee on the Facility premises,
including loading and unloading hazards. This must name the City of Miami
Beach and Global Spectrum, L.P. as additional insured.
C) Workers1 compensation and employer's liability coverage as required by
Florida Statute.
d) It is understood and agreed that all coverage's provided by the Licensee
are primary to any insurance or self-insurance program the City has for
this Facility and the Licensee and their insurance shall have no right of
recovery or subrogation against the Licensor.
el All policies must be issued by companies Domicile in the State of Florida
and assigned a rating of A:X or better, per Best's Key Rating Guide,
latest edition.
f) The City must receive thirty (30) days written notice prior to any
cancellation, non-renewal or material change to the required insurance
policies. This written notice must be sent to the City of Miami Beach
Risk Management Division,. 1700 Convention Center Drive, Miami Beach, FL
33139.
g) Evidence of the required insurance policies must be provided to Global
Spectrum, L.P. by submission of an original certificate of insurance
thirty (30) days prior to the license period.
h) Alternate coverage to satisfy these requirements is subject to prior
approval of the City's Risk Manager. Additional insurance coverage, as
determined by the City's Risk Manager, may be required for this license.
13. Administrative Charges: In the event any check, bank draft or negotiable
instrument given for any money payment hereunder shall be dishonored at any time, for
any reason whatsoever not attributable to Licensor, Licensor shall be entitled, in
addition to any other remedy that may be available to make an administrative charge of
Twenty-Five ($25.00) Dollars for each such check.
14. Audit: Licensee shall make available to Licensor, upon request, all records and
books related to this Agreement at such time and place as shall be designated by
Licensor for examination thereof for the purpose of an audit to be performed by an
auditor designated by Licensor. Licensee shall inform licensor of all services
retained by it to provide services in connection with Licensee's License of Licensor's
premises pursuant to this Agreement, that they must also agree to the aforesaid
provision relating to audit upon request of Licensor.
15. Sale of Concessions: Licensor reserves, and at all times shall have the sole
right to food and beverage, sundries, programs, novelties, souvenirs and periodicals
and to rent and sell opera glasses, and other articles, to conduct check rooms, to
control event programs and to supervise the contents thereof, to take photographs, to
control or supervise radio, movie and/or television broadcasting or recording and
transcription rights and equipment, and other privileges, and Licensee shall not engage
in or undertake the sale of any of the aforesaid articles or privileges, without the
express written consent of Licensor. Licensee agrees to pay to the Licensor 158 of
its gross sales on programs, novelties, souvenirs, eta.
16. Right of Entry: Any duly authorized agent or agents or employees of the Licensor
shall have the right at any time to enter into any and all parts of the premises for
the purpose of inspecting the same, making or causing to be made, necessary repairs
thereto, enforcing a11 necessary and proper rules for the management and operation of
the premises, and enforcing the Licensee's obligations hereunder.
17. Supply of Keys to Director: The Licensor or his representative shall have
available to him at all times, total and complete access to all portions of the
licensed premises. Licensee shall supply to the Licensor, or his representative, a key
or keys to any and all parts of the premises which Licensee desires to secure under
lock, such keys and locks to be provided for and installed and removed at the sole
expense of Licensee, subject to immediate removal upon termination of this Agreement,
or otherwise at the discretion of the Director. In the event the Director determines
it to be necessary to remove any locks which have been installed by Licensee, the
Director may order such removal, the cost of which shall be borne by Licensee.
19. No Box office Baihnent: In the handling, control, custody and keeping of
receipts and funds, whether the same are received through the box office or otherwise,
the Licensor is acting for the accommodation and sole benefit of Licensee and that, as
to such receipts and funds, the Licensor shall be responsible only for gross neglect or
bad faith.
19. Liaenaor's Discretion: Any matter not expressly provided for herein shall be
within the reasonable discretion of the Licensor.
20. Mfsaellaneous:
(a) All legal proceedings arising from this license shall be in the courts
situated in Dade County, Florida.
(b) Sf any section, subsection, clause or provision of this License is held
invalid, the remainder shall not be affected by such invalidity.
(c) This License may only be altered, changed or amended, by an instrument in
writing signed by both parties hereto.
(d) No waiver of any covenant or condition of this License by either party
shall be deemed to imply or constitute a further waiver of the same
covenant or condition or any other covenant or condition of this License.
(el This License contains and embodies the entire agreement of the parties
hereto and no representations, inducements or agreements oral or
otherwise, between the parties not contained and embodied herein shall be
of any force and effect.
(f) In any conflict between the License and other written provisions the
license shall prevail.
(g) CKECKLIST/QUESTTONAIRE and RIDER TO VENOE CONTRACT are hereby incorporated
into this agreement by reference unless otherwise amended by separate
addendum.
(h) All federal, state, and Local laws and/or regulations related to
copyright, trademarks, etc. must be complied with by the Licensee and all
exhibitors selling such items on the premises. Further, the Licensee
agrees to save and completely hold harmless the City of Miami Beach and
Global Spectrum, and to pay all costs related to any violation of the
above.
(i) The licensee acknowledges and understands that this contract in no way
affords any rights and does not authorize any signage to be placed outside
the boundaries of the Theater property.
We strongly suggest that the licensee obtains all appropriate permits and
licenses for off-site signage from the City of Miami Beach Building and/or
Code Enforcement Department.
j The Licensee acknowledges and agrees that it is their sole responsibility
to provide appropriate information related to the availability of seating
for patrons with disabilities. Further the Licensee understands and
agrees that information on such seating must be included in all
promotional and advertising materials relative to this performance.
(k) A Guest Services/Security person is positioned at the Stage Door of the
Colony Theatre pre-show and during performances. This secures the
backstage area for a performers and production only environment. The
charge is $15.00 per hour with a four hour minimum.
21. Other Tecms and Conditiona: The Licensee shall provide at Licensee's sole cost
and expense, off-duty Miami Beach Police Officers and off-duty Miami Beach Firefighters
and/or Miami Beach Rescue Service as required by the Miami Beach Fire and Police
Departments.
22. Foroe Majeure: Should Licensee be unable to take possession of the Premises
or present the Event due to an Event of Force Majeure, neither Licensor nor Licensee
shall have any liability under the Agreement and Licensee, as its sole remedy and
relief, shall receive a refund of any uncommitted or cancelable advance payments
less any expenses incurred by Licensor in preparing for the Event. The term "Event
of Force Majeure" shall mean any and all acts of God, strikes, lock-outs, acts of
the public enemy, laws, rules and regulations of governmental or quasi-governmental
entitles, wars or warlike action, arrest or other restraint of government (civil or
military), blockades, insurrections, riots, terrorism or terrorist threats,
epidemics, lightning, earthquakes, hurricanes, stoxms, floods, washouts, fire or
other casualty, civil disturbances, explosions, threats of bombs or similar
interruptions, confiscation or seizure by any government or public authority,
nuclear reaction, radioactive contamination, accidents, or any other causes, whether
of the kind herein enumerated or otherwise that are not reasonably within the
control or caused by the party claiming the right to delay the performance on
account of such occurrence; provided, however, in no circumstances shall the
monetary inability of a party to perform any obligation contained in this Agreement
be construed to be an Event of Force Majeure. Upon removal or cessation of the
Event of Force Majeure, the partiest respective rights and obligations hereunder
shall be reinstated for any and all subsequent sessions of the Event remaining in
the Term (if any).
Date:
(r5.?r#* #rr
Date:
1-3trr - Artiutic. 'a; mcta
Print Name I Title
LICENSOR: GLOBAL SPECTRUM, L.P.
By: F
~enerd Manager
Robert L, Balsam, Jr.
LEASE AGREEMENT
TKIS LEASE AGREEMENT made this 24-. day of March, 2011 by and between GLOBAL
SPECTRUM (mOperstorn) , and. FUNDarte nfieasee.
FUNDarte
Ever Chavez
7601 Byron Ave. Suite 4c
Miami Beach, FI. 33141
306-867-1 145 off
305316-6166 cell
ever@undarte.us
P(llmTgS SBTB a
Operator manages, operates and maintains the BYRON CARLYLE THEATER, on behalf of the City
of Miami Beach, a Florida municipal corporation (the nCityn), under rights granted by and
obligations imposed under an agreement between City and Operator.
That the Operator grants unto the Lessee the use and occupancy of the BYRON CARLYLE
THEATER (Venue), upon the following terms and conditions for the sole purpose of:
"Teatro de Las Estaciones: Por El Monte Carule"
Saturday, April 30,201 1 TechlWorkshop Rate: $550.00
Sunday, May 1, 201 1 TechlPerformance Rate: $500.00
TERMS AND CONDITIONS
1. Rent a
sales, use
percentages
Lessee shall pay rent to Operator without demand, together with any and all
and state taxes arising or accruing during the term of the Leasehold, plus the
and other charges as set forth below on the following basis:
The Lessee hereby covenants and agrees to pay the following minimum rentals, or such higher
rentals as shall be approved by the City Commission on or before 120 days prior to the date
lessee takes occupancy under this lease; provided, however, that lessee's obligation with
respect to such higher rentals shall be limited to an increase of twelve per cent (12%)
over the following minimum rentals.
The Lessee is subject to the terms and conditions of this LEASE AGRISEhfERP and ~ider
to the Vanue Contract (the "Rental Documents). These Rental Documents comprise
Lessee's obligation to rent the BYROB CARLYLE THEATER and are in full force and
effect during the rental period. Both Copies of The &ease Agreement must be returned
to the GLOBAL SPECTRUN office 1901 Convention Center Drive, Miami Beach, F1 33139
along with payment of a non-refundable 50% deposit payable made out to Mid Beach
Convention Center no less than four months (120 Bays) prior to event date stated.
The signed documents and security deposit must be received no later than 5: 00 PM on
the due date designated by the Lease Agreement and Rider to Venue Contract or date
will be automatically canceled. The balance shall be due no later than 5:OOpm on the
due date designated by the Lease Aqreement and Rider to the Venue Contract or the
date will be automatically cancelled. Should the contract be prepared less than
forty-five (45) days prior to the camencexaant of the rental period, then the Rental
Documents and prepayment ia full muat be remitted no later than 5:00 PX, on the due
date designated by the LEASB AGRBEMENT or the date will automatically be cancelled.
Lessee accepts sole responsibility for compliance with the terms set forth in this
contract.
By signing this contract, Lessee takes full responsibility and obligation for all
rental monies and additional charges incurred for performance. Lessee is fully
responsible for full rental of any cancellation for the above-mentione8 date.
Operator will provide Lessee with a written estimate of all charges for Services
provided by Operator and may revise such estimate from time to time
In the event Lessee has not completely vacated the prdses and returned said
premises by the contracted tednation the, Operator may assess additional rent at
the prevailing daily rental rate as approved by the City of Miami Beach for each day
or gortioa &hereof beyond the contracted evacuation time.
The Lessee is subject to the terms and conditions of this IIWE AGREEMENT and RIDBR
TO TIiE VENVB CONTRACT/ESTTdrlATE (the -Rental DocumentsA). These Rental Documents
comprise Lessee's obligation to rent the Byron Carlyle Theater and are in full force
and effect during the rental period. Lessee accepts sole responsibility for
campliance with the terms set forth in this contract.
2. Premises and Equipment:
a) This Agreement grants unto the Lessee the full use of stage, existing stage
setting, stage properties, stage lights, dressing rooms, "green room",
orchestra pit, orchestra, mezzanine or balcony seats, lobby and entry ways.
The Lessee shall take the premises as they are at the time of occupancy by the
Lessee. In the event the Lessee finds it necessary to remove or change the
location of any stage rigging, settings, curtain or equipment, the changes
shall be made by the Lessee at the Lessee's expense; provided, however, that no
removals or changes shall be made without prior written consent of the Theater
Director. Lessee further agrees to replace and restore all said stage
riggings, settings, curtains or equipment to the former location and condition
in which the Lessee found them.
bl Lessee agrees to pay costs of repair and replacement and all damages of
whatever origin or nature which may occur during the term of this agreement in
order to restore the leased premises or other parts of the Operator's premises
affected by the event to a condition equal to that at the time this agreement
became effective. Lessee shall deposit with Operator the sum of Five Hundred
dollars and no/100 ($500.00) Dollars to ensure performance of this provision or
any other provision of this Lease Agreement. In the event the Lessee shall
fully and faithfully comply with all of the terms, covenants, provisions, and
conditions of this Lease, said security shall be set off against any rent owed
to the Operator at the termination of the Lease or returned in full if all
obligations are fulfilled. In the event of any bankruptcy or other insolvency
proceeding against Lessee, it is agreed that all security deposits held
hereunder shall be deemed to be applied by Operator to rent, sales tax and
other charges due at date of bankruptcy and/or insolvency.
C) Lessee shall not injure, mar, or in any manner deface the premises or any
equipment contained therein and shall not cause or permit anything to be done
whereby the said premises or equipment therein shall be in any manner injured
marred or defaced. Lessee further agrees it will not tape items, drive or
permit to be driven nails, hooks, tracks, or screws into any part of said
building or equipment contained therein and will not make or allow to be made
any alterations of any kind to said building or equipment contained therein.
3. Servlceat The Operator shall furnish air conditioning during show hours only, house
lights, public address system and water by means of the appliances installed for ordinary
puxposes, but for no other purposes. Interruptions, delays or failures in furnishing any
of the same caused by anything beyond control of the Operator shall not be chargeable to
the operator. Operator will provide one daily cleaning of all public spaces and between
show cleanups as possible for events with more than one performance on a single day. It is
agreed that the operator shall provide at Lessee's sole cost and expense, ushers, floor
managers, off-duty Miami Beach Police Officers, firemen as may be required by the Miami
Beach Fire Department, stage crew, electricians, technicians, projectionists, sound system
operator, carpenters, machine operator, and any and all help necessary for the promotion
and presentation of the event. All employees and services not provided by City of Miami
Beach are employees of Lessee. If additional maintenance personnel are required in excess
of regular scheduling, due to Lessee1 use of the Theater, Lessee will be solely responsible
for all cost relating to additional maintenance and personnel.
4. Box Office: Operator at all times reserves the authority, power and right to control
the box office, including but not limited to, ticket printing, ticket personnel and ticket
sales revenue.
fa1 Ticketing: operator will order the tickets/create the event through
TicketMaster of Florida as exclusive in-house ticketing, distribution and
reporting system. Lessee charge for said distribution will be included in
"House FeesH. The Theater Box-Office must retain a minimum of 50 tickets for each performance.
(b) Di strPbutioar operator shall have the right to offer tickets for sales at
all of its approved agencies (TicketMaster of Florida). Lessee may request
that ticket sales privileges be extended to additional agencies, and Operator
retains full and final authority to authorize such distribution approval.
(c) Lessee Holds r Operator agrees to put a number of tickets on hold for sale
by the Lessee for the purpose of season ticket holders. Lessee must notify the
Operator prior to putting the event on sale in writing as to the number of
specific seats to be put on hold. Held seat will not be included in final box
office settlement.
Consignment tickets will be issued and used Por trade deals at group sales
only.
Group sales will baarequired to pick-up and gay for tickets at the box office.
Additionally, Lessee assumes all responsibility for collection of funds from
such approved agencies. AWP UNSOLD TXCKBITS CONSIGNED TO ADDITIONAL AGENCIES
MUST BE RETURNED TO OPERATOR 24 HOURS BEFORE TEE FIRST DAY 08 THE FVENT. ANY
TICKlETS NOT SO RETURNED WILL BE WNSIDERED SOLD.
(d) Tickat Prices: Lessee agrees that all tickets will be sold at the advertised
prices. Such advertised prices shall be mutually agreed upon in writing by
Lessee and Operator. Any changes in ticket prices shall require the prior
written approval of Operator. The approved agency will charge applicable
handling charges.
(e) Operator will retain a minimum of fourteen (14) complimentary tickets for each
event to be reserved for the City of Miami Beach until one (1) hour before
advertised time of show.
(f) Customer Credit: Lessee shall be responsible for the credit worthiness of its
patrons.
5. Right to Secure Box Office Receipts: Lessee covenants and agrees to pay the Operator
on demand all sums due Operator for any service, accommodations or materials furnished or
loaned by Operator and to authorize and permit Operator to take such sums from any box
office receipts or advance receipts belonging to Lessee in an amount sufficient to secure
Operator against loss in the event Lessee fails to make such payments. Operator shall have
a first lien and security interest on the box office receipts of Lessee to secure the
payment of any sums due Operator from Lessee for the use of the leased premises, any
accommodations, services or materials furnished or loaned by Operator, or any amounts due
under this Lease.
6. Exculpation and Indemnification Clause: Lessee agrees that it will indemnify, hold
and save the City of Miami Beach ('lCity1') and Operator, their officers, agents, contractors
and employees whole and harmless and at Operator's option defend same, from and against all
claims, demands, actions, damages, loss, cost, liabilities, expenses and judgments of any
nature recovered from or asserted against Operators on account of injury or damage to
person or property to the extent that any such damage or injury may be incident to, arise
out of, or be caused, either proximately or remotely, wholly or in part, by an act,
omission, negligence or misconduct on the part of Lessee or any of its agents, servants,
employees, contractors, patrons, guests, licensees or invitee or of any other person
entering upon the Premises leased hereunder with the express or implied invitation or
permission of Lessee, or when any such injury or damage is the result, proximate or remote,
of the violation by Lessee or any of its agents, servants, employees, contractors, patrons,
guests, licensees or invitee of any law, ordinance or governmental order of any kind, or
when any such injury or damage may in any other way arise from or out of the occupancy or
use by Lessee, its agents, servants, employees, contractors, patrons, guests, licenseel;: or
invitee of the Premises leased hereunder. Lessee covenants and agrees that in case
Operator or City shall be made parties to any litigation against Lessee or in any
litigation commenced by any party other than Lessee relating to this Leaee or to the
Premises leased hereunder, then Lessee shall and will pay all costs and expenses, including
reasonable attorney's fees and court costs, incurred by or imposed upon Operator or City by
virtue of any such litigation. These terms of indemnification shall be effective unless
such damage or injury may result from the sole negligence, gross negligence og willful
misconduct of Operator and/or the City.
7. Ordinances and Regulations: Lessee will comply with all laws, ordinances and
regulations adopted or established by federal, state or local governmental agencies or
bodies; and by all facility rules and regulations as provided by Operator, and Lessee will
require that its agents and employees likewise comply. Lessee agrees that at all times it
will conduct its activities with full regard for public safety and will observe and abide
by all applicable regulations and requests by duly authorized governmental agencies
responsible for public safety and by Operator to assure such safety. Operator further
agrees that all portions of sidewalks, entries, doors, passages, vestibules, halls,
corridors, stairways, passageways, and all ways of access to public utilities of the
premises shall be kept unobstructed by the Lessee and shall not be used for any purpose
other than ingress or egress to and from the premises by Lessee. Lessee also shall not use
or store or permit to be used or stored in or on any part of the Leased premises any
substances or thing prohibited by law, ordinance, or standard policies of fire insurance
companies operating in the State of Florida, without the permission of the Operator.
Illuminating oils, candles, oil lamps, turpentine, benzene, naphtha, or other similar
substances or explosives of any kind shall not be placed in or on the licensed premises.
It is further agreed that no inflammable materials, such as bunting, tissue paper, crepe
paper, etc., will be permitted to be used as decorations, and decorative materials unless
they are treated with flameproofing and are approved by the appropriate inspector of the
City of Miami Beach or Dade County, Florida, before the same are installed.
In accordance with the City of ~iami Beach liquor control regulation ordinance, any event
held at the Byron Carlyle Theater which involves the consumption of alcoholic beverages
must close the event no later than 5:OOA.M. on each event day. Compliance with this
ordinance is mandatory.
8. Assigmmnt and Subletting: Lessee shall not assign, transfer, sublet or subject this
agreement or its right, title or interest therein without Operator's prior written
approval.
9. Powers to Vacate Premises: Operator shall retain the right to cause interruption of
any performance in the interest of public safety, and to likewise cause the termination of
such performance when in the judgment of the Operator such action is necessary in the
interest of public safety. Should it become necessary in the judgment of the Operator to
evacuate the premises because of a bomb threat or for other reasons of public safety, the
Lessee will retain possession of the premises, for sufficient time to complete presentation
of its activity without additional rental charge providing such time does not interfere
with another building Lessee. If it is not possible to complete presentation of the
activity, rental shall be forfeited, prorated, or adjusted at the discretion of the
Operator based upon the situation, and the Lessee hereby waives any claim for damages or
compensation from the Operator.
Operator reserves the rights to make such announcements as are deemed necessary at any time
in the interest of public safety. Lessee agrees that it will cooperate with the delivery
of such announcements for public safety, including but not limited to, announcements to
require patrons to leave their seats or to leave the premises. The Operator reserves the
I right to eject or cause to be ejected from the premises any person or persons causing a
disturbance, and neither the Operator nor any of its officers, agents or employees shall be
liable to Ule Lessee for any damages that may be sustained by the Lessee through the
exercise by the Operator of such right.
10. Liquidated DamWigeEI: If Lessee cancels any event, Lessee agrees to pay Operator the
following amounts as liquidated damages and not as a penalty. The parties agree that such
amounts constitute reasonable provision for liquidated damages:
a) If Lessee cancels more than 60 days before the first scheduled day of event,
one half of the rental charge shall be payable to Operator as liquidated
damages .
b) If Lessee cancels less than 60 days before the first scheduled day of the event
or enters into any default as defined in Section 12 of this Agreement, the
entire rental charge shall be payable to Operator as liquidated damages.
c) If Lessee cancels less than 60 days before the first scheduled day of the event
or enters into any default as defined in Section 12 of this Agreement, the
entire rental charge shall be payable to Operator as liquidated damages. If
Operator is able to rent any portion of the cancelled time a credit may be
given to the canceled Lessee for recovered expenses.
11, Default and Operator's Remediesr Default shall be defined as the untimely
performance of any and all. clauses in this Lease or in the event guide which is
incorporated by reference into this Lease. Operator may exer~ise~any and all remedies
enumerated or permitted by law. Operator may hold a landlord's lien on any and all
personalty when Lessee is in default and Lessee expressly gives Operator permission to
remove and store at Lessee's expense, any personalty abandoned on the demised premises.
The Lessee shall pay upon demand all Operator's expenses and costs incurred in enforcing
the Lessee's obligations under this lease including but not limited to: staff and leasing
agents retained by Operator, legal costs, charges and/or expenses, including reasonable
attorney's fees incurred by Operator in any pre-litigation negotiation, litigation and/or
appeal in which the Lessee causes the Operator to become involved or concerned. Operator
may resort to any one or more of such remedies or rights, and adoption of one or more such
remedies or rights, ~lhall not necessarily prevent the enforcement of other remedies or
rights concurrently or thereafter.
12. Insurance: As additional consideration over and above the rental payments made by
Lessee herein, Lessee shall, at its own expense, comply with all of the following insurance
requirements of the Operator. It is agreed by the parties that the Lessee shall not occupy
the premises until proof of the following insurance coverage has been furnished to the City
and Operator.
a) Commercial general liability insurance, on an occurrence Corm, in the amount of
Two Million ($2,000,000.00) Dollars per occurrence for bodily injury, death,
property damage, and personal injury. The policy must include coverage for
premises operations, blanket contractual liability (to cover indemnification
section), products, completed operations and independent contractors. If the
user's activities involve the sale of alcohol, then liquor liability in the
same amount is also required. These policies must name the City of Z&Lami Beach
and GfiOBAL SPECTI1UM as additional insureds.
b) . Automobile liability insurance in the amount of One Million ($1,000,000.00)
Dollars per occurrence to provide coverage for any owned and non-owned vehicles
used by the lessee on the Facility premises, including loading and unloading
hazards. This must name the City of Miami Beach and GLOBAL SPECTRUM as
additional insureds.
C) Workers1 compensation and employer's liability coverage as required by Florida
Statute.
d) It is understood and agreed that all coverages provided by the Lessee are
primary to any insurance or self-insurance program the City has for this
Facility and the Lessee and their insurance shall have no right of recovery or
subrogation against the Operator.
e) All policies must be issued by companies Domicile in the State of Florida and
assigned a rating of A:X or better, per Best's Key Rating Guide, latest
edit ion.
f) The City must receive thirty (30) days written notice prior to any
cancellation, non-renewal or material change to the required insurance
policies. This written notice must be sent to the City of Miami Beach Risk
Management Division, 1700 Convention Center Drive, Miami Beach, FL 33139.
g) Evidence of the required insurance policies must be provided to GLOBAL SPECTRUM
by eubmission of an original certificate of insurance thirty (30) days prior to
the lease period.
h) Alternate coverage to satisfy these requirements is subject to prior approval
of the City's Risk Manager. Additional insurance coverage, as determined by
the City's Risk Manager, may be required for this lease.
13. Aaministrstive Charges: In the event any check, bank draft or negotiable instrument
given for any money payment hereunder shall be dishonored at any time, for any reason
whatsoever not attributable to Operator, Operator shall be entitled, in addition to any
other remedy that may be available to make an administrative charge of Twenty ($20.00)
Dollars for each such check.
14. Audit? Lessee shall make available to Operator, upon request, all records and books
related to this Agreement at such time and place as shall be designated by Operator for
examination thereof for the purpose of an audit to be performed by an auditor designated by
Operator. Leesee shall inform operator of all services retained by it to provide services
in connection with Lessee's Lease of Operator's premises pursuant to this Agreement, that
they must also agree to the aforesaid provision relating to audit upon request of Operator.
15. Sale of Concessions: Operator reserves, and at all times shall have the sole right:
to food and beverage, sundries, programs, novelties, souvenirs and periodicals and to rent
and sell opera glasses, and other articles, to conduct check rooms, to control event
programs and to supervise the contents thereof, to take photographs, to control or
supervise radio, movie and/or television broadcasting or recording and transcription rights
and equipment, and other privileges, and Lessee shall not engage in or undertake the sale
of any of the aforesaid articles or privileges, without the express written consent of
Operator. Lessee agrees to pay to the Operator 15% of its gross salw on programs, novelties, souvenirs, etc.
16. Right of Entry: ?my duly authorized agent or agents or employees of the Operator
shall have the right at any time to enter into any and all parts of the premises for the
purpose of inspecting the same, making or causing to be made, necessary repairs thereto,
enforcing all necessary and proper rules for the management and operation of the premises,
and enforcing the Lessee's obligations hereunder.
17. Supply of Keya to Director: The Operator or his representative shall have available
to him at all times, total and complete access to all portions of the leased premises.
Lessee shall supply to the Operator, or his representative, a key or keys to any and all
parts of the premises which Lessee desires to secure under lock, such keys and locks to be
provided for and installed and removed at the sole expense of Lessee, subject to immediate
removal upon termination of this Agreement, or otherwise at the discretion of the Director.
In the event the Director determines it to be necessary to remove any locks which have been
installed by Lessee, the Director may order such removal, the cost of which shall be borne
by Lessee.
18. No Box office Bailmentr In the handling, control, custody and keeping of receipts
and funds, whether the same are received through the box office or otherwise, the Operator
is acting for the accommodation and sole benefit of Lessee and that, as to such receipts
and funds, the Operator shall be responsible only for gross neglect or bad faith.
19. Operator's Discretion: Any matter not expressly provided for herein shall be within
the reasonable discretion of the Operator.
20. Miscallaneous:
(a) All legal proceedings arising from this lease shall be in the courts situated
in Dade County, Florida.
(b) If any section, subsection, clause or provision of this Lease is held invalid,
the remainder shall not be affected by such invalidity.
(c) This Lease may only be altered, changed or amended, by an instrument in writing
signed by both parties hereto.
(dl No waiver of any covenant or condition of this Lease by either party shall be
deemed to imply or constitute a further waiver of the same covenant or
condition or any other covenant or condition of this Lease.
(el This Lease contains and embodies the entire agreement of the parties hereto and
no representations, inducements or agreements oral or otherwise, between the
parties not contained and embodied herein shall be of any force and effect.
(fl In any conflict between the Lease and other written provisions the lease shall
prevai 1.
(9) CHECKLIST/QUESTIONN~IRE and INVOICE are hereby incorporated into this agreement
by reference unless otherwise amended by separate addendum.
(h) All federal, state, and local laws and/or regulations related to copyright,
trademarks, etc. must be complied with by the Lessee and all exhibitors selling
such items on the premises. Further, the Lessee agrees to save and completely
hold harmless the City of Miami Beach and GLOBAL SPECTRUM, and to pay all costs
related to any violation of the above.
(il The Lessee acknowledges and understands that this contract in no way affords
any rights and does not authorize any signage to be placed outside the
boundaries of the Theater property.
We strongly suggest that the lessee obtains all appropriate permits and
licenses for off-site signage from the City of ~iami Beach Building and/or Code
Enforcement Department.
(j) The Lessee acknowledges and agrees that *t: is their sole responsibility to
provide appropriate information related to the availability of seating for
patrons with disabilities. Further the Lessee understands and agrees that
information on such seating must be included in all promotional, and advertising
materials relative to this performance.
21. Other Terms and Conditions: The Lessee shall provide at Lessee's sole cost and
expense, off -duty Miami Beach Police Officers and off -duty Miami Beach Firefighters and/or
Miami Beach Rescue Service as required by the Miami Beach Fire and Police Departments.
22. Forcer Mejeursz If the Facility is damaged from any cause whatsoever or if any
other casualty or unforeseeable cause beyond the control of Operator or Lessee, including,
without limitation, acts of God, fires, floods, epidemics, quarantine restrictions,
strikes, failure of public utilities, or unusually severe weather, prevents occupancy and
use, or either, as granted in the Agreement, Operator is hereby released by Lessee and
Lessee is hereby released by operator from any damage so caused thereby.
D T/+/!,
Date:
Date:
LESSEE: **
company ~4
OPERATOR: GLOBAL SPECTIiUM
# .-----c
~ehral Manager
Robert Balsam
LICENSE AGREEMENT
THIS LICENSE AGREEMENT made this 17*. day of July, 2010 ** by and between Global
Spectrum, L. P. , ("Li~ensor~~) , and Lehrman Community Day School (~~icensee.
Janet L. Rapp
Lehrman Community Day School
727 77'" St
Miami Beach, FI
305-866-2771
Jrapp@LehrmanschooI.org
WITNESSETH:
Licensor manages, operates and maintains BYRON CARSntE THEATRE, on behalf of the City
of Mid Beach, a Florida municipal corporation (the "City"), under rights granted by
and obligations imposed under an agreement between City and Licensor.
That the Licensor grants unto the Licensee the use and occupancy of BYRON
CARLYLE THEATRE (Venue), upon the following terms and conditions for the sole purpose
of:
"Beautv and the BeastN
Tuesday, April 12,201 1 TechlDmss Rehearsal Rate: 500
Wednesday, April 13,201 1 Performance Rate: 500
TERMS AND CONDITIONS
1. Rent: Licensee shall pay rent to Licensor without demand, together with any
and all sales, use and state taxes arising or accruing during the tern of the License
hold, plus the percentages and other charges as set forth below on the following
basis :
The Licensee hereby covenants and agrees to pay the following minimum rentals, or
suah higher rentals as shall be approved by the City Commission on or before 120 days
prior to the date licensee takes occupancy under this license; provided, however,
that licensee's obligation with respect to such higher rentals shall be limited to an
increase of twelve per cent (12%) over the following minimum rentals.
Rent $1000.00 (One Thousand Dollars),Pl~~a Howr Fees d Labor Exsensea.
The Licensee is subject to the terms and conditions of this LICENSE AGREEMENT. These
Rental Documents comprise Licenseers obligation to rent BYRON CARLYLE TmTRE and are
in full force and effect during the rental period. The License Agreement must be
returned to the ClobdL Spectrum office 1901 Convention Center Drive, Miami Beach, F1
33139 along with payment of a non-refundable 50% deposit payable to THE btIAMI BEACH
COWENTION CENTER no less than four months (120 days) prior to event date stated on
sigbed Rider to the Venue contract. The signed documents and security deposit must be
received no later than 5:00 PM on the due date designated by the invoice or date will
be automatically cancelled.
Should the contract be prepared less than forty-five (45) days prior to the
conuuencement of the rental period, then the Rental Documents and prepayment in
full mast be remitted no latex than 5:00 PM, on the due date designated by the
invoice or the date will au.t:omaticdlly be cancelled. Licensee accepts sole
responsibility for compliance with the terns set forth in this contract.
$500 ..go [Five Hundred. Dollars1 SsmaritJt Deposit payable ta 'PfIg MIAMI
By signing this contract, Licensee takes full responsibility and obligation for
all rental monies and additional charges incurred for perfo-ce. Licensee is
fully responsible for full rental of any cancellation for the above-mmtioned
date. Licensor will provide Licensee with a written estiaate of all crharges
for Sexvices provided by Licensor and my revise such estimate from time to
time
In the event Licensee has not completely vacated the premises and returned said
prdses by the aontracted termination time, Licensor may assess additional
rent at the predlinq hourly rental rate as approved by the City of ~~
Beach for each day or portion thereof beyond the contracted evacuation time.
Tha Lioenssle is subjeat to the terms and conditions of this LICENSE -T
and RIDER 2.0 THE ~/ESTDfAlZ. These Rental Documents cowrise Licensee's
obligation to rant Byron Carlyle Theatre and are in full force and effect
during the rental period. Licensee accepts sole responsibility for compliance
with the tarms set forth in this contract.
Prdses and Equipment:
a) This Agreement grants unto the Licensee the full use of stage, existing
stage setting, stage properties, stage lights, dressing rooms, "green
roomn, orchestra pit, orchestra, mezzanine or balcony seats, lobby and
entry ways. The Licensee shall take the premises as they are at the time
of occupancy by the Licensee. In the event the Licensee finds it
necessary to remove or change the location of any stage rigging,
settings, curtain or equipment, the changes shall be made by the Licensee
at the Licensee's expense; provided, however, that no removals or changes
shall be made without prior written consent of the Theater Director.
Licensee further agrees to replace and restore all said stage riggings,
settings, curtains or equipment to the former location and condition in
which the Licensee found them.
b) Licensee agrees to pay costs of repair and replacement and all damages of
whatever origin or nature which may occur during the term of this
agreement in order to restore the licensed premises or other pa.rts of the
Licensor's premises affected by the event to a condition equal to that at
the time this agreement became effective. Licensee shall deposit with
Licensor the sum of Five Hundred dollars and noI100 ($500.00) Dollars to
ensure performance of this provision or any other provision of this
License Agreement. In the event the Licensee shall fully and faithfully
comply with all of the terms, covenants, provisions, and conditions of
this License, said security shall be set off against any rent owed to the
Licensor at the termination of the License or returned in full if all
obligations are fulfilled. In the event of any bankruptcy or other
insolvency proceeding against Licensee, it is agreed that all security
deposits held hereunder shall be deemed to be applied by Licensor to
rent, sales tax and other charges due at date of bankruptcy and/or
insolvency.
C) Licensee shall not injure, mar, or in any manner deface the premises or
any equipment contained therein and shall not cause or permit anything to
be done whereby the said premises or equipment therein shall be in any
manner injured marred or defaced. Licensee further agrees it will not
tape items, drive or permit to be driven nails, hooks, tracks, or screws
into any part of said building or equipment contained therein and will
not make or allow to be made any alterations of any kind to said building
or equipment contained therein.
3. Services: The Licensor shall furnish air conditioning during show hours only,
house lights, public address system and water by means of the appliances installed
for ordinary purposes, but for no other purposes. Interruptions, delays or failures
in furnishing any of the same caused by anything beyond control of the Licensor shall
not be chargeable to the Licensor. Licensor will provide one daily cleaning of all
public spaces and between show clean-up as possible for events with more than one
performance on a single day. It is agreed that the licensor shall provide at
Licenseers sole cost ,and expense, ushers, floor managers, off-duty Miami Beach Police
Officers, firemen as may be required by the Miami Beach Fire Department, stage crew,
electricians, technicians, projectionists, sound system Licensor, carpenters, machine
licensor, and any and all help necessary for the promotion and presentation of the
event. All employees and services not provided by City of Miami Beach are employees
of Licensee. If additional maintenance personnel are required in excess of regular
scheduling, due to Licensee use of the Theatre, Licensee will be solely responsible
for all cost relating to additional maintenance and personnel.
4. Box Office: Licensor at all times reserves the authority, power and right to
control the box office, including but not limited to, ticket printing, ticket
personnel and ticket sales revenue.
(a) Ticketing: Licensor will order the tickets/create the event through
Ticket Master of Florida as exclusive in-house ticketing, distribution
and reporting system. Licensee charge for said distribution will be
included in "House Fees".
(b) Distribution: Licensor shall have the right to offer tickets for
sales at all of its approved agencies (Ticket Master of Florida).
Licensee may request that ticket sales privileges be extended to
additional agencies, and Licensor retains full, and final authority to
authorize such distribution approval.
(c) Licensee Holds: Licensor agrees to put a designated number of tickets
on hold for sale by the Licensee for the purpose of season ticket
holders- Licensee must notify the Licensor prior to putting the event on
sale in writing as to the number of specific seats to be put on hold.
Held seat will not be included in final box office settlement.
Consignment tickets will be issued and used for trade deals or group
sales only.
Group sdes will be required to pick-up and pay for tickets at the box
off ice.
Additionally, Licensee assumes all responsibility fox collection of funds
from such approved agencies. AEtY UNSOLD TICKETS CONSIGNED TO AWITIONAL
ACENCIES MUST BE RETURNED TO LXCENSOR 24 HOURS BEFORE THE FIRST DAY OF
'ERE m. ANY TICKETS NOT SO RETVBElED WTLL BE CONSIDERED SOLD.
(d) Ticket Prices: Licensee agrees that all tickets will be sold at the
advertised prices. Such advertised prices shall be mutually agreed upon
in writing by Licensee and Licensor. Any changes in ticket prices shall
require the prior written approval of Licensor. The approved agency will
charge applicable handling charges.
(e) Licensor will retain a minimum of fourteen (14) complimentary tickets for
each event to be reserved for the City of Miami Beach.
(f) Customer Crsdit: Licensee shall be responsible for the credit worthiness
of its patrons.
5. Right to Secure Box Office Receipts: Licensee covenants and agrees to pay the
Licensor on demand all sums due Licensor for any service, accommodations or materials
furnished or loaned by Licensor and to authorize and permit Licensor to take such
sums from any box office receipts or advance receipts belonging to Licensee in an
amount sufficient to secure Licensor against loss in the event Licensee fails to make
such payments. Licensor shall have a first lien and security interest on the box
office receipts of Licensee to secure the payment of any sums due Licensor from
Licensee for the use of the licensed premises, any accommodations, services or
materials furnished or loaned by Licensor, or any amounts due under this License.
6. Exculpation and Indemnification Clause: Licensee agrees that it will
indemnify, hold and save the City of Miami Beach ("Cityw) and Licensor, their
officers, agents, contractors and employees whole and harmless and at Licensor's
option defend same, from and against all claims, demands, actions, damages, loss,
cost, liabilities, expenses and judgments of any nature recovered from or asserted
against Licensors on account of injury or damage to person or property to the extent
that any such damage or injury may be incident to, arise out of, or be caused, either
proximately or remotely, wholly or in part, by an act, omission, negligence or
misconduct on the part of Licensee or any of its agents, servants, employees,
contractors, patrons, guests, licensees or invitee or of any other person entering
upon the Premises licensed hereunder with the express or implied invitation or
permission of Licensee, or when any such injury or damage is the result, proximate or
remote, of the violation by Licensee or any of its agents, servants, employees,
contractors, patrons, guests, licensees or invitee of any law, ordinance or
governmental order of any kind, or when any such injury or damage may in any other
way arise from or out of the occupancy or use by Licensee, its agents, servants,
employees, contractors, patrons, guests, licensees or invitee of the Premises
licensed hereunder. Licensee covenants and agrees that in case Licensor or City
shall be made parties to any litigation against Licensee or in any litigation
comtnenced by any party other than Licensee relating to this License or to the
Premises licensed hereunder, then Licensee shall and will pay all costs and expenses,
including reasonable attorney's fees and court costs, incurred by or imposed upon
Licensor or City by virtue of any such litigation. These terms of indemnification
shall be effective unless such damage or injury may result from the sole negligence,
gross negligence or willful misconduct of Licensor and/or the City.
7. Ordinances and Regulations: Licensee will comply with all laws, ordinances and
regulations adopted or established by federal, state or local g0vemInental agencies
or bodies; and by a11 facility rules and regulations as provided by Licensor, and
Licensee will require that its agents and employees likewise comply. Licensee agrees
that at all times it will conduct its activities with full regard for public safety
and will observe and abide by all applicable regulations and requests by duly
authorized governmental agencies responsible for public safety and by Licensor to
assure such safety. Licensor further agrees that all portions of sidewalks, entries,
doors, passages, vestibules, halls, corridors, stairways, passageways, and all ways
of access to public utilities of the premises shall be kept unobstructed by the
Licensee and shall not be used for any purpose other than ingress or egress to and
from the premises by Licensee. Licensee also shall not use or store or permit to be
used or stored in or on any part of the Licensed premises any substances or thing
prohibited by law, ordinance, or standard policies of fire insurance companies
operating in the State of Florida, without the permission of the Licensor.
Illuminating oils, candles, oil lamps, turpentine, benzene, naphtha, or other similar
substances or explosives of any kind shall not be placed in or on the licensed
premises. It is further agreed that no inflammable materials, such as bunting,
tissue paper, crepe paper, etc., will be permitted to be used as decorations, and
decorative materials unless they are treated with flame proofing and are approved by
the appropriate inspector of the City of Miami Beach or Dade County, Florida, before
the same are installed.
In accordance with the City of Miami Beach liquor control regulation ordinance, any
event held at BYRON CARLYLE THEATRE which involves the consumption of alcoholic
beverages must close the event no later than 5:00 A.M. on each event day. Compliance
with this ordinance is mandatory.
8. Assignment and Subletting: Licensee shall not assign, transfer, sublet or
subject this agreement or its right, title or interest therein without Licensor's
prior written approval.
9. Powers to Vacate Premises: Licensor shall retain the right to cause
interruption of any performance in the interest of public safety, and to likewise
cause the termination of such performance when in the judgment of the Licensor such
action is necessary in the interest of public safety. Should it become necessary in
the judgment of the Licensor to evacuate the premises because of a bomb threat or for
other reasons of public safety, the Licensee will retain possession of the premises,
for sufficient time to complete presentation of its activity without additional
rental charge providing such time does not interfere with another building Licensee.
If it is not possible to complete presentation of the activity, rental shall be
forfeited, prorated, or adjusted at the discretion of the Licensor based upon the
situation, and the Licensee hereby waives any claim for damages or compensation from
the Licensor.
Operator reserves the rights to make such announcements as are deemed necessary at
any time in the interest of public safety. Licensee agrees that it will cooperate
with the delivery of such announcements for public safety, including but not limited
to, announcements to require patrons to leave their seats or to leave the premises.
The Licensor reserves the right to eject or cause to be ejected from the premises any
person or persons causing a disturbance, and neither the Licensor nor any of its
officers, agents or employees shall be liable to the Licensee for any damages that
may be sustained by the Licensee through the exercise by the Licensor of such right.
10, Cancellation of Event by Licensee: In the event of a cancellation by Licensee
of the Event, no deposit refund shall be made. Additionally, Licensee shall be
obligated to pay the full amount of fees contemplated to be due hereunder had the
Event actually occurred. The parties agree that Licensor will be damaged by any such
cancellation, and that the exact amount of such damages would be either impossible or
inconvenient to prove, and that the amounts set forth in the preceding sentence are a
reasonable estimate of the amount of such damages. The parties further agree that
such amount shall constitute cancellation fees, and not a penalty of any kind. The
remedies set forth in this section are in addition to, and not in lieu of, any other
rights or remedies Licensor may have, at law or in equity, in the event of a breach or
cancellation of this Agreement by Licensee.
In the following formula, 'x" shall represent the number of calendar days from the
date the Licensor received notice of cancellation from the Licensee to the first day
of the License period and "y" shall represent the percentage of the License fee owed
to the Licensor by the Licensee:
If 'x" equals 1,096 or more calendar days, then "y" equals 25% (3-t years)
If 'x" equals 366 to 1,095 calendar days, then 'y" equals 50% (over 1 year up to 3
years)
If 'x" equals 365 or less calendar days, the "y" equals 100% (1 year or less)
Licensor shall use reasonable efforts to re-rent the Premises, and license fees
received by Licensor in the re-renting of the Premises shall reduce cancellation fees
owed by Licensee by a like amount, with such reduction not to exceed the full amount
of the cancellation fees owed.
11. Default and Licansosls Rdes: Default shall be defined as the untimely
performance of any and all clauses in this License or in the event guide which is
incorporated by reference into this License. Licensor may exercise any and all
remedies enumerated or permitted by law. Licensor may hold a landlord's lien on any
and all personal when Licensee is in default and Licensee expressly gives Licensor
permission to remove and store at Licensee's expense, any personal abandoned on the
demised premises.
The Licensee shall pay upon demand all Licensor's expenses and costs incurred in
enforcing the Licensee's obligations under this license including but not limited to:
staff and leasing agents retained by Licensor, legal costs, charges and/or expenses,
including reasonable attorney's fees incurred by Licensor in any pre-litigation
negotiation, litigation and/or appeal in which the Licensee causes the Licensor to
become involved or concerned. Licensor may resort to any one or more of such
remedies or rights, and adoption of one or more such remedies or rights, shall not
necessarily prevent the enforcement of other remedies or rights concurrently or
thereafter.
12. Insurance: As additional consideration over and above the rental payments made
by Licensee herein, Licensee shall, at its own expense, comply with all of the
following insurance requirements of the Licensor. It is agreed by the parties that
the Licensee shall not occupy the premises until proof of the following insurance
coverage has been furnished to the City and Licensor.
a) Commercial general liability insurance, on an occurrence form, in the
amount of Two Million ($2,000,000.00) Dollars per occurrence for bodily
injury, death, property damage, and personal injury. The policy must
include coverage for premises operations, blanket contractual liability
(to cover indemnification section), products, completed operations and
independent contractors. If the user's activities involve the sale of
alcohol, then liquor liability in the same amount is also required.
These policies must name the City of Miami Beach and Global Spectrum as
additional insured.
b) Automobile liability insurance in the amount of One Million
($1,000,000.00) Dollars per occurrence to provide coverage for any owned
and non-owned vehicles used by the licensee on the Facility premises,
including loading and unloading hazards. This must name the City of
Miami Beach and Global Spectrum as additional insured.
c) Workers1 compensation and employer's liability coverage as required by
Florida Statute.
d) It is understood and agreed that all coverage's provided by the Licensee
are primary to any insurance or self-insurance program the City has for
this Facility and the Licensee and their insurance shall have no right of
recovery or subrogation against the Licensor.
e) All policies must be issued by companies Domicile in the State of Florida
and assigned a rating of A:X or better, per Best's Key Rating Guide,
latest edition.
f) The City must receive thirty (30) days written notice prior to any
cancellation, non-renewal or material change to the required insurance
policies. This written notice must be sent to the City of Miami Beach
Risk Management Division, 1700 Convention Center Drive, Miami Beach, FL
33139.
g) Evidence of the required insurance policies must be provided to Global
Spectrum by submission of an original certificate of insurance thirty
(30) days prior to the license period.
h) Alternate coverage to satisfy these requirements is subject to prior
approval of the City's Risk Manager. Additional insurance coverage, as
determined by the City's Risk Manager, may be required for this license.
13. Administrative Chargers: In the event any check, bank draft or negotiable
instrument given for any money payment hereunder shall be dishonored at any time, for
any reason whatsoever not attributable to Licensor, Licensor shall be entitled, in
addition to any other remedy that may be available to make an administrative charge
of Twenty ($20.00) Dollars for each such check.
14. Audit: Licensee shall make available to Licensor, upon request, a11 records
and books related to this Agreement at such time and place as shall be designated by
Licensor for examination thereof for the purpose of an audit to be performed by an
auditor designated by Licensor. Licensee shall inform licensor of all services
retained by it to provide services in connection with Licensee's License of
Licensor's premises pursuant to this Agreement, that they must also agree to the
aforesaid provision relating to audit upon request of Licensor.
15. Sale of Concessions: Licensor reserves, and at all times shall have the sole
right to food and beverage, sundries, programs, novelties, souvenirs and periodicals
and to rent and sell opera glasses, and other articles, to conduct check rooms, to
control event programs and to supervise the contents thereof, to take photographs, to
control or supervise radio, movie and/or television broadcasting or recording and
transcription rights and equipment, and other privileges, and Licensee shall not
engage in or undertake the sale of any of the aforesaid articles or privileges,
without the express written consent of Licensor. Licensee agrees to pay to the
Licensor 15% of its gross sales on programs, novelties, souvenirs, etc.
16. Right of Entry: Any duly authorized agent or agents or employees of the
Licensor shall have the right at any time to enter into any and all parts of the
premises for the purpose of inspecting the same, making or causing to be made,
necessary repairs thereto, enforcing all necessary and proper rules for the
management and operation of the premises, and enforcing the Licensee's obligations
hereunder.
17. Supply of Keys to Director: The Licensor or his representative shall have
available to him at all times, total and complete access to all portions of the
licensed premises. Licensee shall supply to the Licensor, or his representative, a
key or keys to any and all parts of the premises which Licensee desires to secure
under lock, such keys and locks to be provided for and installed and removed at the
sole expense of Licensee, subject to immediate removal upon termination of this
Agreement, or otherwise at the discretion of the Director. In the event the Director
determines it to be necessary to remove any locks which have been installed by
Licensee, the Director may order such removal, the cost of which shall be borne by
Licensee.
18. No Box office Bailmeat: In the handling, control, custody and keeping of
receipts and funds, whether the same are received through the box office or
otherwise, the Licensor is acting for the accommodation and sole benefit of Licensee
and that, as to such receipts and funds, the Licensor shall be responsible only for
gross neglect or bad faith.
19. Licensor's Discretion: Any matter not expressly provided for herein shall be
within the reasonable discretion of the Licensor.
20. Miscellaneous:
(a) All legal proceedings arising from this license shall be in the courts
situated in Dade County, Florida.
(b) If any section, subsection, clause or provision of this License is held
invalid, the remainder shall not be affected by such invalidity.
(c) This License may only be altered, changed or amended, by an instrument in
writing signed by both parties hereto.
(dl No waiver of any covenant or condition of this License by either party
shall be deemed to imply or constitute a further waiver of the same
covenant or condition or any other covenant or condition of this License.
(el This License contains and embodies the entire agreement of the parties
hereto and no representations, inducements or agreements oral or
otherwise, between the parties not contained and embodied herein shall be
of any force and effect.
(f) In any .conflict between the License and other written provisions the
license shall prevail.
(g) CfLECKLIST/QUESTIONAIRE and RIDER TO VENUE CONTRACT are hereby
incorporated into this agreement by reference unless otherwise amended by
separate addendum.
(h) A11 federal, state, and local laws and/or regulations related to
copyright, trademarks, etc. must be complied with by the Licensee and all
exhibitors selling such items on the premises. Further, the Licensee
agrees to save and completely hold harmless the City of Miami Beach and
Global Spectrum, and to pay all costs related to any violation of the
above.
(i) The licensee acknowledges and understands that this contract in no way
affords any rights and does not authorize any signage to be placed
outside the boundaries of the Theater property.
We strongly suggest that the licensee obtains all appropriate permits and
licenses for off-site signage from the City of Miami Beach Building
and/or Code Enforcement Department.
(1 The Licensee acknowledges and agrees that it is their sole responsibility
to provide appropriate information related to the availability of seating
for patrons with disabilities. Further the Licensee understands and
agrees that information on such seating 'must be included in all
promotional and advertising materials relative to this performance.
21. Other Terms and Conditions: The Licensee shall provide at Licensee's sole cost
and expense, off-duty Miami Beach Police Officers and off-duty Miami Beach
Firefighters and/or Miami Beach Rescue Service as required by the Miami Beach Fire
and Police Departments.
22. Force Majeure: Should Licensee be unable to take possession of the Premises
or present the Event due to an Event of Force Majeure, neither Licensor nor Licensee
shall have any liability under the Agreement and Licensee, as its sole remedy and
relief, shall receive a refund of any uncommitted or cancelable advance payments less
any expenses incurred by Licensor in preparing for the Event. The term "Event of
Force Majeure" shall mean any and all acts of God, strikes, lock-outs, acts of the
public enemy, laws, rules and regulations of governmental or quasi-governmental
entities, wars or warlike action, arrest or other restraint of government (civil or
military), blockades, insurrections, riots, terrorism or terrorist threats,
epidemics, lightning, earthquakes, hurricanes, storms, floods , washouts, fire or
other casualty, civil disturbances, explosions, threats of bombs or similar
interruptions, confiscation or seizure by any government or public authority, nuclear
reaction, radioactive contamination, accidents, or any other causes, whether of the
kind herein enumerated or otherwise that are not reasonably within the control or
caused by the party claiming the right to delay the performance on account of such
occurrence; provided, however, in no circumstances shall the monetary inability of a
party to perform any obligation contained in this Agreement be construed to be an
Event of Force Majeure. Upon removal or cessation of the Event of Force Majeure, the
parties' respective rights and obligations hereunder shall be reinstated for any and
all subsequent sessions of the Event remaining in the Term (if any).
LICENSEE: Promoter's Company Name
Date:
$/29// /
C/.&//
Date:
Print Name / Title f#
LICENSOR: GLQBAL SPECTRUM, L.P.
Gened'hnager
Robert Balsam
EXHIBIT "F"
CITY OF MIAMI BEACH
MINIMUM MAINTENANCE SPECIFICATIONS
FOR MAINTENANCE OF THE MlAM BEACH
BYRON CARLYLE THEATER
These minimum operating and maintenance standards are intended to be considered as a
whole and intended to provide an overall standard for the Facility. Individual discrepancies, as
well as deviations, from any individual standard shall not be considered a default of the
Agreement; it is the intention of the parties that this Exhibit is merely a guide and that Stage
Door is only expected to use good faith efforts to endeavor to meet the standards set forth
herein. In the event of a conflict between the terms or conditions of the Agreement and the
terms or conditions of this Exhibit, the terms and conditions of the Agreement shall control.
PERSONNEL
1. Stage Door shall have the sole responsibility to recruit and employ a full-time general
manager and any necessary administrative and accounting personnel that are
responsible for the overall management and operation of the Facility.
2. Stage Door shall have the sole responsibility to recruit and employ sufficient personnel
to maintain the following functions: general security; janitorial, housekeeping and
cleaning for both event and non-event cleanup; maintenance for electrical systems,
plumbing; and air conditioner operation; painting and general overall maintenance of the
Facility to ensure that the Facility is being maintained consistent with other similar first
class facilities operated by Stage Door.
3. Stage Door shall have the sole responsibility to recruit and employ personnel as it
deems necessary for the staging and coordinating of Events and productions.
4. Stage Door shall maintain personnel policies that assure employment practices do not
discriminate on the basis of race, color, religion, military status, marital status, physical
or mental disability, national origin, age, gender, or sexual preference.
GENERAL SECURITY
1. Stage Door shall provide for the overall security of the Facility, including during non-
event hours.
EMERGENCY PROCEDURES
1. Stage Door shall assign an employee and a backup employee to act as an Emergency
Liaison to the City. This individual will be required to use good faith efforts to attend any
and all meetings, held by the City, that deal with emergency situations, such as extreme
weather events, terrorist acts, etc. The Liaison will serve as the point of contact during
any emergency crisis.
2. Stage Door shall develop and implement a Hurricane Preparedness Procedure, a copy
of which shall be provided to the City.
JANITORIAL. CLEANING AND HOUSEKEEPING
1. The Facility shall be reasonably clean at all times. This includes general cleaning during
non-event times, as well as during Events.
2. Restrooms are to be cleaned during Events and on a periodic basis during non-event
times to assure that they are in a functional and reasonably sanitary condition.
3. Garbage and trash shall be removed on an as-needed basis. Trash receptacles shall be
stationed throughout the Facility.
4. Stage Door shall maintain compactor, garbage areas, waste areas, recycling areas, and
dumpster areas reasonably clean and debris free in order to comply with applicable
codes.
5. Carpets shall be vacuumed and cleaned on an as-needed basis.
6. Flooring shall be cleaned and polished on an as needed basis.
7. Windows shall be maintained in a reasonably clean condition and cleaned on an as
needed basis.
8. Treatment for pests and rodents (except termites) shall occur on a quarterly basis as
needed to prevent infestation or as required by applicable code.
9. Entrance doors and mirrors shall be maintained in a reasonably clean condition and
cleaned on an as needed basis.
LANDSCAPING
1. Indoor landscaping shall be maintained in accordance with specifications of the type of
plant and should be watered and fertilized as the type of plant demands.
2. Indoor landscaping should be reasonably insect-free.
EQUIPMENT MAINTENANCE AND GENERAL MAINTENANCE
I. Equipment shall be maintained in a good and workmanlike manner in order to maintain
in full force and effect all dealer's and manufacturer's warranties. Stage Door shall
develop an annual schedule for equipment inspection and preventative maintenance.
2. Upon termination, cancellation, and/or expiration of the Agreement, Stage Door shall
provide all records maintained in accordance with Section 5.3.4. All existing warranties
that are transferable will be transferred to the City.
3. Stage Door shall develop a preventive maintenance plan for the building and its major
building systems and major equipment. This plan shall be provided to the City Manager
annually or when updated.
4. Stage Door shall post and maintain, as required by any applicable governmental code
andlor regulation, any and all required professional licenses, certifications, andlor
permits.
5. Stage Door shall maintain and inspect all building safety systems including but not
limited to: smoke, fire, and CO detector systems, backup generator operation,
emergency battery backup functions, emergency lighting, emergency egress, special
needs and blackout preparedness equipment. All building safety systems shall be
tested on at least an annual basis or as required by federal, state or local codes and
regulations, and maintained in operating condition at all times.
6. Stage Door shall develop and implement a system for regular inspections of elevator
and escalator controls, motors, suspension systems, and related equipment, and shall
maintain such systems substantially in accordance with manufacturer required
standards.
7. Stage Door shall develop and implement a plan for inspection and maintenance for the
Facility's HVAC systems. This shall include inspection of all HVAC controls on a
quarterly basis to verify proper setting and operation as well as any adjustments andlor
maintenance that may be appropriate, including, but not limited to filter replacement,
blower andlor heat exchanger, proper operation of air intakeslvents, fan units, ducts,
etc.
8. Stage Door shall develop and implement a plan for inspection and maintenance of the
building envelope and roofing systems. This shall include periodic inspection and
maintenance tasks for the roof, roof penetrations, and exterior walls and penetrations.
9. Stage Door has the sole responsibility of maintaining the paint on both, the interior and
exterior of the Facility. The City has the sole right to approve (not to be unreasonably
withheld, conditioned or delayed) the paint color selections used on the exterior of the
Facility.
EXHIBIT "G"
STAGE DOOR STANDARD AGREEMENT
EXHIBIT "H"
CITY OF MIAMI BEACH OWNED PROPERTY INCLUDED IN THE AGREEMENT
THIS PAGE INTENTIONALLY LEFT BLANK
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 331 39, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO : Mayor Matti Herrera Bower and Me e City Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: April 13, 201 1
SUBJECT: THE COMMITTEE OF THE WHOLE WILL MEET DURING LUNCH RECESS
OF THE APRIL 13, 2011 ClTY COMMISSION MEETING AT THE ClTY
MANAGER'S LARGE CONFERENCE ROOM TO DISCUSS STATUS OF
PENDING LEGISLATION CURRENTLY BEFORE THE FLORIDA
LEGISLATURE.
Attached, please find information regarding proposals to expand gambling in the State of
Florida. Three bills were filed for the 201 1 Legislative Session:
Senate Bill 1708 by Senator Dennis Jones would allow five large-scale casinos to set up
shop in five regions across the state. These casinos - which would have to have large
hotels attached to them - would be allowed to offer a wide array of games, including
roulette, craps, poker and slot machines. This bill was postponed two times in the
Senate Commerce and Tourism Committee, and on March 30, 2011 Senator Jones
withdrew this bill from further consideration, primarily due to opposition from the pari-
mutuel industry. This bill would have required the winning casino operators to have at
least 1,000 hotel rooms and 500,000 of convention and meeting space.
Senate Bill 2050 by Senator Oscar Braynon and House Bill 1415 by Representative Erik
Fresen have also filed similar bills that would also expand gambling in Florida.
The Senate bill was heard by the Senate Commerce and Tourism Committee on April 5,
201 1. The House is assigned to the Business & Consumer Affairs Subcommittee, which
was disbanded after its chair, Rep. Esteban Bovo resigned to run for Miami-Dade
County Commission. The bill has not yet been reassigned to other committees.
Attachments:
Palm Beach Post March 29 Article "Destination casino bill is dead for session"
Senate Bill 1708 Staff Analysis
Senate Bill 2050 Staff Analysis
Agenda Item R(lf
Date 4-13-1 1
m Beach fist Print this page Close
'Destination9 casino bill is dead for session
By KATHLEEN HAUGHNEY
Orlando Sentinel, Tallahassee Bureau
Posted: 8:07 p.m. Tuesday, March 29, 201 1
A major effort to sprinkle Las Vegas-style casinos throughout Florida is no longer a safe bet, a top lawmaker said
Tuesday.
State Sen. Dennis Jones, R-Seminole, who has spearheaded the Senate's gaming efforts the past few years, is
withdrawing a proposal to bring five "destination resorts" to the state that would have featured full casino gaming.
The decision, in the face of fierce behind-the-scenes opposition from the state's pari-mutuel industry, likely ends
the possibility of any major gambling expansion this year.
Jones' bill died after Sen. Jeremy Ring, D-Margate, attached an amendment that would have allowed South Florida
pari-mutuels to also operate as casinos -with table games and craps in addition to slot machines -- with a tax rate
identical to any future destination casinos.
"I had no interest in that whatsoever," Jones said, adding that his bill was intended solely to bring vacation and
convention business to Florida, not to expand gambling at pari-mutuel facilities.
The measure had also been opposed by the Seminole Tribe of Florida, which now operate the only casinos in the
state under a five-year, $250-million agreement signed last year. Under that agreement, the tribe can have slot
machines, blackjack and other card games - but not craps.
Resorts like Las Vegas Sands have been lobbying the state for the past several years to open its doors to Vegas-
style casinos. Las Vegas Sands, which has resorts in Las Vegas, Singapore, Macau and Bethlehem, makes about
one-third of its profit from gaming. The rest comes from hotel rooms, shows and restaurants on site.
Jones and other lawmakers seemed interested in the prospect of bringing big casinos to the state to attract big
conventions and high-rolling vacationers. But the pari-mutuels -whose horse and dog tracks are now open largely
because of slot machines and poker rooms -- fought the plan.
Dan Adkins, vice president of Mardi Gras gaming in Hollywood, said it was simply a matter of parity: If "destination"
casinos were allowed, the pari-mutuels should be allowed to match their gaming offerings. The issue is worth look
at going forward, he added.
"I think the issue needs to be addressed and everyone needs to take a step back and the industry needs to talk,"
he said.
Backers of destination casinos are still holding out hope. Similar bills have been filed by state Rep. Erik Fresen, R-
Miami, and Sen. Oscar Braynon, D-North Miami Beach. But supporters acknowledge they will be a tough sell,
particularly in a conservative House that has fought gaming expansion in the past.
Braynon's bill is set for a Senate committee hearing next week, but the House measure may die in a logistical
snafu. The proposal was assigned to a subcommittee that House Speaker Dean Cannon disbanded after its chair,
Rep. Esteban Bovo, R-Hialeah, resigned last week to run for the Miami-Dade County Commission. Cannon, who is
largely anti-gaming, would need to reassign the bill to a new committee for it to move forward.
Fresen said he hopes to speak with Cannon later this week about allowing the bill to proceed. "I wouldn't say the
chances are high, but we're not six feet under," Fresen said.
Cannon's office did not immediately respond to a request for comment.
According to a legislative staff analysis, 13 other states allow commercial casinos. The state's Revenue Estimating
Conference has not officially estimated the revenue impact of new casinos, but casino representatives estimate
that they would increase corporate income tax and sales tax collections by about $52 million a year.
The industry also estimated that five new resorts would generate 140,000 construction jobs and $10 billion in
construction expenditures.
Las Vegas Sands, which has said repeatedly it would build in Florida, is hoping to target the South Florida market.
Wynn Resorts has also expressed interest in opening a Florida casino and hotel.
"Las Vegas Sands and the rest of the industry are very much committed to seeing this issue through the rest of
session," said Sands lobbyist Nick larossi.
larossi acknowledged that the chances of getting a bill to the governor's desk this year may be slim, but added that
many controversial issues take years to pass. Las Vegas Sands has been meeting with lawmakers for the past
several years.
"This is a game-changing initiative in Florida," he said.
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The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Commerce and Tourism Committee
BILL: SB 1708
INTRODUCER: Senators Jones and Sachs
SUBJECT: Destination Resorts
DATE: March 19,201 1 REVISED:
ANALYST
1. Pug:h/Oxamendi
STAFF DIRECTOR REFERENCE ACTION
Cooper CM Pre-meeting
RI
I. Summary:
SB 1740 creates the seven-member Destination Resort Commission (commission) in the
Department of Revenue. The principal responsibility of the commission is to license no more
than five destination resorts that would offer limited gaming. Limited gaming is defined to
include baccarat, twenty-one, poker, craps, slot machines, video gaming of chance, roulette
wheels, Klondike tables, punch-board, far0 layout, numbers ticket, push car, jar ticket, pull tab,
or their common variants, or any other game of chance or wagering device that is authorized by
the commission.
The bill divides the state into five geographic districts and authorizes the commission to issue
only one license for a destination resort with limited gaming per district. Each district must be
represented by at least one commissioner.
Licenses would be awarded through an invitation-to-negotiate process. The commission is not
required to issue invitations for all five of the locations that the commission is authorized to
license. The commission may stagger its issuance of the invitations. A referendum is required for
the county in which the resort would be located.
The bill establishes a $50 million initial license fee, a $1 million fee for a background check, and
a $5 million annual license fee. The bill provides a graduated gross receipts tax rate that would
be based upon the infrastructure investment in the resort. The tax rate ranges ftom 10 percent for
investments of $2 billion or more, 15 percent for investments of between $1 billion to $2 billion,
and 20 percent for investments under $1 billion.
BILL: SB 1708 Page 2
SB 1708 also establishes minimum requirements for the destination resorts. It requires that they
contain a minimum of 500,000 square feet of meeting and convention space, and a minimum of
1,000 hotel rooms. It also limits the gaming area to no more than 10 percent of the resort.
The bill requires that the commission consider only applicants that submit a plan to train and hire
Florida residents. Applicants must also use the E-verify system to verify employment eligibility,
and they must offer veterans preference in employment.
Finally, SB 1708 specifies allocations of tax revenue for Visit Florida, school readiness, and
transportation for the disadvantaged.
This bill substantially amends ss. 20.21, 120.80, 849.231, and 849.25, F.S.; and creates several
unnumbered sections of law.
II. Present Situation:
Executive Branch Structure
Chapter 20, F.S., provides the structural components of state agencies. A "department" is the
structure through which authority is exercised and to which money and positions are
appropriated. Its principal subcomponent is a "division." Units below that level may be created
by departments; above that level they are created by statute.
Article IV of the Florida Constitution limits executive departments to 25 in number, excluding
those authorized or created in that document. There are five constitutionally created or
authorized departmental entities: State Board of Administration, Department of Veterans'
Affairs; Florida Fish & Wildlife Conservation Commission; Department of Elderly Affairs;
Board of Governors; and the Parole Commission.
There are 21 departments authorized by statute: Department of State; Department of Legal
Affairs; Department of Financial Services; Department of Agriculture and Consumer Services;
Department of Education; Department of Business and Professional Regulation, Department of
Community Affairs; Department of Children & Family Services; Florida Department of Law
Enforcement; Department of Revenue; Department of Management Services; Department of
Transportation; Department of Highway Safety and Motor Vehicles; Department of
Environmental Protection; Department of Military Affairs; Department of Citrus; Department of
Corrections; Department of Juvenile Justice; Department of the Lottery; Agency for Health Care
Administration; and the Department of Health.
The Executive Office of the Governor may be considered to be functional equivalent to a
department.
There appears to be 22 state entities that are subject to the constitutional limitation.
Apparently unaffected by the constitutional limitation are a number of entities with powers
independent of the nominal department head. Examples of these are the Division of Emergency
Management (Department of Community Affairs); the Division of Administrative Hearings
(Department of Management Services), and the Financial Services Commission (Department of
BILL: SB 1708 Page 3
Financial Services). These entities are established in an existing department, but are not subject
to its control, supervision, or direction in any manner, including purchasing, transactions
involving real or personal property, personnel, or budgetary matters.
The Public Service Commission is excluded from the limitation since it is, by statute and
Supreme Court decisions, a legislative branch agency.
Tourism and Convention Space
According to preliminary estimates1 by Visit Florida, an estimated 82.6 million visitors came to
Florida in 2010, an increase of 2.1 percent over 2009 figures.2 For the second half of 2010, direct
travel-related employment in Florida increased by 1.8 percent, with more than 15,000 additional
jobs in the fourth quarter alone. Domestic visitation to Florida increased by 0.5 percent in 2010,
when compared to 2009. During the same period, Canadian travel to Florida increased by 16.2
percent and the overseas market to Florida increased by 13.6-percent. Primary data collected at
Florida's 14 major airports in 2010 reflects a 3.5-percent increase in total enplanements from
2009.~
Preliminary estimates of visitors to Florida for the fourth quarter of 2010 show an estimated 20.8
million people visited the Sunshine State. This reflects an increase of 5.1 percent from the same
period in 2009. Visit Florida also reported that an estimated 18.0 million domestic visitors came
to Florida during the fourth quarter of 201 0, a 4.1 percent increase over 2009. During the same
period, Canadian travel to Florida increased by 5.7 percent and the overseas market to Florida
increased by 13.5 percent. Primary data collected at Florida's 14 major airports shows a 7.8
percent increase in total enplanements to Florida for the fourth quarter of 2010 over the same
period in 2009.~
The following information regarding convention space was obtained from select areas around the
state:
-0 In Orlando, the Gaylord Orlando Hotel has 400,000 square feet of meeting and
convention space and 1,406 hotel rooms and suite^;^ the Peabody Orlando has 300,000
square feet of meeting and convention space; the Orlando World Marriott has 450,000
square feet of meeting and convention space and 2,000 hotel rooms and suite$ and the
Walt Disney World Resort has more than 600,000 square feet of space.
The Orange County Convention Center in Orlando has 2.1 million square feet of exhibit
space.
The Tampa Convention Center has 200,000 square feet of exhibit space and 42,000
square feet of meeting space.
Jacksonville Convention Center has 78,500 square feet of exhibit space and 48,750
square feet of meeting space.
Preliminary estimates are issued 45 days after the end of each calendar quarter. Final estimates are released when final data
are received for all estimates in the report.
See httu://media.visitflorida.ordnews/news.~hu?id=169, (last visited March 19,201 1).
Id.
Id.
See httu://www.~avlordhotels.com/palms-home.html?intcmu=m-u1=to~nav-re~home.
6 See httu://www.marriottworldcenter.com/
BILL: SB 1708 Page 4
The Miami Convention Center has 28,000 square feet of exhibit space, an additional 34
meeting rooms, a 444- seat and a 5,000-seat auditorium, and a 1 17-seat lecture hall.
Economic Impact of Casino-Oriented Destination Resorts
Thirteen states now have commercial casino operations, excluding those managed by Indian
Tribes or at racetracks, and Massachusetts, Texas, New York, and Rhode Island are considering
legislation this year to legalize casino gambling.7 Data on how many casinos are stand-alone
operations and how many are "destination resorts"' is not readily available.
In the most recent numbers available, the American Gaming Association reported in 2008~ that
the commercial casino industry employed more than 375,000 people earning more than $13
billion in total wages. The report also described casinos as significant contributors to the nation's
economy, with gross gaming revenues totaling more than $32.5 billion in 2008.
Casinos have direct economic impacts on the local and state level. For example, a 2008
economic development impact study on the Chumash Casino Resort in Santa Barbara, calif.,"
indicated that the casino:
Created 1,587 direct jobs and an additional 703 indirect jobs in the county;
Generated more than $350 million in sales in the county, and specifically that every $10
in sales at the casino generated $4 in additional sales in the community; and
Tourism received a major boost when the casino opened in 2004.
The American Gaming Association maintains a database of pertinent economic data" on the 13
states that have commercial casinos and the 12 states, including Florida, with racetrack casinos
(nicknamed "racinos"). The two states with commercial casinos closest to Florida - Mississippi
and Louisiana - in 2009 reported significant revenues from gaming operations:
Mississippi reported at its 30 commercial casinos:
o Number of casino employees totaled 25,739;
o Casino employee wages were $855.25 million (including tips and benefits);
o Gross casino gaming revenue was $2.465 billion; and
o The state's gaming tax revenue was $296.34 million.
* Louisiana reported at its 14 commercial casinos:
o Number of casino employees totaled 17,610;
o Casino employee wages were $602.5 1 million;
o Gross casino gaming revenue was $2.456 billion; and
o The state's gaming tax revenue was $598.14 million.
Interim Reuort 201 1-133: Review of Exuansion of Casino Gamine in Other States. Prepared by Senate Committee on
Regulated Industries. Published in October 201 0. Available at
httu://archive.flsenate.nov/data/Publications/20 1 1 /Senate/reports/interim reuorts/udf720 1 1-1 33ri.udf.
"Destination resorts" or "destination resort casinos" are generally defined as mega-centers that feature shopping, conference
facilities, restaurants, and live entertainment in addition to casino gaming. Most new casinos are being built in this format.
httu://www.americaneamine.orglIndus~ info detail.~fv?id=39.
10 Economic Impact of the Chumash Casino Resort on the Countv of Santa Barbara, prepared by The California Economic
Forecast for the Santa Barbara County taxpayers Association. Published February 2008. Available at:
httu://www.sbcta.orrz/Final Reuort Chumash.udf . Last visited March 19,201 1.
11 The American Gaming Association has a complete list of what types of gaming operations are in each state, economic
development data, and how each state uses its share of the revenues generated. The latest data is ftom 2009. See:
http://www.americangaming.org/Industry/state/statistics.cfr-a.
BILL: SB 1708 Page 5
The database does not calculate indirect and induced economic benefits from casino operations.
Destination resorts are also popular internationally among tourists.12 What is purported to be the
largest destination resort east of Las Vegas is under construction in the I3ahamas.l3 The new
Baha Mar resort is expected to contribute an additional 10 percent growth in the Bahamian GDP
by creating 12,000 jobs paying in the aggregate more than $305 million in annual wages.
According to projections, Baha Mar will help raise the average annual income for a Bahamian
family from $29,000 to $33,500, and in its first year of operations will contribute almost $1
billion to the local economy.
Overview of Florida Gaming Laws and Regulations
In general, gambling is illegal in ~1orida.l~ Chapter 849, F.S., governs the conduct of gambling
in Florida. Section 849.15, F.S., prohibits the manufacture, sale, lease, play, or possession of slot
machines15 in Florida. Section 849.15(2), F.S., provides an exemption to the transportation of
slot machines for the facilities that are authorized to conduct slot machine gaming under ch. 55 1,
F.S. Florida's gambling prohibition includes prohibitions against keeping a gambling house,16
and running a lottery.17 Section 7, Art. X, of the Florida Constitution, prohibits lotteries, other
than pari-mutuel pools authorized by law on the effective date of the Florida Constitution, fiom
being conducted in Florida by private citizens."
Gaming is permitted at licensed pari-mutuel wagering tracks and front on^,'^ by the state operated
lottery,20 which must operate "so as to maximize revenues in a manner consonant with the
dignity of the state and the welfare of its citizens,"21 and by the Seminole Indian tribe.
Pari-mutuel wagering and Cardrooms
The pari-mutuel industry in Florida is made up of greyhound racing, different types of
horseracing, and jai alai.22 The regulation of the pari-mutuel industry is governed by ch. 550,
F.S., and is administered by the Division of Pari-Mutuel Wagering (division) within the
Department of Business and Professional Regulation (department). Chapter 550, F.S., provides
specific licensing requirements, taxation provisions, and regulations for the conduct of the
industry.
12 An example of websites advertising international casinos and destination resorts is httr,://www.worldcasinodirector?i.com.
Last visited March 19,20 1 1.
13 Information posted at htt~://star~lobaltribune.com/20 1 l/destination-resorts-a-new-~eneration-of-tourists-destinations-
o~ened-5954. Last visited March 8,201 1.
14 Section 849.08, F.S.
15 Section 849.16, F.S., defines slot machines for purposes of ch. 849, F.S.
16 Section 849.01, F.S.
l7 Section 849.09, F.S.
l8 The pari-mutuel pools that were authorized by law on the effective date of the Florida Constitution, as revised in 1968,
include horseracing, greyhound racing, and jai alai games. The revision was ratified by the electorate on November 5, 1968.
l9 See ch. 550, F.S., for the regulation of pari-mutuel activities.
20 The Department of the Lottery is authorized by s. 15, Art. X, Florida Constitution. Chapter 24, F.S., was enacted by ch. 87-
65, L.O.F., to establish the state lottery. Section 24.102, F.S., provides the legislative purpose and intent in regard to the
lottery.
21 See s. 24.104, F.S.
22 "Jai alai" or "pelota" means a ball game of Spanish origin played on a court with three walls. See s. 550.002(18), F.S.
BILL: SB 1708 Page 6
Pari-mutuel facilities within the state are allowed to operate poker card rooms under s. 849.086,
F.S. No-limit poker games are permitted.23 The cardrooms may operate 18 hours per day on
Monday through Friday and for 24 hours per day on Saturday and Sunday. The games are played
in a non-banking matter, i.e., the house 24 has no stake in the outcome of the game. Such activity
is regulated by the department and must be approved by an ordinance of the county commission
where the pari-mutuel facility is located. Each cardroom operator must pay a tax of 10 percent of
the cardroom operation's monthly gross receipts.25
Slot Machine Gaming
Slot machine26 gaming at licensed pari-mutuels is governed by ch. 551, F.S. Pari-mutuel
facilities that operate slot machine gaming or engage in other casino-style gaming are generally
known as "racinos." During the 2004 General Election, the electors approved Amendment 4 to
the state constitution, codified as s. 23, Art. X, Florida Constitution, which authorized slot
machines at existing pari-mutuel facilities in Miami-Dade and Broward counties upon an
affirmative vote of the electors in those counties. Currently, there are five pari-mutuels in those
counties conducting slot machine gaming.
Slot machine licensees are required to pay a license fee of $2.5 million for fiscal year 2010-201 I.
The annual slot machine license fee is reduced in fiscal year 201 1-2012 to $2 million.27 In
addition to the license fees, the tax rate on slot machine revenues at each facility is 35 percent.28
Seminole Indian Compact
On April 7,2010, the Governor and the Seminole Tribe of Florida (Tribe) executed a tribal-state
compact under the Indian Gaming Regulatory Act of 1988~~ that authorizes the Tribe to conduct
Class I11 gaming30 at seven tribal facilities throughout the state. The compact was subsequently
ratified by the ~e~islature.~'
23 Section 849.086(8)(b), F.S. Prior to the effective date of ch. 2010-29, L.O.F., the maximum bet was $5.
24 Section 849.086(2)(j), F.S., defines "house" as 'The cardroom operator and all employees of the cardroom operator.
25 Section 849.086(13)(a), F.S.
26 Section 551.102(8), F.S., defines "slot machine" as the term is used in ch. 551, F.S., for the regulation of slot machine
gaming at the qualifying Miami-Dade and Broward county pari-mutuels.
27 Chapter 551.106(1), F.S. Prior to the effective date of 2010-29, L.O.F., the license fee was $3 million.
28 Chapter 551.106(1), F.S. Prior to the effective date of 2010-29, L.O.F., the tax rate was 50 percent.
29 The Indian Gaming Regulatory Act of 1988 or "IGRA", Pub. L. 100-497, 102 Stat. 2467, codified at 18 U.S.C. ss. 1166-
1168 and 25 U.S.C. s. 2701 et seq.
30 The Indian Gaming Regulatory Act of 1988 divides gaming into three classes:
"Class I gaming" means social games for minimal value or traditional forms of Indian gaming engaged in by
individuals for tribal ceremonies or celebrations.
"Class I1 gaming" includes bingo and pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar
to bingo. Class I1 gaming may also include certain non-banked card games if permitted by state law or not explicitly
prohibited by the laws of the state but the card games must be played in conformity with the laws of the state. A
tribe may conduct Class I1 gaming if:
o the state in which the tribe is located permits such gaming for any purpose by any person, organization or entity;
and
o the governing body of the tribe adopts a gaming ordinance which is approved by the Chairman of the National
Indian Gaming Commission.
"Class I11 gaming" includes all forms of gaming that are not Class I or Class 11, such as house-banked card games,
casino games such as craps and roulette, electronic or electromechanical facsimiles of games of chance, slot
machines, and pari-mutuel wagering.
31 Chapter 2010-29, L.O.F.
BILL: SB 1708 Page 7
The compact has a 20-year term. It permits the Tribe to offer slot machines, raffles and drawings,
and any other new game authorized for any person for any purpose, at all seven of its tribal
casinos.32
The compact permits the Tribe to conduct banked card games, including blackjack, chemin de
fer, and baccarat, but the play of the banked card games is not allowed at the casinos at the
Brighton or Big Cypress facilities. If these banked games are authorized for any other person for
any other purpose, except if banked card games are authorized by a compact with the
Miccosukee Indians, the Tribe would be authorized to offer banked cards at all seven of its
facilities. The authority for banked card games terminates at the end of 5 years unless
affirmatively extended by the Legislature or the Legislature authorizes any other person to offer
banked card games.
In exchange for the Tribe's exclusive right to conduct slot machine gaming outside of Miami-
Dade and Broward counties and the exclusive right to offer banked card games at the specified
facilities (these grants of authority are known as the "exclusivity provision"), the compact
provides for revenue sharing payments by the Tribe to the state as follows:
During the initial period (first 24 months), the Tribe is required to pay $12.5 million per
month ($1 50 million per year);
After the initial period, the Tribe's guaranteed minimum revenue sharing payment is
$233 million for year 3, $233 million for year 4, and $234 million for year 5;
After the initial period, the Tribe pays the greater of the guaranteed minimum or
payments based on a variable percentage of annual net win33 that range from 12 percent
of net win up to $2 billion, to 25 percent of the amount of any net win greater than $4.5
billion;
After the first 5 years, the Tribe will continue to make payments to the state based on the
percentage of net win without a guaranteed minimum payment; and
If the Legislature does not extend the authorization for banked card games after the first 5
years, the net win calculations would exclude the net win fiom the Tribe's facilities in
Broward County.
The compact provides for the expansion of gaming in Miami-Dade and Broward counties under
the following limited circumstances:
* If new forms of Class 111 gaming and casino-style gaming are authorized for the eight
licensed pari-mutuels located in Miami-Dade and Broward counties and if the net win
from the Tribe's Broward facilities drops for the year after the new gaming begins, then
the Tribe may reduce the payments from its Broward facilities by 50 percent of the
amount of the reduction in net win.
32 Gaming Compact Between the Seminole Tribe of Florida and the State of Florida, approved by the U.S. Department of the
Interior effective July 6,2010, 75 Fed. Reg. 38833. (hereinafter Gaming Compact) The Tribe has three gaming facilities
located in Broward County (The Seminole Indian Casinos at Coconut Creek and Hollywood, and the Seminole Hard Rock
Hotel & Casino-Hollywood), and gaming facilities in Collier County (Seminole Indian Casino-Immokalee), Glades County
(Seminole Indian Casino-Brighton), Hendry County (Seminole Indian Casino-Big Cypress), and Hillsborough County
(Seminole Hard Rock Hotel & Casino-Tampa).
33 The compact defines "net win" as "the total receipts i?om the play of all Covered Games less all prize payouts and free
play or promotional credits issued by the Tribe."
BILL: SB 1708 Page 8
If new forms of Class 111 gaming and other casino-style gaming are authorized for other
locations in Miami-Dade and Broward counties, then the Tribe may exclude the net win
from their Broward facilities from their net win calculations when the new games begin
to be played.
If new games are authorized to any location in Miami-Dade and Broward counties within
the first 5 years of the Compact, the guaranteed minimum payment would no longer
apply to the Tribe's revenue sharing payments and the $1 billion guarantee would not be
in effect. The Tribes payments would be based on the applicable percentage of net win.
Revenue sharing payments cease if:
The state authorizes new forms of Class III gaming or other casino-style gaming after
February 1,20 10, or authorizes Class III gaming or other casino-style gaming at any
location that was not authorized for such games before February 1,2010; and
The new gaming begins to be offered for private or public use.
Ill. Effect of Proposed Changes:
SB 1708 creates undesignated sections of law and amends four sections of existing law to
establish the Destination Resort Act (act).
Definitions
SB 1708 provides several definitions used in the act.
The bill defines the terms "destination resort" or "resort" to mean:
"a freestanding, land-based structure in which limited gaming may be conducted.
A destination resort is a mixed-use development consisting of a combination of
various tourism amenities and facilities, including, but not limited to, hotels,
villas, restaurants, limited gaming facilities, convention facilities, attractions,
entertainment facilities, service centers, and shopping centers."
The bill divides the state into five districts for the purpose of awarding destination resorts. It
defines the following five districts as:
District One: Escambia, Santa Rosa, Okaloosa, Walton, Holmes, Jackson, Washington,
Bay, Calhoun, Gulf, Franklin, Liberty, Gadsden, Leon, Wakulla, Jefferson, Madison,
Hamilton, Taylor, Lafayette, Suwannee, Columbia, Baker, Union, Bradford, Alachua,
Gilchrist, Dixie, and Levy counties.
District Two: Nassau, Duval, Clay, Putnam, St. Johns, Flagler, Marion, Volusia,
Lake, Seminole, Orange, Hernando, Polk, and Osceola counties.
District Three: Citrus, Sumter, Pasco, Pinellas, Hillsborough, Manatee, Hardee,
DeSoto, Sarasota, Charlotte, Lee, Collier, Monroe, Highlands, Okeechobee,
Glades, and Hendry counties.
District Four: Brevard, Indian River, St. Lucie, Martin, and Palm Beach counties.
District Five: Broward and Miami-Dade counties.
The bill defines the terms "limited gaming," "game," or "gaming" to mean:
BILL: SB 1708 Page 9
"the games authorized pursuant to the Resort Act in a limited gaming facility,
including, but not limited to, those commonly known as baccarat, twenty-one,
poker, craps, slot machines, video gaming of chance, roulette wheels, Klondike
tables, punch-board, far0 layout, numbers ticket, push car, jar ticket, pull tab, or
their common variants, or any other game of chance or wagering device that is
authorized by the commission."
The bill defines a "qualifier." It provides that a qualifier means:
"an affiliate, affiliated company, officer, director, or managerial employee of an applicant
for a resort license, or a person who holds a direct or indirect equity interest in the
applicant. The term may include an institutional investor. As used in this subsection, the
terms "affiliate," "affiliated company," and "a person who holds a direct or indirect
equity interest in the applicant" do not include a partnership, a joint venture relationship,
a shareholder of a corporation, a member of a limited liability company, or a partner in a
limited liability partnership that has a direct or indirect equity interest in the applicant for
a resort license of 5 percent or less and is not involved in the gaming operations as
defrned by the rules of the commission."
Destination Resort Commission
SB 1708 amends s. 20.21, F.S., to create the Destination Resort Commission (commission)
within DOR.~~ The commission is created in DOR for administrative purposes only, and it is a
separate budget entity not subject to control, supervision, or direction by DOR in any manner.
The commission would consist of seven members appointed by the Governor and confirmed by
the Senate. The bill specifies experience requirements for the commission members, including
experience in corporate finance, tourism, convention and resort management, gaming,
investigation or law enforcement, business law, or related legal experience. The members would
serve 4-year, staggered terms.
One member of the commission must be a Florida-licensed certified public accountant with at
least 5 years of experience in general accounting. One member must have experience in the
fields of investigation or law enforcement.
The bill divides the state into five destination resort districts, and requires that each district must
be represented by at least one member of the commission who must reside in that district.
The bill prohibits the appointment to the commission of elected officials and persons with a
direct or indirect financial interest in applicants for a resort license or resort licensees. Members
may also not be related to any person within the second degree of consanguinity or affinity to
any person licensed by the commission. Members also may not possess the specified criminal
history, including any felony or any misdemeanor involving gambling, within the 10 years
preceding their appointment.
34 Section 20.21(1), F.S., provides that the agency head of the Department of Revenue is the Governor and the Cabinet.
BILL: SB 1708 Page 10
One member of the commission shall be appointed by the Governor to serve as the chair of the
commission. The chair shall be the administrative head of the commission and would be
responsible for setting the agenda for commission meetings and approving all notices, vouchers,
subpoenas, and reports required by the act. The bill also provides for a vice chair to be elected by
the members of the commission during its first meeting.
The commission would be headquartered in Tallahassee. However, the commission is authorized
to establish field offices as it deems necessary.
The initial meeting of the commission must be held by October 1,201 1. The commission must
meet at least monthly.
The commission is required to appoint an executive director of the commission. The executive
director must be appointed within 10 days of the commission's initial meeting. The executive
director may hire assistants and other employees as necessary to conduct the business of the
commission.
The bill provides for a comprehensive code of ethics which must be adopted by the commission.
Generally, the code of ethics would prohibit members of the commission, the executive director,
and employees of the commission fiom having a direct or indirect financial interest in the entities
that it would regulate. It would also prohibit engaging in political activity, including using the
person's official authority to influence the result of an election. Employees or agents of the
commission would be prohibited fiom engaging in outside employment related to the activities
or persons regulated by the commission.
The commissioners, the executive director, and each managerial employee must file annual
financial disclosures. It also specifies the circumstances in which these persons must
immediately file disclosures, including matters related to criminal arrests, negotiations for an
interest in a licensee or applicant, and negotiations for employment with a licensee or applicant.
These persons are also prohibited from engaging in activities that may constitute a conflict of
interest.
The bill prohibits commissioners, licensees, applicants, or any affiliate or representative of an
applicant or licensee fiom engaging directly or indirectly in an exparte communication with a
member of the commission concerning a pending application, license, or enforcement action or
concerning a matter that likely will be pending before the commission. Any exparte
communication must immediately be reported in writing to the chair and placed on the record.
Persons who make the ex parte communication must submit to the commission a written
description of the communication which identifies the commissioner who received the
communication. A commissioner who fails to disclose an exparte communication with 10 days
of the communication is subject to removal from office and a civil penalty not to exceed $5,000.
Such a violation would be investigated by the Commission on Ethics.
A violation of the act by a commissioner may result in disqualification or constitute cause for
removal by the Governor. The governor may impose other disciplinary action as determined by
the commissioner. Violations by employees may result in termination of employment. If the
violation involves an unintentional financial interest in a licensee or applicant, the person would
BILL: SB 1708 Page 11
not have violated the act if they divested their financial interest with 30 days after the interest
was acquired.
Powers and Duties of the Commission
The principal responsibility of the commission is to exercise jurisdiction over, and to supervise,
all destination resort limited gaming activity in the state. The commission may authorize five
destination resorts through an invitation to negotiate process in which respondents submit
accompanying applications to demonstrate their qualifications.
The commission would investigate the qualifications of the persons who respond to the invitation
to negotiate and select the applicant that best serves the interest of the residents of Florida based
on the:
Potential for economic development presented by the applicant's proposed investment in
infrastructure, such as hotels and other nongaming entertainment facilities; and the
Applicant's ability to maximize revenue for the state.
The commission will have the authority to suspend or revoke the license of any person found to
no longer be qualified. The commission also can deny, revoke, suspend, or place conditions on a
licensee who violates any provision of the act, a rule adopted by the commission, or an order of
the commission. The commission can levy fines that may not exceed $250,000 per violation
arising out of a single transaction.
In terms of enforcement authority, the commission can issue subpoenas to compel the attendance
of witnesses and subpoenas duces tecum to compel the production of records. It can apply to the
courts for injunctive relief to enforce the act and any rules adopted by the commission.
The bill gives the Florida Department of Law Enforcement and local law enforcement agencies
the authority to investigate criminal violations of the act and other criminal violations that occur
at the resorts in conjunction with limited gaming. Section 8 of the bill authorizes the commission
to employ sworn law enforcement officers.
The bill amends s. 120.80, F.S., which sets forth exceptions to the Florida Administrative
Procedures Act. The bill exempts the commission from having to comply with the hearing and
notice requirements in ss. 120.569 and 120.57(1)(a), F.S, the license application provisions in
s. 120.60, F.S., and the waiver and variance provisions in s. 120.542, F.S.
The commission is authorized to adopt all rules necessary to implement, administer, and regulate
limited gaming. The bill provides a listing of specific areas in which the commission is
authorized to adopt rules, these include the types of games, the time and place for the gaming,
and the structures where limited gaming is authorized. The commission also can establish
procedures to scientifically test slot machines and other authorized gaming equipment. The
commission can adopt any rule necessary to accomplish the purposes of the act.
The bill preempts the regulation of limited gaming activity at destination resorts to the state
through the commission.
Awarding Licenses for Limited Gaming at Destination Resorts
BILL: SB 1708 Page 12
SB 1708 authorizes limited gaming at destination resorts. A destination resort may not be
awarded a resort license unless a majority of the electors in a countywide referendum have
approved the conduct of limited gaming in the respective county.
Licenses would be awarded through an invitation to negotiate (invitations) process in which
applicants reply on forms provided by the commission in response to the invitation to bid. The
commission is not required to issue invitations for all five of the locations that the commission is
authorized to permit. The commission may stagger its issuance of the invitations.
The invitation may specify the district in which the facility would be located. The commission is
required, if practical, to hold a public hearing in the county or counties for which the invitation
would be issued.
After reviewing the replies to the invitation, the commission may select one or more replies and
commence negotiations after determining which replies are in the best interest of the state based
on the selection criteria.
Criteria for the Award of a Destination Resort License
Only one destination resort license may be awarded per district. The applicant for a resort license
must demonstrate the resort will:
Increase tourism, generate jobs, provide revenue to the local economy, and provide
revenue to the General Revenue Fund;
Provide a minimum of 1,000 hotel rooms;
Contain convention and meeting floor space of at least 500,000 square feet; and
Limit the area where limited gaming is authorized to no more than 10 percent of the
resort development's total square footage.
In addition the applicant must demonstrate:
A history of, or a bona fide plan for, community involvement or investment in the
community where the resort having a limited gaming facility will be located.
The financial ability to purchase and maintain an adequate surety bond.
That it has adequate capitalization to develop, construct, maintain, and operate the
proposed resort and convention center in accordance with the act; and
The ability to implement a program to train and employ residents of this state for jobs
that will be available at the destination resort, including its ability to implement a
program for the training of low-income persons.
The commission may assess the quality of the proposed development's aesthetic appearance in
the context of its potential to provide substantial economic benefits, including the potential to
provide substantial employment opportunities.
SB 1708 specifies the information that must be included in the application. The application must
be sworn. The required information includes identifying information about the applicant and all
qualifiers, which are defined in the bill to mean the affiliate, affiliated company, officer, director,
or managerial employee of an applicant, or a person who holds a direct or indirect equity interest
BILL: SB 1708 Page 13
in the applicant. Persons with interest of less than 5 percent do not have to be disclosed as a
qualifier.
An incomplete application is grounds for denial of an application. However, if the commission
determines that an application is incomplete, the applicant may request an informal conference
with the executive director or his designee. The executive director may grant a 30 day extension
to complete an application.
The bill provides for institutional investors of an applicant and provides that they do not have to
be included in the application. Institutional investors include persons that hold less than 5 percent
of the equity securities or 5 percent of the debt securities of an applicant or affiliate of the
applicant, and are a publicly traded corporation. Institutional investors must also file a certified
statement that they do not intend to influence or affect the affairs of the applicant or its affiliate,
and that the securities of the applicant or affiliate that it holds were purchased for investment
purposes only. The commission may require that an institutional investor must qualify if it fmds
that the investor is in a position to exercise a substantial impact upon the controlling interests of
a licensee. The bill also exempts lenders and underwriters as qualifiers.
Application Fees
The application must be submitted with a nonrefbndable application fee of $1 million dollars to
defray the costs of investigating and reviewing the application. The applicant must pay any
investigative and review costs that exceed the $1 million fee.
Also, the application must include a one-time licensing fee of $50 million, which the commission
must refund within 30 days of denying an application. If an applicant withdraws its application
after the application deadline, the commission must refund 80 percent of the licensing fee within
30 days after the application is withdrawn.
Resort License Conditions
SB 1708 outlines the conditions for initial licensure and continuing licensure for resort licensees.
The conditions require that the licensee:
Comply with the Resort Act and rules of the commission;
Allow the commission and the Florida Department of Law Enforcement unlimited access
to and the right of inspection for the areas of the resort where limited gaming activities
occur;
Complete the resort in accordance with the timeframe and plans submitted to the
commission in the proposal, unless a waiver has been granted;
Ensure that the facilities-based computer system is operational and that all accounting
functions are structured to facilitate regulatory oversight, which shall require the systems
to provide for real-time information to the commission and Department of Law
Enforcement;
a Ensure that each game, machine, or device is protected from tampering or manipulation;
Submit and comply at all times with a detailed security plan;
0 Keep and maintain daily records of the resort for at least 5 years; and
Create and file with the commission a written policy for:
BILL: SB 1708 Page 14
o Creating opportunities to purchase from vendors from this state, including
minority vendors;
o Creating opportunities for employment of residents of this state, including
minority residents;
o Ensuring opportunities for hiring construction services from minority contractors;
o Ensuring opportunities for employment are on an equal, nondiscriminatory basis;
o Training employees on responsible gaming and work with a compulsive or
addictive gambling prevention program;
o Implementing a drug testing program;
o Using the Internet-based job-listing system of the Agency for Workforce
Innovation in advertising employment opportunities; and
o Ensuring that each slot machine pays out at least 85 percent.
In addition, the bill provides that the resort licensee shall give employment preference to
veterans and use the E-Verify program to verify the employment eligibility of all prospective
employees.
The bill provides that the resort licensee should be renewed if the licensee demonstrates an effort
to increase tourism, generate jobs, and provide revenue to the state and local economy.
Bond
Each resort licensee must, at its own cost and expense, give a bond in the penal sum35 to be
determined by the commission and payable to the Governor. The commission shall set the bond
at the total amount of the estimated license fees and taxes estimated to become due for the resort.
In lieu of a bond, a licensee may instead pay a like amount of funds to the commission.
Limited Gaming
Limited gaming may be conducted at a resort licensee, but only within the facility of the resort as
approved by the commission. Limited gaming activities may not begin until the resort is
completed in accordance with the plans submitted to the commission. The resort licensee may
only accept wagers from persons at least 21 years of age who are present in the facility. The
facility may not accept wagers using money, except for slot machine gaming. Section 24 of the
bill further provides that the facility may be open 24 hours per day, 365 days per year.
License Fees
Each resort licensee is required to pay $5 million annually to the commission as a license fee. In
addition, each resort licensee is required to pay a gross receipts tax on the gross receipts for
limited gaming activities at the resort. Once the resort is complete, the licensee must submit all
information, as required by the commission, to determine the infrastructure investment and to set
the tax rate for the resort.
If the total infrastructure investment is $2 billion or more, the gross receipts tax rate is 10
percent. If the total infrastructure investment is at least $1 billion but less than $2 billion, the
gross receipts tax is 15 percent. If the total infrastructure investment is less than $1 billion, the
gross receipts tax is 20 percent.
35 bLPenal sum" is the stated limit of the bond which, in turn, is the limit of the insurer's liability under the bond.
BILL: SB 1708 Page 15
Uses of the Gross Receipts Tax Revenues
Pursuant to section 25 of the bill, the revenues fiom the gross receipts tax are deposited into the
Destination Resort Trust Fund. These revenues must be used for the following purposes:
Ninety-five percent of the money in the fund is deposited to the General Revenue Fund;
Two and one-half percent is deposited in the Tourism Promotional Trust Fund for use by
the Florida Commission on Tourism;
One and one-fourth percent is deposited into the Employment Security Administration
Trust Fund for use by the school readiness program; and
One and one-fourth percent is deposited into the Transportation Disadvantaged Trust
Fund for use by the Transportation Disadvantaged Commission, which oversees locally
run programs to provide transportation services to the disabled, elderly, and
underprivileged.
Fingerprint Requirements
SB 1708 provides fingerprint requirements for all applicants and licensees of the commission.
The cost for fingerprinting is paid by the applicant.
Compulsive or Addictive Gambling Prevention Program
Each resort licensee is required to train employees on responsible gaming and to work with a
program on responsible gambling to recognize problem gambling. The commission is required to
contract for services related to the prevention of compulsive and addictive gambling. The
contract for the services must require advertising of responsible gambling and the publication of
a gambling telephone help line. Each resort licensee is required to fund the program with a
$250,000 annual fee.
Suppliers' and Occupational Licenses
Suppliers' licenses are required in order to furnish, on a regular or continuing basis, gaming
equipment, supplies, devices, or goods or services relating to the realty, construction, or business
of a resort licensee. This requirement includes, but is not limited to, manufacturers, distributers,
food purveyors, construction companies, and junket enterprises. Each applicant and licensee
must pay an annual license fee of $5,000. A person is not eligible for a suppliers' license if the
person has committed a felony, knowingly submitted false information to the commission, the
applicant is a member of the committee, the applicant is not a natural person, or the applicant has
a resort license or pari-mutuel license in either this state or any other jurisdiction.
Any person who wishes to become a gaming employee must apply to the commission for an
occupational license; no person may be employed by a resort licensee until that person has an
occupational license. The application fee must be set by the commission, but an employee
occupational license fee may not exceed $50. Occupational licensees must be at least 21 years
old to perform gaming related functions and at least 18 to perform non-gaming related functions.
A person who has committed a felony or crime involving dishonesty or moral turpitude in any
jurisdiction is not eligible for an occupational license.
All applicants for suppliers' and occupational licenses must submit to background investigations
and comply with the fingerprint requirements in the act. The bill authorized the commission to
revoke a license for a violation of the act and commission rules. It provides the duties of each
BILL: SB 1708 Page 16
licensee. In addition, the bill outlines when the executive director can issue a temporary
suppliers' or occupational license.
Quarterly Reports
The commission is required to submit quarterly reports to the Governor, President of the Senate,
and Speaker of the House of Representatives. The reports must include a statement of receipts
and disbursements related to limited gaming, a summary of disciplinary actions taken by the
commission, and any additional information or recommendations that the commission believes
may improve the regulation of limited gaming or increase the economic benefits of limited
gaming to this state.
Hearings by the Commission
The chair of the commission may assign hearings to two or more members of the commission.
Only the commissioners assigned to a hearing can participate in the final decision for the
commission on that matter. If only two commissioners are assigned a matter and they cannot
decide, the chair may cast the deciding vote. Any party to a proceeding before the commission
may request for the matter to be heard before the full commission; the full commission must
convene within 15 days to hear the matter.
Resolutions of Disputes between Licensees and Patrons
If a dispute that involves alleged wins, losses, payments of cash, prizes, benefits, tickets, or other
items or a dispute that involves the manner in which a game, tournament, contest, drawing,
promotion, race or similar activity was conducted, cannot be resolved between the licensee and
the patron, the licensee must immediately notify the commission if the dispute involves $500 or
more. If the dispute involves less than $500, the licensee must notify the patron of the patron's
right to file a complaint with the commission. The commission may investigate the matter and
may require the licensee to pay restitution to the patron. Failure to notify the commission of a
dispute or notifying a patron of their right to file a complaint constitutes grounds for disciplinary
action against the resort licensee.
Enforcement of Credit Instruments
SB 1708 permits the use of credit instruments. Resort licensees may accept incomplete credit
instruments if they are signed by the patron and the amount is completed in numbers; the resort
licensee may complete the incomplete instrument. The resort licensee may accept a credit
instrument payable to an affiliate of the licensee. In addition, the resort licensee may accept the
credit instrument before, during, or after the patron has incurred the debt with the resort.
Voluntary Self Exclusion
SB 1708 provides that a person may request to be excluded for all limited gaming facilities by
completing a self-exclusion form and submitting it to the commission. The fop requires the
patron to include his or her name, date of birth, and other identifying information. The form also
requires the individual to indicate how long he or she wishes to be excluded from the limited
gaming facilities.
BILL: SB 1708 Page 17
Conforming Provisions
SB 1708 amends the gambling devices prohibition in s. 849.23 1, F.S., and the bookmaking
prohibition in s. 849.25, F.S., to incorporate the limited gaming authorization provided in the
bill.
Effective Date
The bill provides an effective date of July 1,20 1 1.
IV. Constitutional Issues:
A. MunicipalityICounty Mandates Restrictions:
None.
B. Public Recordslopen Meetings Issues:
A tied public records bill, SB 1712, has been filed to accompany this bill.
C. Trust Funds Restrictions:
A tied trust fund bill, SB 1710, has been filed to accompany this bill.
D. Other Constitutional Issues:
The Florida Constitution is silent on the subject of casino gaming. However, the Florida
Constitution does not prohibit the Legislature fiom creating laws to authorize, regulate, or
tax gaming in the state. With regard to gaming, the Florida Constitution only addresses
the subjects of lotteries and slot machine gaming. The Florida Constitution prohibits
lotteries, except pari-mutuel pools permitted by state law,36 but specifically allow for
state operated lotteries.37
Even though the Florida Constitution does not specifically prohibit any form of gaming
other than lotteries that are not state operated, the provision that expanded the pari-mutuel
locations that can offer slot machine gaming is being challenged as violating s. 23, Art.
X, Florida Constitution. These lawsuits challenge the Legislature's authority to authorize
slot machine gaming outside the pari-mutuel facilities enumerated in s. 23, Art. X, of the
Florida Constitution, which references pari-mutuel facilities that were existing and had
conducted live racing or games in that county during each of the last 2 calendar years
before the effective date of the amendment (2004). The trial court upheld the
36 Section 7, Art. X, Florida Constitution.
37 Section 15, Art. X, Florida Constitution.
BILL: SB 1708 Page 18
constitutionality in Leon That decision is on appeal to the First District Court
of ~~~eals.~~
V. Fiscal impact Statement:
A. TaxIFee Issues:
Applicants for a destination resort license would pay an application fee of $1 million
dollars to defray the costs of investigating and reviewing the application, plus any
investigative and review costs that exceed $1 million.
The application also must include a one-time licensing fee of $50 million, which the
commission must refund within 30 days of denying an application. If an applicant
withdraws its application after the application deadline, the commission must refund 80
percent of the licensing fee within 30 days after the application is withdrawn.
Each resort licensee would be required to pay $5 million annually to the commission as a
license fee. In addition, each resort licensee would pay a gross receipts tax. The tax rate
would be dependent on the licensee's investment in infrastructure. Once the resort is
complete, the licensee must submit all information, as required by the commission, to
determine the infrastructure investment and to set the tax rate for the resort. If the total
infrastructure investment is $2 billion or more, the gross receipts tax rate is 10 percent. If
the total infrastructure investment is at least $1 billion but less than $2 billion, the gross
receipts tax is 15 percent. If the total infrastructure investment is less than $1 billion, the
gross receipts tax is 20 percent.
Suppliers' licensees would be required to pay an annual license fee of $5,000, while the
fee for an occupational licensee may not exceed $50.
The state's Revenue Estimating Conference has not met to estimate the revenue impact of
SB 1708. However, the casino industry estimates that implementation of SB 1708 may:
Generate total non-gaming revenue for the first year of $85.4 million;
Induce by the third year $64.5 million in convention and local bed tax
collections; and
Increase collections of corporate income taxes and sales taxes by nearly $52
million.
38 See Order on Plaintiffs Motion for Summary Judgment, consolidated cases, Florida Gaming Centers, Inc. v. Department
of Business and Professional Regulation and South Florida Racing Association, No. 201 0 CA 2257 and Calder Race Course,
Inc. v. Department of Business and Professional Regulation and South Florida Racing Association, No. 201 0 CA 21 32 (Fla.
2d Cir. Ct. December 14,2010).
39 See Calder Race Course, Inc. v. Department of Business and Professional Regulation and South Florida Racing
Association, ID1 1-130 (Fla. 1'' DCA) and Florida Gaming Centers, Inc. v. Department of Business and Professional
Regulation and South Florida Racing Association, 1 Dl 0-6780 (Fla. 1 st DCA).
BILL: SB 1708 Page 19
B. Private Sector Impact:
The industry estimates that the five resorts, if authorized, would create 140,000
construction jobs and would generate $10 million in construction costs.
The industry estimates that the five resorts, if built, would attract 5.26 million out-of-
market visitors, including more than 3 13,000 convention visitors.
C. Government Sector Impact:
Indeterminate. However, the bill authorizes fees projected to be sufficient to pay the costs
of administering the act.
VI. Technical Deficiencies:
None.
VII. Related Issues:
State revenue-sharing with the Seminole Indian Compact relies on continued exclusivity of
casino-style and Class 111 gaming. The authorization for full commercial casinos would
constitute a casino style and Class 111 gaming expansion and would affect the revenue-sharing
payments that the Tribe is required to make to the state under the compact. Any cessation or
reduction of revenue sharing payments upon the expansion of casino gaming would depend on
the location of the new casinos. It is important to stress that any cessation or reduction of revenue
sharing payments would only occur when the first,Class I11 or other casino-style game is played.
The mere authorization of Class I11 gaming or other casino-style gaming would not affect the
payments.
It is also important to note that the state's expansion of Class-111 gaming or casino-style gaming
would not mean that the state had violated its compact with the Tribe. The compact specifies the
consequences, particularly the financial ramifications, if the state elects to expand gaming in this
state, and does not expressly prohibit any such expansion.
If the Destination Resort Commission approves a destination resort with limited gaming in any
location outside of Miami-Dade and Broward Counties, all of the Tribe's revenue-sharing
payments would stop once the first game is played.40 If the Destination Resort Commission
approves a destination resort with limited gaming inside of Miami-Dade and Broward Counties,
but the location is not at a pari-mutuel facility, the Tribe would continue to make revenue-share
payments, but the Tribe would exclude the net win from their Broward facilities. According to
the division, the net win fiom the Tribe's Broward facilities equals approximately 47 percent of
the Tribe's total net win. Therefore, if casino-style gaming were expanded and limited to Miami-
Dade and Broward Counties, the Tribe's payments would be reduced by approximately 47
percent.
40 See Part XII. A., Gaming Compact, supra n. 29.
BILL: SB 1708 Page 20
In addition, if the destination resort with limited gaming is authorized for any location in Miami-
Dade or Broward counties within the first 5 years of the compact, the guaranteed minimum
payment and the $1 billion guarantee for the first 5 years of the compact would no longer apply.
The Tribe's payments would be based on the applicable percentage of net win.
Once the new gaming begins at licensed destination resorts, the Tribe may continue to offer the
covered games authorized in the compact plus any additional games that are authorized for the
destination resorts.41 The Tribe will have to renegotiate a new Compact for Class 111 games when
the Compact expires at the end of its 20-year term,42 but it is not clear what reason the Tribe
would have to renegotiate the revenue-sharing terms if casino-style gaming is authorized at
destination resorts in the state. However, the Tribe would have to negotiate a new com act at the
end of the current compact's term before it could continue to offer the covered games. E
VIII. Additional Information:
A. Committee Substitute - Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill's introducer or the Florida Senate.
41 See the definition of covered games at Part III.F.4., Gaming compact, supra at n. 29.
42 See Part XVI.B., Gaming Compact, supra at n. 29.
43 IGRA at 18 U.S.C. s. 2710(d)(l)(C).
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