C7T-Approve Agreement w- O Cinema Management Of Portion Of Byron Carlyle Theaterlntended Outcome
COMMISSION IIEM SUMMARY
AGENDA NEN C7 T
Gondensed Title:
A Resolution Waiving, By 517"'Vote, The Competitive Bidding Requirement And Approving And Authorizing
The Mayor And City Clerk To Execute An Agreement Between The City And Living Arts Trust, lnc. D.B.A. O
Cinema For The Operation And Management Of A Portion Of The Byron Carlyle Theater; Said Agreement
Having An lnitial Term Of Five (5) Years, Commencing On October 1,2014, And Ending On September 30,
2019, With An Option To Extend The Agreement For Up To Five (5) Additional Years (ln Either One Year Or
Multi-Year I As Determined Bv The Citv), At The Citv's Sole Discretion.
Maximize Miami Beach as a Brand Destination and lmprove Alliance with Key Business Sectors, Namely
Arts and lnternational Business with a Focus on Enhanced Culture, Entertainment and Tourism.
Supporting Data (Surveys, EnvironmentalScan, etc.) N/A
On April 13, 2011, the Mayor and Commission adopted Resolution No. 201 1-27648, approving a Management
Agreement between the City and Stage Door Theater for the Byron Carlyle Theater. The Agreement had an
initial term of five (5) years, commencing on May 1 , 2011 (Commencement Date) and ending on April 30, 2016
(Expiration Date). The City has the option of renewing the Agreement, at its sole discretion, and provided that
Stage Door is in good standing, free of default, and has met its annual benchmarks, for up to five (5) years.
Under the Agreement the facility must only be used as a live theatrical entertainment venue and public
auditorium, and must operate on a year-round basis. Stage Door Theatre terminated its management
agreementwith the City forthe Byron Carlyle Theater, effective June 1,2014, due to the unexpected death of
its founder and president, David Torres.
Mayor Levine and Commissioner Malakoff both placed discussion items on the July 23,2014 City Commission
agenda to consider O Cinema as a tenant for the Byron Carlyle Theater. Following discussion the City
Commission unanimously approved a motion directing City staff to negotiate an agreement with O Cinema to
be brought back for consideration. Mayor's Blue Ribbon Panel on North Beach at their meeting held on July
24,2014 unanimously adopted a motion supporting O Cinema's use of the Byron Carlyle Theater.
The attached draft management agreement reflects the agreed upon terms negotiated by the City and O
Cinema. These terms are summarized in the attached memorandum. The Administration recommends that
the Mayor and City Commission of the City of Miami Beach, Florida adopt the Resolution waiving, by 5/7th
vote, the competitive bidding requirement and approving and authorizing the Mayor And City Clerk to execute
an agreement between the City and Living Arts Trust, lnc. D.B.A. O Cinema for the operation and
management of a portion of the Byron Carlyle Theater; said agreement having an initial term of five (5) years,
commencing on October 1,2014, and ending on September 30, 2019, 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
s sole discretion.
Mayor's Blue Ribbon Panel on North Beach at their meeting held on July 24,2014 unanimously adopted a
motion suooortino O Cinema's use of the
Financial lnformation :
Financial lmpact Summary: O Cinema will pay $5,000 annually for the first 3 years. Commencing with the 4
year, the Use Fee will be 10o/o of all net ticket and concession revenues generated; with annual increases
thereafter ol 1o/o per year, but not to exceed 20%. O Cinema has also agreed to an annual contribution of $
2,500 for each Contract Year commencing with the 4th year. O Cinema snitt Oe solely responsible for and shall
for utilities used at the Faci
Max Sklar, ext. 6116
T:\AGENDA\20't D\O Cinema Agreement for Byron -
E MIAMIBEACH DATE ?-/0. //365
g MIAMI BEACH
City of Miomi Beoch, 'l 200 Convention Center Drive, Miomi Beoch, Florido 33,l 39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO:Mayor Philip Levine and Members of the City
FROM: Jimmy L. Morales, City Manager
DATE: September 10,2014 i, I
sUBJECT: A RESOLUTTON OF THE MAYO* AND CITY COMnilSSION OF THE CrTYOF MIAMI BEACH, FLORIDA, ACCEPTING THE WRITTEN
RECOMTTIENDATTON OF THE CITY MANAGER (AS SET FORTH lN THECITY COMMISSION MEMORANDUM AGCOMPANYING THIS
RESOLUTTON) AND WAIV|NG, By SnrH VOTE, THE COMPETTflVE
BIDDING REQUIREMENT, FINDING SUGH WAIVER TO BE IN THE BEST
INTEREST OF THE CITY, AND APPROVING, IN SUBSTANTIAL FORM, THE
ATTACHED AGREEMENT BETWEEN THE CITY AND LIVING ARTS
TRUST, INC. D/B/A O CINEMA FOR THE OPERATION AND MANAGEMENT
OF A PORTION OF THE BYRON CARLYLE THEATER, SUBJECT TO FINAL
NEGOTIATION OF SAME BETWEEN THE CITY ADMINISTRATION AND O
GINEMA, AND SUBJECT TO LEGAL REVIEW AND FORM APPROVAL OF
THE FINAL NEGOTIATED AGREEMENT BY THE CITY ATTORNEY'S
OFFIGE; SAID AGREEMENT HAVING AN lNlTlAL TERM OF FIVE (5)
YEARS, COMIT,IENCING ON OCTOBER 1, 2014, AND ENDING ON
SEPTEMBER 30, 2019, WITH AN OPTION TO EXTEND THE AGREEMENT
FOR UP TO F|VE (5) ADDTTTONAL YEARS (rN ETTHER ONE YEAR OR
MULTI.YEAR INCREMENTS, AS DETERMINED BY THE CITY), AT THE
CITY'S SOLE DISCRETION.
ADMINISTRATION RECOMMENDATION
O Cinema is a proven operator, with two other theater locations in Miami-Dade County, Florida
and, pursuant to Section 2-367(e) of the City Code, the City Manager is recommending the
waiver, by 5/7th vote, of the competitive bidding requirement, as being in the best interest of
the City.
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 "Theate/'), located at 500 71st 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. !n 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. The Theater continued to operate until it was sold by its owner, Wometco
Enterprises, when the City of Miami Beach purchased it in 2001, for $1.7 million.
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O Cinema Management Agreement for the Byrcn Cadyle Theater Complex
Commission Memorandum
September 10, 2014
Page 2
Phase I of the renovation of the Theater ($1.7 million) was completed by the City's Property
Management Division during approximately 16 months of design and construction for the
Theater on the eastern portion of the complex. The total seating capacity for the renovated
Theater is 304, with 158 seats in the orchestra level, and 138 seats in the mezzanine level, in
addition to eight ADA seats. Please see the attached Exhibit A for property details.
The western portion of the complex and certain back stage needs of the Theater were not
incorporated into the renovation due to space limitations and the need to not exceed 50% of
the value of the structure in renovation costs that would have required the whole structure to
be brought up to current code standards. These standards include the need to elevate the
floor to meet FEMA Flood Elevation requirements. Any new improvements done to the
western portion of the complex would also require the structure to comply with the current
Florida Building Code.
On April 13,2011, the Mayor and Commission adopted Resolution No. 201 1-27648, approving
a Management Agreement between the City and Stage Door Theater for the Byron Carlyle
Theater. TheAgreement had an initial term of five (5) years, commencing on May 1,2011
(Commencement Date) and ending on April 30, 2016 (Expiration Date). The City has the
option of renewing the Agreement, at its sole discretion, and provided that Stage Door is in
good standing, free of default, and has met its annual benchmarks, for up to five (5) years.
Under the Agreement the facility must only be used as a live theatrical entertainment venue
and public auditorium, and must operate on a year-round basis. Stage Door Theatre
terminated its management agreement with the City for the Byron Carlyle Theater, effective
June 1 ,2014, due to the unexpected death of its founder and president, David Torres.
LONG RANGE PLANNING
Long range planning efforts with the community in North Beach have identified the number
one goal of developing a vibrant commercial district with shopping, restaurants, culture and
entertainment to serve the needs of North Beach residents. The area bounded by 72 Street,
Collins Avenue, 69 Street and lndian Creek Drive/Dickens Avenue was selected to be the
"Town Cente/' due to its centralized location, high density CD-3 zoning and relatively
pedestrian-friendly streets (compare 71 Street with one lane of traffic in each direction to
Collins Ave with three lanes of one-way traffic or Normandy Village with 6 lanes of traffic). Two
retail market reviews have demonstrated the capacity of the population to support several
hundred thousand square feet of new retail development. Yet with no existing base of quality
retail stores to build from, it has been recognized that significant planning and public
investment would be required to attract the desired mix of private investment.
The North Beach Town Center Plan, adopted July 2007, identifies a wide range of strategies
to attract new development to the Town Center. The most important of the strategies identified
included 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. lndeed, the purchase and renovation of the theater was intended
for economic development purposes, as well as to assist local talent by providing a venue for
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O Cinema Management Agrcement for the Byrcn Cadyle Theater Complex
Commission Memorandum
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Page 3
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.
ln considering these uses, it is important to also consider what the desired short-term and long
term use of the site should be. Long term uses of the Byron are being considered by the
Mayor's Blue Ribbon Panel on North Beach and are part of the North Beach Revitalization
Plan that staff is preparing. Both the Panel and staff have been considering the need for a
commercial anchor and civic use needs, as well as the development potential available on the
site beyond what is utilized by the existing building. The Byron Carlyle Theater property was
also 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. lndeed, 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, other supporting
elements of the plan would need to be in place. Nonetheless, there continues to be much
discussion regarding the use of the Byron Carlyle and its role in the revitalization of the 71't
Street corridor.
Mayor Levine and Commissioner Malakoff both placed discussion items on the July 23,2014
City Commission agenda to consider O Cinema as a tenant for the Byron Carlyle Theater.
Following discussion the City Commission unanimously approved a motion directing City staff
to negotiate an agreement with O Cinema to be brought back for consideration. Mayo/s Blue
Ribbon Panel on North Beach at their meeting held on July 24,2014 unanimously adopted a
motion supporting O Cinema's use of the Byron Carlyle Theater. O Cinema is a proven
operator, with two other theater locations in Miami-Dade County, Florida and has the capacity
and experience to successfully operate the Byron Carlyle Theater. Pursuant to Section 2-367
of the City code, the City Manager is recommending the waiver, by 5/7th vote, of the
competitive bidding requirement, as being in the best interest of the City, in connection with
execution of a management agreement between the City and Living Arts Trust, lnc. d/b/a O
Cinema for the operation and management of a portion of the Byron Carlyle Theater.
MANAGEMENT AGREEMENT
The following are the agreed upon terms negotiated by the City and O Cinema:
lnitialTerm:This Agreement shall be for an initial term of five (5) years,
commencing on October 1, 2014 (Commencement Date), and
ending on the September 30, 2019 (Expiration Date), unless
earlier terminated pursuant to the provisions of the Agreement
The City has the option of renewing the Agreement, at its sole
discretion, and provided that O Cinema 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 O Cinema.
ln the event O Cinema decides not to renew the Agreement, it
shall also provide the City with at least 365 days notice prior to
the expiration of the initialterm.
RenewalTerm:
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O Cinema Management Agreement for the Byron Carlyle Theater Complex
Commission Memorandum
September 10, 2014
Page 4
Scope of Services:
Required Number of Events:
O Cinema 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, O Cinema 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.
O Cinema shall use the Facility solely and exclusively as a venue
for its not-for-profit motion picture presentation company. The
Facility shall be used primarily as venue for first-run independent,
foreign, art, and family films. The venue may also be used as a
live theatrical entertainment venue and public auditorium, or any
combination thereof, and for such ancillary uses as are
customarily related to such primary use, including, without
limitation, broadcasting, recording, filming, private parties or
functions, food and beverage concessions, in each case in
conjunction with an Event 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.
ln order to ensure the continuous operation of the Facility, and
commencing on the October 1, 2014 O Cinema shall cause at
least 500 Events to be held at the Facility for each Contract Year
(and proportionately for any partial Contract Year) during the
Term. The aforesaid 500 Events shall be calculated by counting
each separate Event in a Run.
O Cinema 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 uses shall conclude prior to 3:00 a.m. unless otherwise
approved by the City Manager, in writing; provided, however, that
O Cinema's employees and/or contractors may be permitted to
remain at the Facility beyond 3:00 am in the event that same is
necessary for purposes of taking down and/or dismantling a
production, cleaning the Facility after a performance, etc., so long
as O Cinema's activities at the Facility during this time do not
disrupt and/or negatively impact the surrounding neighborhood.
Resident Ticket Program:
O Cinema 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 (1OYo) discount off of the full face value pricing shall be
made available to such City of Miami Beach residents ("Resident
Tickets") for a minimum of one film screening per month.
Public Benefits Program:
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O Cinema Management Agreement forthe Byrcn Cadyle Theater Complex
Commission Memorandum
September 10, 2014
Page 5
Base Use Fee:
Operating Expenses:
Capital Fund:
S e n i o r/St u d e nt T i c ket s :
O Cinema shall participate at minimum once per month in the
Golden Ticket and Culture Shock programs offered by Miami-
Dade County
Complimentary Tickets:
Pursuant to City Resolution No. 2014- 28638, City shall be
entitled to receive fourteen (14) complimentary tickets per quarter
(every 3 months) for any regular film screening at the Facility that
is open to the general public, including those presented or
promoted by O Cinema and including third party rentals subject
to the provisions of this Agreement. Tickets will be used by the
City for deserving non-profit organizations and/or groups on a
rotating basis. The list of deserving organizations and/or groups
eligible to receive tickets shall include the following categories:o Non-profit {legally established tax-exempt) agencies who
serve residents of the City of Miami Beach, for distribution to
individuals served by the agency;o Local educational institutions for use by deserving students;
and. Senior citizen, disabled persons, and disadvantaged youth
who: are residents of the City; do not have the financial ability
to purchase tickets; and, participate in any City-sponsored
program.
For the Term of the Agreement, O Cinema shall pay City an
annual Use Fee for the right to use the Facility as follows:
1. ln the amount of $2,500 annually for the first three (3) years in
consideration for O Cinema's investments of equipment,
staffing, marketing and improvements;
2. Commencing with the fourth (4) year, O Cinema will provide
the city payment for use in the form of 1Oo/o of all net ticket
and concession revenues generated from O Cinema Miami
Beach, but not less than $5,000, (net to be understood as
after cost of concession goods and film distributor payments);
and
3. An annual increase of 1o/o per year for every year thereafter
but not to exceed 20o/o of total revenues across the life of the
Agreement or subsequent renewal options.
O Cinema shall pay all costs and expenses related to Operating
Expenses.
To help defray the cost of certain major capital repairs and
replacements to the Facility, Stage Door shall make annual
contributions to a Capital Fund to be held and disbursed by City.
The annual contribution shall be Two Thousand Five Hundred
Dollars ($ 2,500) for each Contract Year commencing with the
fourth year throughout the Term.
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Commission Memorandum
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Valet Parking:
O Cinema Management Agreement forthe Byron Carlyle Theater Complex
Exterior Signage:
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
City Manager shall have the authority to negotiate and enter into
such agreements with respect thereto, as the City Manager
deems acceptable.
lf the City exercises its right to provide valet parking to the
Facility, then O Cinema 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 O Cinema shall have
first right of refusal to provide valet parking or to contract with a
third party for valet parking at the Facility, at O Cinema's sole
cost and expense. The City will have six (6) months of the
Commencement Date to exercise this right.
O Cinema shall provide, at its sole expense and responsibility,
any required signs at the Facility. All signage shall be approved
by the City, and shall be in accordance with all applicable
Municipal, County, State and Federal laws and regulations. Any
signage shall be subject to the prior approval of the City as to
size, shape and placement of same.
O Cinema shall own and retain all ownership rights to the name
"O Cinema Miami Beach;" provided, however, that, throughout
the Term (or other duration) of this Agreement, O Cinema does
hereby grant, permit, and consent to the City's right to use
(and/or reproduce) the "O Cinema Miami Beach" name, at no
charge, for purposes consistent with the intent and stated uses
of the Agreement including, without limitation, for the purpose of
identifying and promoting the Facility, and/or for such other
public purposes as the City Manager, in his/her sole and
reasonable discretion, may deem necessary. ln the event that
this Agreement is terminated and/or otherwise expires, then the
City shall discontinue the use of the name "O Cinema Miami
Beach" for the Facility, effective contemporaneous with the date
that O Cinema ceases to manage and operate the Facility.
Notwithstanding the preceding paragraph, the City Commission's
consent and approval shall be required if O Cinema seeks to
change the name of the Facility to anything other than "O
Cinema Miami Beach," and any such name change must be
approved by a 517 vote of the City Commission.
O Cinema 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
limitation, any sponsorship names) are subject to the City
lnterior Signage:
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O Cinema Management Agreement forthe Byrcn Calyle Theater Complex
Commission Memorandum
September 10, 2014
Page 7
Annual Plan:
Use by City:
Utilities:
Manager's prior written approval, which shall not unreasonably
be withheld, conditioned or delayed. ln 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 O Cinema 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.
Commencing upon October 1, 2015, O Cinema shall provide to
the City on or before June 1tt 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 O Cinema'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 knownat such time), and planned equipment and furnishings
purchases. O Cinema 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 O
Cinema's fulfillment of its obligations hereunder.
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 his/her 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, film screenings, special events, or Events
booked or sponsored by O Cinema, and shall be booked in
advance upon reasonable notice.
O Cinema shall be solely responsible for and shall pay (whether
to the City or directly to the utility) before delinquency, 69% of all
charges for utilities used at the Facility (including, without
limitation, water, electricity, gas, heating, cooling, telephone,
sewer).
The O Cinema shall, at its sole cost and expense, have sole
responsibility for basic maintenance to be performed on a regular
basis on all facilities, improvements, and facilities and utilities
infrastructure equipment at the Facility. Any and all repairs or
replacement of the same is the responsibility of the City. O
Cinema shall, at its sole cost and expense, and to the satisfaction
Maintenance:
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O Cinema Management Agrcement for the Byrcn Carlyle Theater Complex
Commission Memorandum
September 10, 2014
Page I
of the City, keep and maintain the Facility, and all improvements
thereon, in good, clean, and sanitary order. O Cinema 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 O Cinema herein
agrees to be bound by, the minimum maintenance standards set
forth in Exhibit "C" to this Agreement, entitled "City of Miami
Beach Minimum Specifications for Maintenance of the Miami
Beach Byron Carlyle Theater." lt is further understood that O
Cinema shall provide the City with a quarterly maintenance
report, in a format to be approved by the City Manager.
Termination for Convenience: The City reserves and retains the right, at its sole option and
discretion, to terminate this Agreement, without cause and
without penalty, with regard to O Cinema's rights and
responsibilities with respect to the operation, management,
maintenance, promotion and marketing of the Facility, upon three
hundred sixty-five (365) days prior written notice to O Cinema.
ADMINISTRATION RECOMMENDATION
The City Manager recommends that the Mayor and City Commission of the City of Miami
Beach, Florida adopt the Resolution waiving, by snth vote, the competitive bidding
requirement and approving and authorizing the Mayor And City Clerk to execute an
agreement between the City and Living Arts Trust, lnc. D.B.A. O Cinema for the operation and
management of a portion of the Byron Carlyle Theater; said agreement having an initial term
of five (5) years, commencing on October 1,2014, and ending on September 30, 2019, 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.
T:\AGENDA\201 4\September\TCED\O Cinema Agreement for Byron - Memo.doc
373
MANAGEMENT AGREEMENT BETWEEN
THE GITY OF MIAMI BEACH. FLORIDA
AND
LIVING ARTS TRUST. INC. D.B.A O CINEMA
FOR THE MANAGEMENT OF A PORTION OF THE BYRON.GARLYLE THEATER
THIS AGREEMENT, is made and executed as of this _ day of _, 2014 (Effective
Date), by and between the CITY OF MIAM! BEACH, a municipal corporation organized and
existing under the laws of the State of Florida whose address is 1700 Convention Center Drive,
Miad lh*f, Florida 331ffi {Cey}, and the Living Arts Trust, lnc. d.b.a. O ctrin* r
not&r-profit ogqygration rfiose prMpal address is, 2401 Swanson Ave, Miami, Fl *1133 (O
cir&&a). 'i; ,ll :,
i '.;l ,:i ,i,,.
.:., aiit. '::ii ',-.,t,.' ,:'; '"'' BA6KGR9UND ;r;'
r ,:. r
',:rt City is the.$rvner d tne Bldon Carlyle Theater (the Theater), located at 500 d Street,
Miaffii Beach, ffioa 3t1+t; incttsing that portion of the Theater that is subi$ to the
' : ':: i';l
'Agrilment and.ilhich is more p*tcularly described and depicted in Exhibit "A'rilttached
he@;ry{ffie a part hrpof (the "(6ititf).
O Cinema is a Florida not-for-profit (501(c)3) that showcases cutting-edge, non-profit,
independent cinema with locations in Miami's Wynwood Arts District and the Village of Miami
Shores. O Cinema is a community based mission driven art house showcasing first-run
independent, foreign, art, and family films.
At its regular meeting on July 23, 2014, the Mayor and City Commission directed the
City Administration to negotiate an agreement with O Cinema for the management of the
Facility.
On September 10, 2014, the City Commission adopted Resolution No.
approving an agreement with O Cinema for management of the Facility.
374
City desires to engage O Cinema, and O Cinema 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 specifi-e.d,_entity. For purposes of
this definition, ncontrol" means ownership of equis*Furities or drr wmhip interests which
represent more than 51% ofthe voting power in thr wrtrolled entty.
"gjty' -- as defined in the first paragraptrd thii,Agreemefr.
"Qjlyl]@lssiono - the governing and*gista!!!& body of ' o G&p
"9j!Wg!rci' -- the chief executive tcer of ffiCity or trch person as may ftom time
to time be authorized in writing by such aO ti"f to rd for him/her with respect to
any or all matters pertaining to this Agreem*tt }}
'CoFmencement Date" -- as defin00 in Section 2.
: ''
"CoI]!racl-@f'- each one year period beginning October 1't, and ending September
3oth.
"Effg!]t!vl2-Da]c," - provided that this Agreement has been approved by the City
Commission and executed by City and O Cinema, the date as defined in the first paragraph of
this Agreement.
uEvent' -- 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.
"Even't Expenses" -- any and all expenses incurred or payments made by O Cinema in
connection with the occurrence of an Event at the Facility, including, but not limited to, costs for
375
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.
"Fatji.[!y" - as defined in the Background Section of this Agreement and as depicted in
Exhibit "A" hereto.
"FiscalYea/'-- each one year period beginning July 1't and ending June 30th.
"Governmental Requirements" -- all laws, ordinances, rules, regulations, statutes,
policies and procedures (including administrative guidelines), and other legal requirements of
any governmental body or authority or any agency thereof (including, without limitation, federal,
Statg,Qm$1 and munic[p$ : ..,".r&xr.
{"5, ) ': -'
. 'Net {ilF*atinq L:;mfb/Profif -- with respect to a Fiscal Year, the effiess, *i any, of
Opqting Expet*is for *h Fiscal lbar over Operating Revenues for such Fiscal Y*, in the
car,',of a loss,,ilU tne,lxcess, iliiny, of Operating Revenues for such Fiscal &, or"r"";
Opfqting Expen*K for #SlredYear, in the case of a profit. ' ';"
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,'. "o cinenqF'- as ffined.&r'tre first paragraph of this Agreement. ifrl.; .r'.:1 "!' :-,',#
&t "OperatifF.rExpeilies" -- dqr and all expenses and expenditures of whatevi$kind or
na(&b incurre4iffrectly c{ndirectlyr$ O Cinema in promoting, operating, maintainin$,hsuring
:,1:,,anC"{ffiStsl'the Facili$, including, but not limited to: employee compensation a4t related
expenses (e.9., base salaries, bonuses, severance and car allowances), employee benefits and
related costs (e.9., relocation and other related expenses pursuant to O Cinema'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, 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,
maintenance costs, artist and talent fees, costs, and expenses, show settlement charges,
security expenses, travel and entertainment expenses in accordance with O Cinema's normal
policies, the cost of employee uniforms, safety and medical expenses, exterminator and waste
376
disposal costs, costs relating to the maintenance of signage inventory and systems, the cost of
compliance with Governmental Requirements, all utility costs will be split based on the
proportional use of the City as defined herein in Exhibit "A", all premiums for insurance carried
by O Cinema 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
O Cinema, 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.
"Operatinq 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
conoss3ion fees, rentalq ,ffiUres from merchandise sales, advertieing stq3o.._,!$ffi@
rentals, box ofiice revenulE, food g,vice and concession revenues (howevel if suc?i,@nues
are collected in the first,&tance ffir'and retained by the concessionaire, only the tl*ount of
such revenues paid by.. concolionaire to the Facility shall be included as S&erating
Revenues), commissionr or othtr revenues from decoration and set-up, security lfid other
subcontractors (however, t suefi Dvenues are collected in the first instance by and rftned by
such subcontractors, onlytre amourt of such revenues paid by such contractors to tfil,Facility
shall be included as Qpsrating 'Rcvenues), miscellaneous operating revenues, .,:&lvenues
generated ftux separaE agreemqrb with O Cinema Affiliates pertaining to thir,Facility,
sponsonship revenues, and interest rarenues, 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 O Cinema 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 O Cinema
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 shg!!!.g!, 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.
"M" -- A sequence of performances of the same film.
377
"@" - as defined in Section 2; provided, however, if this Agreement is extended for a
RenewalTerm, all references to "Term" contained herein shall also include the RenewalTerm.
SECTION 2. TERM.
2.1 lnitialTerm. This Agreement shall be for an initial term of five (5) years,
commencing on October 1,2014 (Commencement Date), and ending on the September 30,
2019 (Expiration Date), unless earlier terminated pursuant to the provisions of this Agreement.
2.2 RenewalTerm(s). 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 O Cinema with not less than 365 days prior written
notica prior to the Expiration Date, or the expiratioo,&te of a Renaxd T,!raI; as the use may be,
and provided further that O Cinema has met all of,.Ouiollowing cqrrditions:
(i) not less than 365 days rrtr rr$re than 738:days prior to the Expiration
Date, O Cinema shall provide the City.,*Ih ,,*en noticl $he Exercise Notice) stating
that O Cinema desiree to exercise the ffiewal&ion for a Qqpgry{ Term. Time shatl be
fails to provide the
shall expire and shall not
(ii) both at the time that @inema deliv*u its Ecrcise Notice and at the time
the Renewal Term (for which the o&n is being e ncised) would othenrise cqnmence,
O Cinema shall not be in default under this Agreement; and
(iii) O Cinema shall have achieved, complied with, and/or otherwise met all of
the benchmarks set forth in Exhibit "8" 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 O Cinema shall
be demonstrated and evidenced to the reasonable satisfaction of the City Manager or
his/her designee. As to this condition (iii) only, in the event that O Cinema 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 his/her designee), then the City
Commission, at its sole option and discretion, may waive the requirements of condition
(iii), and proceed to extend this Agreement.
378
ln the event the conditions of (i) through (iii) are not met, then this Agreement shall
expire at the end of the lnitial 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 O Cinema 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.
SEGTION 3. BYRON CARLYLE THEATER FACILIry.
4.1
. .k .Facility subied &o this Agreement shall be those facilitiee an**
sp "'{tmibed in &ri6ft 'A', ittached and incorporated herein. Subje& fu
this*greemenll&Cinernl:shall han the primary use and sole occupation of the Fffiity and
..:al:sn#5e responsi* for itl$anagerffirt and maintenance, as further set forth herein. .1,
', ' ,x{ i*.
'' I ;.-, ,iT,'':i'; sEcnoNit op AND MANAGEMENT oF THE ByRoN cARLyLEffi
:1,
Cily hereby engages O Cinema to operate, manage,.',fraintain,
oi
::)1 ilrirri'
:, 16i-.:.,.- ,. ..1pr@te and m&t the hcility duing the Term, upon the terms and conditions her{ilfter set
.''
4.2 Manaqer of the Facilitv. O Cinema 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, O Cinema 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. !n such capacity, except as otherwise expressly
reserved under this Agreement to the City, and/or except for such matters as are subject to the
approval of the City or City Manager, O Cinema 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. O Cinema shall use the Facility solely and exclusively as
a venue for its not-for-profit motion picture presentation company. The Facility shall be
used primarily as venue for first-run independent, foreign, art, and family films. The
379
venue may also be used as a live theatrical entertainment venue and public auditorium,
or any combination thereof, and for such ancillary uses as are customarily related to
such primary use, including, without limitation, broadcasting, recording, filming, private
parties or functions, food and beverage concessions, in each case in conjunction with an
Event 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"):
1 .1 .a) Cinema ,{
1 .1.b) Performance theater;
1.1.c) Carpentry shop;
1.1.d) Carpentry and set storage;
1 .1.e) Theatrical equipment storrye;
1 .1.fl Rehearsal spaoe;
1.1.o) O Cinema's administrative ofiies;
1.1.h) Cafeteria for O Cinema's employees;
1.1.i) Food and beverage concession;
1 .1 .j) Sale of merchandise related to an Event then being held;
1 .1 .k) Private parties and/or functions in conjunctions with an Event then
being held;
1.1.1) As an ancillary use, third party rentals as may occurfrom time to
time;
1.1.m) The movie theater projector and full screen.
No other uses shall be permitted without the prior written approval of the City
Manager, which approval may be granted or withheld in his/her sole discretion. Any such
other use which the City Manager approves must, however, be in accordance with (i) the
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380
Articles of lncorporation and other charter documents of O Cinema; (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. lt is understood and agreed that the Facility shall be
used by O Cinema 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) O Cinema 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) O
Onema may not commit waste on the F4*, use the e *ny illegal pr?*,
commit a nuisane on the Facitity, or allowffioxic, hazadous or dangerous substance
to be brought into the Facility or stored fiir$,(other th*r small quantities of materials
customarily used k the operation of a lti th#cal perfmrance venue, whidr shall be
used and stored in compliance with
the Facility for any purposes not
City Manager mey declare this Itrdefault std, in addition to all other
remedies available to City, restrain sflfr improperFe by ft$,rnction or other legal action,
with or without notice to O Cinema.
4.3 Cessation/Suspension of Approved Use(s) and/or Business Activitv(ies).
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(s)
and/or business activity(ies) has been approved by the City Manager, and the City Manager
thereaftel upon reasonable inquiry, determines that the continuation of such use(s) and/or
activity(ies) is, or may be, inconsistent, contrary to, and/or detrimental to the Permitted Uses set
forth in this Agreement, and/or to the health, safety and/or welfare of the residents of and
visitors to the City of Miami Beach, then the City Manager, upon thirty (30) days prior written
notice to O Cinema of same, may revoke, suspend, and/or otherwise disallow the objectionable
uses(s) and/or business activity(ies), and O Cinema shall immediately cease and desist in
providing, and/or continuing with, said use(s) and/or business activity(ies) within the time period
and in the manner prescribed in the City's notice. ln the alternative, the City Manager and/or his
ln i +,fm.tffrat o Cincma uses
l . "rlr. 'l'hfr*1, t?r€fi'the City through its
381
designee may allow O Cinema 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 his/her sole and reasonable discretion and judgment.
SEGTION 5. SCOPE OF SERVICES.
5.1 General. O Cinema 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 Required Number of Events: Continuous Operation: Conclusion of Events.
,ffit" the contir*puo qperation of the Facility, and commsrcing oo-..f$$€
caule at leid500 Events to be held at the Facility for ea€lt
' .-.. 1(adproportion*y for gQ partial Qpntract Year) during the Term. The aforesaid SffiEvents
1,'i:sh*$e calculatr*.by coffing eachlparate Event in a Run. .i;i.
,,':;,
.:t:i l'tiirl. !.&: ii!:;,.i1i..,.,:'i O Cinema,'$.rall cmfrrFacility to be open on a year round basis, subject t*tlosures
": ?'!:
for:ilasonable psods tr rehcaal, set design, repairs, mainbnance and alter#rs. All
;),:EvcS and all S sh* concludt'prior to 3:00 a.m. unless othenrise approved ffie City
;;."r;:: t.r.:: G;ill.,.:.r:' t.....- N:.W
ry; provhhd, howoltr, that O Cinema's employoes and/or contractcffi;nay be
peliiMr&XX&?fiain at thl Facility tayond 3:00 am in the event that same is neciiiary for
purptiSU$i''rif'taking down and/or dsmantling a production, cleaning the Facility' after a
performance, etc., so long as O Cinema's activities at the Facility during this time do not disrupt
and/or negatively impact the surrounding neighborhood. ln the event of such disruption, the
City Manager and/or his/her designee shall have the right to either strictly enforce the hours of
operation, or impose reasonable guidelines upon O Cinema as a condition to keeping the
Facility open for the aforestated purposes (beyond 3:00 AM)
Bookino Policies. The City and O Cinema agree and acknowledge that the Facility must
primarily be used by O Cinema for cinematic movie screenings, but that O Cinema may also,
from time to time, rent the Facility to third party presenters consistent with the terms herein.
Except as otherwise provided herein, O Cinema shall have the sole authority to approve the
scheduling of any Event in the Facility and Events requiring or having co-promotions. O Cinema
shall have no obligation, however, to book any type or category of Events (or specific Event)
that are unprofitable, as reasonably determined by O Cinema. Notwithstanding the preceding,
382
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 O Cinema within thirty (30) days after the City
Manager has received the quarterly booking report from O Cinema that specifies the potential
Event.
5.3 Specific Services. Without limiting the generality of the foregoing, O Cinema
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 O Cinema in a manner consister*{frh the management and qryilffi*{pr
similar first class facilities: -, , ,5.3.1 employ, supervise, and &ctd employees and personnel ffrsistent
with the provisions of this Agreement. # em&rees shall be employees of $,Finema,
its Affiliates or third parties, and not d.Sity &,&inera shall be solely resp#ible for
assuring s.tat the Facility is adequatfi competent, qualified peffnnel to
ifr*fulfill its responsibilities underthisAgffiS$,,'t'1',
.i$
5.3.2 administer relationsffi with all thirdparties (including, without,ffiitation,
entering into contracts and licens{* for the food ffi beverage concession* 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{itle 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,
383
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) O Cinema 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 O Cinema and a subsidiary and/orAffiliate compeqll:$t$l be at terms and for
prices customarily charged by such sub#f& and/or AflH& 6nFany for compmble
goods and servicee elsewhere at rates tm.auf€ompetitivcrithin the industry;
5.3.4 ma&:tain the Facility , withot* limitation, all structural
componente thereof and all electrical, SnC, ti{bafetV, ryry+ plumbing and other
systems and equipment) in a good ar*tban cffiition c$tstentfiith other similar first
class facilities and in compliance w**l*'Oqlffimental &quirements, ordinary wear
and tear, and casualty loss excepte& Maintenamii respOmibility shall include, without
limitation, preventative and any drd all other mainthnce and as required in
Exhlbit "C" to this Agreement (ent#ed "City of Mian{ Beacfi Minimum Specificdions for
Maintenance of the Miami Beach Byron Carlyle Theate/'). O Cinema shall maintain in
full force and effect service contracts with qualified and licensed service providers with
respect to HVAC, roof and elevator systems unless O Cinema warrants and represents
to City Manager, in writing, that O Cinema 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.
O Cinema shall keep on-site maintenance manuals and records reflecting all of O
Cinema's maintenance activities, all of which shall be available for inspection by the City
Manager upon request. O Cinema 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.
384
O Cinema warrants and represents to City that, prior to the Effective Date, O
Cinema inspected the Facility, and O Cinema hereby accepts the Facility "as-is, where-is
and with allfaults.". The aforementioned notwithstanding, the City has identified a variety
of repairs needed to the facility which it has agreed to address prior to and within 6
months of the commencement date of this agreement. Those repairs are listed in
"Attachment F". ln addition, the city shall ensure that all equipment, bathroom,
plumbing, HVAC, fire extinguishers, fire alarms, and smoke detectors are in working
order and that the building is up to applicable codes before commencement date of this
agreement.
5.3.5 rent, lease, or purchase all equipment and maintenance supplies
":'.'.fury or appqf&&furgne operation and maintenanoe of the Fadl$6 '.,rr@,:,:
l ':t'
i,,r W es'i'ftisn and adjust prices, rates and rate schedules for the,**resaid
: licenses, fr""mi* ano co$acts, and any other comrnitments relating to tffiFacility
r to be neg&teO EyO Cinmu in the course of its management, operation, boii*tng and
, :i':ji;' promotion,X the flsfrf provided, however, that o cinema shall, on or {Fre the
:: Commenrilhent 6ie, srfrtit its proposed initial rates and rate schedule t$,frre City' ,, ]
* Manager ilir hiqilfDr revlffi and approval (which review/approval sha$hot be_ r .i$.li.t , ... -"{".
,,.. unreaetltbly witlttld, condffiOned ol delayed) and, thereafter O Cinema sh$'consult. '.,.:.:. . -,........
City Ma{fier about eny adjustments to the rates and rate schedd* at the
Facility to be made by O Cinema, prior to O Cinema's implementation of same;
5.3.7 pay when due, on behalf of the City, all Operating Expenses from O
Cinema's own funds;
5.3.8 after consultation with the City Manager and the CityAttorney, 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 O Cinema's own behalf (and not as agent for City) without consultation or
385
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 O Cinema 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 dayto-day administrative services in support of rls T"..:t?9!.nt
activities to ensure that the Facility shall tr*operated, ms$, 'Irrd,,fnf s:iltd
performed in a first class manner consistffi ffir similar fir*. class facilities inc$ng, but
"lnot limited to, acquisition of services, Ctt,ipf,ant, supplf,p and facilities, m{#nance
billing; and similar services;
ng;
5.3.11 engage in advertising,
effectively market the Facility anO t**nts. ' tn Cihnecticl with its activitiesrrecticl with its activities {ffiler the
terms of this Agreement, O Cinema*tt O" permiH to uQ! the logo anO bra*&identity
of the City of Miami Beach, and of thf Facility, as appnoved!y the City Managef,
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 CityAgreements;
5.3.15 Except as otherwise approved by the City Manager, O Cinema shall not
license or allow the use of any portion of the Facility to other than short-term users (i.e.,
less than thirty (30) consecutive days). O Cinema 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
**,0 promiiion"l activities neffisary to
' .., tz:..
r 'ffinectier with its activities i*ler the
386
concessionaires. All liability policies shall name the City and O Cinema as additional
insureds. O Cinema 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. O Cinema'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 "D" hereto.
5.3.16 Resident Ticket Prooram. O Cinema 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
ofi of the full face value pricing shall be tde available&(lr*l,,r$ty of Miami Beach
residents ("Resident Tickets') for a minimun qf one film sQening per month. O Cinema
reserves the right to require proof of$$ity':residency imluding, but not limited to,
government photo lD, utility bill, school,fr or" dler similafi credible indicia of residency.
For these purposes, the foregoing R{Sent W<ets sh*,h;:f to the following
rules: 1) Alltickets,Shall be sold on a fiilt comej,,hst shall be available
at the Facility box office; 2) The tyF. Clti*n of Sting for all ticketa shall be
determined by O Cinema, in its sole*cretion, bt*shall ildude a full range of all ticket
prices; and 3) O Ginema shall havffhe right to $ryrulO1& additional reasonable rules
concerning such sales so long as lf,nre are consistcnt urftr the terms hereof to assure
the efficient operation of the program and compliance with these terms and conditions.
5.3.17 O Cinema shall participate at minimum once per month in the Golden
Ticket and Culture Shock programs offered by Miami-Dade County
5.3.18Complimentarv Tickets. Pursuant to City Resolution No. 2014- 28638,
City shall be entitled to receive fourteen (14) complimentary tickets per quarter (every 3
months) for any regular film screening at the Facility that is open to the general public,
including those presented or promoted by O Cinema and including third party rentals
subject to the provisions of this Agreement. Tickets will be used by the City for
deserving non-profit organizations and/or groups on a rotating basis. The list of
deserving organizations and/or groups eligible to receive tickets shall include the
following categories:
387
' Non-profit {legally established tax-exempt) agencies who serve residents of the
City of Miami Beach, for distribution to individuals served by the agency;
. Local educational institutions for use by deserving students; and
. Senior citizen, disabled persons, and disadvantaged youth who: are residents of
the City; do not have the financial ability to purchase tickets; and, participate in
any City-sponsored program.
City may not engage in the sale or re-sale of the complimentary tickets. Under no
circumstances shall City be entitled to "roll ove/' or "carry forward" 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 O
Cinema'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. O Cinema 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, O Cinema shal! provide a contact to the City
from whom the City can conveniently secure the complimentary tickets.
sEcTloN 6. CoMPENSATION TO THE Grry FOR USE OF THE FACtLtry (USE FEE).
0 Base Use Fee. For the Term of the Agreement, O Cinema shall pay City an annual
Use Fee for the right to use the Facility as follows.
a) in the amount of-$2,500.00-for the first three (3) years in consideration for O
Cinema's investments of equipment, staffing, marketing and improvements;.
b) Commencing with the fourth (4) year, O Cinema will provide the city payment for
rent in the form of 10o/o of all net ticket and concession revenues generated from
O Cinema Miami Beach (net to be understood as after cost of all expenses) and
not to be less than $5,000.00 per year; and
c) An annual increase of 1o/o per year for every year thereafter but not to exceed
2Oo/o of total net revenues across the life of the Agreement or subsequent renewal
options.
388
All payments are payable quarterly for the previous three months of activities
without demand, commencing on the Commencement Date and thereafter on the first day of
each Contract Year. lf the Commencement Date occurs on a day other than the first day of a
calendar month, the first Contract Year shall include the partial month on which the
Commencement Date occurs and the following twelve (12) calendar months. The Base Use
Fee (and all other amounts due hereunder) shall be paid to City in legal tender of the United
States of America at the following address: Tourism, Culture, and Economic Development
Department, 1700 Convention Center Drive, Miami Beach, Florida 33139; or at such other
place that City may from time to time designate by notice in writing.
6.2 Additional Fees and Charoe. ln addition to the Base Use Fee as set forth in
subsection 6.1, O Cinema shallalso be responsibl'fir payment of$ry,,ptq$ngAdditia*xl Fees
and Charges:
6.1.2 Taxes: lmposition. O
't -'
be rQonsible for all proprty tax
payments, ta<es and impositior*r Th$Srties artdpate that the Byron Carlyle
Theater is tax exempt; howevgry,iin tne1*iFnt tnat,-**i*&Dirty tax payment (or
any other tax and/or impositio$qis regg..i$# in coffiction with the Facility, or in
connection with O Cinema'snl$liif;'W;FacilitX O Cinema has the right to
terminate this agreement wiplut penalty lf,provi*g g0 days notice to the city
at which point the city shall,I* solely respffile S.such payment(s).
6.1.3 Operatino Expenses. O Cinema shall pay all costs and expenses related
to Operating Expenses. O Cinema hereby irrevocably and unconditionally
guarantees to the City that Operating Revenues shall at all times be sufficient to
pay as and when due all Operating Expenses and any and all other amounts that
O Cinema is obligated to pay pursuant to this Agreement, and further covenants
and agrees that if at any time there are insufficient Operating Revenues to pay all
of the foregoing amounts, as and when required, O Cinema shall immediately
pay the difference from O Cinema's own funds. This obligation is absolute and
unconditional and shall even apply if Operating Revenues are reduced or limited
by facts or circumstances not contemplated by the parties or for reasons beyond
the parties' control. The provisions of this Section 6.2.2 shall survive any
termination or expiration of this Agreement.
389
6.1.4 Establishment and Use of Capital Fund: Contributions. To help defray the
cost of certain major capital repairs and replacements to the Facility (including,
without limitation, all structural components thereof, and all HVAC, life safety,
mechanical or other systems, plumbing and sewer lines, roof, etc.), beginning
with the fourth year of the Agreement, O Cinema shall make annual contributions
to a fund (the "Capital Fund") to be held and disbursed by City, at the sole and
reasonable discretion of the City Manager and his/her designee.
The annual contribution shall be Two Thousand Five Hundred Dollars ($
2,500) for each Contract Year commencing with the fourth year throughout the
Term. Contributions to the Capital Fund shall be made in equal monthly
installmenb'oolnmencingontheffiencement.ffishallbedueonor
before the first day of each calendgrr$ntn thereafrr throughout the Term.
Notwithstanding the preceding paragraph, or this subsection 6.2.3, O Cinema
shall not be responsible for paying for major capital improvements or
infrastructure within the Facility.
6.1.5 SalesTax. O Cinema 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 O Cinema.
SECTION 7 - INTENTIONALLY OMITTED
SECTION 8. RIGHTS RESERVED TO CITY
390
8.1 Riqhts of Entrv. 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
O Cinema 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 O Cinema hereunder, and the City's actions shall be conducted such that
disruption of O Cinema'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
dim*ilf,tt.?&.rights of CiS,.iails governmental capacity). Nothing in this
confHued :gry independent obligation to make repai*,
lmrovemqfi or perform any maintenance or create any inffendent'at"
rt i,tl
i-q*ni-
+9#1.
itli l
8.2
rigl.{* to provide.';b'. the Facility, and (ii) all proceeds from the
authority to negotiate and enter into such agreements with respect thereto, as the City Manager
deems acceptable.
lf the City exercises its right to provide valet parking to the Facility, then O Cinema 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 O Cinema shall have first right of refusal to provide valet parking or to contract with
a third party for valet parking at the Facility, at O Cinema's sole cost and expense. The City will
have six (6) months of the Commencement Date to exercise this right.
8.3 Sionaoe. The following provisions shall govern the name-in-title rights, interior
naming rights, and the related signage rights with respect to the Facility:
391
O Cinema shall provide, at its sole expense and responsibility, any required signs
at the Facility. All signage shall be approved by the City, and shall be in accordance with
all applicable Municipal, County, State and Federal laws and regulations. Any signage
shall be subject to the prior approval of the City as to size, shape and placement of
same.
O Cinema shall own and retain all ownership rights to the name "O Cinema
Miami Beach;" provided, however, that, throughout the Term (or other duration) of this
Agreement, O Cinema does hereby grant, permit, and consent to the City's right to use
(and/or reproduce) the "O Cinema Miami Beach" name, at no charge, for purposes
consistent with the intent and stated uses of the Agreement including, without limitation,
for the purpose of identifying and promotiae the Facility, ?$q.ry such other,.public
purposes as the City Manager, in his/her.$ and reamriHi drdion, rnii aeem
necessary. ln the event that this Agreenqgt fiflBrminateO $Olor otherwise expircs, thenTXXI *flen
&r{&
Notwithstanding the
approval shall be required if O
anything other than "O Cinema
appro\red by a 517 vote of the City
,i
the CffiCommission's conrent and
name of the Frcility to
f ,nr?ch name chango must be
'' 'l1l:'t. i
8.3.1 lnterior Namino Riqhts: lnterior Sionaqe. O Cinema shall be entitled to all
permanent (meaning for a specific area such as a VIP lounge together with a duration in
excess of twelve (12) months) interior signage (and all proceeds derived therefrom shall
be Operating Revenues); provided, however, that the names affixed thereon (including,
without limitation, any sponsorship names) are subject to the City Manager's prior written
approval, which shall not unreasonably be withheld, conditioned or delayed. ln no event
may any such signage include the names of any company selling the following types of
products ("Prohibited Names"): guns, tobacco or sexual products.
Nothing contained herein shall preclude O Cinema from allowing sponsors from
using temporary banners and temporary signage within the Facility with respect to any
Event, so long as the banners and signage do not include any Prohibited Names.
392
8.3.3 General Requirements. All signage (whether interior, exterior, permanent and/or
temporary) shall comply with all applicable Governmental Requirements, and shall be
maintained by O Cinema in good condition.
SECTION 9. NON.FUNDING BY GIry.
9.1
Expenses.
City shall have no obligation to provide funds for the payment of Operating
9.2 City will have no funding or other payment obligations with respect to the Facility
or its Operating Expenses or its operations other than the costs which the City has specifically
reppentation to&Cinema - either express *,im that {r ol ?ll."gj such taxar may or
m{rttot be impo*l at any time during the
)inema shall establish an*,maintain in Q{l or @e depositories, one or more
and other bank account$frr the operatic[thnd **inagement of the Facility, as
O Cinema shall determine. All Operating Revenues collected by O Cinema from the operation
of the Facility shall be deposited into the accounts and all Operating Expenses shall be paid by
O Cinema 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 O Cinema is required to pay under this Agreement through the date of
expiration or termination, shall be promptly paid to O Cinema.
SEGTION 11. ALTERATIONS, MAINTENANCE, AND REPAIRS.
11.1 O Cinema shall not make any additions, improvements, or alterations
(collectively "Alterations") to the Facility without the City Manager's prior written consent. The
underthetermsofthisAgreement.Adcitionallv,oQ..1@Cityhaveentered
ffient with the expectation anQSef that, il of '*5].p**ve Date, no
t,: .,:, '1.",1:rxi:
393
costs of allAlterations made by O Cinema shall be borne solely by O Cinema from its own funds
and shall not constitute Operating Expenses. The City Manager shall not unreasonably
withhold, condition or delay his/her consent to any Alterations except that the City Manager may
withhold consent, in his/her sole and absolute discretion, with respect to any Alterations that
change the structural elements or life-saving systems or that affect the exterior of the Facility;
Notwithstanding anything to the contrary, however, O Cinema 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.
'). ,:
f6,gsuant to Sec'tion 5.4, it is understood by Qt
thd;*-re O Cirffi shall & be regtrrsible, nor required to pay for, any other costs.:{iated to
caffil improvert*ts or Sfrastrucfrft (i.e. including, but not limited to, plumbing qf, sewer
line[,major electffil, strt#ural, HVIC, roof, etc.) with regard to the Facility.' ..,',|
,,, 11.2 O Gherarl[all o& all required permits for Alterations performed hlffihrouSh
or tffier O Cineffi and llhtt perfoRn or cause to be performed such Alterations in ciffiiliance
wit>t Gover,luFntal fuquiremer&. Under no circumstances shall O Cinema 1ifrf" "nynn*Sry* incorpoile any Hmdous Substances including, without limitation,$estos-
containing construction materials, into the Facility. Any request for City Manager's consent to
any proposed Alterations by, through or under O Cinema 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 O Cinema'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 O Cinema and consented to by City Manager modify the basic floor plan of
the Facility and the building permit therefor require architectural plans, then O Cinema shall, at
its expense, furnish City with as-built drawings and CAD disks for such work. Unless City
Manager othenrise 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
394
City and shall be surrendered with the Facility at the expiration or termination of this Agreement.
With respect to Alterations costing in excess of $200,000 City Manager may require O Cinema
to obtain a payment bond for the work.
11.3 Maintenance. The O Cinema shall, at its sole cost and expense, have sole
responsibility for basic maintenance to be performed on a regular basis on all facilities,
improvements, and facilities and utilities infrastructure equipment at the Facility. Any and all
repairs or replacement of the same is the responsibility of the City. O Cinema shall, at its sole
cost and expense, and to the satisfaction of the City, keep and maintain the Facility, and all
improvements thereon, in good, clean, and sanitary order. O Cinema shall, at its sole cost and
expense, have the sole responsibility for maintaining the grounds of the Byron Carlyle Theater.
To that end, the parties herein acknowledge, and .O Cinema herein agreea !o be bound by, the
minimum maintenance standads set forth in ESrftfr "C" to thb Agfirufifit, entitled "City of
Miami Beach Minimum Specifications for Uaif*r@e of the lliami Beach Byron Carlyle
The&er." lt is further understood that O C$,fmd, all prov{& the City with a quarterly
mailtrenance report, in a format to be approved,ty tne'ffiv Manal$ ,
,11.4 personal prooertv. A 1;r1 e1,;gity owQ;d pers r.stnnfty included in the
Agreement for use by O Cinema during the m.n*qit attaclll$ and incorporated herein as
Exhibit "E". O Cinema hereby accepts su#:ffiffiet&$ its "att" condition, and without any
wananty(ies), wfrether express or implied, Ff the City. Ofinem rhall maintain all City owned
equipment and, at its sole cost and expere, acquire and mairfrrh 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 "C", 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. O Cinema 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.
395
12.1.1 O Cinema 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. O Cinema 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. O Cinema 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
.:x€melses for suclt{nrit$, !n addition, on or before 120 dapfdlq{qg each Fixal Year,
:,'Seffi shallfrffihtofi{iCity a line ith$,e., by oa) $Sbment of Operating
accordan&ftn .n[re1'.aUy lccepted #ounth6 principlS certified as accurate by O
Cinema's Q*ef Arfuffirg Officer or Clrbf Finadal Officc,
,
. at . , ii ':' 1 i::.'l$& Thl$ity Marnger sn ,t*,ffit at any time, and from time to time,
to causaftdepenftrt auditon or t&iCity's own *counhts or auditors to ar.dit all of
*te ryt of O Q@ma relding td perating Rffiiues, Operating Expensos, tickets
fftd''Events inc[idng, withottt linffiation, cash rtgister 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 October 1, 2015, O Cinema shall
provide to the City on or before June 1tt 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 O Cinema'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. O Cinema shall have the right from time to time to make any changes it
396
deems necessary or appropriate to any such annual plan so long as the annual plan is
consistent with O Cinema's fulfillment of its obligations hereunder.
12.4 ProorammaticPlan.
Accompanying the O Cinema'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 Reoairs.
Accompanying O Cinema's proposed annual budget shall be a detailed list of
then-known major capital repairs anticipated for the Facility.
lKll indemnifu, hold harmless and defend
#f.'.F tilty Attorney) the City, its officers, agents,and
,.i:i.effiyee**om ad against any and all claims, liabilities, demands,of
,ffi, co{i and erFrnses (including reasonable attorneys'fees at and all.::1..
Tftr. of #eal) of Smtsoever kind or nature ("Claims") arising out ffii; error,
{*r'i
,i,:*inission 6legligent tgt or willful misconduct of O Cinema, its agents$rvants,
contractors, or employees; (ii) any default by O Cinema under tnis ngre:ment; 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 O Cinema), contractors (excluding O
Cinema) and employees or the use of the Facility by the City, its officers, agents
(excluding O Cinema), and employees, pursuant to Section 16 hereof.
12.5.2|n addition, O Cinema 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 O Cinema not included in the paragraph in the subsection above
and for which the City, its officers agents, servants or employees, are alleged to
397
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.
12.5.3 The provisions of this Section 13 shall survive expiration or termination of
this Agreement.
SECTION 14. INSURANCE REQUIREMENTS.
O Cinema shall maintain, at O Cinema'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
Products (completed operation ..aggregate) . '':
.,: . '.
Perconal and advertising (injury} -'
(Per occunence) .
.1
s,000,000
$
$
$
.l: .'..rf .t,
ii;lr, ,:Li'f!.;.
'L-':-:
ii.
Firc damage
Medlcal Expense
Liquor Liability (aggregate)
(Per occunence)
' r', il. '
$2,009s0
$1,000,Q0
14.2 Workers Compensation lnsurance shall be required under the Laws of the State
of Florida.
14.4 Fire lnsurance for the Theater shall be the responsibility of the City.
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days written notice to City and then subject to the prior
written approval of the City's Risk Manager. O Cinema shall provide the City with a Certificate
of lnsurance for each such policy, which shall name the City as an additional named insured. All
such policies shall be obtained from companies authorized to do business in the State of Florida
with an A.M. Best's lnsurance Guide (latest edition) rating acceptable to the City's Risk
Manager, and any replacement or substitute company shall also be subject to the approval of
the City's Risk Manager. Should O Cinema fail to obtain, maintain or renew the policies of
398
insurance referred to above, in the required amounts, the City may, at its sole discretion, obtain
such insurance, and any sums expended by City in obtaining said insurance, shall be repaid by
O Cinema to City, plus ten percent (10%o) of the amount of premiums paid to compensate City
for its administrative costs. lf O Cinema does not repay City's expenditures within fifteen (15)
days of demand, the total sum owed shall accrue interest at the rate of twelve percent (12o/o)
until paid, and such failure shall be deemed an event of default hereunder.
14.5 O Cinema shall be the named insured under all such policies. The City shall be
an additional insured under the insurance policies described in subsections 14.1 , 14.2, 14.4,
and 14.5 hereof, as its interests may appear, and all such insurance policies shall contain a
provision covering the indemnification liabilities hereunder.
flHilder's ffik O Ghema shall also carry Builde& M'.trsuranoe durirg any
S of consh#ion of fieratione$ any other period of conshrction by, through or under O
|fIA. : ;i.. a i
;i.,,, X*i'. ,i,,i.
ltx.i .,n..,.'term{lpf irnumce policies refened to i&i.6ection 14 shall preclude
subrogatit*,clain*ryiFffi O Cinema, lhe City and their tm'officers, employees
i:.,,,...',1.i..e r'i
j{Y.. Iti
,.ii:},
I 5. OVUTRSHTP oF aSSerS.
t5.1 Ownership. The ownership of the Facility and atl buildings and real estate, all
existing (and replacements thereof) technical and office equipment and facilities, furniture,
displays, fixtures, vehicles and similar tangible property located at the Facility at the time of the
commencement of this agreement shall remain with the City. Any and all technical and office
equipment and facilities, furniture, displays, fixtures, vehicles and similar tangible property
purchased by O Cinema for use at the facility shall remain property of O Cinema. Ownership of
and title to all intellectual property rights of whatsoever value held in the City's name shall
remain in the name of the City. The ownership of data processing programs and software owned
by the City shall remain with the City, and the ownership of data processing programs and
software owned by O Cinema shall remain with O Cinema. O Cinema 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 O Cinema
and agenfri'
399
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
Agreement shall remain the property of O Cinema. 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 O
Cinema and used at the Facility shall be the sole property of O Cinema.
SECTION 16. USE BYTHE CITY
The City shall have the right to use the Facility, or any part thereof, subject to availability,
no more than 4 times a year for the benefit of the community for such purposes including, but not
lim itnC',,[g .fileeti ngs,special events, Sleepless Night (or a
ASrcNMElWtrSUBLET.
, Xf+,..: ept as',Srenryise tPpcifically provided in this Section 17, O Cinem;omay not
volrxrl*fl#6y operatior*if law, as$n, encumbel pledge or othonrvise transfer all crny part
of O Cinema'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 O Cinema to assign all or any part of its interest and any
attempt to subcontract its management duties hereunder without first having obtained City's
prior written approval shall be void and of no force or effect. ln the event of any assignment,
transfer, encumbrance or subcontract, O Cinema 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 O Cinema
(whether in a single transaction or multiple transactions) shall be considered an assignment of
this Agreement. O Cinema specifically recognizes that City selected O Cinema to be the
manager of the Facility as a result of the City's evaluation of O Cinema's specific qualifications
and experience in operating similar first class facilities.
400
17.2 The provisions of subsection 17.1 above shall not prevent O Cinema 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.
SEGTION 18. SECURITY.
O Cinema shall provide reasonable security to protect the Facility and its equipment,
materials and facilities, including any City equipment, furnishings, and fixtures used by O
Cinema, and shall be solely responsible to the City for any loss or damage to any City
equipment, furnishings, and fixtures so used by O Cinema.
SECTION 19. PERMITS; LICENSES; TAXES; APPLICABLE LAWS.
O Cinema 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 O Cinema. O Cinema shall also be solely
responsible for payment of any and all taxes levied on the Facility and its operations. ln
addition, O Cinema 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.
SEGTION 20. UTll-lTlES; RESPONSIBILITY FOR TAXES AND ASSESSMENTS.
20.1 Utilities.
O Cinema shall be solely responsible for and shall pay (whether to the City or
directly to the utility) before delinquency, of all charges for utilities used at the Facility, but
shall be limited to pay for 69% of water, electricity, gas, heating, cooling, and sewer,
charges used at the Facility.
20.2 Procedure lf TaxesAssessed.
O Cinema agrees to, and shall pay before delinquency, all taxes and
assessments of any kind assessed or levied, whether upon O Cinema or the Facility, by
reason of this Agreement or by reason of any use(s) and/or activity(ies) of O Cinema
upon or in connection with the Facility. The parties acknowledge that O Cinema'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. lf, however, taxes are assessed by the Property Tax Appraiser, O
Cinema has the right to terminate this agreement without penalty by providing 90 days
401
notice to the city at which point he city shall be solely responsible for such payment(s).
SECTION 21 FORCE MAJEURE.
38.1.1.1 No party will be liable or responsible to the other party for any delay,
damage, loss, failure, or inability to perform caused by "Force Majeure" if notice is
provided to the other party within ten (10) days of date on which such party gains actual
knowledge of the event of "Force Majeure" that such party is unable to perform. The
term "Force Majeure" as used in this Agreement means the following: an act of God,
strike, war, public rioting, lightning, fire, storm, flood, explosions, epidemics, landslides,
lightening storms, earthquakes, floods, storms, washouts, civil disturbances, explosions,
and any other cause whether of the kinds specifically enumerated above or otherwise
..:--kiI not ,"" $in the control of the party wtrose performanca iE to be
.1 excusBdffiO whi*by the wrcise of due diligence could not be reasonably pevented
or overcdiHt (it bdHg acknq&dged that under no circumstances shall a failurr to pay
amounts S andffiable h0$under be excusable due to a Force Majeure).' ,',4 .''.' 1
.',rlt':'$!;.11.i,'.':r.'"'...:;;:',"i];:1.i,'.':;:-"'.,
21.2 rusr e{ffti'fi'enb shall be under any obligation to suppty any scrvice or
services *frrO to ffi exterirrd during any period that the supplying of any sudr service
,.':at ,,
,.I, ,,
or servigdf:or thedpvision dany component neoessary thcrefore shall be prdribited or
ItW, anv
$ernmentl
Sequirements'
21.3 ln 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 O Cinema'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.
O Cinema agrees that the Facility may be inspected at any time upon reasonable notice
402
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. O
Cinema agrees to undertake immediately the correction of any deficiency cited by such
inspectors on the Facility, which is properly the responsibility of O Cinema pursuant to this
Agreement.
SECTION 23. WAIVER OF INTERFERENCE.
O Cinema 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 O Cinema from any
obl
oc i::. .i.'l;l .,,4,,
or *Fervision, clpe to $filed uffi the Facility any lien or encumbrance of any fiq$" tn the
evd'any lien is
daySr'therefrom,
:j..
accurplished, tlrSity |.qf
shall be necessary for O Cinema to retain qualified individuals to effectuate and optimize O
Cinema's management and operation of the Facility. O Cinema shall select, train, and employ at
the Facility such number of employees as is necessary or appropriate for O Cinema to satisfy its
responsibilities hereunder. O Cinema shall recruit employees consistent with standards
employed at comparable first class facilities, and O Cinema shall have authority to hire,
terminate and discipline any and all personnel employed by O Cinema working at the Facility.
Any such personnel, whether employees, agents, independent contractors, volunteers, and/or
other, employed, retained, or otherwise engaged by O Cinema 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, O Cinema, and/or its employees shall never have been convicted of any offense
'+:'r1;r'" 'g-';lX' q8
$f0, 6' 'i""1';';:itrr'
,
. :,;.'t it will:iIgt suffer, or through its actions or anyone under.* control
Crnlmr agrees to cause such lien to be discharged withQ$en (10)
#nce with the applicable law and policy. lf tQ is not
autortilically terminate this Agreement, without further ntibe to O'' i" ,T-,'...:-. l:d
403
involving moral turpitude or felony. Failure to comply with this subsection shall constitute cause
for termination of thisAgreement.
25.2 O Cinema shall assign to the Facility a competent full{ime staff member
experienced in the operations of similar facilities, who will be located full time on-site during the
Term. The fulltime 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 and/or management services provided by O Cinema or
any of its Affiliates at other facilities managed, owned or leased by O Cinema 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 O Cinema's appointment of the staff
member, O Cinema shall consult with the City Mq6ger with respeqt,,le,$gOualifications of the
stafi member proposed by O Cinema. The staff r r shall be *pilffib,to the City Managpr
at all reasonable times to discuss the managenffil,'{nce of tlre Facility.
during lusiness
non-business houns in the
O Cinema shall duly coneider all such
be repbced and
replacc tre staff
member.
SECTION 26. NO ITIPROPER
O Cinema will not use, nor sufrer o*1&rmit
"ny
p"rs&i to rrc 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. O Cinema shall not use the Facility for any unlavyful purpose and shall
comply with all laws, permitting, and licensing requirements now in force or hereafter adopted,
applicable to the Facility or the activities, uses, and/or business(es) conducted on the Facility. O
Cinema 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 O Cinema shall result in
automatic termination of this Agreement. Except as may result from acts of force majeure, O
Cinema agrees that it will not allow the Facility to become unoccupied or vacant. O Cinema
shall take appropriate precautions to prevent fire on the Facility, maintaining existing fire
detection devices and extinguishing equipment at all times. Fire detection devices and
404
extinguishing equipment to be provided and maintained by the city.
SECTION 27. NO DANGEROUS MATERIALS.
O Cinema 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@,tS.[heir own benq{i! aod t[at neither o Cinema nor any occupant
agffi * ny of thrg & krAfvhuals in any event whatsoever in conj
or *fies which$ re, sEcrro* .LT AiWTERMTNATION.
relafifl to the perfonnance of their duties.
by O Cinema to make any
29.1.2.2 The failure or inability by O Cinema to observe or perform any of
the covenants or provisions of this Agreement to be observed or performed by O
Cinema, 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 O Cinema shall not be
deemed to have committed an Event of Default if O Cinema 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;
29.1.2.3 Except as permitted pursuant to Section 17 of this Agreement, the
assignment, encumbrance, pledge, or transfer of this Agreement, whether
405
..,, - =::. :.,''I'-:'.r 'ii:;' 3.2 s. ril:],
1 :).1 :-i:
:.'' ' ,,$[iL.1 tt #vent of .Eetautt by O Cinema occurs, then in addition to1ffiv other
,,,. -., ,,,.- .,$'|=medies $ilitaute to sty, City may exercise the following remedies, 1']j
voluntarily or by operation of law, or any subcontract of O Cinema's duties
hereunder, which continues for more than fifteen (15) business days after written
notice thereof from City Manager;
29.1.2.4 (i) The making by O Cinema of any general assignment forthe
benefit of creditors; (ii) the filing by or against O Cinema of a petition to have O
Cinema 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 O Cinema,
the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or
receiver to take possession of substantially all of O Cinema's assets located at
(60) days.
(1.a.i) City may terminate this Agreement by written notice to O Cinema,
in which case this Agreement shall terminate and O Cinema shall
immediately surrender possession of the Facility to City. Upon
termination, City shall be entitled to recover from O Cinema: (1)
Operating Expenses that remain unpaid through the date of termination;
(2) all other amounts that O Cinema is required to pay under this
Agreement through the date of termination.
(1.a.ii) City may seek specific performance of any of O Cinema's
obligations hereunder or seek injunctive relief;
406
(1.a.iii)
equity.
City may exercise any other remedies available at law or in
29.2.2The 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 O Cinema's Remedies. lf an Event of Default by City occurs, then O Cinema
may exercise either of the following remedies:
29.3.10 Cinema may terminate this Agreement by written notice to City, in
which case this Agreement shall and O qryt shall immediatalY
surrender possession of the F ity. Upon ffiatign, O Cinema shall be
entitled to r?cover from City all m s owed bf City to O Cinema a* of the
termination date and the provisiot of Sftion 31 #l apply; or'...i 1..",..
i';" ;i'29.4 Late Pavments. Any payment iueo to &y or o {ihtd*{*oer this Agreement
including, without limitation, any other p"y*q&tbwed tgffiv or GGlnema under this Agreement
that is not received by City or O Cinema foil6ring notice of sucfi amount
being due shall bear interest at the rate of S% p",
"nrttl6 1'O&rtt Rate") from the date due
untiltully paid.
29.5 IN THE EVENT THAT O CINEMA CEASES TO BE A NOT-FOR.PROFIT
CORPORATION, THIS AGREEMENT SHALL BE AUTOMATICALLY TERMINATED.
sEcTroN 30. INTENTTONALLY DELETEDI
SECTION 3,l. TERMINATION.
Termination for Convenience bv Citv. The City reserves and retains the right, at its sole
option and discretion, to terminate this Agreement, without cause and without penalty,
with regard to O Cinema's rights and responsibilities with respect to the operation,
management, maintenance, promotion and marketing of the Facility, upon three
hundred sixty-five (365) days prior written notice to O Cinema.
407
31.1 Effect of Termination. ln 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, O Cinema shall pay all such
amounts from its own funds; (2) After all amounts referenced in subparagraph (1) have been
paid, O Cinema 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 mldn redthin thirty (34}.daygafter the termination date. The provisions A&*bi$.$g6ligf-r- -Y^',
regmding'tl.h Sove ref and payment obligations of the City *d$f@{ie
"ti:'Upon termination or expiration of this Agr*rent O
Cirda shall suffider dl vac{ the Facility upon the effectiw date of such termh}ion (or
;..._ I n iexffition). The Scility"TIt efr rquipment and furnishings shall be retumed to thti#ity in a
goodand clean q#dition'{pnsistdwith other similar first class facilities and in compt$ce with
all 6(ivernment{*ffequirdfients, ortfrury wear and tear, and casualty loss excepted. {i
NOIrcES.i.r,:t,
A*:$Gtices from -& City to O Cinema shall be deemed duly serveo if &&iteo by
registered or certified mail to O Cinema at the following address:
Living Arts Trust, lnc d/b/a O Cinema
2401 SwansonAvenue
Miami Florida 33133
All notices from O Cinema 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
408
Attention: Max Sklal
Tourism, Culture, and Economic Development Director
O Cinema 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 O Cinema 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 O Cinema to establish and enforce
33.1 No_.,Piscrir&ation irt &mplovment Afiirmative Action. ln
performance of work unfiF,this Agru*nent, O Cinema shall not refuse to hire,
to promote or dernote, $.t0. Olrc*r',inate in matters of compensation against, a
otherwise qualified, soleltrfilort of race, color, national origin, religion, gender i
reasonable rules and reE&hns.tp, provide for the safety, orderly operation and.,
facilities.
'9':.
SECTION 35. EOffiIL BEI.EITS FOR DOTESTIC PARTIIIERS
This Agreement ic:trbject to, rnd O Cinema shall be required to comply th the
Term hercof with, the reffiments ol$ection2-373 of the Gity Code entitled,'Requiffrentfor
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 O Cinema to provide its 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 O Cinema 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
the
refuse
person
sexual
409
Section 2-373 may also subject O Cinema to debarment, in accordance with the procedures
provided in Sections 2-397 through 2-406 of the City Code.
I
SECTION 37. NOTA LEASE.
It is expressly understood and agreed that no part, parcel, building, structure, equipment
or space is leased to O Cinema; that this Agreement is a management agreement and not a
lease; and that O Cinema's right to operate and manage the Facility shall continue only so long
as the O Cinema complies with the undertakings, provisions, agreements, stipulations and
conditions of this Agreement.
SECTION 38. MISCELLANEOUS
38.1 VenueMaiver of Jurv 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 O CINEMA EXPRESSLY WAIVE ANY RIGHTS E]THER PARry MAY HAVE TO A TRIAL
410
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 O Cinema. None of the officers, agents or employees of O Cinema shall
be or be deemed to be employees of the City for any purpose whatsoever.
38.3 Entire Aoreement. 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
tn $$hibits attafiil,-..t.!$o are incorporated into and madc a part
No gfier agrurcnts, remsentati&, warranties or other matterB, whether oral or vdien, will
: .,'{-i
be ihemed to bl$.lhe
ltLir
.'r. 38.4
in dble or in
,:This Agreement ehall not be altered, modified
executed by each of the parties herdo.
38.5
, .i; :.li,l ... . i+
,., Thft$Sreemefi.ond the rights and obligations set forth herein *hll inure
" to the bencfit of, and be binding upon, the parties hereto and eacftiof 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 Headinos 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
respec{ to the subject matter hereof.
offiended
.:'r.ft'
;;l'ghT:ti
" iiir
+,':'l
'i"r..
,i.:i !
411
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 respec& as {,4ffi
unenforceable povisions or parts were omitted.
',-;*38.8 Non-Waiv# A failure by either party to take any action with respff to any
default or violation by the other of any of the terms, @venants, or conditi$ of this\t:
Agreement shall not in any respect limit, prejudice, diminish, or constitut*t waiver
of any rights of such party to act with respect to any prior, contempoffius, or
rntinuation or repetfh of the
4;,.1
original violation or default.
38.9 Certain Representations and Warrantles.
38.9.1 The City represents, warrants, and covenants to O Cinema 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 O Cinema represents and warrants to the City the following: (i) O Cinema
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 O
412
Cinema and constitutes a valid and binding obligation of O Cinema, 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.
38.10 Governino 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.
413
lN 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
Rafael Granado, City Clerk Philip Levine, Mayor
$]," ,*'., ) sS:
oF Mt&lx-DAw ) '",i
The foffiing Krumentltlvas acknowledged beforc me this of
L,2O11iW Mayor'lhtti Henera Bower and Robert Parcher, City or theirdeffit,:X*Ectively, * behalf of ihe CITY OF MIAMI BEACH, known to me t,be tne
peruoat,.dlceribed in an&who exearbd the foregoing instrument, and acknowledgdt to and
before me that they executed said instrument for the purposes therein expressed.
WITNESS my hand and official seal, this day of 2014.
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
& iffir 'i,.
oF FLoW\ ,ki,f,.
-
'Y oF Mr#-DAq* ) -
rhe to#ing ffirr"nt:- -'r,2011;W
Mayorl
414
Attest:
Secretary
Print Name
STATE OF FLORTDA )
couNw oF M|AM|-DADE )
Living
Arts Trust, lnc. d.b.a O Cinema
President
Print Name
The foregoing instrument was
. :,:,:l
before me this __-;lday of
_, on behalf of Living Att Trust,
escribed in and who exefiIed the
SS:
2011, bylnc D/B/A O Clnema known to me to b*.:*re personl describgd in and who
foregoing instrument, and acknowledged to tnd before rffi that tiey executed said lilrument
for the purposos therein expressed.
WITNESS my hand and official seal, this day of 2014.
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
415
EXHIBIT'A'
LEGAL DESCRIPTION OF THE FACILITY
TO BE UPDATED UPON COMPLETION OF A SURVEY.
LEGAL DESCRIPTION
Portion of the land occupied by Byron Carlyle Theater, more particularly described as
follows:
Lots 11, and 12, TOGETHERWITH: 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.
416
EXHIBIT'B'
ANNUAL BENCHMARKS
O Cinema Benchmarks
. Cinema Miami Beach will operate a minimum of 5-days a week, 48 weeks a
year schedule.
o Will present no less than 500 screenings throughout the year.
. Wil! serve an anticipated 10,000 visitors per year.
o Will increase attendance by 5% annually over prior years:
o Will highlight O Cinema Miami Beach as part of our overall annual marketing
budget spend of $50K.
o Will provide Miami Beach residents with discounted-quality cinematic offerings_at
least 12 times per year.
417
EXHIBIT'C"
CITY OF MIAMI BEACH
MINIMUM MAINTENANCE SPECIFICATIONS
FOR MAINTENANCE OF THE MIAMI BEACH
BYRON CARLYLE THEATER
These minimum operating and maintenance standards are intended to be considered as a
whole and intended to provide an overall standard for the Facility. lndividual discrepancies, as
well as deviations, from any individual standard shall not be considered a default of the
Agreement; it is the intention of the parties that this Exhibit is merely a guide and that O' Cinema
is only expected to use good faith efforts to endeavor to meet the standards set forth herein. ln
the event of a conflict between the terms or conditions of the Agreement and the terms or
conditions of this Exhibit, the terms and conditions of the Agreement shall control.
PERSONNEL
1. O'Cinema shall have the sole
manager and any necessary
responsible for the overall management iHd c$ration of ffi Facility.
*ir:, .r:,5"'"2. O' Cinema shall have the sole **spoffitity
ng
genfrl overall ma of the
colristent with other first
class facilities operated by O'Cinerm
3. O' Cinema shall have the colqt*sponsibility & *ecru*.and employ persot$el as it
deems necessary for the staging and coordinating of'Everit$'and productions.
4. O'Cinema 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. O' Cinema shall provide for the overall security of the Facility, including during non-
event hours.
EMERGENCY PROCEDURES
1. O' Cinema 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.
'ln ";1':" '','
.- ..y1:.
- r" .t
to recruit ifd employ a fulltinfl-Ggeneral
and acrysilnting personnel.:$at are
418
2. O'Cinema shall develop and implement a Hurricane Preparedness Procedure, a copy of
which shall be provided to the City.
JANITORIAL. CLEANING AND HOUSEKEEPING
1.
2.
3.
4.
5.
6.
7.
8.
9.
1.
2.
The Facility shall be reasonably clean at all times. This includes general cleaning
during non-event times, as well as during Events.
Restrooms are to be cleaned during Events and on a periodic basis during non-event
times to assure that they are in a functional and reasonably sanitary condition.
Garbage and trash shall be removed on an as-needed basis. Trash receptacles
shall be stationed throughout the Facility.
O' Cinema shall maintain compactor, gnrbage areas, unste.e&eas, recycling ar6as,
and dumpster areas reasonably clean and,fihris free in oldrbonerply with applicable
codes.
.'t.
t ..'*:
Carpets shall be vacuumed and cleat*l dltrn'''tt:'
, 1, I .-'.l
Flooring shall be cleaned and pol
Windows shall be maintained in
needed basis.
fid cleaned on an as
Treatment for pests and rodents.*cept 6ccur on a quarterly basis as
needed to prevent infestation or as f,li.rired by
Entrance doors and mirrors shet"be maintained.h a rrlsonably clean condition and
cleaned on an as needed basis.
LANDSCAPING
lndoor 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.
lndoor landscaping should be reasonably insect-free.
EQU I PII'I ENT MAI NTENANC E AN D G EN ERAL MAI NTE NANCE
1.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. O' Cinema shall
develop an annual schedule for equipment inspection and preventative maintenance.
Upon termination, cancellation, and/or expiration of the Agreement, O' Cinema shall
provide all records maintained in accordance with Section 5.3.4. All existing warranties
that are transferable will be transferred to the City.
2.
basis.
is.
419
3.
4
O'Cinema shall post and maintain, as required by any applicable governmental code
and/or regulation, any and all required professional licenses, certifications, and/or
permits.
O' Cinema 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 alltimes.
O' Cinema shall develop and implement a plan for inspection and maintenance for the
Facility's HVAC systems. This shall include inspection of all HVAC controls on a
quarterly basis to verify proper setting and operation as well as any adjustments and/or
5.
6. r...
.:..:t
;l'
,:,.-{gflhtenance that l1ny b.e-.appropriate, including, but not limited to filter
x&&fftK*:nnd/or heffi{p, proper operation of air intakesfoents, fan t[
. ,li
t&,:',t .r i ;
'11':t t.:: ,:.;r\: r,.. : ..a;i... .a_..1.].t': il -,',:.,''.1':.'','' "''
'r.:t,
O' Ciruna nas:&e sole rtponsibility of maintaining the paint on the inteffi of the
Facility.
420
EXHIBIT "D'
O CI NEMA STANDARD AGREEMENT
' ra
.tia.
-. ' - l:cl
' iri,..r
, ',r
421
EXHIBIT "E"
CITY OF MIAMI BEACH OWNED PROPERTY INCLUDED IN THE AGREEMENT
GM Office
Deck and chair
1 File cabinet
1 tall cabinet with Box office safe, and Misc. office supplies
1 shelve unite with ADA lnfrareds hearing units
1 Fax Machine ( No City Labels, Purchased by Byron Theatre)
1 Dell Computer and Monitor and mouse # 31253 CMB
Telephone
Gopy Room
1 HP Laser jet printer ( No Labels, Purchased by Byron Theatre)
1 Canon lmage Class D320 Printer ( No Labels, Purchased by Byron Theatre)
Greu Roorn
1 Miqowave
',:
TD Office *.
Derk and Chair ,:;,:
1 Smallshelve unit ;,is
1 DellComputer and Monitorand rrouse # 31254 m
Misc. office supplies. H;
Telephone
Stonge Room
Misc. TheatricalHardware Tape, Lamps, Gelan*rc on.
1 Upright Piano
1 Piano Bench
Concession Area
1 Freezer unit
1 Price board
Stage
F/oor Wenger Versalite staging, black painted cover
Stage height 2'- 8"
Front of Stage to 1st Row of Seafs; 6'
Truss height:18'- 8" (bottom)
Stage Depth: PL to BS Wall: 29'Total stage depth: 30'
Proscenium: 34'wide x 13'- 6" tall
Wings: Distance from on stage leg to off stage wall: 8'- 6"
Approx.6'between legs
Soft goods: 1 grand curtain with valance
4 per side black velour legs (Legs: 6'- 3" width)
5 borders (5'height)
Upstage Black traveler
white seamless cyclorama.
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Rigging:
Line ltem @(DS Edge) Note
1 Grand teaser 1'- 4" Dark Blue colored
2 Main Curtain 2'- 0" Dark Blue, manual SL pull
3 Electric 1 3'- 9" Motorized (Trim 17'- 9")
4 Black Border 7'- 0" Dead Hung (Trim 13'- 7")
5 Electric 2 9' - 7" Motorized (Trim 17'- 9")
6 Black Border 13'- 5" Dead Hung (Trim 13'- 7")
7 Electric 3 16'- 3" Motorized (Trim 17'- 9"
I Black Border 19'- 6" Dead Hung (Trim 13'- 7")
9 Electric 4 23' - 7" Motorized (Trim 17'- 9") DEAD HUNG AT THIS TIME
10 Black Border 25' - 9" Dead Hung (Trim 13'- 7")
11 Black Scrim 26'- 11" Dead Hung
12 Electric 528' - 6" Motorized (Trim 17'- 9") DEAD HUNGATTHIS TIMEi, Li$ner2S -6 conItSL
i+ (lffidnr$ - o Deao'llung
aa'
1l(Vv 7$r 7.5
750 7.5 x 7.5
750 7.5x7.5
HPL 575 7.50 x 7.50
HTP t000 16 x 15.5 6
15
19
22
20
8-
8-
18
boom
, saddleqgrle
40-
40 - 10'SPG cable
12 - 5' SPG cable
24 - 12" side arms
40 - SPG Twofers
8 - Pattern holders
Gontrol:
96 - 2.4k ETC SensorPlus dimmer/circuits
ETC Express 250 (version 1.02) w/ color monitor
Sound inventory:
House Speakers:
Left and Right mains (JBL MP215 15" 2 WAY SPEAKER)
Stage Monitors:
2 Community 12" Two Way Wedges
Control:
Mackie 5R244-2 VLZ Pro Mixing Console
1 DENON DNC 615 CD Player
423
1 - Smart TCX624ATime-phase correctbn Electronic,ffiver1D,olbyCP6sDProcessor. 8 .iiSpetters Xl. ':lif ',r,
3 - $age speakers set up for 3 way reprcduction; Lc,to nffiange via
Smart crossover ard mid to high range via passive qftssovffi .2KHZ). ,;',1;;i;
Bass = Dual 15 inch woofer. Mirl = 12 inch horn loild. .;"; :
High = horn loaded i ",i :-, ' '':1,'::r;r
JBL 4639 ,.rr' J*t ,,o
Hom - JBL 125-300G01 .:ji;, ,,. r ;a1f.g$ , ;,rii
(1) 35mm film splicer 3i,.. i::t, ,,,,'
Vidco Prcloclorc 1,., i. j rl
1 Proxima Desktop 9290 I .''rrtl
Accessories:
Selection of microphones including SM 57 SM 58
24 channel snake (SR)
Porta-Com headset system, sound/lighU SL, SR
Cinema equipment
Screen dimensions
14X30
35mm equipment
Projector
('t)Kinoton PK60D
Three lens turret for 1.66/1 .8512.35 Scope format." ???
(1 )Strong Highlight ll Type 72000-01
Watts????
(1) Christie Autowind 3 three deck film platter & makeup tableAudlo&ck :i'
OTHER
4 Easels
Stanchions
Red Ropes
Curved Serving Tables
6ft. Tables
8ft. Tables
6ft. Ladders
1 Oft Ladders
1Oft. Wooden Ladder
18
11
4
3
2
2
2
1
424
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2
3
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14tt. A Ladder with Extension
Geni Lift
Carpet Cleaner
Vacuums (934) (943)
Sets of pickups and brooms
Dust Mops
Cement Push Broom
Push Brooms
. Mop bucket and ringer
:tlj.,.
'lk&s
Lff Trash Bin on wheels
Ra&*hairs
li ,l,..Bl4*'Chairs
Ldilbr Units (3 each)
.1r .r'ffilll Fridge
,:*taintenan@ Cart
S/N: 0900023421
:'.; ;
1.
Assorted Cleaning supplies and paint.
425
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426