20151021 SM2MIAMIBEACH
City Gommission Meeting
SUPPLEMENTAL MATERIAL 2
City Hall, Commission Chambers, 3rd Floor, 1700 Convention Center Drive
October 21,2015
Mayor Philip Levine
Vice-Mayor Edward L. Tobin
Commissioner Michael Grieco
Com m issioner Joy Malakoff
Com missioner Micky Steinberg
Commissioner Deede Weithorn
Commissioner Jonah Wolfson
City Manager Jimmy L. Morales
City Attorney Raul J. Aguila
City Clerk Rafael E. Granado
Visff us at www.miamibeachfl.gov for agendas and video "streaming" of City Commission Meetings.
ATTENTION ALL LOBBYISTS
Chapter 2, Article Vll, Division 3 of the Gity Code of Miami Beach entitled "Lobbyists" requires the
registration of all lobbyists with the City Clerk prior to engaging in any lobbying activity with the City
Commission, any City Board or Committee, or any personnel as defined in the subject Code
sections. Copies of the City Code sections on Iobbyists laws are available in the City Clerk's office.
Questions regarding the provisions of the Ordinance should be directed to the Office of the City
Attorney.
SUPPLEMENTAL AGENDA
R7 - Resolutions
R7E A Resolution Accepting The Recommendation Of The City's Finance And Citywide Projects
Committee, And Waiving, By Asfith Vote, The Competitive Bidding Requirement ln Section
82-39(a) Of The City Code, Finding Such Waiver To Be ln The Best lnterest Of The City;
FurtherWaiving, ByA 5/7th Vote, The Appraisal Requirement ln Section 82-39(b) Of The City
Code, Finding Such Waiver To Be ln The Best lnterest Of The City; And Approving, Upon First
Reading Of This Resolution, A Ground Lease Agreement, Substantially ln The Form Attached
To This Resolution, Between The City (Owner Or Landlord) And The Sabrina Cohen
Foundation (Tenant), ln Connection With The Use Of 5,100 Square FeetOf City-Owned Land,
Located At Allison Park, Having A Street Address Of 6475 Collins Avenue (Premises), For A
Term Of Ninety-Nine (99) Years With No Renewal Options; And Further Setting The Second
And Final Reading And Public Hearing Of The Lease, As Required Pursuant To Section 82-
37(a)(2) Of The City Code, For A Time Certain On December 9, 2015. First Readinq
(Sponsored by Commissioner Joy Malakoff)
(Legislative Tracking: Office of the City Attorney/Parks & Recreation/Public Works)
(Memorandum & Resolution)
1
THIS PAGE INTENTIONALLY LEFT BLANK
2
COMMISSION ITEM SUMMARY
Condensed Title:
A RESOLUTION ACCEPTING THE RECOMMENDATION OF THE CITY'S FINANCE AND CIryWIDE
PROJEGTS COMMISSION COMMITTEE, AND WAIVING, BY A 5/7TH VOTE, THE COMPETITTVE BIDDING
REQUIREMENT !N SECTION 82-39(a) OF THE CITY CODE, FINDING SUCH WAIVER TO BE lN THE BEST
INTEREST OF THE CITY; FURTHER WAIVING, BY A 5/7TH VOTE, THE APPRAISAL REQUIREMENT IN
sEcTloN 82-39(b) OF THE CITY CODE, FINDING SUCH WAIVER TO BE tN THE BEST TNTEREST OF THE
CIW; AND APPROVING, UPON FIRST READING OF THIS RESOLUTION, AGROUND LEASE AGREEMENT,
SUBSTANTIALLY lN THE FORM ATTACHED TO THIS RESOLUTTON, BETWEEN THE CITY (OWNER OR
LANDLORD) AND THE SABRINA COHEN FOUNDATTON (TENANT), lN CONNECTION WITH THE USE OF
5,100 SQUARE FEET OF CITY.OWNED LAND, LOCATED ATALLISON PARK, HAVING ASTREETADDRESS
oF b4z5 coLLtNS AVENUE (eREMlsES), FoR A TERM oF NTNETv-NrNE (99) vEARS wtrH No RENEwAL
OP.I'IONS; AND FURTHER SETTING THE SECOND AND FINAL READING AND PUBLIC HEARING OF THE
LEASE, AS REQUIRED PURSUANT TO SECTION 82-37(a)(21OF THE Clw CODE, FOR A TIME CERTAIN ON
DECEMBER 9, 2015.
lntended Outcome Su
Build and maintain infrastructure with full accou
Supporting Data (Surveys, Environmental Scan, etc.): The 2014 Customer Satisfaction Survey indicated that
over 77o/o of residents rated recently completed capital improvement projects as "excellent" or "good".
At the July 8, 2015 City Commission Meeting, the Sabrina Cohen Foundation (the "Foundation") requested that the City grant
the Foundation a lease forthe use of City-owned land, in Allison Park (the "Park"), to develop, construct, maintain and manage
a Wellness Center at the Foundation's sole cost and expense.
At the September 2,2015 City Commission meeting, three (3) concepts were presented bythe Foundation, proposing to utilize
the center, the southern portion of the Park or a combination of both locations. At the September 30, 2015 City Commission
meeting, the Mayor and City Commission approved Option A (a circular shaped building, located at the center of the Park),
which covers approximately 5,1 00 square feet of City-owned land in the Park, as it is the concept which preserves the most of
the natural greenspace and allows for the relocation of the tree canopy currently at the Park.
Additionally, at the September 30, 2015 meeting, the City Commission approved the expansion of the parking lot, increasing
the standard parking spaces to 1 03 plus the Proposed ADA spaces, for a total of 120 parking spaces, by demolishing the
existing restrooms, and requiring the Foundation to construct public restrooms, having approximately 500 sq. ft., on the 1st
Floor of the Wellness Center, by expanding approximately 21 ,000 sq. ft. into the West area adjacent to the existing parking
lot and requiring the relocation of mature existing trees to the south end of the Park, approving said expansion at the
expense of the City. At the September 30, 201 5 meeting, the City Commission also authorized the City Manager to negotiate
a ground lease for the use of the City-owned land for the development of the Wellness Center, based upon the essential
terms set forth in the Term Sheet presented, which final negotiated ground lease shall be subject to approval by the City
Commission and by a majority of the voters in a City-wide referendum, pursuant to Section 1 .03(b) of the City's Cha(er.
Finally, on October5, 2015 the Finance and Citywide Projects Commission Committee recommended moving forward with
the ground lease for the use of the City-owned land for the development of the Wellness Center as per the term sheet.
Administration Recommendation :1. That the City Commission accept the recommendation of the City's Finance and Citywide Projects Committee;2. That the City Commission approve waiving, by a 5l7t^ vote, the competitive bidding requiremeni in Section 82-39(a)
of the City Code, finding such waiver to be in the best interest of the City;3. That the City Commission approve, upon first reading of this resolution, a ground lease agreement, substantially in
the form attached to this Resolution as Exhibit "A", between the City (Owner or Landlord) and the Sabrina Cohen
Foundation (Tenant), in connection with the use of the 5,100 square feet of City-owned land, having an address of
the 6475 Collins Avenue (Premises), for a term of ninety-nine (99) years with no renewal options.4. That the City Commission set the second and final reading and public hearing of the lease, as required pursuant to
section 82-37(a\(2\ of the City Code, for a time certain on December 9, 2015.
Financial lnformation :
Source of
Funds:
Amount Account
OBP!
1
Total
Financial lmpact Summary:
DepartmenfiDirector Assistant City Manager City anager
JR l\] t^l {L ECq't JLfr v\
AGENDA ITMIAMIBEACHDATE ,0-21-ls3
r-e. --.:oI/--
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City of Miomi Beoch, 1700 Convention Center Drive, Miomi Beoch, Florido 33,l39, www.miomibeochfl.gov
GOMMISSION MEMORANDUM
To: Mayor Philip Levine and Members
FRoM: Jimmy L. Morales, City Manager
the City
DATE: October 21,2015
SUBJECT: A RESOLUTION ACCE THE RECOMMENDATION OF THE
CITY'S FINANCE AND CITYWIDE ECTS COMMISSION COMMITTEE,
AND WAIVING, BY A SNIH VOTE, THE COMPETITIVE BIDDING
REQUIREMENT IN SECTION 82-39(a) OF THE Clw CODE, FINDING SUCH
WAIVER TO BE lN THE BEST INTEREST OF THE CITY; FURTHER WAIVING,
By A snrH VOTE, THE APPRATSAL REQUIREMENT IN SECTION 82-39(b)
OF THE CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST
INTEREST OF THE G!TY; AND APPROVING, UPON FIRST READING OF
THIS RESOLUTION, A GROUND LEASE AGREEMENT, SUBSTANTIALLY IN
THE FORM ATTACHED TO THIS RESOLUTION, BETWEEN THE CITY
(owNER OR LANDLORD) AND THE SABRINA GOHEN FOUNDATION
(TENANT), IN CONNECTION W|TH THE USE OF s,100 SQUARE FEET OF
CIry.OWNED LAND, LOCATED AT ALLISON PARK, HAVING A STREET
ADDRESS OF 6475 COLLINS AVENUE (PREMISES), FOR A TERM OF
NINETY.NINE (99) YEARS WITH NO RENEWAL OPTIONS; AND FURTHER
SETTING THE SECOND AND FINAL READING AND PUBLIC HEARING OF
THE LEASE, AS REQUIRED PURSUANT TO SECTION 82-37(al(2) OF THE
CITY CODE, FOR A TIME CERTAIN ON DECEMBER 9, 2015.
BACKGROUND
Sabrina D. Cohen, the President of the Sabrina Cohen Foundation (the "Foundation")
approached the City proposing the implementation of an ADA accessible beach program
("ADA Accessible Beach Program"). The City embraced the idea of implementing an
ADA Accessible Beach Program, including an accessible outdoor recreation and
playground, to be developed and constructed at the City's sole cost and expense. The
City selected the north section of Allison Park (the "Park") for the location of the ADA
Accessible Beach Program and has initiated a project to redesign the Park to include
providing beach access using an alternative friable wood deck and ramp combined with
Mobi-mats, outdoor exercise equipment and picnic tables, and re-striping the existing
parking lot to provide twelve additional ADA accessible parking spaces.
4
At the July 8,2015 City Commission Meeting, the Sabrina Cohen Foundation (the
"Foundation") requested that the City grant the Foundation a lease for the use of City-
owned land, in Allison Park (the "Park"), to develop, construct, maintain and manage a
Wellness Center at the Foundation's sole cost and expense.
At the September 2,2015 City Commission meeting, three (3) concepts were presented
by the Foundation, proposing to utilize the center, the southern portion of the Park or a
combination of both locations, as follows: Option A proposed a circular shaped building,
located at the center of the Park; Option B consisted of the conceptual plan proposed for
Option A plus reserving the southern portion of the Park for future expansion; and Option
C proposed a rectangular building to be constructed at the southern portion of the Park.
At the September 30, 2015 City Commission meeting, the Mayor and City Commission
approved Option A, which covers approximately 5,100 square feet of City-owned land
in the Park, as it is the concept which preserves the most of the natural greenspace
and allows for the relocation of the tree canopy currently at the Park, and which is the
least obstructive of the proposed concepts.
Additionally, at the September 30,2015 meeting, the City Commission approved the
expansion of the parking lot, increasing the standard parking spaces to 103 plus the
Proposed ADA spaces, for a total of 120 parking spaces, by demolishing the existing
restrooms, and requiring the Foundation to construct public restrooms, having
approximately 500 sq. ft., on the 1't Floor of the Wellness Center, by expanding
approximately 21,000 sq. ft. into the West area adjacent to the existing parking lot and
requiring the relocation of mature existing trees to the south end of the Park, approving
said expansion at the expense of the City.
At the September 30, 2015 meeting, the City Commission also authorized the City
Manager to negotiate a ground lease for the use of the City-owned land for the
development of the Wellness Center, based upon the essential terms set forth in the
Term Sheet attached and incorporated herein as Exhibit "A" hereto, which final
negotiated ground lease shall be subject to approval by the City Commission and by a
majority of the voters in a City-wide referendum, pursuant to Section 1.03(b) of the
City's Charter.
Finally, on October 5,2015 the Finance and Citywide Projects Commission Committee
recommended moving forward with the ground lease for the use of the City-owned
land for the development of the Wellness Center as per the term sheet.
ANALYSIS
The Administration recommends the following:
1. That the City Commission accept the recommendation of the City's Finance and
Citywide Projects Committee;
2. That the City Commission approve waiving, by a 5l7th vote, the competitive
bidding requirement in Section 82-39(a) of the City Code, finding such waiver to
be in the best interest of the City;
3. That the City Commission approve, upon first reading of this resolution, a ground
lease agreement, substantially in the form attached to this Resolution as Exhibit
"A", between the City (Owner or Landlord) and the Sabrina Cohen Foundation
(Tenant), in connection with the use of the 5,100 square feet of City-owned land,
having an address of the 6475 Collins Avenue (Premises), for a term of ninety-
nine (99) years with no renewal options.
5
4. That the City Commission set the second and final reading and public hearing of
the lease, as required pursuant to section 82-37(a)(2) of the City Code, for a time
certain on December 9, 2015.
Attachments
o Exhibit "A" - Proposed Lease
*vrfu7gKr-
T:\AGENDA\201S\October\Parks and Recreation (October 21)\Memo - Land Lease for
Sabrina Cohen Foundation.docx
6
Bencow RapELL d FERNAN D?,ZONING, LANE, TJSE .A,NI> ENVIFION]\/f EN'rAL LA\N
Direct Line (305) 377-6238
Email: MMarrsro@BRzoninglaw. com
VIA HAND DELIVERY
October 20,2015
Gisela Nanson Torres
Senior Assistant City Attorney
Miami Beach Office of the City Attorney
1700 Convention Center Drive, Fourth Floor
Miami Beach, FL 33139
Re:Sabrina Cohen Foundation Adaptiye Wellness Center Lease Review
Dear Gisela:
Upon reviewing the draft of the Sabrina Cohen Foundation Adaptive
Wellness Center Lease, I can confirm that I approve of the material terms and that
there will not be any need for major substantive changes. As a result, I request that
you please place the item to be heard on the October 21., 201,5 Cify Commission
Agenda, as we had previously discussed. I look forward to continuing to work with
you regarding this matter.
Sincerely,
Michael Marrero
SOT THEAST FINA'{CIAL CENTER o 2oo tE t TH AECAYNE EOULA/AFIr, SUIIE 8!o.ltilAMl, FI-OEOA sa'lgr
PHONE. 305.374.5:r(X' . FAX. 3()6.37r.6222 . WWyV.EfUaOltlNqLAW.Oqu
7
Exhibit A
Proposed Leose
8
RESOLUTION NO.
A RESOLUTION ACCEPTING THE RECOMMENDATION OF THE CITY'S FINANCE
AND CITYWIDE PROJECTS COMMISSION COMMITTEE, AND WA!V!NG, BY A 5/7TH
VOTE, THE COMPETITIVE BIDDING REQUIREMENT lN SECTION 82-39(a) OF THE
CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE
GITY; FURTHER WAIVING, BY A 5/7TH VOTE, THE APPRAISAL REQUIREMENT IN
sEcTroN 82-39(b) OF THE GITY CODE, F|NDING SUCH WATVER TO BE rN THE
BEST INTEREST OF THE CITY; AND APPROVING, UPON FIRST READING OF THIS
RESOLUTION, A GROUND LEASE AGREEMENT, SUBSTANTIALLY IN THE FORM
ATTACHED TO THIS RESOLUTTON, BETWEEN THE GITY (OWNER OR
LANDLORD) AND THE SABRTNA COHEN FOUNDATTON (TENANT), lN
CONNECTION WITH THE USE OF 5,100 SQUARE FEET OF CIry.OWNED LAND,
LOCATED AT ALLISON PARK, HAVING A STREET ADDRESS OF 6475 COLLINS
AVENUE (PREM!SES), FOR A TERM OF NTNETY-NINE (99) YEARS WITH NO
RENEWAL OPTIONS; AND FURTHER SETTING THE SECOND AND FINAL
READING AND PUBLIC HEARING OF THE LEASE, AS REQUIRED PURSUANT TO
SECTION 82-37(al{2) OF THE CITY CODE, FOR A TIME CERTAIN ON DEGEMBER
9,2015.
WHEREAS, Sabrina D. Cohen, the President of the Sabrina Cohen Foundation (the
"Foundation") approached the City proposing the implementation of an ADA accessible beach
program ('ADA Accessible Beach Program"); and
WHEREAS, the City embraced the idea of implementing an ADA Accessible Beach
Program, including an accessible outdoor recreation and playground, to be developed and
constructed at the City's sole cost and expense; and
WHEREAS, the City selected the north section of Allison Park (the "Park") for the
location of the ADA Accessible Beach Program and has initiate a project to redesign the Park to
include providing beach access using an alternative friable wood deck and ramp combined with
Mobi-mats, outdoor exercise equipment and picnic tables, and re-striping the existing parking lot
to provide twelve additional ADA accessible parking spaces; and
WHEREAS, at the July 8, 2015 City Commission Meeting, Sabrina Cohen, on behalf of
the Foundation, requested that the City grant the Foundation a lease for the use of a different
portion of Allison Park to develop, construct, manage and maintain the first accessible public
health and wellness center (the "Wellness Center"), at be constructed at the Foundation's sole
cost and expense; and
WHEREAS, the City commission embraced the goal and priority of being the first city to
have a state of the art ADA Accessible Wellness Center, complementing the already approved
ADA Beach Program, so that members of the general public who have physical and cognitive
disabilities, seniors, or able bodied individuals with temporary injuries will be able to use the
Wellness Center to improve their quality of life; and
WHEREAS, on September 30, 2015, the City Commission adopted Resolution No.
2015-29150, approving the conceptual plan (the "Conceptual Plan"), and authorized the City
Manager to negotiate a ninety-nine year ground lease (the "Lease") for the use of approximately
5,100 square feet of the footprint of the City's Property, located at the center of Allison Park,
(the "Leased Premises") for the development of the Wellness Center, including the construction
of adjoining public restrooms, all improvements and personalty required to operate the Wellness
9
Center, and additionally relocating the existing public showers at the Park to a different location
within the Park, based upon the essential terms set forth therein; and
WHEREAS, the final negotiated Lease would be subject to approval by the City
Commission at two hearings, with the second being a public hearing, as required pursuant to
Section 82-37 of the City's Code, and thereafter approved by a majority of the voters in a City-
wide referendum, as required pursuant to Section 1.03(b) of the City's Charter; and
WHEREAS, in connection with the Proposed lmprovements, the City has agreed to pay
for the expenses of relocating the three turtle exhibits and signage relating thereto, currently
located at the Leased Premises, to a different location in the Park, which location shall be
determined by the City Manager; and
WHEREAS, additionally, on September 30, 2015, pursuant to Resolution No. 2015-
29150, the City Commission approved the expansion of the parking lot located at the Park
(Parking Lot Expansion Project), at the City's discretion and sole cost and expense, which
Parking Lot Expansion Project contemplates: (1) increasing the ADA accessible parking spaces
to approximately 17 and increasing total regular spaces to approximately 103, for a total of
approximately 120 parking spaces; (2) the relocation of the existing canopy trees, currently on
the west side of the Park, to other locations, at the City Manager's discretion, within the Park;
and (3) the demolition of the existing public restrooms, currently located at the west side of the
Park (the Foundation will be constructing new public restrooms); and
WHEREAS, on October 5, 2015, the Finance and Citywide Projects Commission
Committee (FCWPC) of the City recommended that the Administration negotiate a ground lease
for the use of the Leased Premises, in connection with the development of the Wellness Center,
based upon the essential terms approved at the September 30,2015 City Commission meeting;
and
WHEREAS, the Administration recommends accepting the recommendation of the
FCWPC; waiving, by 5l7th vote, the competitive bidding requirement, in Section 82-39(a) of the
City Code, as being in the best interest of the City; and waiving, by 5t7th vote, the appraisal
requirement in 82-39 (b) of the City Code, as being in the best interest of the City; and
WHEREAS, the Administration recommends the approval of the draft Lease,
substantially in the form attached and incorporated herein as Exhibit "A".
NOW, THEREFORE, BE !T DULY RESOLVED BY THE MAYOR AND GIry
COMMISSION OF THE CITY OF MIAM! BEACH, FLORIDA, that the Mayor and City
Commission hereby accept the recommendation of the City's Finance and Citywide Projects
Commission Committee, waive waiving, by a 5t7t^ vote, the competitive bidding requirement in
Section 82-39(a) of the City Code, finding such waiver to be in the best interest of the City;
further waive, by 5t7th vote, the appraisal requirement in Section 82-39(b) of the City Code,
finding such waiver to be in the best interest of the City; and approve, upon first reading of this
Resolution, a ground lease agreement, substantially in the form attached to this resolution,
between the City (Owner or Landlord) and the Sabrina Cohen Foundation (Tenant), in
connection with the use of the 5,100 square feet of the City-owned land located at Allison Park,
having a street address of 6475 Collins Avenue (Premises), for a term of ninety-nine (99) years
with no renewal options and further set the second and final reading and public hearing of the
lease, as required pursuant to section 82-37(a)(2) of the City Code, for a time certain on
December 9, 2015.
10
PASSED and ADOPTED this 21't day of October,2015
ATTEST:
Rafael E. Granado, City Clerk
T:\AGENDA\201S\October\Parks and Recreation
Foundation.doc
Philip Levine, Mayor
(October 21)\Resolution Land Lease for Sabrina Cohen
APPROVED AS TO
riinM & LANGUAGE
& F98 EXECUTION
4q\-- (ul3['
City AtlorneY ,Dote
11
CITY OF MIAMI BEACH
a Florida municipal corporation
Lessor
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EXHIBIT
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12
TABLE OF CONTENTS
ARTICLE
t.
PAGE
Section 5.1 RiVenue from Wellness C-i,nter Project Related Activities,:",,
Section 52 Financia! Records and Reports
,rqff*r!,t AND FUNDJNG FoR rHE WELLNESS GENTER ...... 15
section 6'1 . .i,
Section 6.2; Programmatic Plan
OPERATION OF T}IE WELLNESS CENTER PROJECT RELATED
ACTIVIES/FINANCIAL RECORDS AND REPORTS ................... 16
Section 7. 1 Labor/Person nel/Materials/EquipmenUF u rnishings
Section 7.2 Orderly Operation
Section 7.3 Security
Section 7.4 Fees for Services offered at the Wellness Genter
Section 7.5 Preference to Veterans and Miami Beach Residents
[.
1il.
lv.
V.
vt.
vl!.
DEMTSE BY LESSOR.............. ................ 11
Section 1.1 Lease of Leased Premises
.]::
DURATTON AND TERM ......=..:... .........12
.:.'
Section 2.1 Gommencement and Maturity Dates :,r,
t,:
Section 3.1 Rent and payment schedule ::::==
*.$.Bas,- ' '" -, ii-r
USE AND PoSSESSION oft; ",ft{|jyJss GENTER PRoJEcr ..................12
' ;l .lrSection 4.1 Permitted usesailEfin6,-ilj
J'!:
14
13
tx.
vil. NET LEASE............. .....17
Section 8.1 Net lease defined
PROVISIONS REGARDING PAYMENT OF TN(ES .....,............. 17
Section 9.1 Lessee Pays All Taxes
: ,:..
Section 9.2 Contesting Tax Validity
Section 9.3 Failure or Refusat to Pay Tax "'..,, "'
Section 9.4 Proration ' i'=,' '..
x.LESSOR'S INTEREST NOT M EC HAN ICS' OR..MATERIALME N'S
LIENS 11r,...............ii.r.....r.,.r......:::;........... ,.,....,.,.,.....20
Section 10.f
Section 10.2
Section't0.3 Leasehold Mortgage
., ,;.
Notice to Third-Parties neEd&n ni
Releasing and Discharging a,d'ffi,,
.
ti:tu..::::::-:::
.::::.=,=
xt.LESSOR',S RTGHTSAND,REMEDTES ........... ....:............. ...........22
:l
Section 1f .1 ', ndlord-lflhant Relationship,\\
Sectionl1.2 enQiS/l1 ie5
Section' 1 1 .3 Rig htiZffiReni6d[E=$. u mulative"'' -=. '\$ii5r,
-'==7'
INDEMNIFICATION,OF.. LESSOB^GA|NST LtABtLtTY .............22xl.
Sectioh 12.3.1 lndem'nlficatiori
Section 12.3:2 Gomm6Eial General Liability Policies
uut uu:Section 12.3.3 lnde,ryhi{ication Glause For Lease Challenges
Section 12.3.4 C6mpliance With All Laws, Etc.
Section 12.3.5 Rules On Hazardous Materials
Section 12.3.6 Hazardous Materials Defined
Section 12.3.7 Further Disclosure of Hazardous Materials
Section 12.4.4 Lessor's Right to lnspect
Section 12.4.5 Default
Section 12.4.6 Lessee Receives Property "As !s"
14
XIII. FIRE AND WINDSTORM, ETC. INSURANCE PROVISIONS .....26
Section 13.1 Property All Risk Coverage Policies
Section f 3.2 Builders'Risk lnsurance Policies
Section 13.3 Use of lnsurance Proceeds
Section 13.4 Financing of Premiums :,,
Section 13.5 Default after Casualty .,.
',,-'
Section 13.6 Excess lnsurance Proceeds :
xrv. LESSEE'S DUTY TO pAy rNSURANCE PEFMIUMS ............ ....32
Section 14.1 Obligation and Proof,o-*ffiment
Section 14.2 Lessor's Option to eaf-,
XV. ASSIGNMENT
Section 15.1
Section 15.2
Section ,u.l/E
-%
|..o,,,,!,. 1td APProvaI
, %#u= :
Rig ht and Conditions--Of Assig nm6hg-=
e-afeid,a?1Ass i g n me nt by Le aseho t d M 6 rtg a g ee
XV!. CONDEMNO''O*GLAUSE.
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Section 16.1 Divisi6Ef Proceeds
Section 16.2 Lessee's
Section 16.3 Takihg:Bsnd6f.i...qg.Wellness Genter Project Unsuitable for Permifted
XVII. ADDITIONAL IMPROVEMENTS ....35
Section 17.1 Propos6d lmprovements Defined; Consistency with Concept Ptan
Section 17.2 Lessee's Responsibility for Design and Approvals
Section 17.3 Pretiminary Plans and Specifications
Section 17.4 Review of Preliminary Plans and Specifications
Section 17.5 Design Review Board Approval
Section 17.6 Public Facilities and Concurrency
Section 17.7 Construction Plans and Specifications
Section 17.8 Gonditions Precedent to Gonstruction
4
15
Section 17.9 Lessor's Gooperation in Obtaining Approvals
Section 17.10 Phasing
Section 17.11 Comrnencement of Gonstruction
Section 17.11.1 Unavoidable Delays
Section 17.12 Completion of Construction
Section '17.13 Land Development Regutations ,,;"u",
Section 17.l|licensed Architects and Engineeffi
.,:,*t\ti;lli\lliu.iffi,15_
Secti o n 1 7 .1 5 G o n stru ctio n C ost C e rtif i cati Olidrio -,rflW}
Section 17.16 Comptetion Bond , """
Section 17.17 Diligence in Constructfu
.%
xvlll. DEED RESTRICTTONS CON,CJRNTNG THEUSE OF THE LEASED HftEtUlSeS 43
tsJ'
Section 18.1 Restrictions: ,,*,.. 'q&,
(a)LesseeRemainsa'FtgS;F&*...r.9,y11corporation
(b) Retigious Services
(c) Assignments Without C$nsent:
(d) Lessee's Costs
(e) Security
(f) lnsurance obligation
(g) Sigii'i::= '1
S%'-ti. a.2 Violalion of Restriction is Event of Defautt
Section 19.3 Thirty Day Cure Period
Section 19.4 Lessor's Other Remedies
Section 19.5 Liquidated Damages
Section 19.6 Receiver
LESSEE'S DUTY TO KEEP PREMISES IN GOOD REPAIR .....47
Section 20.1 Lessee's Covenant Regarding Maintenance and Repair
)
xtx.
xx.
16
17
xxvilt.FoRcE MAJEURE............. .....52
Section 28.1 Force Majeure
xxlx.stGNAGE/NAMtNG RtcHTS ............... ....... 52
XXVIt.MISCELLANEOUS PROVISIONS ...............;;................... ............. 53
Section 30.1 Grace Periods Run Goncurrently
Section 30.2 Arrearages ".,.r{i
Section 30.3 Landlord-Tenant Relati$ hip Regarding Collections
Section 30.4 Lessor's Remedies Not Otherwise Provided
Section 30.5 Receivers
Section 30.6 Gooperation
Section 30.7 Gaptions
on Liability
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Section ., ,ffipffiiin the Public Records
Section 30:15
Section 30;{'O
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THIS INDENTURE (the
County, Florida, this _ day of
:,i
or the "Par.k:+ and *,WAI,,
LEASE
"Lease"), made and
and
entered into at Miami Beach, Miami-Dade
2015 ("Effective Date"), by and between:
CITY OF MIAMI ECACH,, ;S;;=
\\ rlf
a F torida mu n ici pa I
"olp'ltt#,X-p
n
(hereinafter referred to as "EE-$EdrEr "City")
ar;?
SABRINA COHEN FOUNDATIoN, !NC. -
::::::::
a Floii,$ r-profit C rataon
(hereinafter referred to as "Lessee" or "Foundation")
WHEREAS, the Lessor is the owner of ifre fee simple title in and to that certain property
located e!9-$;&l,ffi{{ihsAve, Miamj Beach, Florida a/kla Allison Park, hereinafterdemised and more
particuifirlfS'described in the site plan attached aS Exhibit "A" (the "City's Property", or"Allison Park" ,
%i
WHEREAS,,:!. brina DiXlffihen, the President of the Sabrina Cohen Foundation (the
"Foundation"; appro5*d tfre . proposing the implementation of an ADA accessible beach
program ("ADA nccess6ifua-h erogrrm"); and
WHEREAS, the City embraced the idea of implementing an ADA Accessible Beach
Program, including an accessible outdoor recreation and playground, to be developed and
constructed at the City's sole cost and expense; and
WHEREAS, the City selected the north section of Allison Park (the "Park") forthe location of
the ADA Accessible Beach Program and has initiate a project to redesign the Park to include
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providing beach access using an alternative friable wood deck and ramp combined with Mobi-mats,
outdoor exercise equipment and picnic tables, and re-striping the existing parking lot to provide
twelve additionalADA accessible parking spaces; and
WHEREAS, at the July 8, 2015 City Commission meeting, Sabrina Cohen, on behalf of the
Foundation, requested that the City grant the Foundation a lease for the use of a different portion of
Allison Park to develop, construct, manage and maintain the'irst accessible public health and
wellness center (the "Wellness Center"), at be constr:EdteO at the Foundation's sole cost and
expense; and
WHEREAS, the City Commission
't,
the goal and priori$'of being the first city to
and product testing, suiii.dOtfo fundirng availability, with the goal of developing medication, health
products andtechnotogie; *Ai"n *ifi entrange the quality of life for persons living temporarily or
: : :::::::::::: :: :::::1
permanentltlith a physical oi' ffive disa flnd
WHEREAS, on September 30, 2A15, the City Commission adopted Resolution No. 2015-
29150, approving,lhe conceptualplan (the "Conceptual Plan"), in the form attached as Exhibit "B",
and authorizing the City Manager to negotiate a ninety-nine year ground lease (the "Lease") for the
use of approximately 5,100 square feet of the footprint of the City's Property, located at the center of
Allison Park, more particularly described in Section 1 .1 (the "Leased Premises") for the development
of a state of the art public Wellness Center, including the construction of adjoining public restrooms,
all improvements and personalty required to operate the Wellness Center (collectively, the
"Wellness Center") (hereinafter, the Leased Premises and Wellness Center shall be collectively
referred to as the "Wellness Center Project" orthe "Project"), and additionally relocating the existing
public showers at the Park to a different location within the Park, based upon the essential terms set
forth therein, which final negotiated Lease would be subject to approval by the City Commission at
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two hearings, with the second being a public hearing, as required pursuant to Section 82-37 of the
City's Code, and thereafter approved by a majority of the voters in a City-wide referendum, as
required pursuant to Section 1.03(b) of the City's Charter; and
WHEREAS, in connection with the Proposed lmprovements, the City has agreed to pay for
the expenses of relocating the three turtle exhibits and signage relating thereto, currently located at
the Leased Premises, to a different location in the Park, which location shall be determined by the
City Manager, in his sole discretion; ::
.,,..+' ='
WHEREAS, additionally, on September-ffii"Z015, pursuantto Resolution No. 2015-29150,
the City Commission approved the expansiori':61f.,$,,1$9 parking lot located af the Park (Parking Lot
Expansion Project), at the City's discretion and sole , which Parking Lot Expansion
Project may include, without limitatide (1) i DA accessible patking spaces torvrvvv,',,','*.=\1-l::rrrvrvsslrrv:i
approximately 17, plus increasing th6:.totaf+gular spar ,!,9,,,"PPto*iratelY 103, for a total of_ _..._ ,
i
approximately 120 parking spaces; (2) the relocation of the e;approximat ely 120 parking spaces; (2) the relocation of the
";EGfuTrnopy
trees, currently on the
west side of the Park, to 6ther locations, at the City Manager's OidCietion, within the Park; and (3)
the demolition of the existing public restrooms, currehtly located at the west side of the Park (the
Foundation will be constructing new public restrooms); and
:]:::.,:.
iii., l.&,.
jiWtEREASI-dfr,.O,eIober 5, ,2;0,15, the Finance and Cityruide Projects Commission Committee
of the CiVl1g,p;mmended tfr6ttfre Administration negotiate a ground lease forthe use of the Leased
Premises, fiil nnection with*e development of the Wellness Center, based upon the essentialt-::::':':'=' 'ttuili:=
terms approved at the September 30,2015 City Commission meeting; and
I ,ff_,/ffi1
WHEREAS, on"t$ili ,,IEAS, on"u$ill , the CityCommission adopted Resolution No.2015-
, approving, cihifl'rst reading, a ninety-nine year lease ("Ground Lease") between the
City and the Foundation for the use of the Leased Premises; and
the City Commission adopted Resolution No.
approving the Lease, at a second and final reading, during a public hearing.
WHEREAS, on
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NOW THEREFORE, the Lessor and the Lessee, for and in consideration of the mutual
covenants, agreements and undertakings herein contained, and in further consideration of the
payments herein mentioned, made and to be made, do by these presents mutually covenant and
agree as follows:
ARTICLE I
DEMISE BY LESSOR
, i, ,.;;:;::1.1 Upon the terms and conditions herein stated; pft in consideration of the payment
the performance of which are declared to be an integral part of the consideration to be furnished by
the Lessee, the Lessor does hereby lease, let and demise unto the tessee,;, the Lessee does
hereby lease of and from the Lessor, the following described property, situateil!1,4g and being in
Miami-Dade County, Florida, togetherwithrSll buildings and other improvements located thereon, to
wit: 'ffi,t ,#
(Lega| Description of Lea3ffr"tiift},
,,,,,,,,
subject to the following: fu &'
(a) Conditions, restrictiondffi*ldiifffilitationS, nor,v appearing of record;
(b) City and/or County Zonin$,'6p6inances now existing, or which may
from time to time of the rents herein stated, and fora ti$
l[,A.llon
of the prompt performance
by the Lessee of all of the covenants hereinafter contained by the to be kept and performed,
ii,t Li, Joafterexist dur the life his lease;
(c) '".4*attersshown on the Boundary Survey;
(d) Ai ne teims, covenants and conditions contained in this Lease.
mmission's determination by separate resolution of(e] rhe citv*Co
Zilil, ,,,,"rrrlicabffivelopment
regulations and appropriate uses forthis GU
'''11,.:r;B-;'ep€rty (d provided in Miami Beach Code Sections 142-422, 142-
423,,.*8,,"4t425 (a); P I a n n i n g D i re cto r a n a lys i s a n d C ity Co m m i ss i o n
'= :":=:':':'::::':"
dete6ihation of waivers of public bidding and appraisals under
Miami Beach Code Sections 82-38 & 82-39); and an approval in an
election by majority of the voters in a City-wide referendum, pursuant
to Section 1 .03(b) of the City's Charter. lf the Lease is not approved
by voters during the March 16,2016 referendum, the Lease shall be
void ab initio, without the need for further action by any of the parties.
This property is hereinafter referred to as "Leased Premises."
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2.1
ARTICLE II - DURATION AND TERM
The duration and term of this Lease shall be for a period of ninety-nine (99) years,
commencing on the lst day of April, 2016 (the "Commencement Date") and expiring
on the 31't day of March, 21 15 (the "Maturity Date").
ARTICLE lll - AMOUNT OF REI.IT
..:
The Lessee covenants and agrees to pay to the Lessor an annual rental of $18.00
per year, payable annually in advance, the first such annual payment being due and
payable on the lstdayof Aprit,201=6r#iid on the lstdayof Aprileach and everyyear
thereafter during the entire ter Lease.
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ARTICLE IV.
3.1
4.1 The Wellness Center Project shall be used by the Lessee solely and exclusively as a
state of the art public health ahd wellnessE€ catering primarily for individuals
living with physical and cognitive disabilities, SEith , and able bodied individuals
with temp5 f,.,, uries, and any and all'actiVities iEt&O thereto. lt is understood
and d$ that thUrilessee shall be'idQuireO, at a minimum, to provide the activities
and seffifl3scri#U in Sectioni (A) through (D) below. Additionally, the Wellness
CenterProjBffilsft uqffitne Lessee during the entire term of this Lease only
for the O'U e3' cribed d6low and for no other purposes or uses whatsoever. ln
the event&t.lhe'Lgssee uses the Premises for any purposes not expressly
permitted hereifisuch use shall be considered an Event of Default and the Lessor
shall be entitled to=all the remedies set forth in Article XIX hereof, orwithout notice to
Lessee, restrain such improper use by injunction or other legal action. The activities
and uses n"t@ under this Lease shall be limited to and only include:
(A) 'Physical Therapy Room;
(B) Aqua-therapy Room;
(C) Adaptive Gym, including training;
(D) Healing Room, for yoga, meditation, and art therapy
(E) Research & Product Testing Room (subject to funding availability);
(F) Office of the Foundation;
(G) Conference Room; and
(H) Library;
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4.2 Secondarv (ancillarv Use). Lessee shall also be authorized to use a portion of the
Wellness Center, notto exceed square feet, as aCaf6, offering prepared foods and
non-alcoholic beverages ("Food and Beverage Service") for patrons of the Wellness Center.
4.2.1 Citv Vendinq Contracts. Notwithstanding anything contained in this
Subsection 4.2.1, or in the Agreement, Lessee's Food and Beverage Service shall be
subject to and shall not, under any event, conflict with, or otherwise violate, the City's
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exclusive vending contract with Coca-Cola RefreshmentS'USA, lnc. d/b/a Florida Coca-Cola
Bottling Company and Coca-Cola North America, a division of the Coca-Cola Company
("Coca-Cola Contract") and the City's excffivdnding cohlract with Bettoli Trading Corp.
("Bettoli Contract") (collectively referred, ffiin as the "City Vending Contracts"); copies of
which are attached hereto and made
^ e,ffihereof ascomposite Exhibit "C".
4.2.2
Plastic Straws. Pursuant to Se.€!$Ii?92.-7 of the CitylS$, as may be amended from time to time,
effective August 2,2014, the City hS$fiohibited the use ofqlpanded polystyrene food service articles
by City Contractors, in connection with any'ei$contract, ld6Sl,,concession agreement or Special
event permit. Additionally, pursuant to.,$;ction 82-585 oJ the Gtyi&Oe, as may be amended from
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time to time, no polystyrene.food seffi art will be allowed in the right-of-way, and no
polystyrene food service articles can be prdliO"O to sidewalk caf6 patrons.
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Expq,qgffi,.po,/y-styrene is a petroleum byprod& commonly known as Styrofoam. Expanded
polys$Cne iS.r!!l.ere particuldy defined asSownF-?ilystyrene and expanded and extruded foams that
aie thermopla5tiC,p-e.trochemful materialSutilizing a styrene monomer and processed by any number
o1 techniques incfdd,ihg, but not limited to, fusion of polymer spheres (expandable bead foam),
idl$.{1,qffnolding, foa'fu moldinQ, and extrusion-blown molding (extruded foam polystyrene).
Expand**gtystyrene food service articles means plates, bowls, cups, containers, lids, trays, coolers,
ice chesG# $.. all similar alictes that consist of expanded polystyrene.
;etl,.dF}i provide food in, or offer the use of expanded polystyrene food serviceLessee agrees not to s
articles at the Welln6,ss: br Project or in connection with this Lease. Lessee shall ensure that all
vendors operating ifi=.rffiProject abide by the restrictions contained in this Subsection 4.2.2. A
violation of this sectioh=shall be deemed a default under the terms of this Lease. This subsection shall
not apply to expanded polystyrene food service articles used for prepackaged food that have been
filled and sealed prior to receipt by the Lessee or its vendors.
Additionally, Lessee agrees to comply (and ensure compliance by its vendors) with Section a6-92(c)
of the City Code, which states that it is unlaMul for any person to carry g4y expanded polystyrene
product onto any beach or into any park within the City or for any business to provide plastic straws
with the service or delivery of any beverage to patrons on the beach.
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4.2 Hours of Operation. The Lessor and Lessee herein agree that normal hours of
operation for the Wellness Center shall be from 8:00 AM to 8:00 PM, Monday
through Sundays. Any modification to the established hours of operations shall be
subject to the prior written approval by the City Manager, in his sole discretion.
Notwithstanding the foregoing, the City Manager, in his sole discretion, may submit
this issue for consideration and final determinatfin by the City Commission. The
failure of the Lessee to operate the Wp.,lfil, p Center continuously during its
ri i Ll ill;.:!41,
scheduled hours sha|Iconstitute a defa..$i Hddfil
'g
Lease.
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ARTICLE V. REVENUE FROM THE WELLNESS CENTERIP.ROJECT RELATED
=.
t:i'i::;:::::::=
ACTIVIT| ES/F| NANCf AL REGO R pS AN p REI?..O.RTS
1,5.1 Revenue from the W_gJlness Center Pror.e-c.!,.Related ActivitieS;=-1..=E!lj Lessor herein
.
acknowledges that thQ.tq9,,9 may derive additional revenues from a portion of the
approved uses it condri"e.is=oh .FWellness Center Project(such revenue generating
:::::l:::
uses may include, from tifiti1,to time, s"ii-ecial events on the Wellness Center Project,
fundraising, specialty sales, classes,",zjgptqi.ers-and sale of food and non-alcoholic
beverages). The Lessee hereiir'acknowledges that any and all revenue generating
uses conducted on the Project muS e directly related to, consistent with, or used to
help fund the Lessee's managemeff:ffi.!1pperation, and maintenance of the Project,
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and, ih,,ffifi,y"nt that annual ievenue(S) pertaining to the Project exceed expenses
during a Pdlticular budget year, (in accordance with projected annual operating
;t)ihudget submitled.by the Lessee to the Lessor pursuant to Section Vl hereof, the
Uffi*q.9, and the t66see agree that such excess revenue, if any, shall first be applied
" oftUl.,i,ly of th pital improvements and/or infrastructure maintenance costs (as
set forthli1|ffiim XX), and may, thereafter, be applied by the Lessee to support
other progrdrt*hing of the Lessee. Any revenue generating uses conducted on the
Project that are not consistent with the approved uses in Section 4, or consistent with
this Section 5.1, shall first be approved, in writing, by the City Manager (prior to
commencement of same).
Financial Records and Reports. Lessee shall maintain on the Premises, or at the
location set forth in the Notices section of this Lease, or at such other place within
5.2
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6.1
Miami-Dade County, Florida, true, accurate, and complete records and accounts of
all receipts and expenses for any and all uses, services, programs, events, and
activities (including, without limitation all revenue generating uses) being conducted
on the Premises, and shall give the City Manager, or his authorized representative,
access during reasonable business hours to examine and audit such records and
accounts.
==:
Throughout the Term of this Lease, and n@ter th--an one hundred and twenty (120)
days following the closing of Lesseg$J,.. scal year @n" 1't- May 31"1), Lessee shall
provide the City Manager witn$$Snnual report of all uses, services, programs,
events and activities (includinUffiut limitalion, all revenue generating uses)
conducted upon the Project for"7ffuf.1Ll iiiar, along with 'audited financial
statements. Said stat nts shall be ctsffid 'as true, accurate and complete by the
Lessee and by its certified public accountant.
enrr c u.Evt.: Bil,po er eH o r u ru o.r nG:lon rn E--:ftr uru ess c e r.rr e n
Throughdt tne id$l*.of this Leese, thd Lessee shall prepare and present, by May
1Sth of %X;'"r, ifiifiy:.:*d, detailed line item annual operatins budset for the
Wellness CCfrffif1,ffiU b gg,trom the next June lst to May 30th, for review by the
City Manag er. S{ififuydget Sh?.*qffio,l;lde a projected income and expense statement;
projected year end EEdlance shee( statement of projected income sources; and
application of funds. AddittpLnally, the budget shall also include, without limitation,
ihe followi ng detailed pro.leCiions:
Gross revenues by categories from all revenue sources and
revenu-generating uses derived on the Wellness Center Project;
B. , =Operating expenses for the Wellness Center;
C. Administrative, labor and general expenses;
D. Marketing, advertising and promotion expenses;
E. Utility costs;
F. All repairs and maintenance costs, and all costs related to capital
improvements and infrastructure of the Wellness Center Project; and
G. Projected capital improvement costs.
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6.2 Proqrammatic Plan. Accompanying the Lessee's proposed annual budget shall
be the Wellness Center's programmatic plan for the Wellness Center's upcoming
fiscalyear, detailing the then-known (planned) uses, services, activities, events,
programs, and operations, and the number of users anticipated.
ARTTCLE Vll. OPERATTON OF THE WELLNESS 9ENTER PROJECT RELATED
ACTTVTTI ES/FTNANC rAL RECOLDS AN p REPORTS
Labor/Personnel/Materials/EquipmenUEgfl{shi@ Lessee must provide and
::.:,:
=:::::l:=maintain, at is sole cost and expense, all labor, perS l, materials, equipment, and
furnishings, as reasonably required, to operate the Project as a full service
dance with the goals and
priorities and approv,:..... .;.
"*
herern-
Orderlv Operation. Lessee shali have a ne nd orderly operation at all times and
shall be sole.ly responsib@r thd'lnecessary housekeeping services to properly
maintain the Pioject There-$pttOe g.., rters nor shall anyone be permitted
to live within the Prgject. Less'HE,s--li5trfmake tff'ffiFro1ect available for inspection by
the City Manager or his authorizdd during hours of operation.
fu1 stolen od1$amaged personal property of the Lessee and/or the Wellness
Cente;p,,-o..fficials"employees, contractors, patrons, guests, invitees, and/oranyother
third nartrq.e
Fees for Services offered at the Wellness Center. The cost of the services offered at
the Wellness Center shall be subject to the priorwritten consent of the City Manager,
which consent shall not be unreasonably withheld.
Preference and Discounts for Veterans and Miami Beach Residents. Lessee
agrees to make a good faith effort to provide services for military veterans and Miami
7.1
7.2
..,.=..\-Nffiffift ,."," =",,-, w
7igfl Sec0lf€,Lessee shall be responsible for and provide reasonable security measures
*-==,,.,.". may be'i€fi;1i,l;O ,O protect and secure the Project and any materials, equipment,
'.,=nd furnishin$Sljlfhereon. Under no circumstances shall the Lessor be responsible
7.4
7.5
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Beach residents, to the minimum extent of 10% of the capacity in the programs
offered in the Wellness Center. Additionally, Lessee shall provid e a 15o/o discount to
military veterans and Miami Beach residents in connection with the services offered
by the Wellness Center.
ARTICLE VIII . NET
8.1 Lessee shall pay to the Lessor absolutely netu!,!$ghout the term of this Lease, the
rent and other payments hereunder,fre,ffEf:Aii.:-q,
",
assessments, impositions,
expenses or deductions of any kind and without aba@1pent, deduction or setoff, and
^under no circumstances or conditions, whether now exi$Ii r hereafter arising, or
whether within or beyond the present contemplation of the'$E , shall the Lessor
be expected or reguired to make any paytrrent of any findt@hatsoever (unless
reimbursed bV Less under any@sr obligation or lifuitity as to the
Premises, except as o@r00i$ffiecifically stated in this Lease; and the Lessee
agrees to pay all costs ah#€xpefr'Be f. every kind and nature whatsoever arising
out of
:::,::"@ction
with,rc#'"p;}.,i,$ ltll,,"",ry1arise or become due durins the
term of Lease. *rl, S-
::::::::
..._=..'=-*.\!$,*Q;,;R?,,=.?*".hall
be'respon'-ible foi@xpenses relating to the operation and
== maiiit6ftfip of th ect including, Without limitation, utilities, anyapplicable taxes
- "'''"' un$P,lr*orem)
-
'Ary;lE lX - PffigVlSTONS REGARpTNG PAYMENT OF TAXES
9.1 Les ovenaqt nd agrees with Lessor that as a further consideration for the
making Ufift se, the Lessee is obligated to and will pay all taxes levied or
assessed at ainy or all times for and after the year in which the Commencement Date
occurs, and during the term hereby demised, by any and all taxing authorities, and
including not only ad valorem and personal property taxes, but also special
assessments and liens for public improvements, and including in general all taxes,
sales taxes, tax liens, or liens in the nature of taxes which may be assessed, levied
or imposed against the Wellness Center Project or this Lease, including the land and
all buildings, (and such personal property by way of furnishings or equipment which
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9.2
the Lessee has or may bring upon or be obligated to bring upon the Project), during
the term of this Lease; but in the event any of these taxes and assessments are
payable according to theirterms in installments, then the Lessee shall have the right
to pay the same as such installments fall due, provided that the Lessee must effect
payment of these taxes not later than thirty (30) days before the time when the
nonpayment thereof would render them delinquent. The parties agree that in the
event any special assessments are payable in=ihstallments, the Lessee shall be
responsible for such installments during the term of this Lease, and may pay such
sums in installments, and the Lesso,4 ll be responsible for any such assessments
extending beyond the term of this-=-E*Eie.
"=
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lf Lessee desires to contest the validity of any tdik or tax claim, Lessee may do so
without being in defau@reunder as tolis obiigation to pay taxes, provided Lessee
gives Lessorwritten noti its intention to doso and furnishes Lessorwith a bond
from a corporate surety qd'iLifieo to do busineis iA.tne State of Florida, in one and
one-haltffi amorn,at,,,,n" tax item or jtd 5 intended to be contested,
condiffid to pa tax or tax itemS when the validity thereof shall finally have
been detEffiin d, ffi,! written u and bond shall be given by Lessee to Lessor
.not laterthan-a'd.aFffilUftii.prrp$ (30)-days before the tax item or items proposed to
be contesteO w@r1|nerwisE 6'delinquent. lf priorto the giving of such bond,
Lessee shall have pei the Re$istry of a court of competent jurisdiction a sum of
money to pay o ply 6Effi payment of such taxes, and if such money is so paid
infune Registt.f the iourt that it may never be withdrawn excepting for its
upp tio.n upon the payment of the contested taxes withoutthe consent in writing of
the Lessoihereunder first had and obtained, then the amount of the bond required
by the terms of this paragraph may be diminished by the amount so paid into the
Registry of the Court. lf there shall have been paid into the Registry of the Court in
the manner prescribed hereinabove a sum equal to one and one-half times the
amount of the tax being contested, then no bond, as otherwise provided for in this
Article, need be given by Lessee to Lessor. None of the provisions of this Paragraph
9.2 shall be available to Lessee unless and until the enforcement of the contested
tax, whether by way of issuance of Tax Certificates, Tax Deed, reversion to the
taxing authority, or otherwise, is fully enjoined by a court of competent jurisdiction or
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is othenruise effectively stayed not laterthan a daywhich is thirty(30) days before the
particular tax item or items proposed to be contested shall become delinquent; if
such injunction or other stay is not secured by Lessee within that time, then the
Lessor is authorized, as provided for in Paragraph 9.3 of this Article lX, to pay such
taxes as then assessed and levied, notwithstanding any pending or proposed suitto
contest those taxes..a:.:1\tlw
9.3 ln the event the Lessee shall for any reason fail, refuse or neglect to pay any taxes
referred to in Paragraph 9.1 of this Article lXwithinGB.,..time specified therein, orif the
Lessee desires to contest, or by,suit contests any such tax, but for any reason fails,
refuses or neglects to comply with the provisions of Paragraph-P.2 of this Article lX
within the time therein specified, then and in any such event, tHii Lessor may at its
option pay such taxes as then assessed and levied and the amouht or amounts of
money so paid, inctuOii{$if- ble attorneys'fees and expenses which may have
been reasonably incurreE* contectton with iuch payments or by reason of the
nonpayment thereof by the t- ssee,6(.*$'t1ffi jnterest on all such amounts at the
rate of ten per ceht (10%) peiffiiffiiiom the'date of payment, shall be repaid by
the Lesiee to the Lessor and the payment thereof may be collected or enforced by
...=J.e!.E9.I- in the same manner as though such amounts were an installment of rent
.._ spebffically required by the teims of this Lease to be paid by Lessee unto Lessor; but
,,:
@ill** the pay of, any such taxes by the Lessor shall not waive the default thus
rytted
byt,'; .."
9.4 Notuiths-tandingffi foregoing, taxes (after deducting all available discounts if
utilized)'fuF.$e:ffi year of the term of this Lease occurs, will be prorated as of the
Termination'Date of the term of this Lease, Lessee paying such taxes forthat portion
of the termination year preceding the date of termination of this Lease, and Lessor
paying the balance of such taxes for such year, if any.
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ARTICLE X. LESSOR'S INTEREST NOT SUBJECT TO
MECHANICS' OR MATERIALMEN'S LIENS
10.1 All persons and parties, corporate and otherwise, are hereby notified of the fact that
the Lessee does not and shall never under any circumstances have the power, right
or authority to subject any interest of the L_e',;sfi#ln the Leased Premises to any
mechanics' or materialmen's liens or tiepSilfflifny other kind or nature; and all
persons dealing with the Lessee are hed$'noffu of the fact that they must look
only to the interest of the Lessee in the Wellness' nter and not to any interest of
the Lessor.
:,
10.2 Lessee covenants an-d,,Agrees with Lessor that Lessee will not @it or suffer to be
filed or claimed agai@erii,?lerest of the Lessor in the Leased Premises, or the
interest of Lessee in th lti6$,,, ,;$enter, during the continuance of this Lease any
lien or claim of any kind, 6nd if ii#$...such lien is claimed or filed it shall be the
obligation of the Lessee, within thirty (30) daVs_aftlr the lien or claim shall have been
filed among the Public Records 6.f M'iemi-Dad6:€-6unty, Florida, or within thirty (30)
days afteithe Lessor shall have been,given notice of any such lien or claim and shall
, :,1!1(P,Y,fil['?ltrittuO written notice of thHlifu.ceipt of notice of such lien or claim unto the
iiii . " Lesse6i heverlhirty (30) day peiiod expires earlier), to cause the Wellness
,- Center PtdiPoX,iito bsreleased and discharged from such lien or claim, either by
=Jyr"nt into 00u of the amount necessary to relieve, release and discharge the
F&pt trom suChTlien or claim, or in any other manner that as a matter of law will
r"rdtt; within the].a ioo of thirty (30) days, in releasing and discharging the Lessor
and the title.of ihe Lessor from such lien or claim; and Lessee covenants and
agrees, within the period of thirty (30) days, so to cause the Project and the Lessor's
interests therein to be released from the legal effect of every such lien or claim.
10.3 Notwithstanding the foregoing paragraph 1 0.2, Lessee may encumber the Wellness
Center with a leasehold mortgage as follows. Lessor agrees to execute a non-
disturbance agreement (containing language reasonably acceptable to the Lessor)
for the benefit of Lessee and the holder of any leasehold mortgage (the "Leasehold
31
Mortgage") and to cooperate with Lessee's efforts to obtain financing, including the
execution of any necessary documents, so long as such documents are subject to
the reasonable approval of the Lessor's attorney. No leasehold mortgage shall be
valid or of any force or effect unless and until Lessor has consented thereto in writing
(which consent shall be conditioned upon Lessee's compliance with this Section
10.3) and a true copy of the original of each instrument creating and effecting such
mortgage, certified by Lessee to be a true cOpy of such instrument, together with
::'::written notice containing the name q,=q,,!. post ice address of the Leasehold
Mortgagee, has been delivered to the Lessor. Further, the Leasehold Mortgage shall
specifically provide:
(a) That the Leasehold MQffige is subject to all of thre terms, covenants and
conditions of this Lease; '*lth
,,
(b) That the l=gqselrold Mortg#gE enbumbers only the Lessee's interest
created by this L@ in the Weih@ Center and does not encumber
Lessor's interest in the Leased Premises;
(clThat the rights of the Lessor pursuant to thls Lease will not be affected by
the terms of the Leasehold Mortgage;
::
(d) I"hat the ffffJder of the Leasehold Mortgage shall waive all right and option
;i+
condemfrEtion awardli
Mortgag e to the.,exte nt
of the sums secured bythe Leasehold
are required by the terms of this Lease
,t;ji.l: t;:.:t),. ".for the demoliticiit;r pair or restoration of the Wellness Center Project;
(e) That tt'iQ holder 6f the Leasehold Mortgage shall agree to send Lessor
c.opies of all notices to Lessee in which such mortgagee claims that there
€xists one or more uncured defaults under the terms and provisions of the
Leasehold Mortgage, such notices to be sent simultaneously to Lessor and
Lessee;
(f) That the Leasehold Mortgage is a leasehold mortgage only and that such
mortgage has obtained no interest whatsoever in the underlying fee of the
Leased Premises as a result of the execution of the Leasehold Mortgage by
Lessee;
(g) Only the Leasehold Mortgagee may acquire any right, title or interest in or
to this Lease, by acceptance of a deed or other instrument of conveyance
2t
32
thereof, by purchase at a foreclosure sale or by transfer in lieu of foreclosure,
and will conclusively be deemed to have accepted such right, title or interest
subject to all of the terms, covenants and conditions of this Lease; it being
the specific intent of Lessee and the Leasehold Mortgagee that the
Leasehold Mortgage encumber only Lessee's leasehold interest created by
this Lease in the Wellness Center, and ,$g"t"except as specifically set forth in
this Lease, the rights of Lessor ( nciu<!ft its fee interest in the Leased
Premises) shall not be affected bythe teims of the Leasehold Mortgage; and
11.3 All rishtdt\$ gefneOies accruing to the Lessor shall be cumulative; that is to say, the
Lessor malifltisue such rights as the law and this Lease afford to it in whatever
orderthe Lessordesire and the law permits, without being compelled to resortto any
one remedy in advance of any other.
ARTICLE XlI .INDEMNIFIGATION OF LESSOR AGAINST LIABILITY
12.1 Lessee covenants and agrees with Lessor that during the entire term of the Lease
the Lessee will indemnify and save harmless the Lessor against any and all claims,
ARTICLE XI . LESSOR'S RIGHTS1 O REMEDIES.:.........-.===-
11.'l Although this is a'long term Le6$e.?.*.tfuf the figfit! and remedies of the respective
parties shall be governed by the Fifuions of this instrument and by the laws of the
.=i*Oie,,;,?*.-{.t'odd"
as theyexistJr,,gm tiiEi:,ry time, as such law relates to the respective
il
rsnts@;=s of landlord=dfid tenant'
'11.2.ii::::During the cohtin:uance of this Lease, the Lessor shall have all rights and remedies
ieh this Lease?hd the law of the State of Florida assures to it.
33
debts, demands or obligations that may be made against or upon the Lessor, arising
by reason of or in connection with this Lease, or any alleged act or omission of the
Lessee or any person claiming by, through or under the Lessee; and if it becomes
necessary for the Lessor to defend any action seeking to impose any such liability,
the Lessee will pay the Lessor all costs of court and reasonable attorneys' fees
incurred by the Lessor in effecting such defensdlincluding appeals, as and when
such fees and expenses become due and , in addition to any other sums
12.2 Lessee shall also protect, defend,'indemnify and hold tessot harmless against any:: .. '.
; it,
loss or damage, inctu$in! attorneys'feeS,,. and costs, arising out of or resulting from
any claim, action or l1y#uit brought b ird party to (i) challenge the validity or
enforceability of this a*U$", or any City action relating to this Lease, including
challenges to the referendqm approv_al contemplated of this Lease; (ii) challenge the
Lessor's titie'fue LeasJ?'i@is9s; or (iii),rgnjoin this Lease. tf any titigation is
instituted against the Lessor d Or if'e f-esJee'as a result of the approval of this
Lease, then-the Lessee snall deidnd the Lessor and save the Lessor harmless from
,i-:::a=Hy and all reasonable attorneys' fees and court costs that may be incurred, both at
,' the trial and appellate level. Counseffii such actions shall be selected by Lessee,
subject to approval of Lessor, which approval shall not be unreasonably withheld or
delayed.
12.3 leJiee, at Lessee's expense, shall comply with all laws, rules, orders, ordinances,
directions, regulations and requirements of federal, state, county and municipal
authorities pertaining to Lessee's use of the Wellness Center Project and with the
recorded covenants, conditions and restrictions, regardless of when they become
effective, including, without limitation, all applicable federal, state and local laws,
regulations orordinances pertaining to airand waterquality, Hazardous Materials (as
hereinafter defined), waste disposal, air emissions and other environmental matters,
all zoning and other land use matters, and utility availability, and with any direction of
any public officer or officers, pursuant to law, which shall impose any duty upon
34
Lessor or Lessee with respect to the use or occupation of the Wellness Center
Project.
12.3.1 Lessee shall (i) not cause or permit any Hazardous Material to be brought upon, kept
or used in or about the Wellness Center Project by Lessee, its agents, employees,
contractors or invitees without the prior written notice to Lessor, demonstrating to
Lessor that such Hazardous Material is necessary or useful to Lessee's use of the
Premises and will be used, kept and stored in a manner that complies with all laws
regulating any such Hazardous Vf a!-e l so brought upon or used or kept in or about
the Wellness Center Project.i;l.l$see breaches the obligations stated in the
preceding sentence, or if the F:resence of Hazardous Material on the Premises
'::::::l::: :i:;!::!;il lrresults in contamination of the Welh,e_ss Ce,et roject, or if contamination of the
Prolect by Hazardous Material othenrvise occurs, then Lessee shall indemnify,
defend and hold Lessor niffiess from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses linctuJing, without limitation, diminution in
:::::: t::
value of the Pioject, damages for the loss or restriction on use of rentable or usable
spac€ any amenifu of the Project, dama$ei arising from any adverse impact on
marketing,.,.,
"p""eE;.I:.,.1
sums paid in settlement of claims, attorneys' fees,
cottsultant G *f#iffi.,#..,,Al,,which arise as a result of such contamination. This
indemnification eF sor byt(i e includes, without limitation, costs incurred in
connection,,,,,with aii;,.;,;rytigation of site conditions or any cleanup, remedial,
removal or restoration work required by any federal, state or local governmental
agency or politicalsubdivision because of Hazardous Material present in the soilor
ground water on oiunOer the Project. Without limiting the foregoing, if the presence
of any Hazardous Material on the Project results in any contamination of the Project,
Lessee shall promptly take all reasonable actions at its sole expense as are
necessary to return the Project to the condition existing prior to the introduction of
any such Hazardous Material to the Project; provided that Lessor's approval of such
actions shall first be obtained, which approval shall not be unreasonably withheld.
The foregoing indemnity shall survive the expiration or earlier termination of this
Lease.
24
35
12.3.2 "Hazardous materials" mean (a) pesticides and insecticides; (b) petroleum and its
constituents; (c) any substance which is or may hereafter be defined as or included
in the definition of "hazardous substances," "hazardous materials," "hazardous
wastes," "pollutants or contaminants," "solid wastes" orwords of similar import under
the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. 59061 , et seq.; the Hazardoih.Iaterials Transportation Act, as
amended, 49 U.S.C. 51801 et seq.; the Res$M'Conservation and Recovery Act,
as amended, 42 U.S.C. 56901 et seq.;mU #€'ffigf.Water pottution Controt Act, as
amended, 33 U.S.C. S1251 et seq., Cnapiers eZOB$lBzO3, Florida Statutes; Chapter
24 of lhe Code of Metropolitan D,?..q,9 County; (d) any o$$ffiOstance, the exposure
to or release of which is regulat6d by any governmental entity having jurisdiction over
the Wellness Center Project or the operations thereon; and (e@v substance that
does or may pose a rd"to the health or safety of the persons employed at or
i nvitees o n the prsrn l se*-:..-.+-sjfui..=
:::::::::
12.3.3 At the cofimencement of thiSft":r:, and on ,le1:,:, , of each year thereafter (each
such date being hereatter cattd$ffiPffisureB\$ll), including January 1 of the year
after the termination of this LeaslBil$_;ssee shall disclose, in writing, to Lessor the
A# il ?,E =and
amo-!,,?!of all Hazardou5 Materials, or any combination thereof, whichtT were storQ$, used=or disposed of on t H wettness Center Project, or which Lessee
intends to*siore, use or dispose of on the Project. Notice of Lessee's use of
=" zardous Mate{rats on tne Project shall not be a waiver of any of Lessor's claims,
%"
or rioii%etated to Lessee's use of such materiats.
.
12.3.4 Lessor rfifl
lifigiffignts
shall have the right, but not the duty, to inspect the Premises
at any reasdilidble time to determine whether Lessee is complying with the terms of
this Lease. lf Lessee is not in compliance with this Lease, Lessor shall have the
right to immediately enter upon the Premises to remedy any contamination caused
by Lessee's failure to comply notwithstanding any other provision of this Lease.
Lessor shall use its best efforts to minimize interference with Lessee's business but
shall not be liable for any interference caused thereby.
25
36
12.3.5 Any default under this Paragraph shall be a material default enabling Lessor to
exercise any of the remedies set forth in this Lease.
12.3.6 Lessee acknowledges it is receiving the Leased Premises in "as is" condition and
Lessor is not responsible forthe existing condition of the Leased Premises, including
any underground conditions.
="Nff
ARTICLE xll! - FIRE AND WINDSTORM. ETG-iINSURANGE PROVISIONS
Lessee shall maintain, at its sole cost and ei'pe il"t|i1e following types of insurance
coverage at all times throughout the term of this Leasq
13.1 Commercial General Liability lnsurance, on an occurrencd=folrpiin the amount of
One Million ($1,OOO,OQ,0.) Dollars, per.occurrence, for bodily inj-.ifiy'eath, property
damage, and personetf.q.,.i $.2,000,000 aggregate. This policy must name the City
of Miami Beach, Florida, as additional insured.
13.2 Workers
13.3 Automobile
rffi '=-.-=
lnsdi.Ehce sfialffie
Florida:*,nd employer's |iabi|itr i,i1 $uiance
rhousand ($ 5o:_:#? Per occurrence.
under the Laws of the State of
less than One Five Hundred
covering all owned, leased,
vehicles anC-hon-ownei-snrp liability for not less than the following limits,
adjustment foi=inlation'-'' ;t $1,O0O,OOO combined single limit (only
provides transpor,tdtion services).
and hired
subject to
if Lessee
13.4 Property insurance for the full replacement value of the Wellness Center building and
contents, as well as business income with extra expense coverage to cover the 12
month exposure. Coverage shall be on an all-risks basis, including windstorm, flood,
and provided under forms, terms, and conditions that are acceptable to the City
Manager. This policy must name the City of Miami Beach, Florida, as additional
insured.
Primary Coveraqe. For any claims related to this Lease, the Lessee's insurance
coverage shall be primary insurance in respect to the City of Miami Beach. Any
26
37
insurance maintained by the City of Miami Beach shall be excess of the Lessee's
insurance and shall not contribute with it.
1 3.6 The policies of insurance referred to in the above Section 13.1 , and Sections
13-3 - 13.4 above shall not be subject to cancellation or changing coverage, except
upon at least thirty (30) days written notice to the City, and then subject to the prior
written approval of City Manager.
.==
' :lll'r'
13.7 Additional lnsured Status. The City of Miami Beach must be covered as an
additional insured with respect to liability arising out of work or operations performed
by or on behatf of Lessee.
.,.=g l
,,,,:, ,.
13.8 Waiver of Subroqation. t-essee hereOy grants tApity of Miami Beach a waiver of any
.t t.
right to subrogation which any insurc-=@-!$edtay acquire against the City and
against those for whom'the City is in law responsible including, without limitation, its
directors, officers, agents, and employees, bf. rle of the payment of any loss under
:::::::::::a:::"
such insurance- Lessee agrees to obtain any endorsement that may be necessary
13.9
, : .,
to affe,.a*ffiil$#diverof subrogation, butthis provisioh4plies regardless of whether
FCitV of Mi i Beach has received a waiver of subrogation endorsement
: :ia=:;.
:| '| 1J..::.;...
lnsurane6is to be placed with insurers with a currentA.M.
Best's rating of no les5,;ttl6n A:Vl!, unless otherwise acceptable to the City of Miami
Beach Risk
13.10 Verification of QQy€-raqe. Lessee shall provide the required insurance certificates,
endorsemehts or'applicable policy language effecting coverage required by this
Section. All certificates of insurance and endorsements are to be received prior to
anywork commencing. However, failure to obtain the required coverage priorto the
work beginning shall not waive the Lessee's obligation to provide them. The City of
Miami Beach reserves the right to require complete, certified copies of all required
insurance policies, including endorsements required by these specifications, at any
time.
27
38
13.11 Special Risks or Circumstances. The City of Miami Beach, in its sole discretion,
reserves the right to modify these requirements, including limits, based on the nature
of the risk, prior experience, insurer, coverage, or other special circumstances.
Gertificate Holder
CITY OF M!AM! BEACH
c/o INSURANCE TRACKING SERVICES
17OO CONVENTION CENTER DRIVE
MIAM! BEACH, FL 33139
payable, and as often as iftUdb.y hallhave been paid to the Lessor
and the Lessee, surrs so paid depositedfi a jointaccountof the Lessorand
Lessee in a bank in Miami-Dade COunty, Florida designated by the Lessor, and shall: :::::::::::::::
the Lessee'f,or the recorstruction or repair, as the case may be, ofS be available to
,'" any buildi.@ or builffigs, damaged or destroyed by fire, windstorm or other casualty
.i. . for wnich in3qlrance money shall be payable, and shall be paid out by the Lessor andi ..,' Lessee frorffitfe joint account from time to time on the estimate of any architect
6e. in the $Hrc of Florida having supervision of such reconstruction and/or
repaiii'i*rtifying i#t the amount of such estimate is being applied to the payment of
.;,i,::).;..:. ....... t :
the reccinlriiffin and/or repair and at a reasonable cost therefor; provided,
however, thaf it first be made to appear to the satisfaction of the Lessor that the
amount of money necessary to provide for the complete reconstruction and/or repair
of any, building or buildings destroyed or damaged as aforesaid, according to the
plans adopted therefor and approved by the Lessor, has been provided by the
Lessee for such purpose and its application for such purpose assured. The
proceeds of the Personal Property lnsurance covering personal property belonging
to the Lessee shall likewise be deposited in a joint bank account to the credit of the
Lessor and the Lessee, and shall be paid out for the replacement or repair, as the
,,\,\$ffi
Compliance with the foregoing requirements shall ""i B-lUr" the vendor of his
sq'i''liability and obligation under this section or under anfrOther section of this
agreement Ys
.a::::::::::a:a:=, ,, t' \ir","
"- **,.,, 'i
13.12 ln the event of the deSffiidfiilof or damage to the buildings, or of any of the
improvements,.by fire, wind$orm oi other casualty for which insurance shall be
39
case may require, of destroyed or damaged personal property. The Lessee
covenants and agrees that in the event of the destruction of or damage to the
buildings and/or improvements or any part thereof, and as often as any buildings or
improvements on the Leased Premises shall be destroyed or damaged by fire,
windstorm, or other casualty, the Lessee shall rebuild or repair (as the case may
require), the same in such manner that the building or improvement so rebuilt and/or
repaired shallbe of the same orgreatervalue,R$ffibuilding and the improvements
upon the Leased Premises were immediately iiiior to such damage or destruction,
and shall have the same rebuilt and/or r.$=@'ifud=*,,,,..$...,.;pady for occupancy and have
received the appropriate certificate 6T:Occupancy dii3lor-completion from the City's
Building Department within two years irom the time wn-F..-iffi,damage or destruction
. .\.:stii\L
occurred, and shall within that period replace and repair ffiercase may require,
personal property destroyed or damaged; this-obligation of the Ldbsee to rebuild and
repair the buildings and improvements, and to replace and repair the personal
property, shall exist and be enforceable'irr-spective of the availability of any
insurance funds for any of these purposes. With.Eessor's prior written consent, the
two-Ye*q
#fi6d'to='9*gconstruction o.r repairshall-be enlarged and extended by delays
cause$,iW6thout faffir neglefun the part of the Lessee, by act of God, strikes,
lockouts d"f-other conditions beyond the Lessee's control.
u
13.13 Nothing herein cdhtained shalibe;ipn5trued as prohibiting the Lessee from financing
the premiums on suChlirpli-cies, or from such payments having a deductible amount
,.1.,,.!,,,., ""0 ng fivep ceffiZ.; of the insurable value of the improvements.
13.14 lf at any,time any such insurance money comes into the possession of the Lessor
and the Le-'Ssee after destruction or damage by fire or windstorm or other casualty
and the LesSee is in default in the payment of rent, taxes, assessments, liens or
other charges which by the terms of this Lease the Lessee is obligated to pay or pay
for, or if such default should occur during the time such insurance money or any part
thereof is in the joint bank account, as aforesaid, then the Lessor shall be paid so
much of the insurance money as may be necessary fully to pay or discharge any
such sum of money in the payment of which the Lessee is in default, as aforesaid,
and this shall be done whenever and as often as any such default shall occur on the
part of the Lessee. Nothing contained herein, however, shall be construed as
40
13.15 lt is agreed by and between tne lessoi and Lessee$at any excess of money
received from insurance or otneiii5B'tr-rces remaining in ihe joint bank account after
the completion of the reconstrilition, replacement or repair of such building or
buildings and personalproperty, and'ffirgiffi Uetaulton the partof the Lessee in
the performance of any o{ the covenant$dfilitftl; Lease, shall be paid to Lessee; but
permitting the Lessee to default in the payment of rent or other charges herein
stipulated to be paid or in the performance of the other covenants in this Lease. The
Lessor may, at its option, in case of default in the payment of such rent or other
charges or default in the performance of any other covenant in this Lease, proceed
against the Lessee for the collection of such rental and charges, and recover and
take possession of the Wellness Center Projecl herein described, and without
prejudice to their rights to the benefit of such insurance money as payment of such
rental and other charges. r-:.:'
in the event the Lessee faits foiany reason to
of such bui :,ri...: ,Llriil
I
S.--loned by fi iepi ndstorm or othe r ca uie for wh ich insu ra nce money
, o?-,Ifu Lessee ffiany reason faili=within that six (6) month period toshall
provide m.::{ib.,,gannffiffi$;ireo oi Paragraph 1 1.3 of this Article Xl, a sufficient sum
of money to B?o.il$${itdtlte ieconstruction and repair work with such dispatch as may
be neCessary to Cii=r,nrffte the SliffiEyithin eighteen (18) months after the occurrence
of such damage or Od#rtrction occasioned as aforesaid, except in the case of Force
Majeure, as provided in cle XXVlll, or Unavoidable Delays under paragraph
1715 1, then and in every such event, the Lessee shall be deemed to have refused
to cary.=out its obligation to reconstruct, replace and repair, and the amount so
collected or$e balance thereof remaining in the joint account, as the case may be,
shall be paid to the Lessor as liquidated and agreed upon damages resulting from
the failure of the Lessee to reconstruct, replace and repair, and the Lessor shall
have the option, notwithstanding its retention of such sum, to terminate this Lease.
13.16 Construction lnsurance Requirements. Any improvements to the Wellness Center
shall be approved in writing, in advance of commencement of any work. Lessee
shall require any contractor, who is authorized by the City to conduct improvements
to the Wellness Center, to maintain the following insurance coverages, subjectto the
41
same requirements as in the preceding Section 13.1 through Section 13.3 through
13.5, in connection with the approved work:
13.16.1 Worker's compensation insurance covering allemployees of the Contractors
(as required by the laws of the State of Florida) and employe/s liability
insurance of not less than Five Hun$ed Thousand ($5OO,OO0) per
occurrence.
13.16.2 Comprehensive general liability insuranCejn:n amount of not less than
Two Million Dollars ($2,000,000) per occurrence covering personal injury
and property damage, Four Million Dollars ($a,009,000) aggregate. This
policy rrrt":_r.r" the City of Miami Beach, Florida, as additional insured.
Such cover6 e s[?ll include, but not be limited to, the fottowing:
i.Blanket contractilffil Jiability insurance covering all indemnity or hold
,:,:/i.,y'.,tu ::,::
fa:ttllll,M.,A... operation of the lndependent
ffiiit""u
rage (explot
"dtffiy"ose ordamage to underground property).
iV#roducts and completed operations for $2,000,000 (for three (3) year
=j..,i;,
;r:.
extension beyond completion of project).
harmless agreadhnts.
ii. Piotective liability
Contractors.
EX@ss umbrella liability insurance with a limit of not less than Three
lfillion Dollars ($3,000,000) per occurrence and in the aggregate in excess of
tlie above mentioned insurance, which shall be required only in any "wrap up".;: ::a:, :r:.
policy;'.,=,:LEssee may cause the insurance listed in this subsection to be
provided through an overall "wrap up" policy, in lieu of individual policies
provided by Contractors. This policy must name the City of Miami Beach,
Florida, as additional insured.
13.16.4 Comprehensive automobile liability insurance in an amount of not
less than One Million Dollars ($1,000,000) combined single limit for bodily
injury and property damage covering all owned, non-owned or hired vehicles,
trailers or semi-trailers, including any machinery orapparatus attached thereto.
3l
42
13.16.5 As applicable, to be determined by the City's Risk Management Department,
Builder's Risk lnsurance (standard "All Risk" orequivalent coverage) in an amount
not less than the cost of construction, written on a completed value basis or a
reporting basis, for property damage protecting Lessee, City, and Lessee's
General Contractor, with a deductible of not more than Fifty Thousand Dollars
($5O,OOO), subject to adjustment for inflation (except as to flood and windstorm,
with regard to which the deductible shall b-ea mercially reasonable amount); or
i,
13.16.6 lnstallation Floater for the instal,l@ of machin,gfi,,3nd/or equipment into an
existing structure. The coverq ll be "All Risk" cott$rage including installation
and transit for one hundred P-ry (100'/") of the "inSt# replacement cost
value", covering the City as named@re=Q deductible Ofi1fot more than Five
Thousand and 00/100 Dollars ($S,OOO.OO) eacfr claim.
13.16.7A payment and performance bond forthe proleCicost may be required bythe City, in
eflected as a dual obligee thereunder.
ARTIGLE XIV. LESSEE'S DUTY TO PAY INSURANCE PREMIUMS
' ,1,,.
14.1,- Lessee covd6a'arf.i*dffi1flb,pp,.uyith Lessor that Lessee will pay the premiums for all
of the insunnce!='@ieies whidhiile_ssee is obligated to carry under the terms of this
Lease, anfuill.delinertl_p,), Lessoi evidence that all such premiums have been paid
on or before the'effectiv@,q,1q of each such policy or proper evidence of extended
credit and/ot ":,@: of finincing the payment of such premiums, and Lessee will
cause renewal{all expiring policies to be written, and the policies or copies
thereof, as'the'[edse may require, to be delivered to the Lessorat leastten (10)
days before the expiration date of such expiring policies. The parties note that in
Section 13.16.5, Lessor may review insurance coverages and require increased
coverage consistent with the value of improvements to the Leased Premises as
improvements to the Leased Premises are made.
14.2 Nothing herein contained shall ever be construed as rendering the Lessor personally
liable for the payment of any such insurance premiums, but if at any time during the
32
43
continuance of this Lease the Lessee shall fail, refuse or neglect to procure any of
the policies of insurance required in and by this instrument to be procured by the
Lessee, or to keep and maintain the same in full force and effect, or to pay the
premium therefore promptly when due, the Lessor may, at its option, procure or
renew such insurance, and thereupon the amount or amounts of money paid as the
premium or premiums thereon plus interest at the rate of ten per cent (10%) per
annum from date of payment thereof shall be'aOttectiOte as though it were rent then
matured hereunder, and shall be due and payable forthwith, or in lieu thereof and
notwithstanding the procurement rpnewal of su.q,,,!..-policies by the Lessor, this
lndenture and the terms may, at the-ption of the Lessor, be
Lessee in such event hereunder snZlfimmediatet cease and become null and void.
15.1
'-:::::::;:l:-:::.i i
ARTTCLE Xy - ASSTGNMENT
This Lease, or any portion thereof, is not freely$ssignable, and no assignment,i.j : -,
transfer, suOidBig" concession or license agreemeniitruith respect to the Wellness
Centdfl F.,roject,portion thereof, shall be valid unless there is a prior written
"on""nt U$"tf," Leffi,,.1j which consent shall be within the sole discretion of the
Lessor. With respec-t ent of assignment conveying all or any portion of
Lessee's.rights'=E - interest' lffiCg to the Lease (an "Assignment"), any such
::l:::::t?. *Wj?/t'
Assignment must
"iid..ih" "on""ni"8K1o
in writing, which Assignment must contain an
-,"rrrption i$ieer"^' executed by the Assignee of this Lease and in
re ble form, whereby the Assignee accepts the Assignment and assumes and
agr6e5t timely and fully perform and complywith all of the Lessee's covenants and
agreements contained in this Lease. The City Commission must provide the
approvals required by this Section 15.1
15.2 The Lessor covenants and agrees that it will, within sixty (60) days after service of
Notice upon it of a proposed assignment of this Lease, giving the name and post
office address of the proposed Assignee, advise the Lessee in writing as to whether
the Lessor will consent to the assignment of the Lease and further advise the Lessee
in writing of the existence or nonexistence of any default on the part of the Lessee
44
under the terms of this Lease, and if there is any default or defaults, a statement
setting forth such default or defaults. Lessor's failure to give such advice in writing
within the time required shall not constitute either notice of the absence of any
default, or consent to the proposed assignment. Only Lessor's response in writing of
the existence or not of a default and permission or not of an assignment shall be
-dNu.15.3 Any transfer or assignment of this Lea$!;?n|#i?. ,,,;:of the Leasehold Mortgagee
having acquired title to the leasehold estate oi fbssee by foreclosure of the
Leasehold Mortgage, or transfer in lieu of foreclosuie,,':@l require prior written
consent of the Lessor predicated uporr the transferee or asl$g.lee being a not-for-
profit corporation that will solely conduct aclivities on the t6*i3ed Premises, as
-",16.1 lt is furthei-Understood *d {$,rlrf;.fd th l,if'= time during the continuance of this
Lease the Leased Premises or *li=#.=i rovemtjflt{ffand buildings located thereon or
any portion'lhereof be taken, apptopriated or condemned by reason of eminent
..*, O?*ulr.:.-there -shall be such diVffi of the proceeds and awards in such
, " conddmnation proceedings, and sucll' abatement of rent and other adjustments
' "iw,made, as Bfifu;ffianO equitable under the circumstances. lf the Lessor and the
'riii1fuB;see
^r" rn}.ffi,Fr,,to agree upon what division, annual abatement of rent or other
i*Ql$entt
"t"i$$lland
equitable within thirty (30) days after such award shall have
beeifffi, th-,q,,-!,.,, e matters in dispute shall by appropriate proceedings, be
submittdtil ry having jurisdiction of the subject matter of such controversy in
Miami-Daddleounty, Florida, for its decision and the determination of the matters in
dispute. lf the legal title to the entire Wellness Center Project is wholly taken by
condemnation, the Lease shall automatically and without notice be canceled. No
allocation of condemnation proceeds between Lessor and Lessee shall be based
upon Lessee's interest in the land; notwithstanding, the Lessee shall be
compensated for Lessee's interest in the improvements under this Lease in
accordance with the condemnation award.
45
16.2 Although the title to the buildings and improvements placed by the Lessee upon the
Leased Premises will pass to the Lessor upon the termination of this Lease,
nevertheless, for purposes of condemnation only, the fact that the Lessee placed
such buildings and improvements on the Leased Premises, at Lessee's cost and
expense, shall be taken into account in determining the portion of the condemnation
award to which the Lessee is entitled. ln general, it is the intent of this Article that
upon condemnation, the parties shall share in their awards to the extent that their
interests respectively are depreciated, damaged or destroyed by the exercise of the
right of eminent domain.
,..,:,16.3 lf a partial taking or a total taking
"U€;=€,,]=-E=EFmises
unsuit€d'for the permitted
uses as provided for herein, Lessee, ma'}.:}@sole option and expense, remove all
of its personal property from the portion of thE=p,roloerty taken, however, Lessee shall
continue to be liable under this Lease and continue its rights and obligations as to
:r of the Property not so taken, unless ieleaseO in writing by Lessor.the remaindt
17.1 This Lease i3?iffi#ts_'$ith: ..understanding and agreement that Lessee will design,
develop and cori6t@gOditio--ffi rovements, at its sole cost and expense, valued
at no less lhan $5,4W on the Leased Premises, subject to the prior written
consentof the @"(K68!,irr,y;pposed lmprovements"). The Proposed lmprovements
are contemplateGE construct a state of the art public Wellness Center, which will
consist'of: (t)$ree (3) story circular building, on the footprint of the Leased
Premises;'havj pproximately 15,400 square feet, which shall be consistent with
the conceptUal'plan presented by Lessee to Lessor, attached as Exhibit "B" to this
Lease (the "Concept Plan"); (2)the construction of public restrooms (each containing
an ADA accessible stall and two (2) regular stalls), to be located on the first floor of
the Wellness Center, accessible for use by the general public, and which public
restrooms, once completed and accepted by Lessor, shall be maintained by Lessor;
and (3) the design and construction of public showers at a different location within
the Park, which location will be subject to the written approvalof the City Manager, at
35
46
his discretion.
17.2 Desiqn and Governmental Approvals. Lessee is solely responsible for the design of
any improvements to the Leased Premises, and obtaining all approvals from Cityand
other applicable regulatory agencies therefor, including approvals by City as Lessor,
and approvals by City in its regulatory capacity under the City Code and other
applicable laws, including the requisite appruals from the Florida Department of
Environmental Protection and Florida Fish and Wildlife Conservation Commission.
17.3 . The
general contractor and the cog#ruction agreement between the Lessee and the
general contractor shall be subjHCt to review and approval by the City Manager, in
his sole discretion. The approval'',i6{,illn[.e ion contract shall also entail
approval of the requisite construction i coverages, as set forth in Section
13.16, plus any additional insurance which the City may reasonably
require from the Contractor, subcdfihctor a
,
t'
'i
17.4 Pre-63€r.rction =''Ei . work. Lessee shail be responsible for any site and
unOerSfu uOiefu.any remediation which may be needed in connection with
. the develor*U=- enter at the Leased Premises. The Development
of theWellness€ shall.fi#fiffir_-Jmpactthe surrounding areas norcompromise
nor modifV,?c5ss tO
ffih
froin its current condition.
17.5 Lessee, at its oWhfust and dxpense, shall submit to Lessor (acting in its proprietary
:t: t:::::l
capacity as ownei 6l the Leased Premises) Preliminary Plans and Specifications for
the PropoSed lmprovements, which shall include, but not be limited to, a detailed site
plan, a landscape plan, elevation drawings of each facade, a detailed floor plan for
each of the floors of the Proposed lmprovements, a calculation of the floor areas for
each floor, and a calculation of the total floor area dedicated to each use within the
Proposed Improvements (the "Preliminary Plans and Specifications").
17.6 Lessee shall submit its Preliminary Plans and Specifications to Lessor's City
Manager for approval within one year of the Commencement Date. The failure of
36
47
Lessee to timely submit its Preliminary Plans and Specifications to the City Manager
shall constitute a default underthis Lease. The City Manager shall have twenty (20)
Business Days to review the Preliminary Plans and Specifications. lf the City
Manager, in his sole discretion, concludes that the Preliminary Plans and
Specifications are materially inconsistent with the Concept Plan, the City Manager
shall, and in any event the City Manager m1,. Submit the Preliminary Plans and
Specifications to the City Commission for its;.$...tJi and approval as Lessor (acting
in its proprietary capacity as owner of$t$,q-sed Premises), at the next City
Commission meeting, along with a writteh report of {fie. ministration's review and
recommendations, including a rwiew and recommendation from the City's Planning
Director. The City Commission may refer the matter to the City's Planning Board for
its review and recommendations before acting thereon. lf Lesior disapproves the
Preliminary Plans and Specifications, then Lessee shall, submit a revised
modification to the Pretifii ns and SBd'Cifications to meet Lessor's objections,
which revised modificatio#, snaii itted and reviewed as provided above.
Failure of the Lessee to subrnit.revi ary Plans and Specifications within
sixty days from the date of ted$#SsffiisApprind(ffi71 no later than one year from the
nent Date, shall condtitute a Default under this Lease.
=,,,,
cement Date' shall cons!':j=!!]= a Default und
t-7.;7' LeaS ll, within two months of Lessor's approval of the Preliminary Plans and
llrt,l, Specificat'tt s, but no later than two years from the Commencement Date, submit an
':: lication foF-.,EBprovai of l-h,e design for the Proposed lmprovements to the City's
-l'{*,toric Preservatib-n Board (HPB) and to other City boards, as applicable. Failure of
-t\
the lid'3see to su##-it its application, as provided in this Section, to the HPB, by the
.:-:.*idate whiffii*gffi ronths from the receipt of Lessor's final approval as above
provided, bUt nb later than two years from the Commencement Date, shall constitute
a Default under this Lease. Lessee shall pursue approval of its applications to the
City boards, as applicable, diligently and in good faith.
17.8 Public Facilities and Concurrencv. Lessee shall be solely responsible for obtaining
all land use permits, including, but not limited to, all permits and approvals required
pursuant to Chapter 122, Miami Beach City Code, with respect to concurrency
JI
48
requirements for roads, sanitary sewer, solid waste, drainage, potable water, parks
and recreation (the "Concurrency Requirements").
17.9 Plans and Specifications. Upon receipt of the HPB's approval of the Proposed
lmprovements, and all other City boards' approvals, as applicable, Lessee shall
prepare for review by Lessor construction Plans and Specifications for construction
of the Proposed lmprovements, consistent with the Preliminary Plans and
Specifications, as approved by the Les,,,,,.q-, the HPB, and other City boards, as
applicable. The Plans and SpecificattBas shall be submitted to the Lessor(acting in
its proprietary capacity as ownffi Leased Premises) within twelve months from
the date on which the HPB appidifr#e Proposed lmprovements, but no laterthan
three years from the CommencementQ€te*f.Fppealed, the time shall run from the
issuance of a final nonappealable order).,' The Plans and Specifications, or
modifications thereto, shall be reviewed by ttre City Manager, within twenty (20)
business days, except for modifications thereto,,,W1rich shall be reviewed within ten
(10) bu$,,,! . 1ffi, solely for consistency witfil'r16" Preliminary Plans and
Speci ns astifi,ft same may have been modified by the HPB or other City
boards,'*iflf.?fticaO6. lf L"r"or disapproves the Plans and Specifications, then
Lessee snali,isirbmiia revispO modification to the Plans and Specifications to meet
LesSdi's objections, which reViseO modification, shall be submitted and reviewed as
::: provided a'5qy9 -$fig:" shall t'Orsue approval by the City of the Plans and
ryationS
dlige ntli rffi$=i n sood faith.
17.10 Any-'b-ilding operqtion, once commenced, must be carried through continuously to
completi utani interruption or delay in the doing and completion of the work
which shall'have been caused by act of God, or the public enemy, or strike, or
natural casualty, or other circumstances not occasioned by or attributable to the fault,
default or neglect of the Lessee shall not be deemed to cause the Lessee to be in
default under this paragraph, so long as the Lessee exercises due diligence to cause
the work of construction to be carried through to completion as promptly and
expeditiously after the commencement thereof as possible.
38
49
17.11 Conditions Precedent to Lessee's Commencement of Construction of the Proposed
lmprovements. Lessee cannot commence construction untilthe following conditions
have been met: (1) Lessor has approved the Plans and Specifications; (2) Lessor
has provided Lessee with a written Notice to Proceed; (3) Lessee has provide Lessor
with verification, satisfactory to the City Manager, in his discretion, that Lessee has
sufficient funds available to complete the construction, based upon the statement of
values provided bythe generalcontractorand,architect;(4) Lessee has obtained and
delivered to Lessor copies of all final
.fermltSan-O$rovals
required to commence
construction; and (5) Lessee snal Y delivered to L*ororiginal certificates of the
policies of insurance required t :-be carried pursuant to this Lease. Failure of Lessee
to obtain the final building permit in four ye.:ars from the Commencement Date
shall constitute a default under this tgase.::::: \l1llN' '=
17.12 Lessor (solely in its capacity as the owner dfi
_Leased
Premises and not in its
regulatory capacity) shall reasonably cooperate'With Lessee in obtaining the Permits.,.,
and App-i ls required to construct the Proposed'lriiprovements, shall sign any
applicati,Oi made by Lessee that is required in order to obtain such
permits and shall provide Lessee with any information and/or
ise,reasonably available to Lessee (if available to Lessor)
Su€h'g=e1mits and approvals. Any such accommodation
by Lessor be witp$ preludice to, and shall not constitute a waiver of, Lessor's
==.-=,,,,:!9 ts to exer s dis n in connection with its regulatory functions. Lessee
Ch,all reimburse--, ssor, within ten (10) days after Lessor's demand, for any
reaSffilToul.;S{tocket cost or expense payable to Lessor's technical consultants
(other tlfdfrlffiWfs employees), such as architects and engineers, so incurred by
Lessor in cdfinection with Lessor's assistance in obtaining the permits and approvals
required by the Proposed lmprovements.
17.14 The Lessee's rioht to terminate. The Lessee shall have the right to
terminate the Lease without cause at any time prior to obtaining the full building
permit for the construction of the Wellness Center, each party to bear their own
costs and fees. Following termination, Lessor shall have no further obligation and/or
50
liability to the Lessee with regard to the lease.
17.15 Commencement and Completion of Construction of the Proposed lmprovements.
Lessee shall, at its sole cost and expense, (a) commence construction on or before
sixty (60) days after all permits and approvals necessary for the commencement of
construction are issued, but no later than four yeat-s from the Commencement Date
r:::::i:::r::l iil r' lrl(the "Construction Commencement Date") "ry) thereafter continue to prosecute
construction of the Proposed lmprovements with diligence and continuity to
completion. "Commence Construction" oi "Commencement of Construction" means
the commencement of major wo, ch as pilings or fo0 ns) for construction of
the Proposed lmprovements. 'Fiomptly after Commencement of Construction,
Lessee shall notify Lessor in writing of the date of such commenoement Anyand all
preliminary site work {ia g, without limitalion, any environmental remediation
and ancil lary demol itio@ndt,ffi{ Oe Oeemed to be Commencement of Construction.
Failure of Lessee to timelycomriienceconstruCtion shall constitute a default under
this Lease. lf, after tessee'@,*rffi*d ""*il;ion, Lessee fails to diligently
prose'cute construction of the
*tffiffipSad
lmpii@ments (subject to unavoidable
delays), and such failure continffE* (subject to unavoidable delays) for thirty (30)
===-..@fficutive
days ater Lessee's receipt of notice of such failure, Lessor shall, in
,,,.::.:::""'.-": addftlon:1o-=ll of its other remedies uhder this Lease, have the right to seek suchq:::t t:::::::
'1
'i ilii',,
eOuilable'ie".-!ffiither mandatory or injunctive in nature) as may be necessary to
'{fiiitll,,:cause diliseitr{it ii+.nd coiiinuous prosecution of construction of the Proposed
lmp,. vements (\$ffiect to unavoidable delays) by Lessee, it being understood that
constffion ofl$'$Proposed lmprovements is a material inducement to Lessor to
enter iri$ llfu:ffi" and monetary damages shall be inadequate to compensate
Lessorfor hdr,ri resulting from such failure. Notwithstanding anything to the contrary
contained herein, if Lessee fails to substantially complete construction of the
Proposed lmprovements by the date provided for in this Lease, then the same shall
constitute a default under this Lease.
17.15.1"Unavoidable delays" shall mean delays due to strikes, slowdowns, lockouts, acts of
God, inability to obtain labor or materials, war, enemy action, civil commotion, fire,
51
17.16
casualty, eminent domain, catastrophic weather conditions, a court order that
actually causes a delay (unless resulting from disputes between or among the party
alleging an unavoidable delay, present or former employees, officers, members,
partners or shareholders of such alleging party or of affiliates of such alleging party),
in the application of any requirement. The party alleging unavoidable delay shall
notify the other within twenty days of such occurrence; however, failure to do so shall
not waive any rights caused by such delay. The times for performance related to the
Proposed lmprovements set forth in this Lease shall be extended to the extent
performance is delayed by una delays.
Substantial completion
of the Proposed lmprovements b€tcco - lished in a diligent manner, and in
any event no later thin two years +Fin n" issuance of a tufuuilding permit.
"substantial Completion" as'used herein snSii,iiieouire the issuance of a temp otary or
final certificate of occupancy by City's Buildint Dgpartment. Such date may be
- ,f :;' +'#.tr"extendffifiWffi,rute shown upon request in Wiitiiig to Lessor's City Manager,
whicliiliffinsion b\ fhe City Manager shall not be unreasonably withheld. Final
compteffo.1[ti}.;9t ,ni,|1ibtr"truction of the Proposed lmprovements, shall be
accomplishdd iiiigdiflf.lanner, in each case in a good and workmanlike manner,
in substantial aceftance with the Plans and Specifications (with no material
deviations except a5-*-Lfsrressly perffiitted herein), at Lessee's sole cost and expense.
Upon Substantial ComFI n of construction of the Proposed lmprovements,
Lessee shall fumidh Lessoi with the following:
(a) a certification of the Architect (certified to Lessor on the standard AIA
certification form) that it has examined the Plans and Specifications and that, in its
professional judgment, after diligent inquiry, construction of the Proposed
lmprovements has been Substantially Completed in accordance with the Plans and
Specifications applicable thereto and, as constructed, the lmprovements complywith
all applicable codes and laws;
(b) a copy or copies of the temporary and final certificates of occupancy for
the Proposed lmprovements (or portion thereof, as applicable) issued by the City of
Miami Beach Building Department;
4l
52
(c) lien waivers in form and substance reasonably satisfactory to Lessorfrom
each contractor, subcontractor, supplier or materialman retained by or on behalf of
Lessee in connection with the construction of the Proposed lmprovements,
evidencing that such persons have been paid in full for all work performed or
materials supplied in connection with the construction of the Proposed
lmprovements;
(d) a complete set of "as built" plans and a survey showing the
lmprovement(s) (excluding personalty) for which the construction of the Proposed
lmprovements has been completed. Lessorshall have an unrestricted license to use
such "as built" plans and surv$r any purpose related to the Leased Premises
without paying any additional cost or compensation therefor, subject to copyright and
similar rights of the Architect to nrohib,ifu;re ffi$e gns for prrOm?,rnrelated to the
Leased Premises, as such rights exiSt@(ff or may appear ih the Architect's
contract, and subject to applicable public
"UR l:*s. The foregoing requirement
with respect to "as built" plans shall be satisfiedt$.,.. Lessee furnishing to Lessor, at
Lessee's expense, a complete set of'Ptrrynd S@cifications, with all addenda
thereto and change orders in respectthOreof,'maiked to show all changes, additions,
deletions and selections made during the course of the construction of the Proposed
lmprovements; and
' -"=='(€), a Cohtractor's Final Affidavit in form and substance reasonably
satisfactory tp.,,,Lessorexecuted by the General Contractor (i) evidencing that all
, suppliers and materialmen retained by or on behalf of
with the Construction of the Proposed lmprovements have
work performed or materials supplied in connection with the
rcf'FProposed lmprovements and (ii) othenrvise complying with allofConstruction
the requirehBfits under the Florida Construction Lien Law, Chapter 713, Florida
Statutes, as amended.
17.17 Construction of the Proposed lmprovements shall be carried out pursuant to Plans
and Specifications prepared by licensed architects and engineers, with controlled
inspections conducted by a licensed architect or professional engineer as required
by applicable requirements.
42
53
17 .18 Upon Substantial Completion of the project, Lessee shall certify to Lessor that it has,
in fact, expended not less than said amounts for total construction costs.
17.19 Conditions Precedent to Commencement of Operations. Lessee shall provide
Lessorwith the following requirements before Lessee may commence operations at
the Wellness Center: (1) Secured Substantial C€-mpletion of the Wellness Center
Project and provided Lessor all of the items;€(6'-h in the preceding Section 17 .16;
(2) Evidence deemed sufficient, intneAff1,,ffi#a0ql's discretion, substantiating that
the Wellness Center has sufficient funds to op"r"idih" Wellness Center during the
first year of operation, including a cash reserve movih$'for-ward; and (3) Evidence
that Lessee has deposited $25,000.00 in a maintenance aCcouet and $100,000.00 in
a capital improvement account to cover the coSt of mainten€ during the first
year. Thereafter, ev6=
il,rL"s""
shalldeposit any additionalfunds as may be
needed to ensure " m't'E#ftffi#.,q.,,,lce is maintained in each account, subject to
:;'J:"1:;",,*r":::
W$,ift*"
* needed repairs or capitar
ARTIGLE XVllr-pEEp RESTRTCTIONS CONCEEIIING THE USE OF THE LEASEp PREMISES
18,1 , 1iffiie.leased Premises shall hereby con"tain the following restrictions, covenants and
,r.,:!,1
Thatlf,le1-essptt at all times remain a not-for-profit corporation;
Thalthe'ffsee shallaffirmatively make the Leased Premises, its facilities,
the,,,,,,..!$See'S programs and activities open to persons of all races,
e .r.s;efdtjds or nationalorigins, and take reasonable steps to publicize the
avail6bility thereof;
(c) That the Lessee shall not discriminate as to race, color, national origin,
religion, sex, intersexuality, gender identity, sexual orientation, marital and
familial status, and age or disability;
That the Leased Premises shall at no time during the term of the Lease be
assigned, sublet, or in any way shall the dominion and control over the
(d)
54
(e)
(0
(g)
(h)
Leased Premises be in any person or entity other than the Lessee, without
the prior written consent of the Lessor, and if such consent is given, Fair
Market Value shall be paid by Lessee or its successor to Lessor for such
space assigned or sublet, unless this provision is waived by action of the City
Commission;
That allfire and extended coverage and flood insurance, maintenance, and
other costs for the improvements and the general upkeep of the Wellness
Center Project, and all replacements necessary in connection therewith, shall
be the sole cost and exOe\.2,ffithe Lessee;
That the Lessee shall p,, personnel on the'Wellness Center Project
during operating hours=-Foeither a security serviie or electronic security
service during non-operating hours during the entire term of the Lease, proof
of which shall be provided to LesSor via copy of security agreement and
receipts therefor.
That the Lessee shall be obligated to='p.Folide, amongst other insurance
:,' -\ :t: ttl
cfi#p,,.s$9$, public liability insurance and pi6p€rty damage insurance at its
cost and expense for the Wellness Center Project during the term of this
.,,;
li", #.Extefi mgffif4if , will be of a design and form approved by the Lessor,
and in atrffince With Miami Beach City Code and otherapplicable laws
and codes. UBr.9,i.r","- shall asiume the cost of any such signs. Lessee shall
remoVe all signs:ifun the termination of this Lease and any damage or
.r"i:ril
...: unsightly cOndition 'iaused to the Leased Premises because of or due to
such sig hall be corrected or repaired by Lessee to the satisfaction of
ressorf
18.2 The violation by the Lessee of any of the covenants, restrictions and undertakings as
set forth in Paragraph 18.1 above, shall be considered an Event of Default and the
Lessor shall be entitled to all of the remedies as set forth in Article XIX hereof.
ARTICLE XIX. DEFAULT CLAUSE
55
19.1 lt is further covenanted and agreed by and between the parties hereto that in case at
any time default shall be made by the Lessee with regard to any of its obligations as
provided in this Lease, except as specifically elsewhere provided, each of which
shall be an "Event of Default," then, in any of such events, following notice in writing
by certified mail, return receipt requested, or by hand delivery, or such other
conveyance then permitted by law, and an opportunity to cure within the thirty-day
period following delivery of such notice nd Lessee after such notice and
opportunity to cure has failed to cure, as [@eafor in section 19.3, itshall and may
be the Lessor's right to declare sffimised termended and to re-enter upon the
Leased Premises and the build].,.,..q uildings and impiovements situate thereon or
any part thereof, either with or wiffil{process o,j]aw, the Lessee hereby waiving any
demand for possessi.e,l of the Leasdd=Prem]i' and any and all buildings and
improvements then tit$ffi;:"on; and& see covenants and agrees that upon
the termination of tne ffiU56===o-.T, tne lE--,ee will surrender and deliver up the
Leased Premises peaced ,, o ma.-lt$r, its'@nts and attorneys, immediately
upon the termination of the ffiised tefui:and if the Lessee, its agents, attorneys or
other persons or entities claiming by or through Lessee, shall hold the Leased
Premises or any part thereof one (1) day after the same should be surrendered
.,,,,n,,; g to the teims of this t-easdllitffiy shall be deemed guilty of forcible detainer
,, )*
removal, fofcibly or othenarise, with or without process of law.
r:-'.ili:.
. ii:ii\.-,iti!"\S-
19.2
"_g.frr"irn
this is ety-nine (99) year lease, the parties understand and agree that
the'i$tr onship them is that of landlord and tenant, and the Lessee
that the statutory proceedings in the State of Florida
.. 4.:::::::a= :;_1:::aial:!
relating to'tEe"iecovery of possession of the Leased Premises accrues to the
landlord hereunder.
19.3 Nothing herein contained shall be construed as authorizing the Lessor to declare this
Lease in default until thirty (30) days after the Lessor shall have given the Lessee
written notice of a violation of this Lease, and Lessee has failed to cure such
violationwithinsuchtimeperiod. lfthedefaultcomplainedofisofsuchanaturethat
45
56
19.4
it cannot be cured within thirty (30) days, and if the Lessee has commenced taking
all reasonable steps to cure such default and is in the process of eliminating the
facts which are the basis for the declaration of a default, then the Lessee shall not be
deemed to be in default and the Lessor shall not be entitled to cancel or otherwise
enforce the termination of this Lease. Nothing herein contained shall be construed
as precluding the Lessor from having such.fg#ledy as may be and become
.;.aaaaaa4
necessary in order to preserve the rights. a.i1@e interests of the Lessor in the
Leased Premises and in this Lease evegpreft,,=g,,,,.. Oiration of the grace or notice
periods provided for in this parag@'if, unde--@Icular circumstances then
existing, the allowance of such grace6r the giving of sli"ch n=otice would prejudice or
endanger the rights and estate of the Lessor in this tl&€isg and in the Leased
Premises, or the public health, safety and welfare
@fUi,th ewhere in this Lease, Lessor shall have the right
tion or other similar relief
and all aciions at law or. ,r'ff* in eqrity or other proper proceedings to obtain
damages resulting from Lessee's Oetautt.
\ ar--.., .: ::. :::::::. ::::: . :...:::..:4.4,
It is IUrther coven ted and agreed byrSnd between the parties hereto, in the event
of the terfiir}.,a,i$ion offiis Lease at any time before the expiration of the term hereby
c,.L,..eated, for thHlUreach by the Lessee of any of the covenants herein contained, that
in- case allffi"1he right, estate and interest of the Lessee in and under this
indefft*re and in.flJi#'Leased Premises hereinabove described, and all improvements
and buil@s 1,,,,! situate on the Leased Premises, together with all rents, issues
and profits of {he Leased Premises and the improvements thereon, whether then
accrued or to accrue, and all insurance policies and all insurance monies paid or
payable thereunder, and all of them, shall without any compensation made therefore
unto the Lessee, at once pass to and become the property of the Lessor, not as a
penalty or forfeiture, but as liquidated damages to the Lessor because of such
default by the Lessee and the consequent cancellation of the Lease, each of the
parties acknowledging it to be the fact that for breach and consequent cancellation of
57
a long-term lease of this character, the Lessorwillsustain substantialdamage, being
damage of such character as to make it most burdensome and tedious, if not
actually impossible, to ascertain with mathematicalprecision, and each of the parties
therefore having agreed upon this provision for liquidated damages in the interests of
obviating what would otherwise be burdensome and difficult litigation to maintain or
to defend, as the case may be; and this provision for liquidated damages has been
taken into account by both parties in fixing the term of and the consideration for the
making of this Lease. '
,*
19.6 The Lessee pledges with and unto the Lessor all of the rents, issues and
profits which might othenruise '5:bcru1to the Lessee for the use, enjoyment and
operation of the Leased Premises, iifrE:p.c91ffn with such pledging of the rents,
the Lessee covenants and agrees with th1-- orthat if the Lessoi, upon the default
of the Lessee, elects to file a suit to enfoiC€-,,,!,h,,9 Lease and protect the Lessor's
rights thereunder, then the Lessor may, as anci@rto such suit, apply to any court
.: :.: ::.... :, : "4trtLllill.. .
having j di6ti6n thereof for the appo'intment of a"'fteceiver of all and singular the
"=:t:,:.:: .:.:: .,:,:.:::: ,, ..
Leased" PremiseS;'fud the improvements and",buildings located thereon; and
thereupofix it is expffisly covenanted and agreed that the court shall forthwith
rfl!
appoint a Rdt
such
f,#r,W,r., ?, p rs and duties of Receivers in like cases, and
be ffiffi.dill,by such cou( as a matter of strict right to the
property which is subjedFtG,lhe landlord's lien or to the solvency or insolvency of the
Lessee, and without reference to the commissions of waste.
ARTICLE XX..I-ESSEE'S DUTY TO KEEP PREMISES IN GOOD REPAIR
20.1 Lessee covehants and agrees with the Lessorthatduring the Lease term the Lessee
Lessor, and to th'b adequacy or inadequacy of the value of the
will keep in good state of maintenance and repair any and all buildings and other
improvements constructed upon the Leased Premises; Lessee will not suffer or
permit any strip, waste or neglect of any building to be committed; and the Lessee
will repair, replace and renovate the real property, and improvements located
thereon, as often as it may be necessary to keep the building and improvements on
the Leased Premises in a good state of repair and condition.
47
58
20.2 Lessee covenants and agrees with the Lessor that Lessee shall be obligated to pay
for all utilities utilized on the Leased Premises for the entire term of this Lease.
20.3 The Foundation shall be responsible forthe operalion, maintenance and repairof the
Wellness Center including, without limitation, roof, Structure, mechanical, plumbing,
electrical, and general maintenance and upkeep, as well as all utilities.
ARTTCLE XXr - pEl!!-qHTrON CLAUSE
21.1 Although it is the Lessee's dutyfuer the terms hereof to keep and maintain any
buildings and improvements on the
.,,.e=aseO
Premises in good repair, this shall not be
construed as empowelng the LesSeO to at any time tear down and destroy any
buildings or improveffi$fitS; on the Leased Premises, or any part thereof, unless and
untilthe Lessee: , ., '
(a) Follows all procedures deVelopment approval as provided for
iYlliill'
I d delivers'the plans to the Ldssor at least ninety (90) days before the work
"rproposed to& done pursuant thereto is actually commenced; and
Obtd*$,. e wryl approval of the construction plans and specifications by
the Lii€.b5; in =[-esso/s discretion, which shall, in writing, approve or
.,,,di""pptoffiuch plans and specifications within twenty (20) days working
llirtfrI,j aft"effiir delivery to the Lessor; and
fef ; esthe Lessorwith all requisite Construction lnsurance requirements
set ftiith in Section 13.16.
21.2 ln any event, the work of reconstruction, repair and replacement must have a value
of not less than the current market value of the buildings or improvements or the
portion thereof then being demolished and replaced and repaired.
21.3 The expense of demolition shall be no part of the cost of any subsequent
48
(c)
59
replacement or rebuilding or addition; but by the same token, any salvage resulting
from the demolition shall belong to the Lessee.
ARTICLE XXII . ADDITIONAL COVENANTS OF THE LESSEE
22.1 Lessee covenants and agrees with Lessor that no destruction to any building or
improvement by fire, windstorm or any other casualty shall be deemed to entitle the
Lessee to surrender possession of the Legsed Premises or to terminate this Lease
orto violate any of its provisions orto cau#riHHylihatement or rebate in the rentthen
due orthereafter becoming due underth3 i"rr, ['6ifu lf the Lease is canceted as
the result of Lessee's default at any time while #; remains outstanding any
t: iVl/,U
obligation from any insurance company to pay for the aail$ffprr9r any part thereof,
then the claim again?*t,ft" insurance compan)/ shall, upon tfi8fucellation of the
within Lease, be dedrned-.immediately to become the absolute a6d unconditional
p ro pe rty of th e L.""or':'-' -.-"t'ii?:v,,,,
22.2 Lessee covenants and agree$vith
ever be construed as empowering
19i\"{$}k$notning in this Lease contained shall
fflE1essee'td#ncumber or cause the Lessor to
.a::::::=,i,
,.,fl,ii!!,,
or subordinate tn" ot *-qfllfi;rest or the Lessor'
22$ Less6€r'rc,-venants and agrees with Le5sor that at the termination of this Lease the
,ii ''
,,= Lessee w@aceably and quietly deliver possession of the Wellness Center Project
'ro.ffis there-q4 unto the Lessor.
-'.:;Zi , ::::::l:r!Z22.4 LesS6e ll no gage, pledge, hypothecate or othenrvise encumber its leasehold
interestfifuffi,fiU prior written consent of Lessor, as provided for in this Lease.
;i;"
ARTICLE XXIII . COVENANT OF QUIET ENJOYMENT
23.1 Lessor covenants and agrees with Lessee that as long as the Lessee keeps and
performs all of the covenants and conditions by the Lessee to be kept and
performed, the Lessee shall have quiet and undisturbed and continuous possession
of the Leased Premises, free from any claims against the Lessor and all persons
claiming under, by or through the Lessor.
49
60
ARTICLE XXIV. LESSOR'S RIGHT OF ENTRY
24.1 The Lessor or its agents shall have the right to enter upon the Wellness Center
Project at all reasonable times to examine the condition and use thereof, provided,
only, that such right shall be exercised in such manner so as not to interfere with the
Lessee in the conduct of the Lessee's business on the Wellness Center Project; and
if the Wellness Center Project is damaged by fire, windstorm or by other casualty
that causes the Project to be exposed to the elements, then the Lessor may enter
upon the Project to make emergency iepairs; but if the Lessor exercises its option to
make emergency repairs, suctr #or acts shall not be deemed to excuse the
Lessee from his obligation to keep the Project in repair: 'lf Lessor makes any
emergency repairs pursuant to the Cqer.qryessee shall reimburse Lessorfor
all such repairs upon receipt, by Less'6$es or's notice of repairs made and
. :\,
. NO REPRESENTATIONS BY.LESSOR
,''
Lessedjffi.bknowledges that it has examined the Leased Premises and knows the
conditiorl@reof and,accepts the Leased Premises in its present condition, "as is,"
25.1
and without aay ptions or warranties of any kind or nature whatsoever by
rij:ixl
Lessor as to its c'b or a516.=tEe use or occupancy which may be made thereof.
The Lessee S in accordance with provisions of this Lease, the sole.. ..::..:::Lt:t::::.1L
responsibility ior:, tfre conOition, operation, maintenance and management of the
Leased Premises and all improvements now or hereafter situated thereon, and the
Lessor shall not bC required to furnish any facilities or services, or any funding, or
make any repairs or structural changes, additions or alterations thereto.
ARTICLE XXVI . LESSEE TO COMPLY WITH ALL LAWS
26.1 Lessee shall at all times comply with all laws, ordinances, regulations and orders of
Federal, State, County and municipal authorities pertaining to the Wellness Center
Project and Lessee's improvements and operations thereon.
26.2 Lessee shall pay all costs, expenses, fines, penalties and/or damages which may be
50
61
imposed because of the failure of Lessee to comply with this Article, and Lessee
shall indemnify Lessor from any and all liability arising from such noncompliance.
26.3 Lessee covenants and agrees that there will be no discrimination as to race, color,
religion, sex, intersexuality, gender identity, sexual orientation, marital and familial
status, age, disability, creed or national origin in its use of the Wellness Center
Project.
ARTTCLE XXVI - S
27.1 The Lessee shall, on or before the last day of the terrngf-erein demised, or the sooner
termination thereof, peaceably and quietly leave, su#bnder and yield upon to the
Lessor the Wellness Center Project, together with any
"nO "tt
equipment, fixtures,
furnishings, appliances.or other personal property located at or on the Project and
used by Lessee in the rgaintenance, management or operation of the Project,
excluding any trade fi*t*ies or personal property which can be removed without
materialinjuryto tfre proiSci; free of allliens, claims and encumbrances and rights of
{;; 'others and broom-clean, to$6"ther wilh "ali stiuctural changes, alterations, additions,
,i
and improvements wnicn mai frav$iffiien made upon the Project, in good order,,: _":..i: ,
condition and repair, ieasonable-#jlar and tear excepted, subject, however, to the
Sffig,re,uent pro,visionS of lllgArticlflny property which pursuant to the provisions
of th'i3 Adiele is iEmOvable by Lessee on or at the Project upon the termination of this
iqfu" Lease a'u I
Hi\'r:iiabandoned I
Lease snd,1ffinot Seremoved may, at the option of the Lessor, be deemed
biltffi.g.LesseB,3nd either may be retained by the Lessor as iits property
6'E y be .gnd disposed of by Lessor at the sole cost of the Lessee in such
make good-:.tonhe Lessor all damages which the Lessor shall suffer by reason
thereof, and shall indemnify, the Lessor against all claims made by any succeeding
tenant, or purchaser, so far as such delay is occasioned by the failure of the Lessee
to surrender the Project as and when herein required.
27.2 The Lessee covenants and agrees that it will not enter into any subleases,
subtenancies, licenses or concession agreements relating to the Wellness Center
51
62
Pro1ect for a period of time beyond the stated expiration date of this Lease.
ARTICLE XXVIII. FORCE MAJEURE
28.1 Either party hereto shall be excused from performing anyof its respective obligations
or undertakings provided in this Lease, except as provided in Article XXVII hereof,
"Surrender of the Premises," and exceptinO ffi$"of its respective obligations or
undertakings to pay any sums of money r6#f;:the applicable provisions hereof, for
so long as the performance of such obligafforis aie prevented or delayed, retarded or
hindered (plus such additional time mutually consent o by the parties) by act of
God, weather or unusual severity, fire, earthquake, flood, hurricane, explosion,
action of the elements, war (declared or undeclared), invasion, insunection, riot, mob
violence, sabotage, mtlicious mischi€€,.-inabilig to produce oi ral shortage of
labor, equipment, fd.8.uifl==.....F ,,,,_#aterials oi -upplies in the open market, failure of
transportation, strikes;*lO,,,9,, .1, r.action of labor unions, condemnation, public
requisition, laws, order of goveiii$bnt or any other cause, whether similar or
:
llffi*'='= ARTICLE xxlx SIGNAGE AMING RIGHTS
.lLl,L lnterior/Exteriqq,-$ignage/Sponsorship:' the Foundation shall have the right to erect
int6ri6r+ignage, inCl' , without limitation, temporary banners (temporary signage is
subiectt*$ ManaSeffiproval) and exteriorsignage;provided, however, thatthe names
affixed theTffiilincluding,without limitation, any sponsorship names) shall be subject to
approval as reQ*-,-i-,,.e,d by th6 City's Naming Ordinance, as codified in Chapter 82, Article Vl,
Sections 82-501ffiugn 82-505 of the City Code, as shall be amended from time to time. lf
approved, any exterior or interior signage shall be subject to review and approval by the City"
ln no event may any approved interior or exterior signage include the names of any
company selling the following types of products ("Prohibited Names"): guns, tobacco or
sexual products.
ARTICLE XXX. MISCELLANEOUS PROVISIONS
52
63
30.1 All periods of notice and/or grace, including any periods of notice which the law may
require as conditions precedent to the exercise of any rights by the Lessor against
the Lessee shall, at the option of the Lessor, run concurrently and not successively.
30.2 All arrearages in the payment of rent shall bear interest at the rate of ten percent
(1oo/o) perannum from the date when they became due and payable hereunderuntil
the date when they are actually paid.
30.3 Although this is a long-term tease1j,, relationship between the parties is that of
landlord and tenant, and all statu6Erovisions in the State of Florida regulating the
relationship of landlord and tehant, respecting the collection of rent and other
charges, or the repossession of the Leased Piemises, shall accrue to the Lessor
30.4 ln the event of a breach or threatened breaCh'.py the Lessee of any of the
agreem.e-da;ao* ,ifij.,f"r, covenants orte s.l-,re.r,,,.eof, tfu Lessor shall have the right of
injun6 restr#f''-fr$e same, and the right to i6iOt<e any remedy allowed by law or
in equityrfi$ tp="=.?".!-$.i,.,..,{,:medies, indemnity or reimbursement were not herein
. , Provided foil\\[F"'. lltilllXA
.::::::::=: ::= .:.::s!\J.30.5 ln the evehtd any-d. ,ault on the part of the Lessee in the performance of or
compliance *ifi=e.ny ot'fums, covenants, provisions or conditions of this Lease,
and the Lessor is required to bring any action or proceedings as a result thereof,
then it is agreed,that the Lessor shall have the right to apply to any court having
jurisdiction''for=th€ appointment of a Receiver of all and singular the Leased
Premises, buildings, fixtures, furnishings and improvements located thereon,
together with the rents, issues and profits therefrom, and the Lessee does hereby
expressly consent to the appointment of such Receiver by the court with the usual
powers and duties of Receivers in such cases, and that such appointment be made
by the court as a matter of strict right to the Lessor and without reference to the
adequacy or inadequacy of the value of the property which is subject to the Lessor's
liens, or to the solvency or insolvency of the Lessee, and without reference to the
53
64
commissions of waste.
30.6 The Lessor and Lessee hereby agree to cooperate fully with each other at all times,
and in addition to those matters hereinabove specifically referred to, to perform such
other and further acts, and sign and deliver such papers and documents, as may be
necessary in the circumstances from time to tiqgduring the term of this Lease to
.i\\i\{\i} r
give full effect to all of the terms, covenants,.(St*tiitions and provisions of this Lease.
. : ::,a.:a::a::::a:a::a.a.a:a=.
30.7 The captions of this Lease are for colvenien;: :* [fliif,j"r":
only and in no way
lllll.
limit, or describe the scope or intent of this t"u%,il any way affect this
30.8
,j,
The index precedingFiE ecse, but under the same cover, is fof tfre purpose of
convenience and referehce l .-q i.s not to be deemed or construed in any way as
part of this Lease, nor as * ndatory thereof.
This ement shall be goveE he laws of,the State of Florida regardless of
the diversity of citizenship of the Wf-r in interest or the place of execution of thisuffi
= ,,..-"''''' qlili
That all coVQf,$ffi, promises, conditions and obligations herein contained or implied
b-,,.law are covffits running with the land and shallattach to and be binding upon
th6'ry, executdfls.O ad m i n istrators, su ccesso rs, le ga l re p resentatives a nd ass i g ns
ot "u"
'l:"..,,:,
t to this Lease'
30.9
,,,r:riil
t=
goiro
30.1 1 Time is of the essence in every particular and particularly where the obligation to pay
money is involved.
30.12 When the parties desire to give notice unto the other or others in connection with
and according to the terms of this Lease, such notice shall be given by Registered or
Certifled Mail, Return Receipt Requested, and shall be deemed given when it shall
have been deposited in the United States Mails with sufficient postage prepaid
65
thereon to carry it to its addressed destination, or by such conveyance then
permitted by law, and the notice shall be addressed as follows:
To the Lessor: Gity Manager, City of Miami Beach, 1700 Gonvention
Center Drive, Miami Beach, Florida 33139
and with a copy to:
To the Lessee:
City Attorney, Gity,,gf'.,1pi-ml Beach, 1700 Convention
"r:lnl tlilil,
C e nte r D ri ve, M i a m i *U,'?,8#,: F ! o ri d a 3 3 1 3 I
.1,,,,::::l:l;l:::ll:lilii
li n,
..:.:
and with a copy to:
30.13 lf, in conn€don with the enforcement of this Lease and by reason of the Lessee's
failure to keep md obs6 e all of the covenants and conditions herein contained by
the Lessee to bekpt and B6rformed, it shall be necessary for the Lessor to employ
an attorney, then the Lessee shall pay the Lessor all reasonable attorneys'fees and
court costs incurred and/or expended by the Lessor, including all appellate fees and
costs. And conversely, if, in connection with the enforcement of this Lease and by
reason of the Lessor's failure to keep and observe all of the terms, covenants and
conditions herein contained by the Lessor to be kept and performed, it becomes
necessary for the Lessee to employ an attorney, then the Lessor shall pay the
Lessee for all reasonable attorneys'fees and court costs incurred and/or expended
by the Lessee, including all appellate fees and costs. Such fees and costs shall be
awarded only to the prevailing party.
iIr
55
66
30.14 This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal
action is necessary by either party with respect to the enforcement of any or all of the
terms or conditions herein exclusive venue for the enforcement of same shall lie in
Miami-Dade County, Florida.
30.15 The Lessor desires to enter into this Agreement only if in so doing the Lessor can
place a limit on Lessor's liability for any cau,y,l action for money damages due to
an alleged breach by the Lessor of this.Ag'F€ement, so that its liability for any such
breach never exceeds the sum .?rl@ Thousand ($,,, 00.00) Dollars. Lessee
hereby expresses its willingnffi ffinter into this Agreement with the Lessee's
recovery from the Lessor for anV d'image action for breach of contract, or any other
cause of action for money damagd$},l,to b_-: tgd to a maximum amount of Ten
Thousand ($1 0,000.00) Doll.ars Accordffi nd notwithstanding any other term or
condition of this Agreement, L€ssee herebyElj thatthe Lessorshall not be liable
to Lessee for damages in an amount in excesS of Ten Thousand ($10,000.00)
i .-r:.
Dollars f ,ahyr,aUion or claim for breach of contraci, or any other cause of action for
money$amages, arising out of the performance or nonperformance of any
obligatidft#j
subparagraBh:or
of the limitation
768.28. :,,t
the Lessor by this Agreement. Nothing contained in this
wfi,Wffi;,Lis Agreement is in anyway intended to be a waiver
f,l,rpon
tr6#E, ,l liability as set forth in Florida Statutes, Section
30.16'lfadisputearisesoutof orrelatestothisLease,orthebreachthereof,andif the
dispute'cannot be::Settled through negotiation, the parties agree first to try in good
faith to settle the dispute by mediation administered by the American Arbitration
Association, or other similar alternative dispute resolution organization, person or
source agreeable to the parties, before resorting to litigation.
30.17 A memorandum of agreement reflecting the execution hereof, and any modifications,
assignments or transfers of this Lease, shall be recorded in the public records of
Miami-Dade County, Florida, at Lessee's cost.
56
67
lN WITNESS WHEREOF, the Lessor and Lessee have hereunto affixed their respective
hands and seals at the place, and on the day and date first hereinabove written.
Signed, sealed and delivered in the presence of:
Attest:CITY OF MIAMI BEACH
Rafael E. Granado, City Clerk
Witnesses:
...:::::::,:;t:r'";;!n i;:r,.
,i.\tl-r,\:!r;
''l(\*\]1,
SABRINA COHEN FOU}Ttr.AT!ON, !NC.
a Florida corporation notiflir-profit{$
l:.:i.:::a= ",aa.aa::,:a:::aaa.ii:::::= ..::=l
Signature
Print Name
''n""liliil-
Print Nairid
Pftlli Leviffi-rMayor
57
68
STATE OF FLORTDA )
)
couNTY oF MIAM|-DADE )
SS:
The foregoing instrument was acknowledged before me this day of
,2015, by Mayor Philip Levine and Rafael,E,. Granado, City Glerk, or their
designees respectively, on behalf of the CITY OF MIAMBEACH, known to me to be the
persons described in and who executed the foregoing insgpr"nt, and acknowledged to and
before me that they executed the instrument for tffiU;d;"" therein expressed.
'+WITNESS my hand and officialseal, this _ day of i' r 2000.
{1fiN,,,.,9,
ry Public, State,gJ.FIorida at Largd]$
Cofi%ion No.: l
My Commission Expires:
,.
STATE OF FLORIDA ,, , :), ,
====L.,,u,,,+
GOUNTY OF MrAM!-DAtrE- ) =':a':t:!.'lii..
'. .t\ t::a.:::,,;a:::a1
t;,:i.;,:,1
-ot<noWlbagea
::.: r:'i.,',!i...
before me this
on behalf of the
-,: .
be the persons described in who exebuted the foregoing instrument, and acknowledged
to and before me that they ex€Cuted the instrument for the purposes therein expressed.
day of
2015,by
a Florida corporation not-for-profit, known to me to
WITNESS my hand and official seal, this _ day of 2015.
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
F:\ATTO\Lease\SabrinaGohenFoundationAdaptiveWellnessCenterleaseDraft-10-19-15
58
69
Exhibit A
Site Plan of City's Propefi
59
70
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Exhibit B
Gonceptual Plan for Wellness Center
60
72
Exhibit C
City Vending Contracts
61
73
EXHIBIT!€
),
CENTRAL CIRCULAR
SEPTEMBER 2015
74
CENTRAL CIRCULAR
\,//
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EIISTING MLK MY
SEPTEMBER 201 5
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, \'-.CENTRAL CIRCULAR
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SEPTEMBER 2015
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CENTRAL CIRCULAR
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plSEPTEMBER 2015
77
t!
iirli'{+t/n/rr ? ott- e77of
I
l
;
Mayor Mafi i. Herrera Bower
Mayor of City of Miami Beach
1.700 Convention Center Drive
Miami Beach, FI" 33138
March 1,4,2012
Dear: Mayor:
.
This letter confirrns the agreement made by and antong the City of Miami Beach, Florida (o,City,,),
.Cbca{ola Refreshments LISA, Inc. d/b/a Florida Coca4ola Boftling Company ("Bottldr") and Coca-Coia Nirth
,dmerica, a division of The Coca-Cola Company ("Company", and collectively with Boftler, ..Sponsor.), which
sets forth certain exclusive rights granted to Bottler by City, as set forth in the Term Sheet and E'xhibits attached
,lhgreto,
al[ of which are attached hereto as Attachment A.
1.. Term,shegt and DefJnitive Agreetnent
The Term Slreei and Exhibits attached thereto are hereby incorporated hireih in their entirety. This letter and the
Tgrm Sheet,'together with any other attachments referenced in either, will constitute a legaliy binding dgreement
fh9 'Aqree-ment") when this letter is signed by all papies in the spaces provided below. Alt capiralizea t-enns not
defined in this letter shall have the mennings assigned to them in the Term Sheet. This letter shalt prrvail in the
event of anv conflict between the provisions of this letter and the Term sheet.I2. Advertising Rights
(a) City agrees that Bottler'b advertising shall be positioned at all times in such a manner that the
advertising messag€_ is'in no wby obscirred (electronically or othinrise) and is clearly visible to the goreral publio.
The Products shall be prominently listed on any menu bomds located at the Facil.ities and all Equiphent (as such
term is defined herein) d spensing Products shall be prominently identified with the appropriate trademarks/logos.
' (b) City further agrees that all Products will be dispensed in Sponsor's Equipment and that no other
tr.ademarked, equipment, coolers or containers will be perrnitted.
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3: Product Riehts
(a) CiU shall purchase or shall cause its Concessionaires to purohase, all Products, (and cups, lids and
carbon dioxide, if applicable) direotly from Bottler.
(b) City hereby grants'to Bottler the exclusive Beverage rights at the Facilities, except as may be
otherwise provided for in this Agreement and Exhibits.
' (c) If City contracts a concessionaire, City wi:ll cause concessionairo to purohase from Bottler all
requirements for Beverages (and cups, lids and carbon dioxide, if applicable). Such purchases will bo rnade at
prices and on tems set forth in Bottler's existing agreement with concessionaire, if any. . If no agfeement exists
between concessionaire and Bottler, such purchases will'be made at prices and on terms set forth in this
Agreement. City acknowledges that there will be no duplication of allowances, funding or benbfits (inoluding
pricing) to City or concessionaire if concessionaire has an existing agreement with Bottler.
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l'4. Eouiqment and Service . , I
Bottler"s equipment placement agreements, at no cost, that Beverage vending equipment reasonabty required and as
mutually agreed upon to dispense Products at the Facilities ("Bottler Equipmenf'). In addition, Bottler will provide.
at no charge regular mechanioal repair reasonably needed for Bottler Equipment, as further outlined in gxhibit 7 to'
the Term Sheet. Prior to Bottler,s instaliation of Bottler,s Equipment ai apartiouiar Facility, the City shall provide
'Boftler with written confirmation that it has condueted iin. inspection of &e electrical service
"t ruch Facility and'that,
b,ased on such inspectioq the City finds that the electricat service at the Facility is proper and adequate for
'installation of Bottlerrs Equipment. Notwithstanding the preceding, if at any time following eoder,s instatiarion of
. Bottler's Equipment at a Facility, Bottler's Equipment is damaged as the direct result of defective.electrical service
at the Facility, then the City.will reimburse Bottler for the cost of repair or replacement, as the case may be, of
Bottler's Equipment, pursuant to the filing of a clairn with the Cityis self-inrurancg fund. Notrvithstandingiire
preceding, lh: C,ty shatl not be responsible nor liable to Botler undel this subseition'for any darriages to Sottj"i,s
Equipment which is not caused as a direct result of defective blectrical service at a Facility (inciud,ing without
limitation, any darnage io Bottler's Equipment which is carsed due to the negligence o. mi..onAurt oilb"tti.r;t
employees, contractors, and/or agents, or from any other cause or act other than faulty electrical service),
(b) FountailEguioment and Seryicg: During the Term, Company will loan to City, pursuant to the
. terms of Company's equipment placernent agreement, at no cost, that Fountain Beverage dispensing equipment'reasonatly required and_a1_mu])rally agreed upon to dispense a quality fountain eeverages at t[e iacitities
('sountain Equipment")(coltectively, gottler Fquipment and Fountain E[uiprnent are calleJ,,Equipmentl!). No
ice rnakers or w&ter filters will be provided. All Fountairi Equipment prwided by Company *iti ot all times' 'remain the property of company and is subject company's equipment agreement, but no'lease payment will be .' charged. To the extent that Eountain Equipment toaned frorn Company under ihis Agreement is located at
Facilities that are owned, controlled or managed by a concessionaire of City or other pr..o* not party to rhis
Agreement, Crty *itt include provisions in its agre'embnts with such concessionaires that recog*zeitut tt,e
, Fountain Equiprnent is owned by Company and that obligates the concessioniires to honor the terms and
conditions.such equipment agreement.
'Company (or Bottler) will provide at no charge regular mechanical repair reasonably needed for Fountain
. Equiprnent. Any removai, remodel, relocation or ieinstallation of dispensing equiiment, navor changes,
si.rrtrmerize/winterize,-line changes, or seryioe necessi,tated by damage or adjustments io ttre equipment resuling'fto1 misuse, abuse, faih.re to follow operating instructions, service by unauthorized personnel,. unneoessary calti' '(equipment.was not plugged iq CQz or fountain syrup coritainer was empty), or crills that are not tle result of' mechanical failure (coliectively 'ospecial Service Calls"), are not consiOeiea regular service and will not be
provided free of charge. Charges for Special Service Calls will be charged at Company,s (or Bottler,s) then
' current rate and will be invoiced on a semi-annual basis. Charges will include labor, travel time, parts, an{
)rndrrntq Prnhihi+art5.' . Compgtitive Products hohibited.
:" ' (a) -
City'agrees that it witl not knowingly permit any Competitive 'Products to be sold, distibuted,
senred saJnpled, marketed, advertised, or promoted in any manner at the Facilities, or in association with City,.the
Facilitie.q orthe City trademarks, during the Term, except as outlined in this Agreement.
,
(b) City agrees that City will not grant any rights, or enter into any contmctual'or other relationship,
. '.wherepy City, the Facilitie5, and/or the City trademarks will'be, or have the potential to be, associated in any
manner, with iny Qompetitive Prrducts, except as outlined i,n this Agreement and the Term Sheet.
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' which implies' an association with City, Facilities or City iradernarks (hereinafter referred to as "Ambush' Marketilg"), City will promptly notifr Bottler in Writing of the Ambush Marketing and also rvill primptly use its
efforts, and cooperate in good faith with Bottler, to prevent or stop such Ambush Marketing in order to piotect the
exclusive as;o.ciational rights granted to Bottler under this Agreement.
: (d) Spqcial Promotional Events Exceotion. See Extribit 8. .
(e) The City will provide Boftl'er w:ith no'less than thirty (30) calendar days prior written notice of each
e've.nt.which it intends to desigirate as a Specibl Prombtional Event.
(0 The private, personal consumption of Competitive Products by athletes, coaching staff, musicjans,
actors, comedians, or other entefiainment personalities appearing and performing at the Faoility is allowed and wil:l
not bq considered a Speoial Promotional Event. City shall use efforts, to ensure such consumption ts lirnited to
private areas and may not be permitted in any area of the Facility to which the public or any.member of the print or
elecjronic media has legal access.
G) hoduct availabil'ity at Facilities for private events. A private event dt a Facility shall rnean the use' of a- Facility, either through the rental of the Facility or through the issuanoe of a City-approved Special Event
Ppfmit, by a person(s) or business entity (ies) (i.e. such as a corporation) which is not open or accessible to the' general public either free or via a purchased ticket. For exarnple purposes only, private events may include, but not
be lirnited, 'to the folioying: weddings, bar mitzvah/bat rnitzvah and corporate events. Produci availability and'. exolusivity at private events shall be handled as follows: Only Products will be sold, distributed, sampLd or
otherwise served at Facilities at any time. Notwithstanding the ,foregoing, Competitive hoduots may be digtributed' at.nb eos-t by the user of the Facility for private events, protided thd Products will continue to be the only Products
(h) Product availability at Facilities as it relates to charitable events (including, events produced by
not-fol-proflt entitios with valid tax exemption from the IRS) at Facilities or at City-Permitted Speoial Events (e.g.,' . Relay fon Life, Aids Wallq American Cancer Society), shall be handled as follows: Only Products will'be sold,
. ' distributed, sarnPlgd or otherwise served at Facilities at any time. Notwithstandin! the foregoing, Competitive
, Products .may be distributed at no cost by the charitable'organization using the Faoility provide.d that products
will continue to be the only Products sold, distributed, sarnpled, or otherwise served by Facilities conc.ession
operationsandthatBottlerhadopportunitytosupplyProductsforthecharitableeventanddeclined.
. 6, Considetation,
' (a) Pricine, Pricing (inciuding price inireases) will be implementdd as outlined in the Term Sheel
(b) Credit Card Readers apd F-un4iug. Bottler and City will mutually agree to install qedit cardrtiadersinsel""t@ntifiedastightraific1ocations.Bottlerwitlpayforthecredit
card readers in an aegregate amount of not to exqeed Ten Thousand Dollars ($10,000). This funding will be
'eamed over tho Term of the Agreement. City shall have no responsibility to fund'any overage for payment of the
credit card readers shOuld they exceed Ton Thousand Dollars ($10,000). Bofiler shall be responsible for all
rnaintenance and repair of the credit card readers. Upon termination or expiration of the Agreement, City shall
return.all credit card readers to Bottlor.
7..
;(a) City acknowledges that The Coca-Cola Company is the owner of all right and title in the trademarks "Coc&-
Qota", "Diet Coket', "Spnte",."D{SANI", "Minute Maid",'POWERADE", "Fanta" 'titaminwater'"Full Throttle",
'NO$?' and other Eadernarla of The Coca-Cola Company, and it aoquires no rights whatsoever in these irademarks
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by vir-hre of this Ageement. City agrees to zubmit all proposed uses of The Coca-Cola Company m*t, to Sponsor
for approval prior to use, but such approval shall not be unreasonably witlrheld.
(b) Bottler acknowledges that City is the owner of all right and title in the service mark lMiamiBeach,, and that' Bottler acquires no rights whatseevqr in the service mark by virtue of this Agreement. Boftler shall have the righl to
'usb the City's service mark during the Term in connection with its marktting activilies at the Facitities, Bottler
agrees to submit all proposed uses of City's service marks to Ci.ty for approval prior to use, btrt such approval shall
not be unreasonably withheld
8. Termination
' , (a) Notwithslanding the other provisions of this Agreement, if any federal, state or local law, rule,
regulation or order prohibits, restricts or in any manner intprferes with the sale or advertising of Beverages ai ony
:time rtluring the Term of this Agreernent, and the City fails to cwe such.breach within thirty (30) days-following
written notice of same from tsottler then, at its option, Bottler may terminate this Agreerirent and City shall (i)
return any Equipment, and (ii) pay to Boftler the uneamed portion of pre-paid Sponsorship Fees for the Agreement
Year in which thp termination occurs (prorated through the date.of termination), if any, aswell as any othei upfront
funding deemed eamed over lhe Term; if any, prorated through the date of termination
(b) City represents and warrarts that it has full right and authority to enter into this Agreement and to
. grant an{ conyey to Bottler the rights set forth herein. ln the event ofexpiration or revocation ofsuch agthority, ard
.' if the City fails tb cure such breach within thi(y (30) days following revocation of full right and authority, then at its
,option, Bottler may terminate this Agreement, and City shall (i) retum any Equipment; and (ii) pay to Bottler the
unearned pofiion of pre-paid Sponsorship Fees for the Agreement Year in which the termination oocurs (pro-rated
through the date of termination), 1f any, as well as any other upfront funding deemed earned over the Term, if any,
prg-rated throygh the date of termination,.
(c) If Bottler breaches any of its material obligations under this Agreemen! and fails to cure such
breach within thirty (30) days following written notice of same from the City, then City may termi4ate this
Agreement and Bottler shall remove al.l Equipment from the Faoilities, and the City shall be entltled to retain the
earned portion of any pre-paid Sponsorship Fees for the Agreement Year in which the termination occurs (pro-rated
ttrrough the date oftermination),if any; other upfront funding deemed earnd over the Term, if any, prorated through
the date of termination; and any fees or payments due for the Agreement year in whioh the termination occurs, such
as comrnission fees, if any.
(d) Notwithstanding the above, nothingin this section shall operate to restrict any other remedies that
e(ther party may have against the other in the went of a material breach by a defaulting party.
9 Insurance'
Thb.Bottler acknowledgrcs th'atthe City is self-insured, as provided in'Attachment B to thls Ageement.
tsofiIff shall, at its sole cost and expense, obtain, provide and maintain, during the Term, the following types and'amounts of insurance, which shall be maintained with insurers licensed to sell insurance in the State of Florida' and have aB+ VI or higher rating in the latest edition of AM Bestrs lnsurance Guide:
l) Commercial Genemt Liability. A policy inoluding, but not limited to, comfirercial general liabiliry,
including bodily injury, personal injury, properly damage, in the amount of $1,000,000 per occurrence.
Coverage shall be provided on an occurrence basis."
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i1 Vlorkers' Compensation per the statutory limits of the State of Florida and EmployFr's tiability
Insurance,
. 3) Automobile Liability - $1,000,000 combined single limit for all owned/non-owned/hlred arfomobiles.
other insurance maintained by Bottler or City, and all shall name City of Miami Beach, Florida as an additional
insured on the cornmercial general liability. and automobile liability policies. Sponsor shall provide thirty (30)
days written notice to City prior to policy cancellatiOn. t
, Boitler shalt file and maintain certificates of the above insurance poticies with the City's Risk Managernent
Department showing said policies to be in full force and effect at all times during the Term.
10. Notices ,
Any notice or other communication under this Agreement must be in writing and rnust be sent by registered mail
. or by an ovemight courier service (such as Federal Express) that provides a confirming receipi. A copy of the
notice must be sent by fax when the notice is sent by mail or courier. Notice is considered duly given when it is
properly addressed and deposited (postage prepaid) in the mail or delivered to the courier. Unless otherwise
designated by the parties, notice must be sent to the follo*ing addresses;
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,(A) Notice to Sponsor.
Coca{ola Refreshments USA, lnc. d/b/a Florida Coca-Cola Bottling Company
3350 Pembroke Road
Hollywood, Florida 33021
"' : Attention: V.P. Market Unit, Sortth Florida
I*.i**?Tiiru, Market unit, south Frorida
With a copy to: Coca.Cola Ref,reshments USA, Inc,
2500 Windy Ridgo Pkwy
lll3ll?":'3H#%:3,*,
(B) Notice to.City.
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33138
Attention: Hilda'Fernandez
Fax:305-673.7782
1I.. Governing Law
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This Agreement and any dispute arising out of or relating to this Agreement shall be goVpmed by and
construed.in accordance with the laws of the State of Florid4 without reference to its conflict of law niles.
12. ConBltqnce with.t aw I
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Each of the parties hereto agrees that it will, in its performance of its obligations hereunder,, fi.rlly compty
with all applicable laws, regulations and ordinances of all rclevant authodties and shall obtain all licenses,
registrations or other approvals required in order to fully perform'its obligations hereunder,
13. Retention of Riehts
No party shall obtain, by this Agreement, any right, title or ihterest in the tradernarks.of the other, nor shall
this Ageement give any party the right to.use, refer to, or incorporate in marketingor ogher materials the name,
logos, tradernarks, service marks or copyrigfrts of the other, except as may be expressly provided and aurthorized
herein.'
14. , Jurv Waiver
, EACII PARTY, TO THE EXTENT PER1VIITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RTGTTT TO A TRIAL BY JURY IN ANY ACTION OR OTEER
LEGAL PROCEEDING ARISING OUT OF OR IN CONIIIECTION WITH THIS AGREEMENT AND
THE TRANSACTIONS IT CONTEMPLATES. TIIIS WAIVER APPLIES TO ANY,ACTION OR
LEGAL PROCEEDING, WHETHER ARISING IN CONTRACT, TORT OR OTIIERWTSE.
.15. Entiie Apreement
i This Agreement and its exhibits contains the entire agreement between the'parties with respect to the subject
'matter hereof. T-'tris Agreement may not be aSsigned without the prior written cotsent of alt parties; provided,
however, that Bottler may assign this Agreement in connection with its reorganization or tfle sale of all or
substantial'ly all of its assets. All amendments to or waivers of this Agreernent must be in writing signed bV all the .
farties.
The Coce-Cola Company, ecting by and through
Print Name:
Ey:
Eif"oR
City of Miami Beach
Leks Jzltnlru
Coba-Cola Refreshnents US.d, Inc. d/b/a Florida
Title:
-ffiH
:'E:"'19
AFPRO\CD A8 TO
FORM E LANGUAGE
g'l5- tT-
-hr-r Dato ;
By:
PrintName:
nftrM?- glzzln-
H 2c_o
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Attachment,A
TERM SHEET
EXCLUSIVE NON.ALGOHOLIC BEVERAGE AGREEMENT
CITY OF MIAMI BEACH AND COCA.GOLA REFRESHMENTS USA, INC.
and COCA-COLA NORTH AMERICA, A DIVISION OF THE COGA-COLA
COMPANY
1: DEFINITIONS:
Fottler: Coca-Cola Refreshments USA, lnc. d/b/a Florida
Coca-Cola Bottling Company
Companv: Coca-Cola North America, a'division of
The Coca-Cola Company
Sponsor: .Collectively, "Bottler" and "Company"
qj!4; Crty of Miami tseach
Aoreeme nt: Exclusive Non -Atcoho lic Beverage Agreement
Fa!:jl.i_ties: lncludes the following Miami Beach propertlr,
inoluding any land, building, structures and/or other facilities
thereon: Miarni Beach Golf Club; the Normandy Shores Golf
Club; The Fillmore Miami Beach at the Jackie Gleason
Theater (upon the expiration of the current management
agreement); the Miami Beagh Convdntion Center; all currentl!
existing City of Miami Beach owned parks and recreational
facilities; all currently existing City of Miami Beach owned
public parking garages which are either directly operated by
the City, through itS Parking System, or by a third party who,
pursuant to a management or'concession agreement with the
City, is contractually authorized to operate and manage such
garage on behalf of the City; alt currently eXisting public
beachfront concessions which are either directty operated by
the City or by a third party who, pursuant'to a concession or
management agreement with the City, is contractually
authorized to operate and manage such concession on behalf
of the City; and any additional future Facilities or expansion of
existing or future Facilities, including but not limited to, the
concession facilities at 21't and 46m Ctreet and at South Pointe
Park and the Miami. Beach Convention Genter facillty
expansion, except as rnay be othenrvise be excluded in the
Agreement.
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not limited to coffee products; tea products; t-dncer d
energy drinks, including those in small servings; protein-
enhanced dalry beverages; frozen drinks (e.g, ICEE) and
smoothies made trom concentrate; and the pre:mix and/or
post"mix syrups used to prepare fountain Beverages.
'Beverage" or "Beverages", shall not include dairy products
except as noted above (e,9. milk, yogurt, ice cream), water
drawn. from the public water supply, or unbranded juice
squeezed fresh at the Facilities.
Products: Beverage produbts pur:chased directty from Botfler,
or with written Bottler approval from, or Botflerls authoiized
dishibUtor, or sold through vending machines owned and
stocked exclusively by Bottlgr.
Qgmpetitive Products: Beverages which are not Products.2. AGREEMENT TERM:
The Term shall begin January 1,2012 and will continue until"
December 31, 2021 (the 'Term"). When used in this Terrn
Sheet, the term'"Agr€ement Year, means each consecutive
twefue-month period' during the Terrn,. beginning with the first
day of th€ Term.
3. EFFEGTIVE DATE:
January 1,2012
4. EXPIRATION DATE:
December 31i, 2021as to allFacilities
5- SPONSORSHIP FEE:
$3,725,000 forthe Terin of the Agreement. ... First installment of 9800,000 (includes sponsorship fee for
Agreement Year One and signing bonus) will be paid within
sixty (60) days of execution of ihe Agreernent by all parties.
The portion -pertaining to the signing .bon.us ($a75,000) wiltbe deemed earned bver the Teim and the portion
pertaining to lhe sponsorship fee for the Agreement year
One ($325,000) shall be deemed earned eventy oh a
monthly basis during the fir:st Agreement Year.. $325.,000 due each Agreement year thereafter during the
Temi of the Agreemeit, due upon the anniversary da-te of
the Agreement eind will be deeined earned over the
Agreement Year. (Subject to purchase of a minimum of
__ 22,500 cases of bottles/cans per year.)
6. COMMISSIONS:
Cornmissions to be paid quarlerly in arrears by Botfler to City
based upon cash collected less taxes and as per thi
Commission Rate Structure accord:ing to Botilels sales
records. (Exhibit 1) r,
7. COMMTJNITY:
SUPPORT/
iBottler will provide City with a total of 917,500 in cash for thE
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COMPLIMENTARY
PRODUCT:
purchase of equiprnent or other products (mutuAlly agreed
Bottler shall provide Clty, upon City's request, with up to {50
standard physical cases of complimentary Product (12 ounce
CSD cans and/or DASANI 12 ounce botfles) per Agreement
year for a Product bank to be used by the Citj. it City-does not
request complimentary Product by the end of each year, any
remaining complimentary Froduot shall be retained by Botiler
with no further obligation to Account. Bottler will provide
complir,nentary Product donation report upon Account's reouesL
8. ADVERTISING &
SPONSORSHIP:Bottler has the exclusive right to advertise Prodtrc.ts'(i) at the'Facilities and (ii) in connection with the Facitities. No
permanept or temporary advertising, signage or trademark
visibility for Competitive Products are permitted anywhere at the
Facilities, except as permitted purSuant to the Agreement.
Advertising rights are turther delineated in Exhibit 2. Bottler has
the exclusive right to advertise the Products as the "Official" or
"Exclusive' soft drink, sports drink, dairy-based protein drink,
water, tea, energy drink, and/or juice or juice drink, etc., of the
Facilities, of the City of Miami Beach and oJ South Beach.
Bbttler will be the exclusive advertiser of Products associated
with the Facilities.
9. PRODUCT RIGHTS:
Bottl'er has the exclusive right to sell or distribute products at
the. Facilities. No Competitive Products may be sold, dispensed,
sampled or served anywhere at the Facilities, or: on the City's
publio rights-of-ways, except as may otherwise be provided for
in this Aqreement
TO.EXCEPTIONS:
Except for those Facilities specifica,lly enumerated in Section
1., "Facilities' shall NOT include any City of Miami Beach
property (including any City-owned land, buildings, structures,
and/or other facilities thereon) which-. as of the. Effecflve
Date-is used, occupied, controlled, and/or managed and
operated by a third pafi (or parties) pursuant to any of the
following agreements between the ,City and such third
party(ies): (i) lease agreemen,t; (ii) concession agree66nt; (iii)
operation and management agreement; (iv) developmen.t
agreement; (v) easement agreement; (vi) license and/or use
agreement; (vii) revocable permit; andlor (viii) any gther written
instrument between the City and such'third party(ies) which
establishes a contractua[ right en behalf of such third
party(ies) for the'use and/or occupancy of City property. This
shall include, but not be limited to, any City property oocupied
by a tenant thr:ough a lease or rental agreement (including,
without limitation, leases or rental aoreements, for office.
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retail, and/or comm6rcial uses(s) iiretart, and/or commdrciat uses(s) in City-owned ibuildings);
any City property nianaged and operated, and/ol othenrise
used, by a third party(ies) pursuant to a mbnagement
agreement or concession agreement; private upland owner
beachfront concessions which are issued a permit by the City
(and which are neither operated dir,ectly by the City, nor by a
third party on behalf of and pursuant to a contratt wm lfre
City); sidewalk cafes which are issued a permit to operated
pursuant to the City's Sidewalk Caf6 Ordinance, as may be
amended from time to time; . "public-private' projects
developed and constructed pursuant to a Development
Agreement (pursuant to the requirements of the Florida Local
Government Development Agreement Act under Chapter 163,
Florida Statutes); any hotel or retait developrnent related to the
expansion of the Miami Beach Convention Centei that is not
managed as part of the Convention Center.operations (e.g.
adjacent. commercial retail, hotel, etc.); public bus shelter
advertising managed by a third party under contract with the
City; and advertising permitted pursuant to the CIty's cunent
agreement for the public bike-share concession.
Notwithstanding the precedlng, the " City will: i) make
reasonable good faith efforts to meet with the bike-share
concessionaire and negotiate an amendment to the existing
bike-share concession agreemen,t, which must also be subject
to a.greement by the bike-share concessionaire, to prohibit the
bikd-share concessionaire. from advertising Competitive
Products; ii) if City renews the bike-share concession
agreement with the bike-share concessionaire, then, as a
condition to sUch renewal, the City Manager will recommend
that such renewal be conditioned that such renewal include aterrn prohibiting the bike-share c6ncessionaire from
advertising Competitive Products; and iii) no advertising of
Competitive Products shall be permitted on bike-share station
kiosks during the Term should the City, after the Effective
Date, approve advertising for placement'on bike-share kiosks.
Should the City enter into any new bike-share agr6ements
during the Term, no advertising of Competitive products shallbe permitted on the bicycles used for that bike-share
agreement(s).
Further, for the following locations which are under ,',pr-
existing concession and/or use agreement (i.e. in effect prior
to the Effective Date of the Agreement) with a Compeiitive
Products supplier, those Facilities will come under thls
Agreement after such Competfitive Products agreement is
terminated or expires, or until such time as the concession or
use agreement with the City for those Facilities is terminated,
or is subiect to anv renewal The current
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list of such facilities, and their expiration dates, areEs follows:
1) 21" StreeU46h Street Beachfront Concession,lTim
wilcox, lnc . - 1 1 t30t2012
2) South Pointe Park Concession/Blissberry - 1 1l3Ot2O12
3) Normandy lsle Pool Concession Stand/E. Gomez -
11t09t2011
City agrees that it will not knowingly permit any Competitive
Products to be sold, distributed, served, sampled, marketed,
adveriised or promoted at the Facilities, or in association with
City, except, and as further explained, in Exhibit 8:. Third parg exhibitor set ups at Facilities or during City-
Permitted Special Events in accordance with. the City's
Special Event Permit Guidelines, as same may be
amended.from time to time.. Charitable events at Facilities or at City-Permitted Speciat
Events where Competitive product are donated to the
charitable event;o Availability at City-Permitted Special Events only within
Special Event Permit Area (as such term is defined in the
City's Special Event Permit Guidelines, as same may be
amended from time to time),. Up to four (4) sponsorship events at the Miami Beach Golf
Club, and up to four (4) sponsorship events at the
Normandy Shores Golf Club each Agreement year;. uF to three (3) sponsorship events at the Miami Beach
Convention Center each Agreement Year (the number
limitation for the sponsorship events at the Miarni Beach
Convention Center.is subject to a review after three (3)
Agreement Years);e a mutually agreed upon number of sponsorship events at
the Fillrnore Miami Beach at the Jackie Gleason Theater
(upon expiration of the existing management agreement);
and. up to four'(4) City-issued Special Event Permits for a "City
. Approved Major Sponsorship Public Eventn, ehch
Agreement Year, which includes an event sponsored by a
manufacturer, distributor, or marketer of Competitive
Products under a master sponsorship agreement with the
owner or opeirator of the sponsorship event; an event
conducted on a nationa:l or regional multi-market basis;
and/or an event where a competitor is the presenting, tifleor other primary sponsor of the event. The numbar
limitation for City-lssued Speciat Events is subject to a
review after three Years. :
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t.
Whenever possible, City will make reasonable Lood faith
efforts to encourage third party u$ers of the Golf Cburses and
Convention Center, and Special Event ofganizers, to use
Bottler's Products for their non-alcoholic beverage needs.
Since third party organizers who apply for Special Event
Perrnits will be ,permitted to sell only Bottle/s Products, City
will amend City's Special Events Permit Application and City
will provide Sponsor contact information through the City's
Soecial Events Permit Aoolication Drocess.
.11. MARKETING
PROGAMT Bottler agrees' to provide Account with annual in-kind
marketing, support fund with an approximate retail valub of
Two Hundred Thousand Five Hundred Dollars (g?00,500) as
further delineated in Exhibit 3.
{ z.'RECYCT-tNG
I PARTNER:Bottler shall be designated the official "Recycling Partner' of
Account, ln consideration of this designation, Bottler shall
provide, at their cost, the services/products delineated in
Exhibit 4, with a minirnum total value of $15,000; and up to
525.000 over the entire Term
.13,VENDING' PROGRAnArOrnen' EQUIPMENT
City agrees that tsottler shall place a minimum of sixty-five (65)
Product vending rnachines in mutually agreed upon locations
at the Facilities, and Bottler will loan to City at no co$t,
Beverage dispensing equipment as reasonably feqUired and as
mutually agreed.upon to dispense Products at the Facilities,
and in accordance with Exhiblt 5.
14.CITY SUPPORT:
ln consideration of the partnership, Gity grants to Bottler:
Twenty-six,(26) rounds of golf each Agreement Year (max of
eight during peak season; no. more than twelve at Miami
Beach Golf Course; benefit do.es not roll oveQ; a minimurn of
four (4) free tickets to at least six (6) ticketed events at
Facilities eacfi Agreement Year, subject to availability (e,9, Art
Basel Miami Beach, Auto Show, South Beach Comedy
Festival at the Fillmore, etc.). Additional tickets wilt be
provided as available. Benefit does not roll over.
{s.PRICING:'Bottle/Can Pricing: City is entitled to purchase bottle/can
Products from Bottler in accordance with the price schedule
set forth in Exhibit 6; prices shall remain in effect until J:uly 31 ,
2012. Thereafter, such prices witl be subject to an annual
increase of no more lhan four percgnt (4%) over the previous
Agiedment Year's price.
i
Fountain Products or Georgia Coffee Pricing: Bottter will sell
fountain Products to City at the National Account plices, as
89
announced by the Bottler in January of each year. Georgia
Coffee pricing shall be provided quarterly based on bommodity
markets.
Purchasing: All Product shalt be purchased birectly from
Bottler, exiept for those Products that tsottler identifies can be
purchased from an authorized Coca-Cola distr,ibutor.
l6.TERMINATION:
lf City breaches any of its material obligations set forth.in this
Agreement, and fails to cure such breach within thirty (30) days
following written notice of same from Bottler, then, Bottler may
terminate this Agreement, and City shall (i) feturn any
Equiprnent, and (ii) pay to Bottler the unearned portion of any
pr+paid Sponsorship Fees for the Agreement Year in which the
termination occurs (pro-rated through the date of termination).
lf BotUer breaches any of its material obligations set forth in this
Agreement, and fails to cure such breach within thirty (30)days
following written notice of same frorn City, then, City may
terminate this Agreement, and Bottler shall (i) remove any
Equipment, and (ii) pay to City the earned portion of any pre-
paid Sponsorship Fees or other fees or payments due for the
Agreement year in which the termination occurs (pro.rated
through the date of termination).
C'ity shall not be in default in the event of any claim filed in
relation to Citt's restriction on Gompetitive PioducJ sampling;
prwided, however, the Bottler shall have the following
remedies: 1) ability to renegotiate financial terms, as
appropriate, within a specified time (e.g. 90 days); or, 2) failing
to negotiate terms acceptable to both parties within speoified
time, Bottler may terminate the Agreement, and City shall (i)
return any Equipment, and (ii)'pay to tsottler the uneamed
portion of any pre-paid Sponsorship Fees for the Agreement
Year in which the termination occuts (pro-rated through the date
of termination), Nothing in this section shall o.p6rate to restrict
either partt's other remedies in the event of a material breach
by the other.
{T.MAINTENANCE &
SERVICE:Bottler agrees to provide reasonable service and maintenance
for the equipment during the Term. City shall allow Bottler to
enter its premises for the purpose of inspection or
performance bf such maintenance and repair, or necessary
replacement or return of the equipment, Bottler and City will
establish a mutually agreed.upon refund bank and customer
service Drooram. as delineated in Exhibit 7.
lS.REPORTS/AUDITING:
Bottler will provide an annual business review reoort within 90
90
days following each Agreement year during Term;
Commission reports.will be provided monthly. The format of
such reports shall be mutually agreed upon. Cig has the rightto audiUinspect account statements with reasonable prior
notice to Bottler and during normal.business hours, lf City
requests an audit, City agrees to pay for such audit. Account
records must be retairted for a minimum of two (2) Agreement
Years after the payment of the annual Sponsorship Fee is
paid, in addition to the current Agreement Year.of the Term,
and for two (2) Agreement Years following expiration or
termination of the
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!
I
Exhibat I to Term Sheet i
i,coMMlssroNs ;
workplace Facilities (citv H?tl. Pqllcq staflon. and other citv,Facllitips):
Product
20 oz. PET,carbonated/NESTEA@
20 oz. PET Minute Maid@
20 Oz. PET DASANI@
3OO MIPET DASA}!I@
20Oz. PET POWERADE@
2O oz. PET vltarninwater@
16 oz. cans Energy Beverages
16.5 oz. PET FUZE @
15.2 oz. PET Minute Maid@ Juices to Go
Commissiqn Bate
30o/o
30o/a
30%30%':
30o/o
15o/o
30%
15o/o :
15o/o
Commission Rate
30%
30e/o
iovo
30o/o
3Oo/o
15o/o
30%
15o/o
15o/o
Vend Price
$1.25
. $1.25
$1,25
$0.75
$1.50
$1.75
$2.00
$2.00
$1.50
All other Qublic locations (s]!ch as Squth Beach):
Producl
20 oz. P EI carbonated/N ESTEA@
20 oz: PET Minute Mald@ '
20 oz:. PET DASANIO
3OO mI PET DASANI@ ,
20 oz. PET POWERADE@
2Q oz. PET vitarninwater@
16 oz. cans Energy Beverages
.16,5 oz..PET FUZE@
15.2 oz..PFI Minute.Maid@ Juices to Go
Vend Price
$1.50
$1.50
$1.50
$1.00
$1.7s
$2.00
$2.25
$2.25
$1.75
ln Agreement Years Four and Seven, the Vend Pfices will increase by twenty-five cents for each
Product listed above. For example, in Agreement Year' Four, 300rtl. DASANI will increase to $1,00
Vend Frice'and then in Agreernent Year Seven, 300rn1. DASANI will increase an additional twenty-
five cents to $:t.ZS. The Cornmission Rates will not change during the Term of this Agreement.
There are two vend rates (one for workplace and one for public locations) that will be ouflined in the
final forrnal agreement between the parties; but note that commission rates wiil remain the same.
C-ommissions are paid based'upon cash collected after deduiting taxes, deposits, recycling fe'es,
other handling fees, communication charges and qedit-and debit card fees, if any. Commissions
shall not be payable on any sales from vending machines not filled or serviced exclusMely byBpttler. Bottler'may adjust the vend prices and/or commi'ssion rates as necessary to ieneit
changes in its costs, including cost of goods, upon prior written notice and approval !y City.
Comrnissions will be paid each month folloriving the month in -which they are earned, witn an
accounting of all sales and monies in a form reaionably satisfaciory to the bity,'and shali become
imrnediate property of City,
92
Exhibit 2 to Term Sheet
ADVERTISING RIGHTS
(Except as othenrise lgted,the following rights may not be transferred or assigned by Bottter)1. Recognition of Bottler as the'offlcial Non-Alcoholic Beverage Sponsoi' of City. Official status
will include Official Status RecogniUon for City across all non-alcohollc beverage categoriesi.e. "Coca-Cola Official Soft Drink of Miami Beach" and Official Status Reqognition for South
Beach across all non alcoholic beverage categories (i.e. "POWEMDE Official Sports Dr,ink
for South Beach')' 2. fficial Sponsor Status (for Products) of all City-produced citywide Special Events, whether
now existing or as 'may exist in the future (i.e. including, without limitation, and,.for example
purposes only Sleepless Nights); Bottler to have highest sponsorship level and benefits
available other than presenting or title sponsorship. ln addition, Bottler wilt be recognized as
the .Title Sponso/ of Citt's 'Fire on the 4h Annual lndependencE Day Celebration" each' Agreement Year during the Terrn,
3. Recognition of Bottler as the "ffiicial Recycling Partne/'for the Clty of Miami Beach & South
Beach4. Joint Botfler/City Logo placement on City and City-related websites (e.g, Miami Beach
Convention Genter, Miami Beach Golf Club, Normandy Shores Gotf itu6, Uia*i geich
Cultuie web site (MBCulture.com); and any other City websites, whether now existing or as
may exist in the future, to such extent as permitted by.any federal or state.regulations on ,gov
domains. Ci$ will use reasonable commercial efforts to include,ioint BottleriCity Logo on all. ,printed convention and tourism materials, as appropriate and available.' 5. Waiver of any Special Event Permit andior Permit Application Fees for Botfler's use of c,ertain
Account Facilities for up to two (2) mutually agreed upon events per Agreement Year, based
on availability. For pdrposes of the Special Event Permit and/or Permit Appfcation Fee waiver,
thbse Facilities shatl include public biachfront areas and Parks and Recieation iacilities rrt"id. Special.Eventsarepernitted.All otherfeesandcostsof production, including butnolimited' to,, taxes, security, sanitation, etc., shall ba the responsibility of Bottler: Right may not be' transferred or assigned.
6, Waiver of any rentat or use fees for Bottler's use of certain eity Facilities: for up to (ttto) 2
mutually agreed upon events per Agreement Yebr, based on availability. For purposes of itre
rental or use fee waiver, these Facilities shall include the usd of meeting room space or'ballroom space at the Miami Beach Convention Center, All other fees and colts of production,' including but not limited to taxes, security, audio/visual, decoration, etc,, shall be the. responsibility of the Bottler. Right may not be transfened or assigned.' 7. Unlimited, royalty-free Product sampling at City produced and/or sponsored evehts;
Royalty-free Produc-t sampling permits per Agreement Year, as follows: 48 permits each
Agreement Year, but perrnits will be limited to not more than six (6) permits ln any one
month period. Right may not be transferred or assigned, lf Sponsor does not use all 48
permits by the end of each Agreement Year, any remaining permits will not roll-over to the
following Agreement Year, but will be forfeited.
8.
9.
Mutual agreement on the development and use of a joint logo between Bofier and Account.
Right to use mutually agreed Upon joint logo on any point-of-sale, marketing materials, and/or
signage that may be mutually agreed upon. ,
10. Royalty-free advertisement in CMs magazine (i.e. MB Magazine); minimurn of a quarter
page each issue; larger ad size as may be avaitable. Right may be transfened or assigned.
1 1. Royalty'free prominent advertisement in any Speclal Promottonat Event progiams or
collaterals produced for*City-produced cffide Speclal Promotlonat Events (i:e, including,
without lirnitation, July4'and Sleepless Nights). City shall use best efforts to'provide a fuii
page ad.
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12. The right to brand City's public beach concession area(s) with approvbd Bottler
"tna
Cityloint
branding graffiics (e.9. concession stands, storage shed, umbrellas, etc.),' subject to
' . proposed branding meeting all necessary administrative and regulatory 'approvals.
.lmplementation of any approved branding shall he at the BottlerJs expense. All trademark
usage must be pr+approved prlor to usage..The ereclion of any other signage other than
vendi49 machine display shatt be subject to approval by the City.
13, One Royalty-11ss ioint City/Bottler message PSA advertising panel at the Sth and Alton bus'
shelter; production/installation costs pald by Bottler, Minimum of full use of one PSA ad. panelfor the entire term of the Agreement-' 14. Minimurn of one (1) Royalty-free advertising panel atthe 5n and Alton bus shelter, on a', space.avaitability (remnant) basis; production/installation costs paid by Bottter, Right may be
transferred or assigned.
15. Minirnum of one (1) one=rnonth Royalty-free electronic joint City/Bottler message PSA run
' availability;
16. Minimurn of one (1) unlimited run on MBTV of City/Bottler rnessage PSA;
17. Royalty-free POF ticket ad based on space availability; production costs paid by Botfler.
The parties agree to perform such addiUonal maiketing actMitieq, as the parties may mutually agree
ll
94
Exhibit 3 to Term Sheet I
MARKETING PROGRAM
Bottler shall provide City for approvalwith the proposed annual marketing plan for promotion of the
partnership no later than ninety (90) days prior to the beginning of each Agreement Year, except
for the first Agreement Year when the marketlng plan shall be provided to the City within ninety (90)
dals dfter execution of Agreement. The annual value of the marketing plan shall be no less than
$200,500, as detdnnined in good faith by Bottler and based on generally accepted marketing
values. Some examples of activatlon may include the following; however, actual marketing
programs will depend on availability of these programs.
o lnclusion.of the City in the My Coke Rewards program, or other customer reward program
offered by Bottler, through an annual promotional program (e,9. sweepstakes); estlinated value'' $100,000, or eqUivalehtvalue. Activation based on availabilityo Truck-back promotions.program - value: $24,000[ear based on avdilabilityo Box Tgpper program or other similar high-visibility promotional program; value:.$25,000!ear
r Neck Ringer program: a Neck Ringer program shallbe available with a rninimum distribution of
neck ringers. Touring Program: Bottler will bring the Open Happiness Tour, or such other promotionaltouring
'program offered by Bottler, to the City based on availabilityr Fotler to develop and lmplement at least five (5) strategic marketing partnerships with the
. Account and the Bottle/s other sponsorship partners during the Term of'the Agreement. Such
stidtegic marketing partnerships may include, but are not limited tg, cross promotion, product,
tiCkets, etc., with other brands or products cunently under a sponsorship or other
, promotionallmarketing agreement with the Bottler.e Lebron James EvenUcelebrity event; value: $45,000 based on availability, or equivalent value
City acknowledges the intent of the Bottler to develop a joint marketing logo incorporating the
Bottler's mark and the City's mark. Bottler shall obtain approval from the Cfty, in writin!, of the joint
logo for use in promotion of the Agreement, including, but not limited to, its use in all commercial,
marketing, media advertisements, web sites and promotional products,
A par$s use of the other party's marks ln promotions, on 'products and signage, shall be first
approved by the other party in writing, and all uses of a party's marks shall be acknowledled as
that party's intellectual property and include appropriate trademark notices.
The parties agree to perform those additional marketing activities, as the parties may mutually dgree
qpon to drive tratfic to the Facilities and to increase Product sales. City agrees to provide Bottler with
reasonable marketing assets inventory (e.9., to be used with a My Coke Rewards natiqnal
consumer sweepstakes, or other such similar sweepstakes) for mutually agreed upon promotions
each year during the Term to promote Bottler Products and City.
t2
95
Exhibit 4 to Term Sheet
RECYCLING PARTNERSH!P
Bottler shall be designated the official "Recycling Partne/ of Gity.
Boftler shall provide, at its cost, the foltowing services/products (value of S15,OOO-$25,000):r Assess, consult and offer a Recycling Program Plan for bottle/can recycling initiativee
execution of Agreernent)
. Provide Temporary recycling bins for special events (minimurn of 30) to City at Bottler's cost;. Provide Recycling bins for placement in Facilities or agreed upon public areas (minimum of 15)
to City at Bottler's cost; design subject to review and approval of City;r Place reverse vending machines (crushers) in vending bankq in the Facilities; minimum of five' (5) crushers placed during the first five Agreement Years of the Term, at Bottler's cost"
events; scheduled at least one time every 18 months during the Term.
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96
:,
i
:. Exhibit 6 to Term Sheet
il
vE,.NDtN_q PROGRAM
Bottler shall place, at their cost, all vending machines in agreed upon locations,pursuant to the
following:
1) Bottler shall provide to City within g0 days after execution of'Agreement the proposed
equiprnent plan for the Agreement Term; to include the machine allocation plan by type (e.g.
interactive vending qachines, gtass front etc.) and locationi equipment replacement schedule;
and vend front replacement and schedule for existing vending machines that need the vend
front replaced. All equipment shill be UL energy star rated.
2) Bottler shall install vending machines within 180 days after the proposed equipmeni plan has
been approved by all parlies. Both parties agree that the lnstallation of vending machines shatl
be completed within 180 days after the proposed equipment plan has [een approved by all
parties, Agreement execution. The already approved beach thematic vend fronts will be used
unless other mutually agreed upon vgnd fronts have been selected and approved, and if beach. thematic vend fronts are availabl€. The vend fronts shall include advertising panels for use by
the City, as approved by Bottler, provided that the vending rnachines are equipped with
advertising pahel(s). Bottler shall pay all costs for: the production and instatlatiori of the City
vend front adVertisihg pahels. A minimurn of two (2) and a maximum of four (4) City vend panel
ads shall be.produced/installed eacf Agreement Year.
3) Bottler shall provide within g0 days 6fter execution of Agreement the proposed credit card
, reader installation plan and schedule.. Alt credit card reader lnstallation shall be completed
within Agreoment Year Qne. .
4) City shall provide all electrical power necessary t0 operate the vending rnachines, and Clty shall
pay up to $200 for the cost of any electrical modificatlons. or connections necessary to
accommodate any new vending'rnachine placement, upon mutual agreement of the proposed
location for the placement of the vending rnachine.
5) All vending machines remain the property of the Bottler,
6) Bottler shall provide a product list to the City to be inclr.rded in the"vending program. Any' changes to the Product list shall be provided to the Account prior to Product placement in a
vending machine,'Bottler shatl work with the City's Parks and Recreation Department to identify
the appropriate vending products for inclusion in vending machines located in any City par:k.
The City's Park and Recreation Department shall provide approval, in writing, of the Products to
. be sold in the vending rnachines placed in City parks.
7) Bottler shall rnaintain vending machines reasonably well-stocked with Products.
14
97
Exhibit 6 to Term Sheet
INITIAL PRICE SCHEDULE*
Packaoe
20 oz. CSD
12 oz. CSD
15.2 oz. MMJTG
12 oz. DASANI@
1 liter CSD
20 oz. DASANI@
,20 oz. vitaminwatdr@
I oz. CSD
Min ute Maid@ Refteshment
20.o2:. POWERADE@
'18 oz. Monster@
2 liter CSD
10.9 Honest Tea@
500 mlGold Peak@
8oz. alurninurn bottle
Post.Mix
.5 gallon BIB CSD and NCB
2.5 gallon BIB CSD and NCB
5 gallon BIB Unsweet NESTEA@
2.5 gallon BIB Unsw6et NESTEA@
5 gallon BIB Premiurn NCB
2.5 gallon BIB Premium NCB
5 gallon BIB Frozen Dispensed
2.5 gallon BIB Frozen Dispensed
@
24 ounce
.q'o220|b. cylinder
(Frac)
Dark Roasl 10O,2.75 oz $110.38
l-ight Roast 128,2.25 oz $117.87Decaf 75,2.00 oz $67.95Organic 75,2,75 oz. $110.10
Plice oer case
$17.85
$9.46
$23.36
$8.88
$16.29
$10.82
$27.00$16.00 , ,
$17.85 .
$19.00
$34.00
$12.35
$12,60
$13.e9
$16.48
Price oer oallon
$12.24
$12.78
$11.82
$12.40
$12.75
$13.30
$13.88
$14.26
$52.89 per 1,200
$34.55 per 2,000
$25.00 per cylinder (plus $75i00 deposit)
Cuos
24 ounce
'All prices are per standard physical. case and exclusivd of tiaxes, deposits, handling fees, and r,ecycling fees,
Georqla 64 Oz Brew: Price,per Cas-e and backage slze: (nricee eliecuve fsr the pertod :1t1t2o12.
U3112012) (All coffee is prlced FOB to Dlstributor, prlces do not lnclude any dlstributor markup.)Product Package SmallFilters large Fllterc
$110.38
$117.87
$67.9s
$1 10.10
15
98
Exhibil T to Term Sheet
MAINTEJ.IANCE & SERVICE
During the Term, Bottler will loan to Account, pursuant to the terms of Bottlels equipment
placement agreements, al no cost, that Beverage equipment reasohably required and as mutually
agreed upon to dlspense Beverages at the Facilities.
Bottler agrees that all equipment shall be new or in "like neu/' condition and that it shall operate and
manage the equipment, services and facilities offered in a first-class manner. Bottler shall provide
City with the Mainten'ance Plan and Schedule for all Bottler equipment within 90 days of execution
of Agreement, to include the Bottle/s plan and schedule for servicing the City.
BOttlOr shall provide throughout the Terrn of this Agreement, at Bottler's expense,,all repairs,
repacernents and technical services necessary to maintain and preserve the Bottler's dquipment in
a decent, safe, healthy and sanitary condition satisfactory to City and in compliance with applicable
laws,
Bottler warrants that it shall correct all mechanical problems with vending machines no later than
four (4) business days after notiie and no later than twenty-four (24) houis after notice for all other
dispensing equipment.
Acts of vandalism to Bottler's equipment wlll be reported to Bottler immediately and addressed
within four (4) business days. lf the vending machine is repairable, the vending maghine will be
repaired within four (4) business days. lf the vending machine is not repairable, vending machine
will be condemned and swapped within seven (7) business days,
Bottler is the onty party allowed to make repairs on Bottler-owned equipment.
Allvending machines shall display a 'service hotline' sticker to expedite calls. A toll free ('1-8OO')
number shall.be provided and a 24-four hour per day, seven days a week continuously operating
telephone answering servic'e shall.be provided. i
A reimbursement fund in the amount adequate to handle all necessary refunds between service
calls shall be made available to City at designated location(s) mutually agreed upon by City and
Bottler. Each person requesting a refund shall complete a form which shall be maintained by the
City and provided to the Bottler as required. The reimbursement fund shall be checked by the
Bottlerno less than once a'month and replenished as needed, lnforrnation on refunds enitt be
provided on each rnachine,
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99
Exhibit 8
The. term "Special Promotional Events" ("Event") shall mean and is limited to the following:
concerts; theatrical or comedic performances; conventions; trade shows; religious events; athletic
events; or other special events occurring at a Facility that meet the following r-quirements: (i) they
are sponsored by a manufacturer, distributor, or marketer of Competitive Products under a master
sponsorship agreement with the owner or operator of the subject Event (including, without
limitation, a concert or theatrical prod.uction company, or a trade show or oonvention firoduction'company, but NOT including in any instance the City or its affiliates or agents); (iij they are' conducted on, a national or regional multi-market basis; (iii) they are NCAA coltegiate champioirsilp
atl:tletic events; and, (iv) the event sponsorship agreement referred to in subsection (i) abovb
requires.. on-site temporary sign age for Competitive Prod ucts
'The term "special Promotiona! Events Exceptions" shall refer to those exceptions granted under the
'Agreement, for each Agreement year, to permit.the following fifteen (15) Special promotional Events
at the following Facilities; (l) four (4) events at the Miami Beach Gotf Ctub; (ii) four (4) gvenh at the
Normandy Shores Gotf Club (The Miami Beach Golf Club and Nonnanay Sniies Ooif 'CtuU may atsobe refened to collectively herein as 'Golf Courses');(iii) three (3) events at the Miami Beach
Convention Center ('Convention Centel'); and (iv) four (4) City Approved major Sponsorship public
Special Events (as {efined below); provided, however, that the number limitition ior City Approved
Major Sponsorship Public Spticial Events shall be revisited and reviewed by the parti6s 'in good
faith, at the conclusion of the third Agreement year.
a. Golf Courses and Convention Centerlspecial Promotional Events Exception. ln any
Agreernent Year, temporary signage (such as, but not lirnited to, banners)'for Competitive
Products may be digplayed at each of the Golf Courees during up to four (4) Special
Promotional Events, and during up to three (3) Special promoiionat Events at the
Convention Center ; PROVIDED, HOWEVER, that (i) Sponsofs Beverage avaitabitity,,
marketing, advertising, promotional, and other rights under this Agr.eement wilt not
othenadse be affected during any such Event; (ii) Competitive Products miy be ilistributed at
no cost, but no Competitive Products will be sold or bthena/se made available during the
Event(except as permitted in this exception); (iii) no blockage of any signage or ou'rer,trademarUservice mark display Sponsor may have at the Faoility witt occuiOuring the
Event, except for incidental. blockage due to the construction and/or placement of a pjrson,. st49e or other structure necessary to and actually used during the Event; or, in the case of
I,ICAA championship events , religious events or political conventions where'n0 advertising
is allowed and all advertisers are treated edual with all'signage covered in the seated area
of the Facilityi (iv) all temporary signage for Competitive Products will be prompgy removed
frorn the Facility upon the conclusion of the Event;'and (v) at no time will the C-ompetitive' Froducts qake any staternents, or use any temforary signage, that uses the. trademakslservice ,marks of the City of Miami Beach; South Beach, Goffi Courses or the' Convention Center, nor in any way associate these Competitive Products with the City of
Miami Beach, "South Beach," the Golf Courses, or the Convention Center. The Special
Prornotional Events at the Golf Clubs and the Convention Center must occur dver a feriodof no rnore than twenty-four (24) hours. The twenty-four hours does not incldde set up or
, tear down tim_e iequired, or NCM.Championship events or polltical conventions wtrich inay
.exceed the aforestated time limitation. The Convention Center may use the three one day
:
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100
,..
I
. (one day = 1*.n,r-four hours) in the aggregate in each Agreement Year Ourin! the Term,
Aggregate, as used in this paragraph, shall mean the total of twenty-four hours rlnultiplied 6y
the total number of Special Promotional Events permitted, as provided for lherein. For' example purposes onty, the Miami Beach Conveniion Center are provided three Special
Promotional Event Exceptions per Agreement Year, As such, the three Special Promotional
Events may ocqur in the Miami Beach Convention Center for a total of 72 hours in an
Agreementyear Q4 hours x 3 events = 72 hoursiyear).
City Approved Major Sponsorship Public Special Events/Specidl Promotional Events
Exception. ln any Agreement Year, temporary signage (such as, but not limited to,
banners) for Competltive Products may be displayed during up to four (4) Special
Promotional Events for City Approved Major Sponsorship Public Special Events. The term' "City Approved Major Sponsorship Public Special Event" shall refer to a City-approved
public event (i.e. where public access is allqwed either via no cost or via pre-purchased
ticket) held on City property, and permitted pursuant to the City's approved Special Event
Permit process, as same may be amended from time to time during the Term of this
Agreement (for example purposes ohly, this may include, but not be limited to events such
as Super Bowl Pepsi Jam and Red Bull lllume); and may also include an event sponsored
by a manufacturer, distributor or marketer of Competitive Products pursuant to a
sponsgrship agreement with the owner, operator or promoter of the event an event
conducted on a national or regional multi-market basis; and/or an event where a
Competitive Product is the naming, presenling, title, brought to you by, or other primary
'sponsor of the Event. Temporary signage for Competitive Products at City Approved Major
Sponsorship Public Events rnay be displayed as an Event 'namirlg sponsor', Event
"presented bf sponsor, Event "brought to you by" sponsor, or as a sponsor represented as
a "Gold' or 'Platinum' (or such other equivalent) sponsor of the Event; PROVIDED,
HOWEVER, tha[ (i) Sponsor's Beverage availability, marketing, advertising, promotional,. and other rights under this Agreement will not otherwise be affected dur:ing any,such Event;
(ii) no blockage of any signage or other trademarUservice mark display Sponsbr may have
at the Facility will occur during the Event, except for incidental blockage due to the
construction and/or placement of a person, stage or other structure necessary to and
actually used during the Event; or, in the case of NCAA championship events, rellgious
events or political conventions where no adverlising is allowed and all advertisers'are
treated equal with all signage covered in the seated area of the Facility; and (iii) all
temporary signage for Competitive Products will be promptly removed from the Facility upon
the conclusion of the Event. At no time willthe Competitive Products make any statements
or use any temporary signage that uses the trademarks/service marks of the City of Miami
Beach, "South Beach," or the Facilities, or in any way associate these Cornpetilive Products
with the City of Miami Beach Facilities, Ncjtwithstanding the above, Competitive Products'
may be disfibuted, sampled or made available during a City Approved Major Sponsorship
Fublic Special Event for which there is a Special Promotional Events Exception. Such
distribution, sampllng or availability shall occur ONLY within the approved site plan for the
event. However, should concession service (sales) for any non-alcoholic beverage other
than Products be required or necessary for the event, and there are no existing concessions
at the location of the City Approved Major Sponsorship Public Special Event foi which there
is a Special Proinotional Events Exception, the City Manager shall submit a letter to
Sponsor requesting that Sponsor grant a waiver to perrnit such sale at the Event; outlining
the details of the exception and the business reasons for the request and such,request shall'require Sponso/s prior written approval, Sionsor reserves the right to notiapprove the'
limited waiver for this purpose. Sponsor will notify the City Manager of whethe,r the request
for waiver will be approved within twenty (20) business days of Sponsor receiving the City
Manager's letter. -
18
101
The Special Promotional Event Exception for a City Approved Major Sponsolship pubflc
Special Event must occur over a period of no more than seventy-two (72) hours. The
seventy-two hours does not include set up or tear down time.required, or NCAA
Championship evenls or political conventions which may exceed the aforestated timE
limitation. The seventy-two hours may be used in the aggregate in each Agreement Year
during the Term. Aggregate, as used in this paragraph, shall rnean the total of seventy-two" hours multiplied by the total number of Special P.romotional Events Exceptions,.as provided
for herein. As such, the four Special Promotlonal Events may occur on public property for a
total of 288 hours in an Agreement year (72 hours x 4 events = 288 hourS/year).'
c. Other permitted Exceptions. Exhibitors at Conventions or hade shows, or third party exhibitor
set ups at Facilities shall have the right to serve Competitive Products within their booth
provided that same is limited to the duration of the corresponding event and, provided further,
that the Competitive Products are not rnarketed, advertised or promoted in association with
the Qity of Miami Beach ancUor the Facilities, and their respective trademarks. For example, purposes only, a Cadillac booth at the Auto Show in the Convention Centgr would be
allowed to.give away bottled water with the Cadillac Logo. Notwithstanding, Sponso/s
Products would continue to be the only Products allowed to be sold, distributed or sampled
at the Facility's concession operations
d, Cornpetitive Beverages may also be permitted to be distributed, .at no cost, at third party
events that are not affiliated with the City, but where the City has permitted the evenl
through the issuance of a City of Miami Beach Special Events Permit, subject to the Ciffs
notification to Sponsor prior to the event; and, provided further, that the third party event
operator is not a rnanufacturer, distributor or seller of a Competitive Product; that the
Competitive Products are not marketed, advertis6d or promoted in association with the City
of Miami Beach or the Facilities, and their respective trademarks; that no Competitive
Products will be sold during su{h event; and that the distribution of the Competitive Product
is limited to Special Event Perrhit Area. (as such term is defined in the City's Special Evenf' Pemit Guidetines, as same may be amended form time to time'through the Term of thid
Agreement). For example purposes only, a third party event contemplated under this' paragraph might include, but not be limited to, a walkathon or marathon whero one of the
event sponsors might request to be permitted to dlstribute free bpttled water to the event
participants. Notwithstanding the above, Sponsor shall have first right of refusalto provide. donated Beverages through a sponsorship agreement to the non-profit events,;permitted by
the City through the issuance of a City of Miami Beach Special Events Permit, known as the
White Party, Winter Party. and Miami Beach Pride (based on the level of non-alcoholic
Beverages provided for the White Party, Winter Party and Miami Beach Pride events in
2012.) for the sale of these Beverages by these three (3) events as part of their annual
charity fundraisers. lf Sponsor elects to participate, Sponsor will notify the organizer six (6)
months prior to start date of Wfiite Party, Winter Party and Miami Beach Pride events, lf at', ahy time during the Term the Sponsor cannot or does not provide donated non-alcoholic
Beverages through a sponsorship agreement to these three (3) non-profft'events for this
purpose, these three (3) events shall be perrnitted to secure Competitive Products for use' and sale consistent with the use and sale of non-alcohollc Beverages in the 2012 White
Party, Winter Party and Miami Beach Pride events
Fei' Section 9 of Term Sheet, No Competitive Products may be sold, dispensed, sampled or served
anywhere at the Facilities, or on the City's public rights-of-ways, unless otherwise ocpressly spelled
out in the Agreement.
le
102
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103
roft+fr1 to//-d177b
Concession
Agreement'fon
0peration of
Snack Machines
ffiettoli Trading Corp.
104
qE9r!oN
1
2.
3
3.2
3.2.1
INDEX
....,..;...4
3 2.1.2
3.2.1.3
3.2.1.4
3.2.1.5
3.2.1.6
3.2.1.7
3.2,1.8
3.2,2
3.2.2.1
3.2.2.2. 3.2.3
3.2.4
3.2.5
3.2.6
3.2.7
3.2.8
3.2.9
4,
4.1 .
4.2
4.3
4.4
4:5
4.6'5.
6.
7.
7.2
7.3
8..
9.
10.
10.2
'10.3.'. .
i o.+
10.s
10.6
10,7
10.8
10.9'
11.
105
sEcrloN
12.
't2,4
12.5
12.6
12.7
13
13 1
13.2
13.3
13.4
13.6
13.7
14.
15.
16.
1,7.
18.
19.'
20.
20.1
20.2
20.3
20.4
20.5
21.
21.1
21,2
21.3
21.4
21.5
21.6
21.7
21.8
21.9
21 .10
21.11
21.12
21.13
21.14
24.15
21,16
21.17
22.
23.
TITLE PAGE
No Discrimination ......,.,......'.............25
106
CONCESSION AGREEMENT BY AND BETWEEN
CITY OF MIAMI BEACH, FLORIDA, AND BETTOLI TRADTNG CORP.
FOR OPERATION OF SNACK MACHINE CONCESSIONS AT
VARIOUS LOCATIONS ON CITY OF MIAMI BEACH PROPERTIES
PURSUANT TO REQUEST FOR PROPOSALS #44.10111
THlsAGREEMENTmadethe.?vr., oayor Flu, zolzjetween the clryoF MtAMt
BEACH, a municipal corporation of the State of Florida (hereinaftbrcalled "City'), having its
principal address at 17OO Convention Center Drive, Miami Beach, Florida, igtgg, inO
BETTOLI TRADING CORP., a corporation established pursuant to the laws of the State of
Florida, with offices at 6095 NW 167 Street, Suite D, Miami, Florida 33015 (hereinafter
called "Cohcessionaire").
WITNESSETH
WHEREAS, on July 13,2011, the Mayor and City Commission approved the issuance of
Request for Proposals (RFP) No. 44-10/11; to solicit proposals for the operation of snack
vending machine concessions at various locations on City-owned properties and facilities;
and
WHEREAS, on August 5,2011, said RFP was issued, with an original opening date of
September 7,2011; and
WHEREAS, on October 19, 2O11,the Mayor and City Commission adopted Resolution
No. 2011-27776, accepting the recommendation of the City Manager pertaining to the
ranking of proposals, and'authorizing the Administration to enter into negotiations with
BettoliTrading Corp. d/b/a BettoliVending (Concessionaire), as the successful proposer,
for the operation of said snack machine concessions; and
WHEREAS, the Administration has successfully negotiated the foregoing Concession
Agreement with Concessionaire.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
The City hereby grants to the boncessionaire, and the Concessionaire hereby accepts
frorn the City, the exclusive right to operate the following described concession within ihe
Concession Locations, as defined herein, in conformance with the purposes and for the
period stated herein, and subject to all the terms and conditions herein contained and fairly
implied by the terms hereinafter set forth.
107
SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of five (5) years, commencing on
May 1, 2012 (the "Commencement Date"), and ending on April' 30,2017 .
1.2 Provided that the Concessionaire is not in default under Section 13 hereof,
and at the City's sole discretion, the'City, through its Gity Manager, may
extend the term of this Agreement, upon the same terms and conditions as
set forth herein, for five (5) additional one (1) year terms; by providing written
notice to Concessionaire no later than sixty (60) days prior to the expiration
of the initial term or of a renewal term (as the case may be).
1.3 For purposes of this Agreement, the Term" shall be defined as the initial
term and renewal term (if exercised by the City), and a "Contract Year" shall
be defined as each one (1) year period during the ferm, commencing on the
Commencement Date, orthe anniversary of the Commencement Date, and
ending one year thereafter.
SECTION 2. CONCESSION LOCATIONS.
The City hereby grants to the Concessionaire the exclusive right, during the Term of this
Agreernent, to operate snackvending machine concessions, in the locations delineated in
Exhibit 2.0 herein (hereinafter referred to as the "Concession Locations").
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of business(es) in
the Concession Locations, as provided below, all at its sole coit and expense:
3.1 Concessionaire shallinstall, operate, manage, service and maintain Snack
Vending Machines (as defined in Subsection3.2.1.1) and Change Machines
(as defined in SubsectionS.2-2.1), at.the Concession Locations, which shall' provide snack services for patrons, ernployees, and the generalpublic at City
owned properties and facilities throughout the.Term of this Agreement, in
accordance with the scope of services delineated in Section 3.2.
The City hereby approves the use of the Concession Locations, for the
placement of the specific Snack Machines, as reflected in Exhibit 2.0, which
shall'offer for sale the specific products at the specific prices reflected in
Exhibit 3.2.5.1
. Any amendment to any Exhibit attached hereto must be approved in writing
by the City Manager or his designee prior to implementation of same, and, if
approved, a new and/or updated Exhibit shall be attached and incorporated
herein.
4
108
3.2 Scope of.Services.
Snack Machines.
3.2.1.2
Definition.
Snack Machine shall be'defined as any and all equipment that
is used to hotd and dispense products to be offered for sale as
provided pursuant to this Conces5ion Agreement, which shall
accept United States paper currency in one dollar ($1.00), five
dollar ($5.00;, and ten dollar ($10.00) denominations, and will
provide change in United States coins in one dollar ($1.00),
quarters ($0.2S1, dimes ($0.10) and nickels ($0.0S1.
Controls.
Each Snack Machine must be equipped with a non-resetting
transaction counter, oi other control acceptable to the City, and
must be licensed as provided in Subsection 3.2.9 and as may
also be required by other applicable law (as provided in
Section 20.1), and shall include DEX resident capabilities.
Condition.
As of the Commencement Date, all equipment including,
.. without limitation, any and all Snack Machines, installed under
this Agreement shall be new or remanufactured in excellent
condition prior to installation. The City, at its sole discretion,
may also request that vandal proof and weather proof Snack
Machines be provided at certain outdoor City parks and other
venues that may be subjected to the natuial elements (i.e.
wind, rain, sand, salt-air, etc.).
Design.
The design, type, material, and. color and exterior facades of
any and all Snack Machines, as defined in Subsection 3.2.1.1,
shall be approved in writing by the City prior to the
Commencement Date. A photo or photo(s) of City-approved
Snack Machines are incorporated herein as Exhibil3.2.1.4.,
Thereafter, Concessionaire shall not change, alter, or modify
such City-approved design, type, material and color of any
Snack Machine without the prior written consent of the City
Manager or'his designee and, if so approved, a new or
updated Exhibit 3.2.1,4 will be made a part of and incorporated
into this Agreement..
3.2.1.3
3.2.1.4
3.2.1
3.2.1.1
109
3.2.1.5 Placement.
Placement of Snack Machines shall be in accordance with and
shall not exceed the maximum numbers and types, as setforth
at the Concession Locations referenced in Exhibit 2.0.
3.2.1.5,1
3.2.1.5.2
Concessionaire shall obtain written approval from the
City Manager, or the City Manager's designee, prior to
the installation, 'tiansfer or removal of any Snack
Machine.
Notwithstanding Subsection 3.2.1.5,' City and
Concessionaire may, from time to time, meet to review
and,, subject to the City Manager's priorwritten consent,
revise the maximum numbers set forth in Exhibit 2.0.
3.2'.1.6 Quality of Products
Quality of products offered in Snack Machines will be first-rate' and comparable to that available in other: public vending
machines located in public facilities in other world class cities
on par with the City of Miami Beach or, in the alternative, and
at a minimum, comparable to the quality of products provided
by privately owned businesses selling like products within the
City of Miami Beach. No product shall be otfered for sale with a
"sell by' date that has expired.
3.2.1.6.2 Snack Vending Options,
Snack vending options should include healthy snacks
such as whole grain, multigrain or vegetable chips and
crackers; nuts; reduced fat popcorn; backed or popped
chips; sugar free chewing gum; fruit trail mix; nutrition,
granola, or trail bars; fresh fruits and yogurt. The City's
Parks and Recreation Department will review and
approve any product to be sold in the Snack Machines
placed in the City's parks and youth centers prior to
such product(s) being initially offered for sale in the
Machines.
3.2.1.7 Cleanliness
ln addition to Concessionaire's gerieral maintenance
obligations forthe Snack Machines and Change Machines, as
set forth in Section 3.2.3, and the Concession Locations, as
set forth in Section 10 hereof, all portions of the Snack
Machines, Change Machines, and Concession Locations,
retrospectively, shallat alltimes be maintained in a clean and
sanitary manner.
110
3.2.1.8
3.2.2
3.2.2.1
3.2.2.2
3.2.3
3.2.3.1
Operation Schedule.
Snack Machines and ChanQe Machines shall be operable
during the days and hours of operation set forth in Section 9
herein.
Chanoe Machines.
Definition.
Change Machine shall be defined as any and all equipment
that is required pursuant to this Concession Agreement that is
capable of providing change, primarily for the purposes of use
in a Snack Machine, which will accept United States paper
currency in one dollar ($1.00;, five dollar ($5.00), and ten dollar
($10.00) denominations, and will provide change in United
State coins in one dollar ($1.00), quarters ($0.25), dimes
($0.t0; and nickels ($0'0S1.
. For purposes of this Subsection, and'this Agreement, Snack
Machines, as defined herein, that are equipped and capable of
.providing change (without the requirement that a purchase be
made) shall also be considered Change Machines.
Placement.
Change Machines shallbe provided by Concessionaire at each
interior (i.e. not subject to the natural elements) Concession
Location where.two (2) or more Snack Machines are situated,
' Concessionaire shall obtain written approval from the City
Manager, or the City Manager's designee, prior to the
installation, transfer or removal of any Change Machine,
Maintenance of Snack Machine and Chanqe Machines.
The condition and quality of Concessionaire's Snack Machines
shall,at all times be maintained ih a manner that is consistent
with the conditibn and quality of similar public vending
machines located in public facilities iri other world class cities
on par with the City of Miami Beach. Accordingly,
Concessionaire shall not only, at a minimum, ensure that all
Snack Machines placed in the Concession Locations are well
maintained and in usable condition, but shall adhere, as
indicated in this subsection, to high ongoing maintenance
standards for same, consistent with the aforementioned
condition and quality.
111
3.2.3.2 The Concessionaire shall be responsible for all maintenance
and repair of Snack Machines and Change Machines,
including but not limited to:
3.2.3.2.1
3.2.3.2.2
3,2.3.2.3
3.2.3:2.4
3.2.3.2.5
Cleaning and polishing of Snack Machines and Change
Machines, and removal of litter within and surrounding
the Concession Location(s) created by filling, servicing,
and/or maintaining of Machines. The Concessionaire
shall ensure that each route driver's schedule allows for
time to thoroughly and appropriately clean each
Machine as it is replenished, maintained and/or
serviced, This includes cleaning with a sanitizing
solution, the interior and exterior of each Machine, each
time that Machines are re-stocked, serviced, or
maintained
Atl Snack Machines and Change Machines shall be
checked weekly and accurate records of service calls
(including time and date, location, machine type and
serial number) are to be maintained, and forwarded to
the City, along with the monthly report (see Section 5)
that shall be provided to th6 City within thirty (30) days
of the end of each month.
The Concessionaire shall maintain all Snack Machines
and Change Machines in good working order and shall
repair or replace any equipment that is not immediately
repairable, within two (2) business days, if found to be
inoperable.
Concessionaire shall post and maintain
Concessionaire's information, including a contact name
and toll free customer service telephone number,
immediately adjacent to the coin slot, of a size no less
than 4" x 6", on each Snack Machine and Change
Machine, to facilitate responding to refunding, re-
stocking, maintenance, and repair related problems that
may arise.
Concessionaire shall maintain an inventory of all Snack
Machines and Change Machines, with corresponding
identifi cation information.
112
3.2.4
3.2.4.1
3.2.4.2
3.2.5 Pricino and Avpilabilitv of Services.
3.2,5,1 lnitial prices for Snack Machine pioducts shall be in
accordance with the attached schEdule in Exhibit 3.2.5.1. Any
subsequent changes proposed by Concessionaire to said
prices must be submitted in writing to the City Manager or his
designee, and priorwritten approval must be secured from the
City before implementing any changes.to same.
Refund Procedure,
ln addition to any other remuneration provided herein,
Concessionaire shall provide two "banks," each of one
hundred dollar:s ($100.00) in cash, to the City. One shall be
held by the City Finance Department's City Hall Cashier, and
the other shall be held by the Parks Department Administrative
Office, located at the 21tt Street Recreation Center, 2100
Washington AvenUe, for the purpose of distributing refunds
due to any malfunction of the Snack Mdchines. An individual
itemized refund list, including the amounts and names of the
persons the funds were refunded to, will be maintained by the
City Hall Cashier and by the Parks Department, respectively,
and will be submitted to the Concessionaire upon requested
replenishment of the "bank" funds by the City.
Malfunctions of Snack Machines that are, reported to the
Concessionaire shall be fonrarded to tfie City, in writing,
including the amounts and names of the persons the funds
were refunded to, on a monthly basis, along with (and at the
same time) all other reportinQ documents required under this
Agreement,
3.2.5.1.1 The City Manager or his designee may request servicesat additional locations and/or request additional
products for Snack Machines at any time during the
Term. The Concessionaire may, at its sole cost and
expense, test market these additional locations and/or
products for a sixty day (60) period. lf the
Concessionaire demonstrates to the City Manager or
his designee's satisfaction that the commercial demand
does not exist for the additional locations and/or
products,'the Concessionaire will not be obligated to
continue the additional locations and/or products.
ln the event that the City Manager or his designee
determine, in their respective sole option and discretion,
3.2.5.2
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3.2.6
3.2.7
3 2.8
I
Ithat all or a portion of Concessionaire's proposedt.$ervices, pursuantto Subsection 3.1 (and as delineated in
Subsection 3.2) are no longer desired, then the Gity rnay
revoke Concessionaire's rightto provide allora portion of
said services, and terminate all or a portion of this
Agreement, without cause, and without tiability to the City,
upon sixty (60) days written notice to Concessioriaire.'
Concess io nai re's S upervisorvlMa na gement E m plovee.
On or before the Commencement Date of this Agreement
Concessionaire shalldesignate (and provide notice of same in writing
to the City), a supervisory/management employee who shall be
authorized ahd responsible to act on behalf of Concessionaire with
respect to directing, coordinating, and administering all aspects of
Concessionaire's day to day operations pursuant to this Agreement.
Concessionaire's supervisory/management employee shall be
available via telephone, at all times during which the Snack Machines
at all Concession Locations are operating, as provided in Section 9
herein.
Removal of Snack Machines and/or Chanoe Machines.
Concessionaire acknowledges that there may be circumstances under
which the City Manager may require the removal of any or all of the
Snack Machines and/or Change Machines. As such, Concessionaire
agrees that any or all of its Snack Machines and Change Machines
used in the concession operations will be removed from the
Concession Locations upon fifteen (15) days written notice to
Concessionaire, and said removal shall be done in compliance with
the applicable section(s) as set forth herein, and without liability to the
City.
Hurricane Evacuation Plan.
Concessionaire agrees that upon the issuance of a Hurricane
Warning by the Miami-Dade County Office of Emergency
Management, it shall ensure that all exterior Snack Machines and
Change Machines, and any and all other items used in the
concession operations shall be secured, Additionally, and
notwithstanding the foregoing, Concessionaire agrees that upon
receipt of notifiCation from the City Manager or his designee, whether
'in writing or verbally, which may be iommunicated to Concessionaire
via telephone, fax and/or email, all exterior Snack Machines and
Change Machines, and any and all other items used in the
concession operations shall be removed from the Concession
Locations and stored at a private, off-site location, within 24 hours of
said notification.
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3,2.9
Concessionaire's failure to remove Snack Machines, Ghange
Machines, or any and all other iterns used in the concession
operations upon notice from the City Manager or his designee
within the time period provided in this Subsection may, at the
City's sole discretion, constitute an automatic default of the
Agreement under which the City may, upon written notice to
Concessionaire, immediately terminate this Agreement.
CiW Business Tax Receipts.
Concessionaire shall obtain, and maintain current and in good
standing throughout the Term of this Agreement, at its sole cost and
expense, any Business Tax Receipts required by City [aw, as
amended from time to time, for its proposed uses, as cohtemplated in
Section 3 of this Agreement. For purposes of this Agreement,
Concessionai re s ha I I obta in the app licable''Coin Vending Distributor'
and/or "25 Cents and Over Machine" category City Business Tax
R.eceipts.
SECTION 4. CONCESSION FEES.
4.1 Securitv Deposit.' Concessionaire shall furnish to the City Manager or his/her designee a
Security Deposit, in the amount of Three Thousand Dollars ($3,000), as. security for the faithful performance of the terms and conditions of this
Concession Agreement, to be remitted on or before the Commencement
Date.
4,2 Minimum Guarantee (MG).
ln consideration of the Clty executing this Agreement and granting the rights
provided in this Agreement, commencing, May 1,2012, and thereafter on
May 1" of each year during the Term of this Agreement, the Concessionaire
shall pay to the City a Minimum Guaranteed (MG) Annual Concession Fee of
. Twelve Thousand Dollars ($12,000), plus applicable Sales and Use Taxes
(as provided in Section 4,6 herein); said MG shall be subject to the annual
increases in Subsections 4.2.1 .and 4.2.2 below.
4.2,1 Commencing with the third Contract Year, said MG shall be
automatically increased annually, on the anniversary of the
Commencement Date, by the greater of (i) the Consumer Price lndex
(CPl), or (ii) three percent (30lo). '!CPl" shall mean that consumer price
index established by the Bureau of Labor Statistics of the United
States department of Labor which is entitled "Consumer Price lndex,
All Urban Consumers, City Average All ltems; (1982-84 = 100)" or, in
the event said index is no longer provided by said Bureau.of Labor
Statistics, the index furnished by said Bureau or other agency which is
1',\
115
'4.2.2
4,2.3
i
most accurate, completely replaces, and/or is the equivalent of the
above referenced index, whichever is greater.
Additionally, commencing with the first anniversary of this Agreement,
the MG shalt be increased annually in the event the number of Snack
Machines is increased pursuant to Subsection 3.2.1,5.2. of this
Agreement. The MG shall be increabed based on the projected
classification (Low = $150, Medium = $300 and High = $500)of each
additional Snack Machine, as contained in Exhibit 2.0.
IN NO EVENT SHALL THE MG BE LESS THAN ${2,OOO
ANNUALLY.
Percentaqe of Gross Metered Receiots (PGMR)
During the Term of this Agreement, in the event that the amount equal to
twenty percent (20%) of Concessionaire's annual Gross Metered.Receipts
(PGMR) exceeds the Miniinum Guarantee (MG) provided in Section 4.2
above (as increased annually pursuant to Subsection 4.2.1,), then the
Concessionaire shall also pay to the City within thirty (30) days of the
anniversary of thls Agreement, the difference between the anrount of the
PGMR and the MG amount, each year during the Term of this Agreement,
including any renewal terms.
The term "gross metered receipts" is understood to mean alt income
registered at each and every Snack Machine, whether collected or accrued,
derived by the Concessionaire under the privileges granted by this
Agreement. Any am6unts that may be due for any Federal, State, or City
sales tax, or other tax, governmental imposition, assessment, charge or
expense of any kind and required by law to be remitted to the taxing
authority, or other governmental authority, shall be the sole responsibilig of
Concessionaire.
lntentionally Omitted,
lnterest for Late Payrnent.
ffiConcessionaireisrequiredtomaketoCitywhichisnot
paid on or before the respective date provided for in this Agreement shall be
subject to interest at the rate of twelve percent (12%) per annum, or the
highest rate allowed pursuant to Florida law, whichever is greater, from the
due date of payment until such time as payment is actually received by the
City
Sales and Use Tax.
It is also understood that the required Florida State Sales and Use Tax shall
be added to Concessionaire's payments and forwarded to the City as part of
said payments. lt is the City's intent that it is to receive all payments due
4,3
4.4
4.5
4.6
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116
from Concessionaire as net of such Florida State Sales and.Use Tax.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records on an
accrual basis of accounting related to its operations pursuant to this Agreement. Systems
and procedures used to maintain these records shall include a system of internalcontrols
and all accounting records shall be maintained in accordance with generally accepted
accounting principles and shall be open to inspection and audit, but not photocopying, by
the City Manager or his designee upon reasonable prior request and during normal
business hours. Such records and accounts shall include a breakdown of gross receipts,
expenses, and profit and loss statements, and such records shall be maintained as would
bei required by an independent CPA in orderto audit a statement of annualgross receipts
and profit and loss statement pursuant to generally accepted accounting principles.
A monthly report of gross metered receipts, as well as CompuVend data in a format
consistent with Exhibit 5.0, must be submitted to the City, through the Finance
Department's Revenue Manager, to be received no later than thirty (30) days after the
close of each month.
SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial records pertaining to its operations for a period
of three (3) years after the conclusion of the initial term, or (if approved) the last renewal
term, and such records shall be open and available to the City Manager or his designee, as
they may deem necessary. Concessionaire shall maintain al! such records at its principal
otfice, currently located at 6095 NW 167 Street, Suite D4, Miami, Florida, 33015 or, if
moved to another location, all such records shall be.relocated, at Concessionaire's
expense, to a location within the City of Miami Beach, within ten (10) days' written notice
from the City Manager or his designee that the City desires to review.said records
The City Manager or his designee shall be entitled to audit Concessionaire's records
pertaining to its operation as often as it deems reasonably necessary throughout the Term
of this Agreement, and three (3) times within the three (3) year period following termination
of the Agreement, regardless of whether such termination results from the natural
expiration of the Term or for any other reason. The City shall be responsible for paying all
costs associated with such audits, unless the audit(s) reveals a deficiency of five percent
(5%) or more in Concessionair_e's statement of gross receipts for any year or years audited,
in which case the firm shall pay to the City, within thirty (30) days of the audit being
deemed final (as specified below), the cost of the audit and a sum equal to the amount of
the deficiency revealed by the audit, plus interest; provided, however, the audit shall not be
deemed final until Concessionaire has received the audit and has had a reasonable
opportunity to review the audit and discuss the audit with the City, Nothing contained within
this Section shall preclude the City's audit rights for resort tax collection purposes.
Concessionaire shall submit at the end of the initial term (and, if approved, any renewal
term), a certified audited annual statement of gross receipts, in a form consistent with
generally accepted accounting principles.
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It is Concessionaire's intent to stay informed of comments and suggestions by the City
regarding Concessionaire's performance underthe Agreement. Within thirty (30) days after
the end of the initial term (and, if approved, each renewat term), Concessionaire and City
may meet to review Concessionaire's performance underthe Agreement. At the meeling,
Concessionaire and City may discuss quality, operational, maintenance and any other
issues regarding Concessionaire's performance under the Agreement.
7.1 Concessionaire agrees to and shall pay before delinquency all taxes
(including but not limited to resort taxes) and assessments of any kind
assessed or levied upon Concessionaire by reason of this Agreement or by
reason of the business or other activities and operations of Concessionaire
upon or in connection with the Snack Machines and/or the Concession
Locations. Concessionaire will have the right, at its own expense, to contest
the amount or, validity, in whole or in part, of any tax andior assessment by
appropriate proceedings diligently conducted in good faith. Concessionaire
may refrain from paying a tax or assessment to the extent it is contesting the
assessment or imposition of same in a manner that is in accordance with
law; provided, however, if, as a result of such contest, additionaldelinquency
charges become due, Concessionaire shall be responsible for such
delinquency charges, in addition to payment of the contested tax and/or
assessment if so ordered.
Concessionaire shall also pay for any fees imposed by law for licenses or
permits for any business, activities, or operations of Concessionaire upon the
Concession Locations, as permitted pursuant to this Agreement.
7..2 Utilities.
Electrical service, including maintenance of outlets, shall be provided by the
city at the concession Locations at no cost to the concessionaire, if and
where feasible. No water service will be provided by the City in connection
with the operation of snack Machines under this concession Agreement.
It not currently existing, requests for installation of new and/or additional
outlets shall be submitted in writing to the City Manager or his/her designee,
for review and approval. lf approved by the city Manager or his/her
designee, installation of new and/or additionally ouilets will be performed by
the City and/or an electrical contractor approved by the City, in writing, to
perform said work on the city's behalf, at concessionaire's sole cost and
expense.
7,3 Procedure lf Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 herein, the parties contemplate that the
concession uses and operations contemplated underthis Agreement are for
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118
8.1
public purposes and, therefore, no ad valorem taxes should be assessed by
[he Miami-Dade County Tax Appraiser as a result of such operations. lf,
however, said taxes are assessed, Concessionaire shall be solely
responsible for payment of same, in the same manner as taxes due pursuant
to Subsection 7.1 herein.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
ln connection with the performance of its responsibilities hereunder,
Concessionaire may hire its own employees who will be employees of
Concessionaire and not. employees or agents of the City. Additionally,
Concessionaire's vendors (i.e. entities who provide products and/or Snack
and Change Machines to Concessionaire) shall not be considered agents or
employees of the City. Concessionaire shall select the number, function,
qualifications, compensation, including benefits (if any), and may, at its
discretion and at any time, adjust or revise the terms and conditions relating
to its employees and/or independent contractors.
Concessionaire shall ensure that all its employees and vendors while
working at or within the Concession Locations observe all the graces of
personal grooming. The Concessionaire shall hire people to work in its
concession operation who are neat, clean, wellgroorned and shallcomport
themselves in a professional and courteous manner, and ensure that its
vendors comply with same. The Concessionaire and any persons hired by
same, shall never have been convicted of a felony. lf Concessionaire
materially fails to comply with this provision the City may default
Concessionaire pursuant to Section 13 herein,
SECTION 9. SCHEDULE OF OPERATION.
Snack Machines.and Change Machines shall be made available to patrons twenty four (24)
hours a day, seven days a week, based on the particular hours of operation of each
individual Concession Location, events of force majeure permitting. Any change in the days
or hours of operation shall require the prior written consent of the City Manager or his
designee.
sEcTtoN 10. MAINTENANCE OF CONCESSION LOCATTONS.
8.2
10.1 The Concessionaire accepts the Concession Locations in their "AS lS"
'WHERE lS" condition. Concessionaire assumes sole responsibility and
expense for maintenance of the immediate confines surrounding the
Concession Locations. This shall include removal of litter, garbage and
debris, said removal to b'e the sole responsibility and bxpense of
Concessionaire. Daily maintenance shall be accomplished on all days and
hours Concessionaire operates. Concessionaire agrees, also at its sole cost
and expense, to pay for all garbage disposal generated by its operations.
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10.2
10.3
10.4
10.5
10.6
10.6.1
10.6.2
I ntentionally Omitted.
I ntentional ly Omitted.
I ntentionally Omitted.
Orderlv Operation.
The Concessionaire shall have a neat and orderly operation at alltimes and
shall be solely responsible for the necessary housekeeping services to
properly maintain the Snack Machines, Change Machines and Concession
Locations. The Concessionaire shall make available all Snack.Machines and
Change Machines within the Concession Locations for examination during
days and hours of operation by the City Manager or his authorized
representative(s).
No Danoerous Materials,
The Concessionaire agrees not to use or permit in the Concession
Locations the storage and/or use of gasoline, fuel oils, diesel,
illuminating oils, oil lamps, combustible powered electricity producing
generators, turpentine, benzene, naphtha, propane, natural gas, or
other similar substances, combustible materials, or explosives of any
kind, or any substance or thing prohibited in the standard policies of
fire insurance companies in the State of Florida. Any such substances
or materials found being used within or in the vicinity of the
Concession Locations shall be immediately removed and shall be
considered cause for default and/or termination.
Notwithstanding any contrary provisions of this Agreement,
Concessionaire, after the Commencement Date, shall indemnify and
hold City harmless from any loss, damage, cost, or expense of the
City, including, without limitation, reasonable attorney's fees, incurred
as a result of, arising from, or connected with the placement by
Concessionaire, and/or its employees, vendors, agents andlor
subcontractors, afterthe Commencement Date, but during the term of
this Agreement, of any hazardous substance or petroleum products
on, under, in, upon, cir in the vicinity of the Concession Locations as
those terms are defined by applicable Federal and State Statute, or
any environmental rules and environmental regulations promulgated
thereu nder; provided, however, Concessionaire shall have no liabil ity
in the event of the willful misconduct or gross negligence of the City,
its agents, servants or employees.
The provisions of this Subsection 10.6 shall survive the termination or
earlier expiration of this Agreement.
10.6.3
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10.7
10.8
10.9
Security.
The Concessionaire shall be responsible for and provide reasonable security
measures which may be required to protect the Snack Machines and
Change Machines at all Concession Locations. Under nb circumstances
shall the City be responsible for any stolen or damaged goods, materials
and/or otherequipment, including but not limited to the Snack Machines and
Change Machines, nor shatt City be responsible for any stolen or damaged
personal property of Concessionaire's employees, vendors, patrons, guests,
invitees, and/or other third parties.
Maintenance Vehicles.
Concessionaire shall not permit the use of any vehicle, in any way that
violates any Municipal, County, State or Federal Laws. Vehicles may only be
driven and/or parked in areas designated for such purposes and as provided
for by applicable law.
lnspection.
The Concessionaire agrees thatthe Snack Machines, Change Machines and
Concession Locations may be inspected at any time during days and hours
of operation by the City Manager or his designee, or by any other municipal,
County, State offlcer, or agency having responsibilities for inspections of
such operations. The concessionaire hereby waives all claims against the
City for compensation for loss or damage sustained by reason of any
interference (which interference, if by the City, must be reasonable) with the
concession operation by any public agency or official in enforcing their duties
or any laws or ordinances. Any such interference (which interference, if by
the city, must be reasonable) shall not relieve the concessionaire from any
obligation hereunder.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole cost and expense, the following types of
insurance coverage at all times throughout ihe term of this Agreement
Comprehensive General Liability in the minimum amount of One Million
Dollars ($1,000,000) per occurrence for bodily injury and property damage.
This policy must also contain coverage for premises operations, products,
completed operations and contractual liability (with hold harmless
endorsement).
Workers Compensation lnsurance and Employers Liability tnsurance shall be
provided as required under the Laws of the State of Florida.
Automobile lnsurance for any vehicles used for, or associated with
concessionaire's operations shall be provided covering all owned, leased,
and hired vehicles and non-ownership liability for not less than the following
limits:
a.
b.
c.
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Bodily lnjury $1,000,000 per person
Bodily lnjury $1,000,000 per accident
Property Damage $1,000,000 per accident
Failure to procure or maintain the required insurance program shall, at the City's
discretion, either (i) constitute an automatic default of the Concession Agreement
under which the City may, upon written notice to Concessionaire, immediately
terminate the Agreement; or (ii) the City, in its sole discretion, may obtain the
insurance itself, in which case said insurance shall be charged back to the
Concessionaire as provided in the following paragraph
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at teast thirty (30) days prior written notice to the City, and then only
subject to the prior written approval of the City Manager or his designee. Prior to the
Commencement Date of this Agreement, Conce$sionaire shall provide City with a
Certificate of lnsurance for each such policy. ALL POLICIES SHALL NAME THE CITY OF
MIAMI BEACH FLORIDA.AS AN ADDITIONAL NAMED INSURED. Allsuch policies, and
any replacement or substitute policies, shall be obtained from companies authorized to do
business in the State of Florida with an A.M. Best's lnsurance Guide (latest edition) rating
of B+ Vl. Should Concessionaire fail to obtain, maintain or renew the policies of insurance
referred to above, in the required amounts, the City may, at its sole discretion,
automatically terminate this Agreement or, in the alternative, deem to obtain suih
insurance, and any sums expended by City in obtaining said insurance, shall be repaid by
Concessionaire to City, plus ten percent (10%) of the amount of premiums paid.to
compensate City for its administrative costs. lf Concessionaire fails to 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, or, at its option, the City may declare the
Agreement in default pursuant to Section 13 heiein.
Said policies of insurance shall be primary to and'contributing with any other insurance
maintained by Concessionaire or City. Concessionaire shall file and maintain certificates of
all insurance policies with the City's Risk Management Department showing said policies to
be in full force and effect at all times during the course of the contract.
lf any of the required insurance coverages contain aggregate limits, or apply to other
operations or tenancies of Concessionaire outside this Agreement, Concessionaire shall
give City prompt written notice of any incident, occurrence, claim settlement or judgment
against such insurance which may diminish the protection such insurance affords the City.
Concessionaire shall further take immediate steps to restore such aggregate limits or shall
provide other insurance protection for such aggregate limits.
SECTION 12. INDEMNITY.
ln consideration of a separate and specific consideration of $10.00 and other12.1
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122
12.2
12.3
12.4
12.5
12.6
12.7
good and valuable consideration the receipt and sutficiency of which are
hereby acknowledged, Concessionaire shall indemnify, hold harmless and
defend the City, its agents, servants and employees from and against any
claim, demand or cause of action of whatsoever kind or nature arising out of
error, omission, or negligent act of Concessionaire, and/or its vendors,
agents, servants, employees and/or subcontractors and/or sub
concessionaires in the performance of services under this Agreement.
ln addition, in consideration of a separate and specific consideration of
$10.00 and other good and valuable consiileration the receipt and sufficiency
of which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend the City, its agents, servants or employees, from and
against any claim, demand or cause of action of whatever kind or nature
arising out of any misconduct of Concessionaire, and/or its vendors, agents,
servants, employees a nd/or subcontractors and/or su bconcessionaires, not
included in the paragraph in the Subsection above and forwhich the City, its
agents, servants or employees are alleged to be liable.
Subsections 12.1 and 12.2 shallsurvive the termination or expiration of this
Agreement
Subroqation.
The terms of insurance policies referred to in Section 1 1 shall.preclude
subrogation claims against Concessionaire, the City and their respective
officers, ernployees and agents
Force Majeure.
Neither party shall be obligated to perform hereunder and neither party shall
be deemed to be in default if performance is prevented by:
a. earthquake; hurricane: flood; act of God; civil commotion occuning on
the Concession Locations during or in connection with any event or' other matter or condition of like nature; or
b. any law, ordinance, rule, regulation or order of any public or military
authority stemming from the existence of economic or energy
controls, hostilities, or war.
lntentionally Omitted.
Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for
loss or damage sustained by the Concessionaire resulting from fire, water,
natural disasters/acts of God (e.9. hurricane, tornado, etc.), civil commotion,
riot, or any other Force Majeure contemplated in Subsection 12.5 above, and
the Concessionaire hereby expressly waives all rights, claims, and demands
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against the City and forever releases and discharges the City of Miami
Beach, Florida, from all demands, claims, actions and causes of action
arising from any of the aforesaid causes.
$ECTTON 13. DEFAULT ANp TERMINATION.
Subsections 13..1 through 13.3 shallconstitute events of default underthisAgreement. An
event of default by Concessionaire shall entitle City to exercise any and all remedies
described as City's remedies under this Agreement, including but not limited to those set
forth in Subsection 13.4. An event of default by City shall entitle Concessionaire to exercise
any and all remedies described as Concessionaire's remedies under this Agreement,
including but not limited to those set forth in Subsection 13.5 herein,
13.1 Bankruotcv.
lf either the City or Concessionaire shall be adjudged bankrupt or insolvent,
or if any receiver or trustee of all or any part of the business property of
either party shall be appointed, or if any receiver of all or any part of the
business property shall be appointed and shall not be discharged within sixty
(60) days after appointment, or if either party shall make an assignment of its
property for the benefit of creditors, or shall file a voluntary petition in
bankruptcy, or insolvency, or shall apply for reorganization or arrangement
with its creditors under the bankruptcy or insolvency laws now in force or
hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be
filed against either party and shall not be dismissed within sixty (60) days
after such filing, then ihe other party may immediately, or at any time
thereafter, and without further demand or notice, terminate this Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract.
Default in Pavment.
ln the event Concessionaire fails to submit any payment within five (5) days
of its due date, there shall be a late charge of $50.00 per day for such late
payment, in addition to being subject to interest at the rate of twelve percent
(12o/o) per annum or at the highest rate allowable by Florida law, whichever is
greater. lf any payment and accumulated penalties are not received within
fifteen (15) days after the payment due date, and such failure continues
three (3) days after written notice thereof, then the City may, without further
demand or notice, terminate this Concession Agreement without being
prejudiced as to any remedies which may be available to it for breach of
contract.
Non-Monetarv Default.
ln the event that Concessionaire or the City fails to perform or observe any of
the covenants, terms or provisions under this Agreement, and such failure
continues thirty (30) days after written notice thereof from the other party
hereto, Such non-defaulting party may immediately or at any time thereafter,
and without further demand or notice, terminate this Agreement withbut
13.2
13.3
124
13.4
13.5
being prejudiced as to any remedies which may be available to it for breach
of contract. ln the event that a default is not reasonably susceptible to being
cured within such period, the defaulting party shall not be considered in
default if it shall, within such period, commence with due diligence and
dispatch to cure such default and thereafter completes with dispatch and due
diligence the curing of such default, but in no event shall such extended cure
period exceed ninety (90) days from the date of written notice thereof. ln the
event Concessionaire cures any default pursuant to this Subsection, it shall
promptly provide City with written notice of same.
9itv's Remedies for Concessionaire's Default.
lf any of the events of default, as set forth in this Section 13, shall occur, the
City may, after notice (if required) and the expiration of oure periods (as
provided above), at its sole option and discretion, institute such proceedings
as in its opinion are necessary to cure such defaults and to cornpensate City
for damages resulting from such defaults, including but not limited to the right
to give to Concessionaire a notice of termination of this Agreement. lf such
notice is given, the term of this Agreement shall terminate upon the date
specified in such notice from City to Concessionaire. On the date so
specified, Concessionaire shall then quit and surrender the Concession
Locations to City pursuant to the provisions of Subsection 13.7. Upon the
t€rmination of this Agreement, all rights and interest of Concessionaire in and
to the Concession Locations and to this Agreement, and every part thereof,
shall cease and terminate and City may, in addition to any other rights and
remedies it may have, retain all sums paid to it by Concessionaire underthis
Agreement. ln addition to the rights setforth above, City shall have the rights
to pursue any and all of the following:
a. the right to injunction or other similar relief available to it under Florida
law against Concessionaire; and or
b. the right to maintain any and all actions at taw or suits in equity or
other proper proceedings to obtain damages resulting from
Concessionaire's default.
lf an event of default by the City, as set forth in this Section 13, shall occur,
the Concessionaire may, after notice (if required) and the expiration of the
cure periods (as provided above), at its sole option and discretion, terminate
this Agreement upon written notice to the City and/or sue for damages. Said
termination shall become effective upon receipt of a written notice of
termination by the City, but in no event shall Concessionaire specify a
termination date that is less than sixty (60) days fr:om the date of the written
termination notice. On the date specified in the notice, Concessionaire shall
quit and surrender the Concession Locations to City pursuant to the
provisions of Subsection 13.7.
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13.6
13.6.1
13 6.2
I
13.6.3
13.6.4
13.7
Term ination for C onvenience/Pa rtial Term i n atio n.
Notwithstanding the provisions of this Section 13, this Agreement may
be terminated, in whole or in part, by the City, for convenience and
without cause, upon the furnishing of thirty (30) days prior written
notice to Concessionaire.
Concessionaire acknowledges that the City may develop a schedule
of capital improvements, including all or a portion of the Concession
Locations, which may entail a closure of all or a portion of the' Concession Locations, at'the City's sole discretion. In the event that
the City closes down any Concession Location, or a portion thereof,
for the purpose of undertaking a capital improvement thereon, then
the parties agree that the portion of the Agreement referencing said
individual Concession Locations shall be partially ter:minated for
convenience, without cause and without penalty to either party, and
only as to the Concession Location, or portion thereof, which have
been closed. Such a termination shall become effective upon thirty
(30) days prior written notice to Concessionaire.
Notwithstdnding Subsections 13.6.1 and 13.6.2 above, the City and
Concessionaire acknowledge that the City also has certain rights in
Subsections 3.2.5.2 and 3.2.7, which, if exercised by the City may
necessitate a termination of a portion or all of the Agreement. ln that
event, the City shall also have no Jiability to Concessionaire, in the
same rnanner as provided in Subsection 13.6.4 below.
ln the event of termination or partial termination by City of the
Agreement pursuant to this Subsection 13.6, Concessionaire herein
acknowledges and agrees that it shall not have any claim, demand, or
cause of action of whatsoever kind or nature, against the City, its
agents, servants and employees (including, but not limited to, claims
for interference in business or damages for interruption of services or
interference in its concession operations by Concessionaire or its
vendors).
Surrender of Concession Locations,
At the expiration of this Agreement, or in the event of termination or partial
termination of the Agreement, Concessionaire shall surrender the
Concession Locations in the same condition as the Concession Locations
were prior to the Commencement Date of this Agreement, reasonable wear
and tear excepted. Concessionaire shall remove all its Snack Machines,
Change Machines, and any and all other equipment, fixtures, personal
property, etc. upon thirty (30) days written notice from the City Manager or
his designee unless a longer time period is agreed to by the City.
126
Concessionaire's obligation to observe or perform this covenant shall survive
the expiration or other termination of this Agreement. Continued occupanGy
of the Concession Locations (or portions thereoQ after termination (or partial
termination) of the Agreement shall constitute trespass by the
Concessionaire, and may be prosecuted as such. ln addition, the
Concessionaire shall pay to the City one thousand dollars ($1,000) per day
as liquidated damages for such trespass and holding over.
SECTION 1 4.' lntentionally Omitted.
SECTION 15. ASSIGNMENT.
Concessionaire shall not assign, sublease, grant any concession or license, permit the use
of by any other person other than Concessionaire, or otherwise transfer all or any portion of
this Agreement and/or of the Conbession Locations without the prior written consent of the
City Commission.
SECTION 16. lntentionally Omitted.
sEcTroN 17. NO TMPROPE,R USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Locations, operations, or facilities for any improper, immoral
or offensive purpose, or 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. The Concessionaire will protect, indemnify,
and forever save and keep harmless the City, its agenti, employees and iontractors from
and against damage, penalty, fine, judgment, expense or charge suffered, imposed,
assessed or incurred for any violation, or breach of any law, ordinance, rule, order or
regulation oicasioned by any act, neglect or omission of the Concessionaire, its vendors,
employees, agents, and/or subcontractors regarding the Concession. ln the event of any
violation by the Concessionaire, or if the City or its authorized representative shall deem
any conduct on the part of the Concessionaire, its vendors, agents, employees and/or
subcontractors, to be objectionable or improper, the City shall have the option, at its sole
discretion, to either (i) automatically terminate the Agreernent, upon prior written notice to
Concessionaire, or to (ii) suspend the concession operations should the Concessionaire
fail to correct any such violation, conduct, or practice to the satisfaction of the City within
twenty-four (24) hours after receiving written notice of the nature and extent of such
violation, conduct, or practice, and such suspension shall continue until the violation is
cured. The Concessionaire further agrees not to commence operations during the
suspension until the violation has been corrected to the satisfaction of the City.
SECTION 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged for goods/products in the Snack Machines shall
be consistent with the price sihedule(s) herein submitted by the Concessionaire and
approved by the City and incorporated herein as Exhibit 3.2.5.1 to this Agreement, All
subsequent price increases and amendments to Exhibit 3.2.5.1 must be approved in
writing bythe City Manager, or his designee, and priorto such changes being implemented
23
127
within the Concession Locations a new updated Exhibit 3.2.5.1wi11 be incorporated into this
Agreement.
The City shall have the final right of approvalfor all such prices and changes, but said right
Shall not be arbitrarily or unreasonably exercised. The COncessionaire agrees to refrain
from the sale of any item identified as prohibited by City law and/or other applicable law
and to sell only those items approved by the City.
SECTION 19, NOTICES.
mitytotheConcessionaireshallbedeemedduiyserveduponreceipt,if
mailed by registered or certified mail with a return receipt to the Concessionaire at the
following address:
Mr. Maurizio L. Bettoli
Bettoli Trading Corp. d/b/a Bettoli Vending
6095 NW 16ln Street, Suite D-4
Miami, Florida 33015
All notices from the Concessionaire to the City shall be deemed duly served upon receipt, if
mailed by registered or certified mail, return receipt requested, to the City of Miami Beach
at the following addresses:
: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copies to:
' Office of Real Estate, Housing & Community Development
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attention: Anna Parekh / Director
The Concessionaire and the City may change the above mailing address at any time upon
giving the other party written notification. All notices under this Concession Agreement
must be in writing,
SECTION 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, Miami-Dade County,
State, and Federalordinances, statutes, rules and regulations, including but
24
128
not limited to all applicable environmental City, County, State, and Federal
ordinances, statutes, rules and regulations.
Gover,ning Law.
This Agreement shall be deemed to have been made and shall be construed
and interpreted in accordance with the laws of the State of Florida. ln case of
any inconsistency between the terms of this Agreement, and any applicable
general or special law, said general or special law shall govern, unless
othenruise provided herein.
Equat Employment Opportunitv.
Neither Concessionaire nor any atfiliate of Coniessionaire performing
services hereunder, or pursuant'hereto, will discriminate against any
employee or applicant for employment because of race, creed, sex, color,
national origin, religion, sex, gender identity, sexual orientation, disability,
marital or familial status or age. Concessionaire will make good faith efforts
to utilize minorities and females in the work force and in correlative business
elterprises
Ng Discrimination.
The Concessrbn^"ire agrees that there shall be no.discrimination as to race,
color, national origin, religion, sex, gender identity, sexual orientation,
disability, marital and familial status, or age, in its employment practice or in
the operations referred to by this Concession Agreement; and further, there
shall be no discrimination regarding any use, service, maintenance, or
operation within the Concession Locations. All concession operations and
services offered shall be made available to the public, subjqct to the right of
the Concessionaire and the City to establish and enforce rules and
regulations to provide for the safety, orderly operation and security of the
operations and the facilities. :
Compliance with American with Disabilities Act (ADA\ and anv other
applicable accessibility standards.
Concessionaire agrees and acknowledges that, if applicable, it shall comply
with ADA standards, Florida Accessibility Code standards, and any other
applicable accessibility standards required by law,
SECTION 21. MISCELLANEOUS.
21.1 No Partnershio.
Notningrcontained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture between the City and Concessionaire.
Modifications.
This Agreement shall not be changed or modified except by agreement in
writing executed by all parties hereto. Concessionaire acknowledges that no
20.2
203
20.4
20.5
21.2
129
21.3
21,4
21.5
21.6
21.7
21.8
modification to this Agreement may be agreed to bythe City unless approved
by the Mayor and City Commission except where such authority has been
expressly provided herein to the City Manager or his designee.
Comglete Aoreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all
the understandings and agreements of whatsoever nature or kind existing
between the parties with respect to Concessionaire's operations, as
contemplated herein.
Headinos.
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit, or
describe the scope or intent of.any provision of this Agreement.
tsinding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Clauses,
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either party is to receive under
this Agreement or materially affects the continuing operation of this
Agreement
Sgverability.
lf any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected
thereby and this Agreement as so modified remains in full force and effect.
Right of Entrv.
The City, at the direction of the City Manager or his designee, shall at all
times during days and hours of operation, have the right to enter into and
upon any and all parts of the Concession Locations for the purposes of
examining the same for any reason relating to the obligations of parties to
this Agreement.
Not a Lease.
It is expressly understood and agreed that no part, parcel, building, facility,
21.9
26
130
21.10
21.11
21.12
21.13
21.14
21.15
21.16
21.17
equipment or space is leased to the Concessionaire, that it is a
concessionaire and not a lessee; that the Concessionaire's right to operate
the concession shall continue only so long as this Agreement remains in
effect.
Siqnaqe.
Concessionaire shall provide, at its sole cost and expense, any reouired
signs at its concessions. All advertising, signage and postings shall be
approved, in writing, by the City in its proprietary capacity, and shall be in
accordance with all applicable Municipal, County, State and Federal laws
and regulations. Any signage posted by Concessionaire within each
Concession Location, and/or on its Snack Machines and Change Machines
shall be subject to the prior approval of the City as to size, shape and
placement of same.
lntentionally Omitted.
Conflict of lnterest.
Concessionaire shall perform its services under this Agreement and conduct
the concession operations contemplated herein, in a manner so as to show
no preference for other concession operations/facilities owned, operated,
managed, or othenruise controlled by Concessionaire with regard to its
responsibilities pursuant to this Concession Agreement
lntentionally Omitted.
I ntentionally Omitted.
No Waiver.
No waiver of any covenant or oondition of this Agreement by either party
shall be deemed to imply or constitute a waiver in the future of the same
covenant or condition or of any other covenant or condition of this
Agreement
No Third Party Beneficiarv.
Nothing in this Agreement shall confer upon any person or entity, including,
but not limited to subconcessionaires, otherthan the parties hereto and their
respective successors and permitted assigns, any rights or remedies by
reason of this Agreement.
Attornevs'Fees.
lf it becomes necessary for City or Concessionaire to enforce their respeclive
rights under this Agreement or any' part hereof through litigation,
Concessionaire and City agree that the prevailing party shall,be entiiled to
recover from the other party all costs and expenses of such litigation,
27
131
including a reasonable attorneys' fee and costs, for all trial and appellate
proceedings.
SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only if in so doing the City can place a limit on
its liability for any cause of action for breach of this Agreement, so that its liability for any
such breach never exceeds the sum of $10,000.00. Concessionaire hereby expresses its
willingness to enter into this Agreement with a $10,000.00 limitation on recovery for any
action for breach of contract. Accordingly, and in consideration of the separate
consideration of $10.00, the receipt of which is hereby acknowledged, the City shall not be
liable to Concessionaire for damages to Concessionaire in an amount in excess of
$10,000.00, for any action for breach of contract arising out of the performance or non-
performance of any obligations imposed upon the City by this Agreement. Nothing
contained in this paragraph or elsewhere in this Agreement is in any way intended to be a
waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section
68.28.
SECTION 23. VENUE.
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any and all the terms or
conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade
County, Florida. CITY AND CONCESSIONAIRE HEREBY KNOWTNGLY AND
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING THAT CITY AND CONCESSTONAIRE MAY HEREIN AFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARTSING OUT OF OR
RELATED TO THIS AGREEMENT OR THE CONCESSION LOCATTONS.
[The remainder of this page has been left intentionally blank]
28
132
lN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
Attest:
Signature r,
/h*alc Ot t ut-StTS Hctu.;eio BdTul;
Print Name Print Name
FIRHCD\$ALL\ECON\$ALL\ASSEnVENDING\Bettoli Vending Conlract (For Form Approval 4-6-12).doc
APPROVED ASTO.FORM & I.ANGUAGE
CITY OF MIAMI BEACH, FLORIDA
Signature l€€cr€tary-
133
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EXH|BtT 3.2,1.4 {PI0E 1 0r 3}
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Have snacks on demand with your iavoiite biaiicj-s"bi Canay, pastries, cereal bars
and salty snacks.,, all guaranteed to deliver thanks to our exclusive SureVendrM technology,
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EXHtBtT 3.2.5.1
Chips / Crackers
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Health Snacks
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139
Customer:
Address
EXHIBIT 5,0
BETTOLIVENDING
6095 N.W. 167TH STREET SUITE D.5
HIALEAH, F1.33015
TEL 305-626-0740
FAX 305-623-0108
Full Line Vending
Snack, Soda, Juice, Food, Coffee, Water.
OKEEI{EELEEM,S.
22OO PINEHURSTDR.
Gteenacres, FL. 33413
140