The URL can be used to link to this page

20151209 SM1MIAMI BEACH City Commission Meeting SUPPLEMENTAL MATERIAL 1 City Hall, Commission Chambers, 3rd Floor, 1700 Convention Center Drive December 9, 2015 Mayor Philip Levine Commissioner John Elizabeth Alem6n Commissioner Ricky Arriola Commissioner Kristen Rosen Gonzalez Commissioner Michael Grieco Commissioner Joy Malakoff Comm issioner Micky Steinberg City Manager Jimmy L. Morales City Attorney Raul J. Aguila City Clerk Rafael E. Granado Visrt 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 City Code of Miami Beach entitled "Lobbyists" requires the registration of all lobbyists with the City Glerk prior to engaging in any lobbying activity with the City Gommission, any City Board or Committee, or any personnel as defined in the subject Code sections. Copies of the City Code sections on lobbyists laws are available in the City Clerk's office. Questions regarding the provisions of the Ordinance should be directed to the Office of the City Attorney. SUPPLEMENTAL AGENDA R7 - Resolutions R7B A Resolution Approving Upon Second And Final Reading Of This Resolution And Following A Duly Noticed Public Hearing, A Ground Lease Agreement ln The Form Attached To This Resolution, Between The City (Owner Or Landlord) And Sabrina Cohen Wellness Center Project, lnc. (Tenant), ln Connection With The Use Of 5,100 Square Feet Of City-Owned Land, Located At Allison Park, Having A Street Address Of 6475 Collins Avenue (Leased Premises), For A Term Of Ninety-Nine (99) Years, For The Purpose Of Constructing And Operating An ADAAccessible Wellness CenterAtThe Tenant's Sole Expense. 10:35 a.m. Second Reading Public Hearinq (Sponsored by Commissioner Joy Malakoff) (Legislative Tracking: Office of the City Attorney/Parks & Recreation/Public Works) (First Reading on October 21,2015 - R7E) (Resolution) 1 Supplemental Material 1, December9, 2015 R7K A Resolution Calling ForA March 15,2016 SpecialElection, ForThe Purpose Of Submitting To The Electorate Of The City Of Miami Beach, Florida A Question Asking Whether The City Should Lease 5,100 Square Feet Of Beachfront Property At Allison Park, 6475 Collins Avenue, To Sabrina Cohen Wellness Center Project, lnc., A Non-Profit Corporation, For 99 Years, Requiring, Per Resolution 2015-,Construction/operationofPrivatelyFundedWellnessCenterWith50Foot Height Limit, Which May lnclude Adaptive Gym, Pool, And Physical Therapy Facilities Exclusively Serving Persons With Disabilities, Lease Restrictions Prohibiting Assignment Or Subcontracting Without City Consent; Rent To City, $18.00 Annually. (Office of the City Attorney) (Memorandum & Resolution) R7Z A Resolution Approving And Authorizing The City ManagerTo Execute Change Order No. 3 To The Construction Contract Between The City Of Miami Beach, Florida, And Lanzo Construction Co., Florida, For The Construction Of The City Of Miami Beach Right-Of-Way lnfrastructure lmprovement Program, Venetian lslands Bid Package 13C (Project), Dated March 13,2013 (The Contract); The Change Order lncludes: 1) Construction Work Associated With Six (6) New Stormwater Pump Stations That Meet The Enhanced Stormwater Criteria ln The Not-To-Exceed Amount Of $12,257,864 Plus Time Extension Of 365 Calendar Days Required To Complete This Work Within San Marino, Dilido And Rivo Alto lslands; And 2) lncreasing The Owner's Contingency ln The Amount Of $1 ,225,787i The Resulting Amount Of $13,483,651 Will Be Added To The Construction Contract. (Capital lmprovement Projects Office) (Revised Memorandum) RTAA A Resolution Accepting The Written Recommendation Of The City Manager Regarding The Existence Of A Public Emergency And, Accordingly, Waiving, By 5l7th Vote, The Competitive Bidding Requirement, Finding Further That The Best lnterest Of The City Would Be Served By Such Waiver; Authorizing The City Manager Or His Designee To Negotiate Amendment No. 4, To The Design-Build Agreement Between The City And Lanzo Construction Co., Approved Pursuant To Resolution No. 2014-28765, For The Sunset Harbour Pump Station Retrofit And Drainage lmprovements Project; Said Amendment, ln The Not To Exceed Amount Of $2,721,607, To Bring Sunset Drive To A 3.7 Feet NAVD Elevation, lncluding Associated Water, Sewer, Stormwater lmprovements, Landscaping, Lighting And lrrigation; FurtherAuthorizing The MayorAnd City Clerk To Execute The Amendment, Upon Completion Of Successful Negotiations. (Public Works) (Memorandum) RTBB A Resolution Accepting The Recommendation Of The City Manager To Enter lnto Further Negotiations With Lanzo Construction Co., Florida, For Phase 2 Construction Services And Further Authorizing The MayorAnd City Clerk To Execute A GMP Amendment No. 3, In The Not-To-Exceed Amount Of $35 Million, To The Design-Build Agreement Between The City Of Miami Beach And Lanzo Construction Co., Florida, For Design-Build Services For Neighborhood No. 13: Palm And Hibiscus lslands RightOf-Way lnfrastructure lmprovements (The Project), Dated September 18,2014 (The Contract), Upon Conclusion Of Successful Negotiations, Plus A Ten Percent Owner's Project Contingency For A Grand Total Of $38,500,000, With Previously Appropriated Funding And Additional Funding Request Subject To The 1't Amendment To The FY 15t16 Capital Budget. (Capital lmprovement Projects Office) (Memorandum) 2 RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA APPROVING, UPON SECOND AND FINAL READING OF THIS RESOLUTION AND FOLLOWING A DULY NOTICED PUBLIC HEARING, A GROUND LEASE AGREEMENT IN THE FORM ATTACHED TO THIS RESOLUTION, BETWEEN THE Crry (OWNER OR LANDLORD) AND SABRTNA COHEN WELLNESS CENTER PROJECT, tNC. (TENANT), IN CONNECTTON WITH THE USE OF 5,100 SQUARE FEET OF CITY.OWNED LAND, LOCATED AT ALLISON PARK, HAVING A STREET ADDRESS OF 6475 COLLTNS AVENUE (LEASED PREMTSES), FOR A TERM OF NTNETY-NINE (99) YEARS, FOR THE PURPOSE OF CONSTRUCTTNG AND OPERATING AN ADA ACCESSIBLE WELLNESS CENTER AT THE TENANT'S SOLE EXPENSE. WHEREAS, the Sabrina Cohen Foundation (the 'Foundation") approached the City proposing the implernentation of an ADA accessible beach program ("ADA Accessible Beach Program"); and WHEREAS, the City embraced the idea of implementing an ADA Arcessible Beach Program, including an accessible outdoor recreation and playground, to be developed and constructed at the City's sole cost aM 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 provkling 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, 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 a public health and wellness center (the "Wellness Center"), to be constructed at the Foundation's sole cost and expense; and WHEREAS, the City commission embraced the goal and priority of being one of the first cities to have a state of the art ADA accessible Wellness Center, complementing the already approved ADA Accessible Beach Program, so that members of the general public who have physical and cognitive disabilities, or able bodied individuals with temporary disabilities will be able to use the Wellness Center to heal and 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 public restrooms, all improvements required to operate the Wellness 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(bX1) of the City's Charter; and Asenda rt", RJDs71s-12773 WHEREAS, in connection with the proposed improvements, 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 authorized the concept of expanding of the parking lot located at the Park (Parking Lot Expansion Project), at the City's 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, On October 21,2015, The City Commission accepted the recommendation of the FCWPC; waived, 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; waived, by 5/7th vote, the appraisal requirement in Section 82-39 (b) of the City Code, as being in the best interest of the City; and approved, upon first reading, a draft of the lease agreement in substantial form; and WHEREAS, pursuant to Section 82-38 of the City Code, the City's Planning Department prepared a Planning Analysis and found that the proposed Lease for the construction of a public health and wellness center at the Leased Premises is consistent with the Goals, Objectives, and Policies, and that said use would not have a negative impact upon the surrounding area; and WHEREAS, the Administration recommends the approval of the Lease for use of the Leased Premises as a Wellness Center, exclusively serving persons with a temporary or permanent disability, attached hereto and incorporated herein by reference as Exhibit "A". NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve, upon second and final reading of this Resolution and following a duly noticed public hearing, a ground lease agreement in the form attached to this Resolution, between the City (Owner or Landlord) and Sabrina Cohen Wellness Center Project, lnc. (Tenant), in connection with the use of 5,100 square feet of City-owned land, located at Allison Park, having a street address of 6475 Collins Avenue (Leased Premises), for a term of ninety- nine (99) years, for the purpose of constructing and operating an ADA accessible Wellness Center at the Tenant's sole expense. PASSED and ADOPTED this 9th day of December,2015. ATTEST: Rafael E. Granado, CITY CLERK T:\AGENDA\201S\December\Parks and Recreation\RESOLUTION Reading.doc Philip Levine, MAYOR APPROVED AS TO- Land Lease for Sabrina cof,@l?htr&atiAt@t AGE t4ilw,- - Dote & FOREXEC 4 CITY OF MIAMI BEACH a Florida municipal corporation Lessor and SABRINA COHEN WELLNESS CENTER PROJECT, INC. a F lorida not-for-profit corporation Lessee LEASE 2015 EXHIBITlrr 5 TABLE OF CONTENTS ART!CLE PAGE I. DEMISE BY LESSOR, EFFECTIVE DATE AND DEFINITIONS... ................ 11 Section 1.1 Recitals Section 1.2 Demise Section 1.3 Effective Date Sectionl.4 Definitions II. DURATION AND TERM ......... 15 Section 2.1 Commencement and Maturity Dates; Possession Period; Pre- Possession Period; Site lnspections; Easements ilt. AMOUNT OF RENT.. .............. 18 Section 3.1 Rent and payment schedule IV. USE AND POSSESSION OF WELLNESS CENTER .................. 18 Section 4.1 Permitted uses defined Section 4.2 Secondary Use as Nutrition Caf6 Section 4.3 Use by City Section 4.4 Joint Use Section 4.5 Amendment to Approved Uses V. OPERATION OF THE WELLNESS CENTER .....,...."21 Section 5.1 Hours of Operation Section 5.2 Management Section 5.3 Labor/Personnel/Materials/EquipmenUFurnishings Section 5.4 Orderly Operation Section 5.5 Security Section 5.6 Fees for Services offered at the Wellness Genter Section 5.7 Operational Priority and Discounts 6 V!. REVENUE FROM THE WELLENESS CENTER RELATED ACTIVITIES/FINANCTAL RECORDS AND REPORTS.......... ...........23 Section 6.1 Revenue from Wellness Genter Related Activities Section 6.2 Financial Records and Reports VII. BUDGET AND FUNDING FOR THE WELLNESS CENTER ......25 vill. NET LEASE ............ ...........26 Section 8.1 Net lease defined X. PROVISIONS REGARDING PAYMENT OF TAXES ...................26 Section 9.1 Lessee Pays All Taxes Section 9.2 Gontesting Tax Validity Section 9.3 Failure or Refusalto Pay Tax Section 9.4 Proration X. LESSOR'S INTEREST NOT SUBJECT TO MECHANICS'OR MATERIALMEN'S LIENS. ...................29 Section 10.1 Notice to Third-Parties Regarding Liens Section 10.2 Releasing and Discharging Liens xt. LESSOR'S RIGHTS AND REMEDIES........ ..............29 Section 11.1 Landlord-Tenant Relationship Section 11.2 All Rights and Remedies Section 11.3 Rights and Remedies Cumulative XI!. INDEMNIFICATION OF LESSOR AGAINST LIABILITY .............30 Section12.1 lndemnificationClause Section 12.2 Indemnification Clause For Lease Challenges Section 12.3 Gompliance With All Laws, Etc. Section 12.3.1 Rules On Hazardous Materials Section 12.3.2 Hazardous Materials Defined 7 Section 12.3.3 Further Disclosure of Hazardous Materials Section 12.3.4 Lessor's Right to Inspect Section 12.3.5 Default Section 12.3.6 Lessee Receives Property "As ls" x[!. F|RE AND WTNDSTORM, ETC. INSURANCE pROVtStONS......... .............. 33 Section 13.1 Property All Risk Goverage Policies Section 13.2 Worker's Compensation Section 13.3 Automobile Insurance Section 13.4 Property lnsurance Section f 3.5 Additiona! lnsured Section 13.6 Waiver of Subrogation Section 13.7 Acceptability of Insurers Section 13.8 Verification of Coverage Section 13.9 Special Risks or Circumstances Section 13.10 Use of lnsurance Proceeds Section 13.11 Financing of Premiums Section 13.12 Default after Casualty Section 13.13 Excess Insurance Proceeds Section 13.14 Construction lnsurance Requirements XIV. LESSEE'S DUTY TO PAY INSURANCE PREMIUMS............ .... 39 Section 14.1 Obligation and Proof of Payment Section 14.2 Lessor's Option to Pay xv.ASS!GNMENT............ ............ 39 Section 15.1 Right and Conditions of Assignments Section 15.2 Notice and Approval Section 15.3 Operational Subcontracts GoNDEMNATION CLAUSE... .............41 Section 16.1 Division of Gondemnation Proceeds xvt. 8 Section 16.2 Lessee's lmprovements Section 16.3 Taking Rendering Project Unsuitable for Permitted Uses... ............42 XVII. ADDITIONAL IMPROVEMENTS ...,.....,..42 Section 17.1 Proposed !mprovements Defined; Consistency with Goncept PIan Section 17.2 Lessee's Responsibility for Design and Approvals Section 17.3 Preliminary Plans and Specifications Section 17.4 Pre-construction site work Section 17.5 Review of Preliminary Plans and Specifications Section 17.6 Phasing for Review of Preliminary Plans and Specifications Section 17.7 Design Review Board Approval Section 17.8 Public Facilities and Concurrency Section 17.9 Gonstruction Plans and Specifications Section 17.10 Diligence in Gonstruction Section 17.11 Conditions Precedent to Construction Section 17.12 Lessor's Cooperation in Obtaining Approvals Section 17.13 Lessee's Right to Terminate Section 17.14 Commencement and Completion of Gonstruction of Proposed !mprovements. Section 17.15 Unavoidable Delays Section 17.16 Completion of Construction Section 17.17 Licensed Architects and Engineers Section 17.18 Construction Cost Certification Section 17.19 Conditions Precedent to Commencement of Operations XVIII. COVENANTS RUNNING WITH THE LAND CONCERNING THE USE OF THE LEASED PREMTSES ............50 Section 18.1 Restrictions: (a) Lessee Remains a Not-For-Profit Corporation (b) Public Health and Wellness Genter (c) Open to Public; (d) No Discrimination 9 (e) Lessee's Costs (f) Security (g) Personnel (h) lnsurance obligation (i) Signs subject to approval by Lessor and pursuant to City Gode Section 18.2 Violation of Restriction is Event of Default xtx. DEFAULT CLAUSE... ............. 51 Section 19.1 Event of Default Section 19.2 Statutory Landlord - Tenant Proceedings Apply Section 19.3 Thirty Day Cure Period Section 19.4 Lessor's Other Remedies Section 19.5 Liquidated Damages Section 19.6 Receiver XX. LESSEE'S DUTY TO KEEP PREMISES IN GOOD REPAIR .....53 Section 20.1 Lessee's Govenant Regarding Maintenance and Repair Section 20.2 Lessee's Govenant Regarding xxt. DEMoLtTtoN GLAUSE ..........54 Section 21.1 Lessee's Right to Demolish Conditioned Section 21.2 Value of Reconstruction Section 21.3 Expense of Demolition and Right to Salvage XXII. ADDITIONAL COVENANTS OF THE LESSEE... ...... 55 Section 22.1 Destruction or Gasualty No Entitlement to Termination Section 22.2 No Subordination of Lessor's Title Section 22.3 Covenant Regarding Surrender Section 22.4 Further Covenant Regarding Encumbrances XXIII. CITY'S OBLIGATIONS RELATING TO THE PUBLIC COMPONENTS ....... 55 Section 23.1 Parking Lot Expansion Project. 10 Section 23.2 Public Restroom Facilities. Section 23.3 Public Shower Facilities. xxtv. covENANT oF QUIET ENJOYMENT.......... ............56 Section 2.1 Lessee's Right to Quiet Enjoyment XXV. LESSOR'S RIGHT OF ENTRY ................ 56 Section 25.1 Lessor's Right of Entry XXVI. NO REPRESENTATIONS BY LESSOR.. ..................57 Section 26.1 Lessor's Absence of Warranties Regarding Property and Lessee's Acceptance of Premises XXVII. LESSEE TO COMPLY WITH ALL LAWS ................. 58 Section 27.1 Lessee's Compliance With All Laws Section 27.2 Lessee's Obligation to Pay Fines, Etc. Section 27.3 No Discrimination Clause xxvl[. SURRENDER OF THE PREM|SES......... .................. 58 Section 28.1 Surrender of the Premises Section 28.2 No Subleases, Etc. xxtx. FoRcE MAJEURE ..................59 Section 29.1 Force Majeure xxx. SIGNAGE/NAMING R1GHTS............... ...... 59 xxxt. MtscELLANEous PRovlsloNs............ ................... 60 Section 31.1 Grace Periods Run Concurrently Section 31.2 Arrearages Section 31.3 Landlord-Tenant Relationship Regarding Collections Section 31.4 Lessor's Remedies Not Otherwise Provided 11 Section 31.5 Section 31.6 Section 31.7 Section 31.8 Section 31.9 Section 31.10 Section 31.11 Section 31.12 Section 31.13 Section 31.14 Section 31.15 Section 31.16 Section 31.17 Receivers Cooperation Gaptions !ndex Laws of Florida Apply Covenants Running With the Land Time ls of The Essence Notice Attorneys'Fees Venue Lessor's Limitation on Liability Mediation Recording in the Public Records 12 LEASE THIS INDENTURE (the "Lease"), made and entered into at Miami Beach, Miami-Dade 2015, by and between:County, Florida, this _ day of CITY OF MIAM! BEACH, a Florida municipal corporation (hereinafter referred to as "Lessor" or "Gity") And SABRINA COHEN WELLNESS CENTER PROJECT, ING. a Florida not-for-profit corporation (hereinafter referred to as "Lessee" or "Foundation") WITNESSETH: WHEREAS, the Lessor is the owner of the fee simple title in and to that certain property located at6475 Collins Ave, Miami Beach, Florida, a/Ua Allison Park, hereinafterdemised and more particularly described in the site plan attached as Exhibit "A" (the "City's Property", or "Allison Park" , or the "Park"); and WHEREAS, 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 initiated a project to redesign the Park to include providing beach access using an alternative friable wood deck and ramp combined with Mobi-Mats, 9 13 outdoor exercise equipment and picnic tables, and re-designing the existing parking lot to provide seventeen (17) additional ADA accessible parking spaces; and WHEREAS, at the July 8, 2Q15 City Commission meeting, 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 one of the first cities to have a state of the art public Wellness Center, complementing the already approved ADA Beach Program, so that members of the general public who have physical and cognitive disabilities, or able bodied individuals with a temporary disability, will be able to use the facility to improve their quality of life, while providing disabled Miami Beach Residents, disabled Military Servicemembers, and disabled seniors with a discounted price for the use of said services; and WHEREAS, the services to be provided by the Wellness Center will also include research and product testing, subject to funding availability, with the goal of developing medication, health products and technologies which will enhance the quality of life for persons living temporarily or permanently with a physical or cognitive disability; and WHEREAS, on September 30, 2015, the City Commission adopted Resolution No. 2015- 29150, approving a conceptual plan for the Wellness Center (the "Conceptual Plan"), attached as Exhibit "B"; and authorizing the City Manager to negotiate a ninety-nine year ground lease (the "Lease")forthe use of approximately5,l00 squarefeetof thefootprintof the City's Property,located at the center of Allison Park, more particularly described in Section 1.2 (the "Leased Premises"), to develop, design, construct, finance, equip, operate, and maintain a Wellness Center, including the design and construction of public restrooms; and which 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, the City has agreed to payforthe expenses of relocating the three turtle exhibits and signage relating thereto, currently located at the Leased Premises, to a different location in the r0 14 Park, which location shall be determined by the City Manager, in his sole discretion; WHEREAS, on October 5,2015, theFinance and Citywide Projects Commission Committee 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, on October 21,2015, the City Commission adopted Resolution No. 2015- , accepting the recommendation of the City's Finance and Cityruide Projects Commission Committee, and approving, on first reading, a draft ninety-nine year lease ("Ground Lease"), in substantial form, between the City and the Foundation for the use of the Leased Premises; 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 CiV; and further waiving, by a 5l7th vote, the appraisal requirement in Section 82-39(b) of the City Code, finding such waiverto be in the best interest of the city; and; and WHEREAS, on December 9, 2015, the City Commission adopted Resolution No. , approving the Lease, at a second and final reading, during a public hearing. 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. EFFECTIVE DATE AND DEFINITIONS 1.1 The recitals set forth above are true and correct and are incorporated herein by reference. 1.2 Upon the terms and conditions herein stated, and in consideration of the payment from time to time of the rents herein stated, and for and in consideration of the prompt performance by the Lessee of all of the covenants hereinafter contained by the Lessee to be kept and performed, ll 15 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 Lessee, and the Lessee does hereby lease of and from the Lessor, the property, situate, lying and being in Miami-Dade County, Florida, together with all buildings and other improvements located thereon, as more particularly described in the attached Exhibit "C": subject to the following: (a) Conditions, restrictions and limitations, now appearing of record; (b) City and/or County Zoning Ordinances now existing, or which may hereafter exist during the life of this lease; (c) All matters shown on the Boundary Survey; (d) All of the terms, covenants and conditions contained in this Lease. (e) Planning Director analysis and City Commission determination of waivers of public bidding and appraisals under Miami Beach Code Sections 82-39(a) & 82-39(b)); 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; and the adoption of a resolution by the City Commission accepting the certification of the official results of the March 15,2016 election with respect to the Referendum. lf the Lease is not approved by voters during the March 15, 2016 referendum and the City Commission does not accept the certification of the official results of the March 15,2015 election, the Lease shall be void ab initio, without the need for further action by any of the parties, and the parties shall have no obligations or liabilities of any kind or nature whatsoever hereunder. This property is hereinafter referred to as the "Leased Premises". The Leased Premises and Wellness Center shall be collectively referred to herein as the "Project". 1.3 Effective Date. lf the Referendum is successful and all requirements of the City Code and applicable law are satisfied, this Lease shall be effective upon the City Commission's adoption of a resolution accepting the certification of the official results of the March 15,2016 election with respect to the Referendum ("Effective Date"). 1.4 Defined Terms. As used herein the term: t2 16 "Citv" shall mean the City of Miami Beach, a Florida municipal corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139, ln all respects hereunder, City's obligations and performance is pursuant to City's position as the owner of the Leased Premises acting in its proprietary capacity. ln the event City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, laws and ordinances (including through the exercise of the City's building, fire, code enforcement, police department or othenarise) shall be deemed to have occurred pursuant to City's regulatory authority as a governmental body and shall not be attributable in any manner to City as a party to this Lease or in any way be deemed in conflict with, or a default under, the City's obligations hereunder. "Citv Code" the Miami Beach City Charter and Code of Ordinances. 'gity Commission" shall mean the governing and legislative body of the City. "Citv Delays" shall mean the number of days in which the City performs any obligation under Section 17 hereof in excess of the number of days set forth for such performance therein. ".9j!LMA_nareI" shall mean the Chief Administrative Officer of the City. The City Manager shall be construed to include any duly authorized representatives designated in writing with respect to any specific matte(s) concerning this Lease (exclusive of those authorizations reserved to the City Commission or regulatory or administrative bodies having jurisdiction over any matte(s) related to this Lease). 'Commence Construc " or "Commencement of Construction" shall have the meaning as set forth in Section 17.15. "Complete Construction" or "Completion of Construction" means the date Lessee has completed the Wellness Center substantially in accordance with the requirements of the Approved Plans and all conditions of permits and regulatory agencies have been satisfied, all Governmental Authorities have issued a Certificate of Occupancy, the Wellness Center has been accepted by the City and is ready for occupancy, utilization and continuous operation for the uses and purposes intended by this Lease, without material interference from incomplete or improperly completed Work, and substantially all of the furniture, fixtures and equipment ("FF&E") required forthe opening date has been purchased, delivered to and installed in the Wellness Center. "Disabled" as referred to herein shall refer to an individual with a temporary or permanent physical disability, including, but not limited to: (1) a physiological disorderorcondition, disfigurement, or anatomical loss that affects one or more bodily functions; (2) an individual with a physical impairment that substantially limits one or more major life activities such as caring for one's self, performing manual tasks, walking, or working; (3) a mental disability that prevents the person from performing day-to-day physical activities; or (4) a medical condition which may prevent the person from performing day-to-day physical activities including, without limitation, Cerebral Palsy, Developmental Disabilities, Down Syndrome, Lupus, Multiple Sclerosis, Parkinson's Disease, Scoliosis, or Stroke. "Foreiqn lnstrumentalitv" means a foreign (i.e", non-United States of America) government or instrumentality thereof or a Person controlled thereby. A Person shall be deemed to be "controlled by" a foreign government or instrumentality if such government or instrumentality, l3 17 directly or indirectly, directs or causes the direction of the management and policies of such Person. "Lease Year" means a year, other than the first and last year of the Term, consisting of twelve (12) consecutive calendar months. The first Lease Year during the term of this Lease shall commence on the Possession Date and end on December 31't of the first full year. The second and following Lease Years shall commence on the 1't day of January each calendar year and end on December 31't of such year, except that the last year shall commence on the 1st day of January and end on the Maturity Date (as defined in Section 2.1 ). "Miami Beach Resident" means any person who has resided in the City of Miami Beach for longer than six (6) consecutive months. Proof of residency may be established by presenting two of the following documents: a driver's license, voter's registration, automobile registration, a recorded deed, a lease for place of residence, or a utility bill. Lessee may require annual recertification for Miami Beach Residents. "Military Servicemember" means any person who is on active duty in, or a veteran of the United States Armed Forces. A veteran of the United States Armed Forces shall mean any person who served honorably on active duty in the armed forces of the United States. The Foundation will accept a Form DD Form 214,Cerlifrcate of Release or Discharge from Active Duty (discharge papers marked "General and Under Honorable Conditions" will be deemed sufficient) to substantiate that the person is a military veteran. "Outside Construction Commencement Date" means two (2) years from the Effective Date, by which date Commencement of Construction must take place, as such date may be reasonably extended for a Force Majeure Event and/or City Delays, if any. "Outside Completion Date" means two (2) years from obtaining full building permit, bywhich date Completion of Construction shall have occurred, as such date may be reasonably extended by(i) the number of days by which the Outside Construction Commencement Date was extended, and thereafter for (ii) a Force Majeure Event and/or City Delays. "Outside Openinq Date" means two (2) years from obtaining full building permit, the date by which the opening date must have occurred, as such date may be reasonably extended by (i) the number of days by which the Outside Construction Commencement Date was extended, and thereafterfor(ii) a Force Majeure Event in accordance with this Lease, or(iii) City Delays. "Outside Possession Date" means May 1, 2018 or the Outside Construction Commencement Date, whichever occurs first, by which date the Possession Conditions must be satisfied, as such date may be reasonably extended for (i) a Force Majeure Event or (ii) City Delays. "Pgflies" means City and Lessee, and "Party" is a reference to either City or Lessee, as the context may indicate or require. means a person who is 62 years of age or older."Senior" t4 18 "Sublease" means any lease, sublease, license or other agreement by which Lessee demises, leases, or licenses the use and occupancy by another Person of a portion or all of the Wellness Center. "Subtenant" means any person using and occupying or intending to use and occupy the Wellness Center, or any part thereof, pursuant to a Sublease. ".@f" means any sale, assignment or conveyance or any other transaction or series of transactions in the nature of a sale, assignment or conveyance of: (a) the Wellness Center or any part thereof; (b) any legal or beneficial interest in the Wellness Center, or any part thereof; (c) any direct or indirect legal or beneficial interest in Lessee (including the syndication of tax benefits); or any series of such Transfers that have the cumulative effect of a sale, transfer or conveyance of any of the foregoing (a), (b), or (c). ARTIGLE II . DURATION AND TERM 2.1 The duration and term of this Lease shall be for a period of ninety-nine (99) years, commencing on the Possession Date, as such term is defined in Section 2.1(a) hereof, with the last day of the lease term being the Maturity Date ("Term"). (a) Possession Date: Conditions Precedent to Possession. The Parties recognize that, as of the Effective Date, there remain various items and matters to be satisfied, obtained and approved in orderthatthe Wellness Centermay proceed as intended by the Parties. The date that the City delivers possession of the Leased Property to Lessee according to this Section 2.1(a), as designated by the City to Lessee in writing, is referred to hereinas,the''@&.''TheCityshallnotbeobligatedtodeliverpossessionof the Leased Property and Lessee's rights as tenant hereunder shall not become effective until each of the events described in this Section 2.1(a) irrevocably shall have occurred, at which time, the City shall deliver possession of the Leased Property to Lessee, Lessee shall take possession thereof and the lease provisions of this Lease shall become effective. Until that time, this Lease shall not be in effect or enforceable. The conditions precedent to deliveryofpossession(collectively,the''@,')areasfollows: (i) There exists no uncured Event of Default; l5 19 (ii) Lessee shall have entered into, and delivered to the City, a duly executed copy of, the General Construction Contract (aM all then existing change orders thereto), in form and substance and with a General Contractor approved pursuant to Subsection 17 .3 by the City Manager reflecting the guaranteed maximum price for completion of the Proposed lmprovements (as defined in Section 17.1); (iii) Lessee shall have delivered to City written evidence reasonably satisfactory to the City of the existence and availability of liquid assets to fund the development, design, construction, finance, equipment and operation of the Wellness Center; (iv) Lessee shall have provided to City, and City Manager shall have approved in its sole discretion, any changes to the budgeted improvement costs, provided that City Manager shall not withhold its approval so long as Lessee has obtained and delivered to the City written evidence of the existence and availability of liquid assets to fund the Wellness Center; (v) Lessee shall have obtained, and shall have delivered to City, a copy of, all governmental approvals necessary for the Commencement of Construction and necessary for construction of all vertical elements of the Wellness Center; (vi) Lessee shall have delivered to City, and City Manager shall have approved, the schedule of performance for the Wellness Center (City agrees that it shall not withhold approval thereof so long as the same reflects Completion of Construction by the Outside Completion Date and Lessee has provided reasonable evidence that such schedule is reasonable); (vii) Lessee shall have presented evidence reasonably acceptable to the City that all required insurance coverages are in place; and (b) Pre-Possession Period. From and afterthe Effective Date, the Parties shall each use their respective diligent and commercially reasonable efforts to achieve the Possession Date timely. (c) Leased Premises Site lnspections. Commencing on the Effective Date, and thereafter until this Lease is terminated or the Possession Date occurs, the City shall t6 20 permit Lessee commercially reasonably access to the Leased Premises site to conduct at Lessee's sole cost and expense, physical inspections, tests and studies of the Site and to the extent necessary to carry out the provisions of this Lease; provided, however, that such access shall not materially interfere with any ongoing use and operations at the Park or the City's construction activity relating to the adjoining accessible park. Lessee, at all times and at its sole cost and expense, shall maintain or shall cause its general contractor or other contractors in privity with Lessee to maintain comprehensive general liability insurance as required in Article 13. Lessee shall restore any damage to the Leased Premises site caused by any such inspections, tests or studies, including any damage in connection with the discovery, exposure or release of hazardous substances or materials in, on or about the Leased Premises site that are not introduced to the Leased Premises site by Lessee, its agents, representatives, contractors, invitees or employees. (d) lndemnification. Whetheror not the Possession Date occurs, Lessee shall indemnify, defend and hold City and its respective officers, employees, agents, representatives, consultants, counsel and contractors (of any tier) harmless from and against all claims, actions, suits, charges, complaints, orders, liability, damages, loss, costs and expenses (including any attorneys'fees and costs of litigation) related to, arising from or in connection with the acts or omissions of Lessee, its agents, representatives, contractors or employees, including injury or death to persons or damage to their property, while exercising Lessee's right to access the Leased Premises site and performance of such inspections, tests or studies pursuant hereto, except to the extent resulting from the sole negligence or willful misconduct of City or its officers, employees, agents, representatives, consultants, counsel and contractors. The indemnification obligations of Lessee set forth in this Subsection 2.1(d) shall expressly survive the expiration ortermination of this Lease and notwithstanding any provision of this Lease to the contrary, City shall have all rights and remedies available at law or in equity in the enforcement of such indemnification obligations of Lessee or arising from Lessee's failure to perform such indemnification obligations. (e) Failure to Satisfv Conditions. Notwithstanding anything contained in this Lease to the contrary, if: (i) any of the Possession Conditions have not occurred by the Outside Possession Date; {ii) Lessee does not comrr}ence construction by the Outside Construction Commencement Date; (iii) Lessee does not Complete Construction by the Outside Completion Date; or (iv) the opening date does not occur by the Outside Opening t7 21 Date, then Lessee hereby waives any further right to cure, and the City shall be entitled to immediately terminate this Lease upon written notice to the Lessee; provided that Lessee shall also have the right to immediately terminate this Lease upon written notice to the City on orbefore the Outside Possession Date and in any such event, the Parties shallthereafter be released from all obligations set forth herein, except any such obligations that expressly survive termination. (0 Easements. The parties agree that this Lease shall be subject to and contingent upon the execution of certain easements, including any applicable access easements. The Parties shall also enter into any easements which may be required by Lessee to connect utilities or in connection with any cantilevered elements, as shown in the Approved Plans. The Parties shall thereafter cause the Easements to be promptly recorded among the public records of Miami-Dade County, Florida. The Easements shall be held in escrow by the City and released therefrom and recorded among the public records of Miami- Dade County, Florida prior to the Commencement of Construction. ARTICLE lII . AMOUNT OF RENT 3.1 The Lessee covenants and agrees to pay to the Lessor an annual rental of $18.00 peryear, payable annually in advance, the first such annualpayment being due and payable on the lst day of January of every year during the entire term of the Lease. ARTICLE IV. USE AND POSSESSION OF WELLNESS CENTER 4.1 The Wellness Center shall be used by the Lessee solely and exclusively as a state of the art public health and wellness center catering exclusively to individuals living with physical and cognitive disabilities, and able bodied individuals with a temporary disability. lt is understood and agreed that the Lessee shall be required, at a minimum, to provide the activities and services described in Sections (A) through (C) below. Additionally, the Wellness Center shall be used by the Lessee during the entire term of this Lease onlyforthe purposes described below, and for no other purposes or uses whatsoever. ln the event that the Lessee uses the Premises for any purposes not expressly permitted herein, such use shall be considered an Event of Default and the Lessor shall be entitled to all the remedies set forth in Article XIX hereof, or without notice to Lessee, restrain such improper use by l8 22 injunction or other legal action. The activities and uses permitted under this Lease shall be limited to and only include: (A) Adaptive Fitness Program; (B) Adaptive Gym, including training; (C) Healing Room for yoga, meditation, and/or art therapy; (D) Physical Therapy; (E) AdaptiveAqua-Therapyservices; (F) Research & Product Testing Room (subject to funding availability); (G) Office of the Foundation; (H) Conference Room; and (l) Library; 4.2 Secondarv (ancillary) Use. Subject to approval by the City in its regulatory capacity in accordance with the City's Land Development Regulations, Lessee shall also be authorized to use a portion of the Wellness Center, not to exceed 1,200 square feet, as a Nutrition Caf6, offering healthy juices and food options ("Food and Beverage Service") for patrons of the Wellness Center. 4.2.1 City Vendino 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 othenruise violate, the City's 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 exclusive vending contract with Bettoli Trading Corp. ("Bettoli Contract") (collectively referred to herein as the "City Vending Contracts"); copies of which are attached hereto and made a part hereof as composite Exhibit "D". 4.2.2 Prohibitions reqardino Sale or Use of Expanded Polvstvrene Food Service Articles or Plastic Straws. Pursuant to Section 82-7 of the City Code, as may be amended from time to time, effective August 2,2014, the City has prohibited the use of expanded polystyrene food service articles by City Contractors, in connection with any City contract, lease, concession agreement or Special event permit. Additionally, pursuant to Section 82- 385 of the City Code, as may be amended from time to time, no polystyrene food service articles will be allowed in the right-of-way, and no polystyrene food service articles can be provided to sidewalk caf6 patrons. t9 23 Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded polystyrene is more particularly defined as blown polystyrene and expanded and extruded foams that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead foam), injection molding, foam molding, and extrusion-blown molding (extruded foam polystyrene). Expanded polystyrenefood seruice articles means plates, bowls, cups, containers, lids, trays, coolers, ice chests, and all similar articles that consist of expanded polystyrene. Lessee agrees not to sell, use, provide food in, or offer the use of expanded polystyrene food service articles at the Wellness Center or in connection with this Lease. Lessee shall ensure that all vendors operating in the Wellness Center abide by the restrictions contained in this Subsection 4.2.2. A violation of this section 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 46-92 (c) of the City Code, which states that it is unlawful for any person to carry gry 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. 4.3 Use bv the Citv. Lessee and the City have agreed that the Proposed lmprovements will provide a Wellness Center which has facilities which may also be used by the City. Accordingly, the City shall have the right to use the Wellness Center, or any part thereof, subject to availability, for City-sponsored public meetings, training, and clauses, as may be reasonably deemed necessary and appropriate by the City Manager. Any City use of the Wellness Center shall be without the payment of any rental or use fee, except that direct out-of-pocket expenses incurred in connection with such uses shall be paid by the City (including without limitation, reasonable out of pocket expenses incurred by Lessee in order to open and make the Wellness Center available in connection with such City use). Lessee agrees to coordinate and cooperate with the Cityfor public use of the Premises bythe City, which coordination and cooperation shall not be unreasonably withheld or delayed, and provided that such City uses(s) does not materially interfere with the operations of the Wellness Center by the Lessee. Such public use of the Wellness Center by the City shall be conducted pursuant to policies and procedures, 20 24 which shall be established and mutually agreed upon by the Lessee and the City. 4.4 Joint Use. The parties agree and acknowledge that, in furtherance of, and consistent with the goals and priorities and approved uses, the Lessee and the City may agree to mutually coordinate, sponsor and provide certain additional recreation and leisure activities and/or programs on the Wellness Center. The Lessee and the City shall mutually agree upon and approve any such activities and/or programs in advance of their implementation; the programs and/or activities must be consistent with the operation of the Lessee; and may not materially interfere with the operations of the Lessee. Subject to the preceding criteria, the Lessee and the City hereby agree that each partywill be responsible for its respective costs associated with the provision of said activities and/or programs. 4.5 1.5 Amendment to Approved Uses. Any change to the approved uses set forth in Sections 4.1 and 4.2 herein, which are consistent with the operation of the Lessee, shall be approved by the City Manager before implementation, and shall be memorialized in writing through an amendment to the Lease. Any change to the approved uses, which are determined by the City Manager, at his sole and reasonable discretion, to not be consistent with the approved uses, shall be approved by the Mayor and City Commission, ARTICLE V. OPERATION OF THE WELLNESS CENTER 5.1 Hours of Operation. The Lessor and Lessee herein agree that normal hours of operation forthe Wellness Center shall not exceed the timeline between 8:00 AM to 8:00 PM, Monday through Sundays ("Permitted Hours of Operation"), but at all times shall maintain regular operating hours, with a minimum of five days per week and a minimum of forty hours perweek ("Minimum Hours of Operation"), not to exceed the Permitted Hours of Operation. Consistent with these parameters, upon opening for business, Lessee and Lessor shall mutually agree upon the initial hours of operation and memorialize them in writing. Any further change in the hours of operation 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 determination by the City Commission. The failure of the Lessee to operate the Wellness Center continuously during its scheduled hours shall constitute a default under this Lease. 5.2 Manaqement. Lessee must manage and operate the Wellness Center activities, services and programs, for the purpose of coordinating, implementing and 2t 25 supervising all approved uses; supervise and direct all Wellness Center employees, officers, agents, contractors, invitees, visitors, and guests on the Wellness Center; and develop and implement programs and activities which support and promote the goals and priorities and approved uses set forth in Subsection 4.1 and 4.2. 5.3 Labor/Personnel/Materials/EquiomenUFurnishinos. Lessee must provide and maintain, at is sole cost and expense, all labor, personnel, materials, equipment, and furnishings, as reasonably required, to operate the Wellness Center as a full service comprehensive health and wellness center, in accordance with the goals and priorities and approved uses set forth in Subsection 4.1 and 4.2. 5.4 Orderlv Ooeration. Lessee shall have a neat and orderly operation at all times and shall be solely responsible for the necessary housekeeping services to properly maintain the Wellness Center. There shall be no living quarters nor shall anyone be permitted to live within the Wellness Center. Lessee shall make the Wellness Center available for inspection by the City Manager or his authorized representatives during hours of operation. 5.5 Securitv. Lessee shall be responsible for and provide reasonable security measures as may be required to protect and secure the Wellness Centerand any materials, equipment, and furnishings thereon. Under no circumstances shall the Lessor be responsible for any stolen or damaged personal property of the Lessee and/or the Wellness Center's officials, employees, contractors, patrons, guests, invitees, and/or any other third parties. 5.6 Fees for Services offered at the Wellness Center. The cost of the services offered at the Wellness Center (including the Nutrition Cafe) shall be subject to the prior written consent of the City Manager, which consent shall not be unreasonably withheld. 5.7 Operational Prioritv and Discounts. To the extent permitted by applicable laws and subject to demand, disabled Miami Beach Residents, disabled Military Servicemembers, and disabled seniors shall receive priority for all programs and services ("Priority Categories"), with disabled Miami Beach Residents receiving the first priority, followed by disabled Military Servicemembers, and thereafter followed by disabled seniors ("Priority categories' Hierarchy). a. Promotion. ln order to promote the operational priority, Lessor and Lessee shall promote the opening of the Wellness Center; however, all promotional 26 materials and advertisements shall be approved, in writing, by the City Manager, prior to publication. Lessee shall provide an exclusive initial registration period of thirty days ("lnitial Registration Period") for the Priority Categories, based upon the Priority Categories' Hierarchy. Thereafter, when applicable, and subject to the established Priority Categories' Hierarchy, the registration period for Priority Categories shalltake place before registering others. The Priority Categories shall not be denied services or placed on a waitlist unless there is no availability and the individual has attempted to register after any advertised time period. b. Discounts. Additionally, Lessee shall provide a 15o/o discount to the individuals in the Priority Categories in connection with the services offered at the Wellness Center. ARTIGLE VI. REVENUE FROM THE WELLNESS CENTER RELATED ACTIVITIES/FINANCIAL RECORDS AND REPORTS 6.1 Revenue from the Wellness Center Related Activities. The Lessor herein acknowledges that the Lessee may derive additional revenues from a portion of the approved uses it conducts on the Wellness Center (such revenue generating uses may include, from time to time, special events on the Wellness Center, fundraising, specialty sales, classes, lectures and providing Food and Beverages). The Lessee herein acknowledges that any and all revenue generating uses conducted on the Wellness Center must be directly related to, consistent with, or used to help fund the Lessee's management, operation, and maintenance of the Wellness Center, and, in the event that annual revenue(s) pertaining to the Wellness Center exceed expenses during a particular budget year, the Lessor and the Lessee agree that such excess revenue, if any, shall first be apptied to offset any of the capital improvements and/or infrastructure maintenance costs (as set forth in Section XX), and may, thereafter, be applied by the Lessee to support the other charitable, public health, wellness, educational, research or public service programming of the Lessee within the City of Miami Beach, Florida for the benefit of Miami Beach Residents living with a temporary or permanent disability, in the current year and/or future years. Any revenue generating uses conducted on the Wellness Center that are not consistent with the approved uses in Subsection 4.1 or 4.2, or consistent with this Section 6.1, shall first be approved, in writing, by the City Manager(prior to commencement of same). For purposes 27 herein, "revenues" shall also be deemed to include public/private grant funding and unrestricted donations and contributions received by the Foundation specifically ear-marked toward the operation of the Wellness Center. No portion of the net earnings resulting from the operation of the Wellness Center shall inure to the benefit of any private individual. 6.2 Financial Records and Reports. Lessee shall maintain at the Wellness Center, or at the location set forth in the Notices section of this Lease, or at such other place within 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 at the Wellness Center relating specifically to the operations of the Wellness Center, 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 no later than one hundred and twenty (120) days following the closing of Lessee's fiscal year (June 1't - May 31't), Lessee shall provide the City Managerwith an annual report of all uses, services, programs, events and activities (including without limitation, all revenue generating uses) conducted upon the Wellness Centerforthe prioryear("Programmatic Plan Report"), along with audited financial statements. Said statements shall be certified as true, accurate and complete bythe Lessee and by its certified public accountant. 6.3 Additionally, in the annual Programmatic Plan Report, Lessee shall include the number of persons participating in the programs and services provided at the Wellness Center, including a breakdown of the disabled Miami Beach Residents, disabled Military Veterans and a third category for visitors with a disability who received services at the Wellness Center for the given year. ARTICLE V!I. BUDGET AND FUNDING FOR THE WELLNESS GENTER 7.1 No Liabilitv to Citv. The parties acknowledge that the City shall have no responsibility to fund the construction of the Proposed lmprovements or the operation, maintenance, or payment of capital improvement costs of the Wellness Center. Throughout the Term of this Lease, the Lessee shall be solely responsible for obtaining public/private grant funding and individual/corporate contributions, to fund Proposed lmprovements and to 24 28 fund the continued management, operation and maintenance of the Wellness Center, including capital renovations and improvements, as may be approved by the City. The Lessee's lack of funds to construct the Proposed lmprovements, to operate, to maintain, or to fund any necessary capital improvement costs shall constitute a default underthis Lease. Further, the parties acknowledge, that by the City, in its proprietary capacity, reviewing financial or other materials of the Lessee or providing other approvals contemplated under this Lease, the City does not undertake responsibility or liabilitywhatsoeverfor such matters, including operationalmatters, health care compliance matters, budgets, and such approvals shall not obligate the City in any way or relieve the Lessee of its responsibility for the actions or omissions of the Lessee or its agents or representatives. 7.2 Throughout the Term of this Lease, the Lessee shall prepare and present, by May 1Sth of each year, a proposed, detailed line item annual operating budget for the Wellness Center for the period from the next June lst to May 30th, for review by the City Manager. Said budget shall include a projected income and expense statement; projected year-end balance sheet; statement of projected income sources; and application of funds. Additionally, the budget shall also include, without limitation, the following detailed projections: A. Gross revenues by categories from all revenue sources and revenue generating uses derived on the Wellness Center; 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; and G. Projected capital improvement costs. 7.3 Proqrammatic Plan. Accompanying the Lessee's proposed annual budget shall be the Wellness Center's programmatic plan forthe Wellness Center's upcoming fiscal year, detailing the then-known (planned) uses, services, activities, events, programs, and operations, and the number of users anticipated. ARTICLE VIII. NET LEASE 25 29 8.1 Lessee shall pay to the Lessor absolutely net throughout the term of this Lease, the rent and other payments hereunder, free of any charge, assessments, impositions, expenses or deductions of any kind and without abatement, deduction or setoff, and under no circumstances or conditions, whether now existing or hereafter arising, or whether within or beyond the present contemplation of the parties, shall the Lessor be expected or required to make any payment of any kind whatsoever (unless reimbursed by Lessee) or be under any other obligation or liability as to the Wellness Center, except as otherwise specifically stated in this Lease; and the Lessee agrees to pay all costs and expenses of every kind and nature whatsoever arising out of or in connection with the Premises that may arise or become due during the term of this Lease. Lessee shall be responsible for all expenses relating to the operation and maintenance of the Wellness Center including, without limitation, utilities, any applicable taxes (personal and ad valorem). ARTIGLE IX. PROVISIONS REGARDING PAYMENT OF TAXES 9.1 Lessee covenants and agrees with Lessor that as a further consideration for the making of this Lease, the Lessee is obligated to and will pay all taxes levied or assessed at any or all times for and after the year in which the Possession 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 Project or this Lease, including the land and all buildings, (and such personal property by way of furnishings or equipment which 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 their terms 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 nonpaymentthereof would renderthem delinquent. The parties agree that in the event any special assessments are payable in installments, the Lessee shall be responsible for such installments during the term of this Lease, and may pay such sums in installments, and the Lessor shall be responsible for any such assessments extending beyond the term of this Lease. 30 9.2 Notwithstanding the foregoing, Lessor acknowledges that Lessee is a 501(c)(3) non-profit organization, and therefore may seek exemption from any and all applicable taxes levied or assessed by any and all taxing authorities. lf Lessee desires to contest the validity of any tax or tax claim, Lessee may do so without being in default hereunder as to its obligation to pay taxes, provided Lessee gives Lessor written notice of its intention to do so and furnishes Lessor with a bond from a corporate surety qualified to do business in the State of Florida, in one and one-half times the amount of the tax item or items intended to be contested, conditioned to paythe tax ortax items when the validitythereof shall finally have been determined, which written notice and bond shall be given by Lessee to Lessor not later than a day which is thirty (30) days before the tax item or items proposed to be contested would othenvise become delinquent. lf prior to the giving of such bond, Lessee shall have paid into the Registry of a court of competent jurisdiction a sum of money to pay or apply on the payment of such taxes, and if such money is so paid into the Registryof the Court that it may never be withdrawn excepting for its application upon the payment of the contested taxes without the consent in writing of the Lessor hereunder first had and obtained, then the amount of the bond required by the terms of this Section 9.2 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 Section 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, orotherwise, is fully enjoined by a court of competent jurisdiction or is otherwise effectively stayed not laterthan a day which is thirty (30) days before the particular tax item or items proposed to be contested shall beeome delinquent; if such injunction or other stay is not secured by Lessee within that time, then the Lessor is authorized, as provided for in Section 9.3 of this Article lX, to paysuch taxes as then assessed and levied, notwithstanding any pending or proposed suit to contest those taxes. 9.3 ln the event the Lessee shall for any reason fail, refuse or neglect to pay any taxes referred to in Section 9.1 of this Article lX within the time specified therein, or if 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 Section 9.2 of this Article lX within the time therein specified, then and in any such event, the Lessor may at its option pay such taxes as then 31 assessed and levied and the amount or amounts of money so paid, including reasonable attorneys'fees and expenses which may have been reasonably incurred in connection with such payments or by reason of the nonpayment thereof by the Lessee, together with interest on all such amounts at the rate of ten per cent (10Yo) per annum from the date of payment, shall be repaid by the Lessee to the Lessor and the payment thereof may be collected or enforced by Lessor in the same manner as though such amounts were an installment of rent specifically required by the terms of this Lease to be paid by Lessee unto Lessor; but the payment of any such taxes by the Lessor shall not waive the default thus committed by the Lessee. 9.4 Notwithstanding the foregoing, taxes (afterdeducting allavailable discounts if utilized) for the last year of the term of this Lease will be prorated as of the termination date of the term of this Lease, Lessee paying such taxes for that 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. ARTIGLE X. LESSOR'S INTEREST NOT SUBJECT TO MECHAN!CS' 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 Lessor in the Leased Premises to any mechanics' or materialmen's liens or liens of any other kind or nature; and all persons dealing with the Lessee are hereby notified of the fact that they must look only to the interest of the Lessee in the Wellness Center and not to any interest of the Lessor. 10"2 Lessee covenants and agrees with Lessor that Lessee will not permit or suffer to be filed or claimed against the interest of the Lessor in the Leased Premises, or the interest of Lessee in the Wellness Center, during the continuance of this Lease any lien or claim of any kind, and if any such lien is claimed orfiled it shall be the obligation of the Lessee, within thirty (30) days after the lien or claim shall have been filed among the Public Records of Miami-Dade County, Florida, or within thirty (30) days after the Lessor shall have been given notice of any such lien or claim and shall have transmitted written notice of the receipt of 28 32 notice of such lien or claim unto the Lessee (whichever thirty (30) day period expires earlier), to cause the Project to be released and discharged from such lien or claim, either by payment into court of the amount necessary to relieve, release and discharge the Project from such lien or claim, or in any other manner that as a matter of law will result, within the period of thirty (30) days, in releasing and discharging the Lessor and the title of the Lessorfrom 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. ARTICLE XI. LESSOR'S RIGHTS AND REMEDIES 11.1 Although this is a long term Lease, all of the rights and remedies of the respective parties shall be governed by the provisions of this instrument and by the laws of the State of Florida as they exist from time to time, as such law relates to the respective rights and duties of landlord and tenant. 11.2 During the continuance of this Lease, the Lessor shall have all rights and remedies which this Lease and the law of the State of Florida assures to it. 11.3 All rights and remedies accruing to the Lessor shall be cumulative; that is to say, the Lessor may pursue such rights as the law and this Lease afford to it in whateverorder the Lessor desire and the law permits, without being compelled to resort to any one remedy in advance of any other. ARTICLE XII . INDEMNIFICATION 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, 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 defense, including appeals, as and when such fees and expenses become due and payable, in addition to any other sums which the Lessor may be called upon to pay by reason of the entry of a 33 judgment against the Lessor or any of them in the litigation in which such claim is asserted. The Lessor's protections stipulated in this Section 12.1 shall not extend to orcoverany losses or damages resulting out of the sole negligence or willful misconduct of the Lessor or its officers, agents, employees and instrumentalities or any liability of Lessor to third parties. 12.2 Lessee shall also protect, defend, indemnify and hold Lessor harmless against any loss or damage, including attorneys'fees and costs, arising out of or resulting from any claim, action or law suit brought by a third party to (i) challenge the validity orenforceability of this Lease, or any City action relating to this Lease, including challenges to the referendum approval contemplated of this Lease; (ii) challenge the Lessor's title to the Leased Premises; or (iii) enjoin this Lease. lf any litigation is instituted against the Lessor and/or the Lessee as a result of the approval of this Lease, then the Lessee shall defend the Lessor and save the Lessor harmless from any and all reasonable attorneys' fees and court costs that may be incurred, both at the trial and appellate level. Counsel in such actions shall be selected by Lessee, subject to approval of Lessor, which approval shall not be unreasonably withheld or delayed. 12,3 Lessee, including Lessee's officers, employees, agents, and contractors, at Lessee's expense, shallcomplywith alllaws, rules, orders, ordinances, directions, regulations and requirements of federal, state, county and municipal authorities pertaining to this Lease and Lessee's use of the Wellness Center and with the Covenants Running with the Land, regardless of when they become effective, including, without limitation, allapplicable federal, state and local laws, regulations or ordinances pertaining to air and water quality, 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 Lessor or Lessee with respect to the use or occupation of the Wellness Center. 12.3.1 Lessee shall (i) not cause or permit any Hazardous Material to be brought upon, kept or used in or about the 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 Material so brought upon or used or kept in or about the Project. lf Lessee breaches the obligations stated in the preceding sentence, or if the presence of Hazardous Material on the Project results in contamination of the Project, or if contamination of the Project by Hazardous 34 Material othenruise occurs, then Lessee shall indemnify, defend and hold Lessor harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Project, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Project, damages arising from any adverse impact on marketing of space, and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees) which arise as a result of such contamination. This indemnification of Lessor by Lessee includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground water on or under 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. 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" or words of similar import under the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. 59061, et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. 51801 et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 56901 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S"C. 51251 et seq., Chapters 376 and 403, Florida Statutes; Chapter 24 of the Code of Metropolitan Dade County; (d) any other substance, the exposure to or release of which is regulated by any governmental entity having jurisdiction over the Project or the operations thereon; and (e) any substance that does or may pose ahazard to the health or safety of the persons employed at or invitees on the Project. Notwithstanding the foregoing, "Hazardous Materials" shall not include chemicals and materials customarily used for property maintenance, which can include, but not limited to, cleaning supplies, pesticides for landscape maintenance and chemicals foraqua therapy pool maintenance, so long as used as intended. 3l 35 12.3.3 At the Possession Date , and on January 1 of each year thereafter (each such date being hereafter called "Disclosure Date"), including January 1 of the year after the termination of this Lease, Lessee shalldisclose, in writing, to Lessorthe names and amounts of all Hazardous Materials, or any combination thereof, which were stored, used or disposed of on the Project, or which Lessee intends to store, use or dispose of on the Project. Notice of Lessee's use of Hazardous Materials on the Project shall not be a waiver of any of Lessor's claims, defenses or rights related to Lessee's use of such materials. 12.3.4 Lessor and its agents shall have the right, but not the duty, to inspect the Project at any reasonable 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 Project 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 forany interference caused thereby. 12.3.5 Any default under this Section 1 2 shall be a material default enabling Lessor to exercise any of the remedies set forth in Article XIX of this Lease ("Default Clause). 12.3.6 Lessee acknowledges it is receiving the Leased Premises in "as is" condition and Lessor is not responsible for the existing condition of the Leased Premises, including any underground conditions. ARTICLE XII! . FIRE AND WINDSTORM. ETC. INSURANCE PROVISIONS Lessee shall maintain, at its sole cost and expense, the following types of insurance coverage upon completion of construction and issuance of the certificate of occupancy for the Project: 13.f Notwithstanding the foregoing, as of the Possession Date, Lessee shall purchase and maintain Commercial General Liability lnsurance, on an occurrence form, in the amount of $1 ,000,000 per occurrence, for bodily injury, death, property damage, and personal injury, $2,000,000 aggregate. This policy must name the City of Miami Beach, Florida, as additional insured. 13.2 Workers Compensation lnsurance shall be required under the Laws of the State of Florida and employer's liability insurance of not less than One Five Hundred Thousand ($ 500,000) per occurrence. 32 36 13.3 Automobile lnsurance shall be provided covering all owned, leased, and hired vehicles and non-ownership liability for not less than the following limits, subject to adjustment for inflation for a $1,000,000 combined single limit (only if Lessee provides transportation services). 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 coverthe 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. 13.5 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 insurance maintained by the City of Miami Beach shall be excess of the Lessee's insurance and shall not contribute with it. 13.6 The policies of insurance referred to in the above Section 1 3.1 , 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. 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 behalf of Lessee. 13.8 Waiver of Subroqation. Lessee hereby grants to City of Miami Beach a waiver of any right to subrogation which any insurer of Lessee may acquire against the City and against those for whom the City is in law responsible including, without limitation, its directors, officers, agents, and employees, by virtue of the payment of any loss under such insurance. Lessee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, butthis provision applies regardless of whetherornotthe Cityof MiamiBeach has received a waiver of subrogation endorsement from the insurer. 13.9 Acceptabilitv of lnsurers. lnsurance is to be placed with insurers with a current A.M. Best's rating of no less than A:Vll, unless otherwise acceptable to the City of Miami Beach Risk Management Office. 13.8 Verification of Coveraqe. Lessee shall provide the required insurance certificates, endorsements or applicable policy language effecting coverage required by this Section. All certificates of insurance and endorsements are to be received prior to any work JJ 37 commencing. However,failuretoobtaintherequiredcoveragepriortotheworkbeginningshall not waive the Lessee's obligation to provide them. The City of Miami Beach reserves the right to require complete, certified copies of allrequired insurance policies, including endorsements required by these specifications, at any time. 13.9 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 MIAMI BEACH c/o !NSURANCE TRACKING SERVICES 17OO CONVENTION CENTER DRIVE MIAMI BEACH, FL 33139 Compliance with the foregoing requirements shall not relieve the vendor of his liability and obligation under this section or under any other section of this agreement. 13.10 ln the eventof the destruction of ordamage to the buildings, orof anyof the improvements, by fire, windstorm or other casualty forwhich insurance shall be payable, and as often as such insurance money shall have been paid to the Lessor and the Lessee, sums so paid shall be deposited in a joint account of the Lessor and Lessee in a bank in Miami-Dade County, Florida designated by the Lessor, or, in the alternative, if the parties agree to execute a Work Letter and Escrow Agreement, the insurance money shall be deposited into Lessee's attorney's escrow account, subject to disbursements pursuant to the agreed upon terms of the Work Letter and Escrow Agreement. As such, said insurance money shall be available to the Lessee for the reconstruction or repair, as the case may be, of any building or buildings, damaged or destroyed by fire, windstorm or other casualty for which insurance money shall be payable, and shall be paid out by the Lessor and the Lessee from the joint account from time to time, or from the Lessee's attorney's escrow account, pursuant to the Work Letter and Escrow Agreement, as the case may be, based upon the estimate of any architect licensed in the State of Florida having supervision of such reconstruction and/or repair, certifying that the amount of such estimate is being applied to the payment of the reconstruction and/or repair and at a reasonable cost therefor; provided, however, that itfirst be made to appearto 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 38 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 general contractor and construction agreement shall be subject to the prior written approval by the City Manager. The proceeds of the Personal Property lnsurance covering personal property belonging to the Lessee shall likewise be deposited in a irint bank account to the credit of the Lessor and the Lessee, or into the Lessee's attorney's escrow account, as the case may be, and shall be paid out for the replacement or repair, as the 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 shall be of the same or greater value as the building and the improvements upon the Leased Premises were immediately prior to such damage or destruction, and shall have the same rebuilt and/or repaired and ready for occupancy and have received the appropriate certificate of occupancy and/or completion from the City's Building Department within two years from the time when the damage or destruction occurred, and shall within that period replace and repair as the case may require, personal property destroyed or damaged; this obligation of the Lessee to rebuild and repair the buildings and improvements, and to replace and repair the personal property, shall exist and be enforceable irrespective of the availability of any insurance funds for any of these purposes. With Lessor's prior written consent, the two-year period for reconstruction or repair shall be enlarged and extended by delays caused without fault or neglect on the part of the Lessee, by act of God, strikes, Iockouts or other conditions beyond the Lessee's control. 13.11 Nothing herein contained shall be construed as prohibiting the Lessee from financing the premiums on such policies, or from such payments having a deductible amount not exceeding five percent (5%) of the insurable value of the improvements. 13.12 lf at any time any such insurance money comes into the possession of the Lessor and the Lessee 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 35 39 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 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 Project herein described, and without prejudice to their rights to the benefit of such insurance money as payment of such rental and other charges. I 3.1 3 lt is agreed by and between the Lessor and Lessee that any excess of money received from insurance or other sources remaining in the joint bank account or Lessee's attorney's escrow account, as the case may be, after the completion of the reconstruction, replacement or repair of such building or buildings and personal property, and if there is no default on the part of the Lessee in the performance of any of the covenants of this Lease, shall be paid to Lessee. Notwithstanding the foregoing, in the event the Lessee fails for any reason to: (1) submit a complete building permit application within six (6) months from the date of the damage ordestruction occasioned byfire, windstorm orothercause forwhich insurance money shall be payable; or (2) commence the reconstruction or repair of such building or buildings within twelve (12) months afterthe submission of the building permit application; or(3) provide, within twelve (12) months from the date of the damage or destruction, and in the manner required by Section 13.10 of this Article Xlll, a sufficient sum of money to prosecute the reconstruction and repair work with such dispatch as may be necessary to complete the same within twenty-four (24) months after the occurrence of such damage or destruction occasioned as aforesaid, except in the case of Force Majeure, as provided in Article XXV|ll, or Unavoidable Delays under Subsection 17 .15-1, then and in every such event, the Lessee shall be deemed to have refused to carry out its obligation to reconstruct, replace and repair, and the amount so collected or the balance thereof remaining in the joint account, or in Lessee's attorney's escrow 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. 13.14 Construction lnsurance Requirements. Any improvements to the Wellness Center shall be approved in writing by Lessor, in advance of commencement of any work. Any contractor approved pursuant to Section 17.3, that the Lessee hires to conduct improvements 36 40 to the Wellness Center, (i) shall be a contractor licensed in the State of Florida and (ii) shall maintain the following insurance coverages, subject to the same requirements as in the preceding Section 13.5 through Section 13.9, in connection with the approved work: 13.14.1Worker's compensation insurance covering all employees of the Contractors (as required by the laws of the State of Florida) and employer's liability insurance of not less than Five Hundred Thousand ($500,000) per occurrence. 13.14.2 Comprehensive general liability insurance in an amount of not less than Two Million Dollars ($2,000,000) per occurrence covering personal injury and property damage, Four Million Dollars ($4,000,000) aggregate. This policy must name the City of Miami Beach, Florida, as additional insured. Such coverage shall include, but not be limited to, the following: i.Blanket contractual liability insurance covering all indemnity or hold harmless agreements. ii. Protective liability insurance for the operation of the lndependent Contractors. iii. XCU coverage (explosion, collapse ordamage to underground property). iv. Products and completed operations for $2,000,000 (for three (3) year extension beyond completion of prolect). 13.14.3 Excess umbrella liability insurance with a limit of not less than Three Million Dollars ($3,000,000) per occurrence and in the aggregate in excess of the above mentioned insurance, which shall be required only in any "wrap up" 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. 13.14.4 Comprehensive automobile liability insurance in an amountof 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 semitrailers, including any machinery or apparatus attached thereto. 13.14.5 As applicable, to be determined bythe City's Risk Management Department, Builder's Risk lnsurance (standard "All Risk" or equivalent coverage) in an amount not less than the cost of construction, written on a completed value basis or a reporting basis, for 5t 41 property damage protecting Lessee, City, and Lessee's General Contractor, with a deductible of not more than Fifty Thousand Dollars ($50,000), subject to adjustment for inflation (except as to flood and windstorm, with regard to which the deductible shall be a commercially reasonable amount); or 1 3.1 4.6 lnstallation Floater for the installation of machinery and/or equipment into an existing structure. The coverage shall be "All Risk" coverage including installation and transit for one hundred percent (100%) of the "installed replacement cost value", covering the City as named insured, with deductible of not more than Five Thousand and 00i100 Dollars ($5,000.00) each claim. 13.14.7 A payment and performance bond for the projectcost may be required by the City, in its sole discretion, with the City reflected as a dual obligee thereunder. ARTICLE XIV. LESSEE'S DUTY TO PAY INSURANCE PREMIUMS 14.1 Lessee covenants and agrees with Lessor that Lessee will pay the premiums for all of the insurance policies which Lessee is obligated to carry underthe terms of this Lease, and will deliver to the Lessor evidence that all such premiums have been paid on or before the effective date of each such policy or proper evidence of extended credit and/or evidence of financing the payment of such premiums, and Lessee will cause renewals of all expiring policies to be written, and the policies or copies thereof, as the Lease may require, to be delivered to the Lessor at least ten (10) days before the expiration date of such expiring policies. The parties note that in Section 13.14.5, 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 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 collectible as though it were rent then matured hereunder, and shall be due and payable forthwith, or in lieu thereof and 38 42 notwithstanding the procurement and renewal of such policies by the Lessor, this lndenture and the terms created hereby may, at the option of the Lessor, be terminated and declared at an end and all of the right, estate and interest of the Lessee in such event hereunder shall immediately cease and become null and void. ARTICLE XV. ASSIGNMENT 15.1 This Lease, or any portion thereof, is not freely assignable, and no assignment, transfer, sublease, concession agreement, management agreement, or license agreement with respect to the Wellness Center, or any portion thereof, shall be valid unless there is a prior written consent by the Lessor, which consent shall be within the sole discretion of the Lessor. With respect to any transfer of any direct or indirect legal or beneficial interest in Lessee or any transfer conveying all or any portion of Lessee's rights and interest in and to the Lease (an "Assignment"), any such Assignment shall require the prior written consent of the Lessor, at Lessor's sole discretion, which consent, if given at all, at a minimum shall be predicated upon: (i) the transferee or assignee assuming all obligations under the Lease, including allCovenants Running with the Land contained therein;(ii) the transferee orassignee curing any defaults under the Lease; (iii) the transferee or assignee not being a Foreign lnstrumentality; (iv) the transferee or assignee having sufficient liquid assets to operate and maintain the Wellness Center; and (iv) the transferee or assignee executing all documents required by the Lessor to effectuate the transfer including, without limitation, an assumption agreement, duly executed by the Assignee of this Lease and in recordable form. 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 and any other information which Lessor, in its sole discretion, may require to evaluate the Assignment, advise the Lessee in writing as to whetheror not 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 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 43 assignment shall be effective with respect to each such item. 15.3 Operational Subcontracts. Lessee shall not enter into independent contractor's agreements with subcontractors underthe supervision of Lessee, in connection with all or any portion of any work and/or service which may be performed relating to any of the approved uses in Section 4.1 or 4.2 (collectively, "Operational Subcontracts") without the prior written consent of the City Manager, which consent, if given at all, shall be in the Manager's sole judgment and discretion. Any attempt to enter into such Operational Subcontracts (unless approved) shall be void. At City Manager's request, Lessee shall provide supporting documentation evidencing the fair market value for such transaction or arrangement. Additionally, Lessee shall ensure that any subcontractor will comply with all insurance requirements with respect to payment or reimbursement for health care-related services. ARTICLE XVI . CONDEMNATION CLAUSE 16.1 lt is further understood and agreed that if at any time during the continuance of this Lease the Leased Premises or the improvements and buildings located thereon or any portion thereof be taken, appropriated or condemned by reason of eminent domain, there shall be such division of the proceeds and awards in such condemnation proceedings, and such abatement of rent and other adjustments made, as shall be just and equitable under the circumstances. lf the Lessor and the Lessee are unable to agree upon what division, annual abatement of rent or other adjustments are just and equitable within thirty (30) days after such award shall have been made, then the matters in dispute shall by appropriate proceedings, be submitted to a court having jurisdiction of the subject matter of such controversy in Miami-Dade County, Florida, for its decision and the determination of the matters in dispute. lf the legal title to the entire Project is wholly taken bycondemnation, 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 shallbe compensated for Lessee's interest in the improvements under this Lease in accordance with the condemnation award. 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 44 account in determining the portion of the condemnation award trc 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 renders the Project unsuited for the permitted uses as provided for herein, Lessee, may at its sole option and expense, remove allof its personal property from the portion of the Project taken, however, Lessee shall continue to be liable under this Lease and continue its rights and obligations as to the remainder of the Property not so taken, unless released in writing by Lessor. ARTICLE XVI! . PROPOSED IMPROVEMENTS 17.1 This Lease is made with the understanding and agreement that Lessee will design, develop and construct the proposed improvements, at its sole cost and expense, valued at no less than $3,500,000 on the Leased Premises, subject to the prior written consent of the Lessor (the "Proposed lmprovements"). The Proposed lmprovements are contemplated to construct a state of the art public Wellness Center, which will consist of: (A) a three (3) story circular building, on the footprint of the Leased Premises, having no more than 19,000 square feet of floor area, and a height not to exceed fifty (50) feet from base flood elevation, which shall be consistent with the conceptual plan presented by Lessee to Lessor, attached as Exhibit "B" to this Lease (the "Concept Plan"); (B) the construction of public restrooms ("Public Restroom Facilities"), comparable in size and constructed to the specifications (equipment, materials and standards) of the restrooms currently in the Park, which will be demolished in connection with the related Parking Lot Expansion Project, The Public Restroom Facilities may be constructed, at the discretion of the Lessee, as part of the first story of the Project, or, in the alternative, at a separate location at the Park, which separate location shall be determined by the City Manager in his or her sole discretion. Upon completion of the construction of the Public Restroom Facilities, as evidence from the issuance of a Certificate of Occupancy from the City, in its regulatory authority, and upon acceptance by the City, shall become the sole property of the City and the City shall be responsible 4t 45 for its operation, maintenance and repair, as more particularly set forth in Section 23.2; (C) the design and construction of public showers ("Public Shower Facilities"), comparable in size and constructed to the specifications (equipment, materials and standards) of the public showers currently in the Park, which will be demolished in connection with the Proposed lmprovements, at a different location within the Park, which location will be subject to the written approval of the City Manager, at his sole discretion. Upon completion of the construction of the Public Shower Facilities, as evidence from the issuance of a Certificate of Occupancy from the City, in its regulatory authority, and upon acceptance by the City, said Public Shower Facilities shall become the sole property of the City and the City shall be responsible for its operation, maintenance and repair, as more particularly set forth in Section 23.3; and (D) any site work, such as grading, and site improvements, such as landscaping, which may be required by the City, in its regulatory capacity, including any City departments or City boards, in connection with the issuance of the full building permit and/or the construction and development of the Project. 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 City and 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 approvals from the Florida Department of Environmental Protection and Florida Fish and Wildlife Conservation Commission. 17.3 Lessor's approvalof General Contractor/Construction lnsuranceMork Letter. The general contractor and the construction agreement between the Lessee and the general contractor shall be subject to review and approval by the City Manager, in his sole discretion. The approval of the construction contract shall also entail approval of the requisite construction insurance coverages, as set forth in Section 13.14, plus any additional insurance coverages which the City may reasonably require from the Contractor, subcontractor and/or architect. Following Lessee securing full building permit, and prior to commenc,ement of construction, Lessee shall execute a Work Letter and Escrow Agreement, including a cash deposit, in the amount of the cost of the Proposed lmprovements (as set forth in the construction contract between Lessee and the approved contractor), which willbe deposited into Lessee's attorney's escrow account to guarantee the diligent and timely prosecution of the construction. 17.4 Pre-construction site work. Lessee shall be responsible for any site and 42 46 underground studies, and any remediation which may be needed in connection with the development of the Wellness Center at the Leased Premises. The Development of the Wellness Center shall neither impact the surrounding areas nor compromise nor modify access to the beach from its current condition. 17.5 Lessee, at its own cost and expense, shall submit to Lessor (acting in its proprietary capacity as owner of 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 foreach 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 lmprovements (the "Preliminary Plans and Specifications"). Lessee shall submit the Preliminary Plans and Specifications for review by the City, in its regulatory capacity, at the 30o/o, 60Yo and 90% of plan completion stages. 17.6 Lessee shall submit its Preliminary Plans and Specifications to Lessor's City Manager for approval within one year of the Effective Date. The failure of Lessee to timely submit its Preliminary Plans and Specifications to the City Manager shall constitute a default under this Lease. The City Manager shall have ten (10) 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 inconsistentwith the Concept Plan, the City Manager shall, and in any event the City Manager may, submit the Preliminary Plans and Specifications to the City Commission for its review and approval as Lessor (acting in its proprietary capacity as owner of the Leased Premises), at the next City Commission meeting, along with a written report of the Administration's review and recommendations, including a review 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 Lessor disapproves the Preliminary Plans and Specifications, then Lessee shall, submit a revised modification to the Preliminary Plans and Specifications to meet Lessor's objections, which revised modification, shall be submitted and reviewed as provided above. Failure of the Lessee to submit revised Preliminary Plans and Specifications within sixty days from the date of Lessor's disapproval, but no later than one year from the Effective Date, shall constitute a Default under this Lease. 17.7 Lessee shall, within two months of Lessor's approvalof the Preliminary Plans and Specifications, but no later than one year from the Effective Date, submit an application for 43 47 approval of the design for the Proposed lmprovements to the City's Historic Preservation Board (HPB) and to otherCity boards, as applicable. Failure of the Lessee to submit its application, as provided in this Section, to the HPB, by the date which is two months from the receipt of Lessor's final approval as above provided, but no later than two years from the Effective 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 requirements for roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation (the "Concu rrency Req uirements"). 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 Speciflcations, as approved by the Lessor, the HPB, and other City boards, as applicable. The Plans and Specifications shall be submitted to the Lessor (acting in its proprietary capacity as owner of the Leased Premises) within six months from the date on which the HPB approves the Proposed lmprovements, but no later than two years from the Effective Date (if appealed, the time shall run from the issuance of a final nonappealable order). The Plans and Specifications, or modifications thereto, shall be reviewed bythe City Manager, within ten (10) business days, except for modifications thereto, which shall be reviewed within ten (10) business days, solely for consistency with the Preliminary Plans and Specifications as the same may have been modified by the HPB or other City boards, as applicable. lf Lessor disapproves the Plans and Specifications, then Lessee shall, submit a revised modification to the Plans and Specifications to meet Lessor's objections, which revised modification, shall be submitted and reviewed as provided above. Lessee shall pursue approval by the City of the Plans and Specifications diligently and in good faith. 17.10 Any building operation, once commenced, must be carried through continuously to completion, but any 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 48 Lessee shall not be deemed to cause the Lessee to be in default under this Section 1 7.10, 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. 17.11 Conditions Precedent to Lessee's Commencement of Construction of the Proposed lmprovements. Lessee cannot commence construction until the 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 provided 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 by the general contractor and architect; ( ) Lessee has obtained and delivered to Lessor copies of all final Permits and Approvals required to commence construction; and (5) Lessee shall have delivered to Lessor original certificates of the policies of insurance required to be carried pursuant to this Lease. Failure of Lessee to obtain the final building permits within two years from the Effective Date shall constitute a default under this Lease. 17 .12 Lessor (solely in its capacity as the owner of the Leased Premises and not in its regulatory capacity) shall reasonably cooperate with Lessee in obtaining the Permits and Approvals required to construct the Proposed lmprovements, shall sign any application reasonably made by Lessee that is required in order to obtain such permits and approvals and shall provide Lessee with any information and/or documentation not othenrvise reasonably available to Lessee (if available to Lessor) that is necessary to procure such permits and approvals. Any such accommodation by Lessor shall be without prejudice to, and shall not constitute a waiver of, Lessor's rights to exercise its discretion in connection with its regulatory functions. Lessee shall reimburse Lessor, within ten (10) days after Lessor's demand, for any reasonable out-of-pocket cost or expense payable to Lessor's technical consultants (otherthan Lessor's employees), such as architects and engineers, so incuned by Lessor in connection with Lessor's assistance in obtaining the permits and approvals required by the Proposed lmprovements. 17.13 The Lessee's riqht 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 liability to the Lessee with regard to 45 49 the lease. 17.14 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 neoessary for the commencement of construction are issued, but no later than two years from the Effective Date (the "Construction Commencement Date") and (b) thereafter continue to prosecute construction of the Proposed lmprovements with diligence and continuity to completion. "Commence Construction" or "Commencement of Construction" means the commencernent of major work (such as pilings or foundations) for construction of the Proposed lmprovements. Promptly after Commencement of Construction, Lessee shall notify Lessor in writing of the date of such commencement. Any and all preliminary site work (including, without limitation, any environmental remediation and ancillary demolition) shall not be deemed to be Commencement of Construction. Failure of Lessee to timely commence construction shall constitute a default under this Lease. lf, after Lessee has commenced construction, Lessee fails to diligently prosecute construction of the Proposed lmprovements (subject to unavoidable delays), and such failure continues (subject to unavoidable delays) for thirty (30) consecutive days after Lessee's receipt of notice of such failure, Lessor shall, in addition to all of its other remedies under this Lease, have the right to seek such equitable relief (either mandatory or injunctive in nature) as may be necessary to cause diligent and continuous prosecution of construction of the Proposed lmprovements (subject to unavoidable delays) by Lessee, itbeing understood that construction of the Proposed lmprovements is a material inducement to Lessor to enter into the Lease and monetary damages shall be inadequate to compensate Lessor for harm 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 "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, casualty, eminent domain, catastrophic weather conditions, a court order that actually causes a delay (unless resulting from disputes between oramong the partyalleging 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 otherwithin twentydays of such occurrence; however, failure to do so shall not waive any rights caused by such delay. The times for performance related to 50 the Proposed lmprovements setforth in this Lease shallbe extended to the extentperformance is delayed by unavoidable delays. 17.16 Completion of Construction of the Proposed lmorovements. Substantial completion of the Proposed lmprovements shall be accomplished in a diligent manner, and in any event no later than two years from the issuance of a full building permit. "Substantial Completion" as used herein shall require the issuance of a temporary or final certificate of occupancy by City's Building Department. Such date may be extended for good cause shown upon request in writing to Lessor's City Manager, which extension by the City Manager shall not be unreasonablywithheld. Finalcompletion of the construction of the Proposed lmprovements, shall be accomplished in a diligent manner, in each case in a good and workmanlike manner, in substantial accordance with the Plans and Specifications (with no material deviations exceptas expressly permitted herein), at Lessee's sole cost and expense. Upon Substantial Completion of construction of the Proposed lmprovements, Lessee shall furnish Lessor 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; (c) lien waivers in form and substance reasonably satisfactory to Lessor from 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 personality) for which the construction of the Proposed lmprovements has been completed. Lessorshall have an unrestricted license to use such "as built" plans and survey for any purpose related to the Leased Premises without paying any additional cost or compensation therefor, subject to copyright and 47 51 similar rights of the Architect to prohibit use of designs forpurposes unrelated to the Leased Premises, as such rights exist in law or may appear in the Architect's contract, and subject to applicable public records laws. The foregoing requirement with respect to "as built" plans shall be satisfied by Lessee furnishing to Lessor, at Lessee's expense, a complete set of Plans and Specifications, with all addenda thereto and change orders in respect thereof, marked to show all changes, additions, deletions and selections made during the course of the construction of the Proposed lmprovements; and (e) a Contractor's Final Affidavit in form and substance reasonably satisfactory to Lessor executed by the General Contractor (i) evidencing that all contractors, subcontractors, suppliers and materialmen retained by or on behalf of Lessee in connection with the Construction of the Proposed lmprovements have been paid in full for all work performed or materials supplied in connection with the Construction of the Proposed lmprovements and (ii) otherwise complying with allof the requirements 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. 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 Lessor with the following requirements before Lessee may commence operations at the Wellness Center: (1) Secured Substantial Completion of the Project and provided Lessor all of the items setforth in the preceding Section 17.16; (2) Evidence deemed sufficient, in the City Manager's reasonable discretion, substantiating that the Wellness Center has sufficient funds to operate the Project during the first year of operation, including a cash reserve moving fonarard; and (3) Evidence that Lessee has deposited $25,000.00 in a maintenance account and $10,000.00 in a capital improvement account to cover the cost of maintenance during the first year. Thereafter, every year, Lessee shall deposit any additional funds as may be needed to ensure a minimum balance is maintained in each account, as reasonably determined by the City Manager, subject to increases which may be necessary, based upon needed repairs or capital 52 improvement projects. ARTIGLE XVIII.COVENANTS RUNNING WITH THE LAND CONCERNING THE USE OF THE LEASED PREMISES The Leased Premises shall hereby contain the following restrictions, covenants and limitations: (a)That the Lessee shall at all times remain a not-for-profit corporation of the State of Florida and shall maintain its exemption from taxation under 501(c[3) of the lnternal Revenue Code; That the Lessee shall continuously operate the Project as a public health and wellness center serving members of the general public who have a physical disability; That the Lessee shall affirmatively make the Leased Premises, its facilities, and the Lessee's programs and activities open to persons with a physical disability of all races, colors, creeds or national origins, and take reasonable steps to publicize the availability thereof; 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 Leased Premises be in any person or entity other than the Lessee, without the prior written consent of the City Commission, 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 Project, and all replacements necessary in connection therewith, shall be the sole cost and expense of the Lessee; That the Lessee shall provide personnel on the Project during operating hours and either a security service or electronic security service during non- operating hours during the entire term of the Lease, proof of which shall be 18.1 (b) (c) (d) (e) (f) (g) 53 provided to Lessor via copy of security agreement and receipts therefor. That the Lessee shall be obligated to provide, amongst other insurance coverages stipulated in Article Xlll, public liability insurance and property damage insurance, at its cost and expense, forthe Project during the term of this Lease. Exterior signs, if any, will be of a design and form approved by the Lessor, and in accordance with the Miami Beach City Code and other applicable laws and codes. Lessee shall assume the cost of any such signs. Lessee shall remove all signs upon the termination of this Lease and any damage or unsightly condition caused to the Leased Premises because of or due to such signs shall be corrected or repaired by Lessee to the satisfaction of Lessor. 18.2 The violation by the Lessee of any of the covenants, restrictions and undertakings as set forth in Section 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 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, and Lessee after such notice and opportunity to cure has failed to cure, as provided for in section '19.3, it shall and may be the Lessor's right to declare such demised term ended and to re-enter upon the Leased Premises and the building or buildings and improvements situate thereon or any part thereof, either with or without process of law, the Lessee hereby waiving any demand for possession of the Leased Premises and any and all buildings and improvements then situate thereon;and the Lessee covenants and agrees that upon the termination of the demised term, the Lessee will surrender and deliver up the Leased Premises peaceably to the Lessor, its agents and attorneys, immediately upon the termination of the demised term;and if the Lessee, its agents, attorneys or other persons or entities claiming by or through Lessee, shall hold the Leased Premises or any (h) (i) 54 part thereof one (1) day after the same should be surrendered according to the terms of this Lease, they shall be deemed guilty of forcible detainer of the Leased Premises under the Statute and shall be subject to eviction or removal, forcibly or otherwise, with or without process of law. 19.2 Although this is a ninety-nine (99) year lease, the parties understand and agree that the relationship between them is that of landlord and tenant, and the Lessee specifically acknowledges that the statutory proceedings in the State of Florida relating to the recovery 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 violation within such time period. lf the default complained of is of such a nature that it cannot be cured within thirty (30) days, and if the Lessee has commenced taking all reasonable steps to cure such defaultand 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 othenruise enforce the termination of this Lease. Nothing herein contained shall be construed as precluding the Lessor from having such remedy as may be and become necessary in order to preserve the rights and the interests of the Lessor in the Leased Premises and in this Lease even before the expiration of the grace or notice periods provided for in this Section 19.3 if, under particular circumstances then existing, the allowance of such grace or the giving of such notice would prejudice or endanger the rights and estate of the Lessor in this Lease and in the Leased Premises, or the public health, safety and welfare. 19.4 ln addition to the rights set forth elsewhere in this Lease, Lessor shall have the right to pursue any or all of the following: (a) the right to injunction or other similar relief available to it under Florida law against Lessee; and/or (b) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from Lessee's default. 19.5 lt is further covenanted and agreed by and between the parties hereto, in the event of the termination of this Lease at any time before the expiration of the term hereby created, for the breach by the Lessee of any of the covenants herein contained, that in such case all of the right, estate and interest of the Lessee in and under this indenture and in the Leased Premises hereinabove described, and all improvements and buildings then situate on the Leased Premises, together with all rents, issues and profits of the Leased Premises and the improvements thereon, whether then accrued or to accrue, and all insurance policies and all 51 55 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 @nsequent cancellation of the Lease, each of the parties acknowledging itto be the fact that for breach and consequent cancellation of a longterm lease of this character, the Lessor will sustain substantial damage, being damage of such character as to make it most burdensome and tedious, if not actually impossible, to ascertain with mathematical precision, and each of the parties therefore having agreed upon this provision for liquidated damages in the interests of obviating whatwould othenruise be burdensome and difficult litigation to maintain orto 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 assigns unto the Lessor all of the rents, issues and profits which might otherwise accrue to the Lessee for the use, enjoyment and operation of the Leased Premises, and in connection with such pledging of the rents, the Lessee covenants and agrees with the Lessor that if the Lessor, upon the default of the Lessee, elects to file a suit to enforce the Lease and protect the Lessor's rights thereunder, then the Lessor may, as ancillary to such suit, apply to any court having jurisdiction thereof for the appointment of a Receiver of all and singular the Leased Premises, and the improvements and buildings located thereon; and thereupon, it is expressly covenanted and agreed that the court shall forthwith appoint a Receiver with the usual powers and duties of Receivers in like cases, and such appointment shall be made by such 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 landlord's lien or to the solvency or insolvency of the Lessee, and without reference to the commissions of waste. ARTICLE XX. LESSEE'S DUTY TO KEEP PREMISES IN GOOD REPAIR 20.1 Lessee covenants and agrees with the Lessor that during the Lease term the Lessee will keep in good state of maintenance and repair any and all buildings and other improvements constructed upon the Leased Premises; Lessee will not sufferor 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 necessaryto keep the building and improvements on the Leased Premises in a good state of repair and condition. 52 56 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 Lessee shall be responsible forthe operation, maintenance and repairof the Wellness Center including, without limitation, roof, structure, mechanical, plumbing, electrical, and general maintenance and upkeep, as well as all utilities. ARTICLE XXI . DEMOLITION CLAUSE 21.1 Although it is the Lessee's duty under the terms hereof to keep and maintain any buildings and improvements on the Leased Premises in good repair, this shall not be construed as empowering the Lessee to at any time tear down and destroy any buildings or improvements, on the Leased Premises, or any part thereof, unless and until the Lessee: (a) Follows all procedures necessary for development approval as provided for in this Lease, and causes construction plans and specifications for the new building or the new construction to be prepared in full accordance with all applicable laws, building codes, zoning ordinances, statutes and regulations, and delivers the plans to the Lessor at least ninety (90) days before the work proposed to be done pursuant thereto is actually commenced; and (b) Obtains the written approval of the construction plans and specifications by the Lessor, in Lessor's discretion, which shall, in writing, approve or disapprove such plans and specifications within twenty (20) days working days after their delivery to the Lessor; and (c) Furnishes the Lessorwith all requisite Construction lnsurance requirements set forth in Section 13.14. 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 not be considered part of the cost of any subsequent 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 53 57 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 Leased Premises or to terminate this Lease or to violate any of its provisions or to cause any abatement or rebate in the rent then due or thereafter becoming due under the terms hereof. lf the Lease is canceled as the result of Lessee's default at any time while there remains outstanding any obligation from any insurance company to pay for the damage or any part thereof, then the claim against the insurance company shall, upon the cancellation of the Lease, be deemed immediately to become the absolute and unconditional property of the Lessor. 22.2 Lessee covenants and agrees with Lessor that nothing in this Lease contained shall ever be construed as empowering the Lessee to encumber or cause the Lessor to encumber or subordinate the title or interest of the Lessor. 22.3 Lessee covenants and agrees with Lessor that at the termination of this Lease the Lessee will peaceably and quietly deliver possession of the Project and all improvements thereon unto the Lessor. 22.4 Lessee shall not mortgage, pledge, hypothecate or othenruise encumber its leasehold interest without the prior written consent of Lessor, as provided for in this Lease. ARTICLE XXIII- CITY'S OBLIGATIONS RELATING TO THE PUBLIC COMPONENTS 23.1 Parkinq Lot Expansion Proiect. The City, at its sole discretion, and subjectto funding availability and appropriation, may redesign, develop and construct the Parking Lot at the Park (the "Parking Lot Expansion Project"); however, at a minimum, the City shall increase the number of accessible parking spaces at the Park to 17 spaces. The City and Lessee shall cooperate with the other during the development and construction of the Parking Lot Expansion Project and Wellness Center, in an effort to minimize the impact to the public's use of the existing facilities, including the existing public restrooms, showers, park and beach. 23.2 Public Restroom Facilities. Lessee shallconstruct, on behalf of the Cityand as more particularlydescribed in Section 17.1, Public Restroom Facilities. The Cityshall be responsible for the operation, maintenance and repair of the Public Restroom Facilities, in accordance with the same standards as other City park restroom facilities. The City shall be responsible for all repairs to the Public Restroom Facilities, including, roof, structure, mechanical, plumbing and electrical components, and for any utilities associated with the sole operation of the 54 58 Public Restroom Facilities. Notwithstanding the foregoing, if the Public Restroom Facilities are designed and constructed attached to the Wellness Center, Lessee shall be responsible for the cost and expense of maintaining the roof, exterior walls and adjoining structural elements. ln such case, the parties agree to cooperate and grant each other access to the Project or Public Restroom Facilities, as applicable, as may be necessary including, without limitation, for any ne@ssary repairs. 23.3 Public Shower Facilities. Lessee shall construct, on behalf of the Cityand as more particularly described in Section 17.1, Public Shower Facilities. The City shall be responsible for the operation, maintenance and repair of the Public Shower Facilities, in accordance with the same standards as other City park restroom facilities. The City shall be responsible forallrepairs, including, roof, if any, structural, mechanical, plumbing and electrical components and for any utilities associated with the operation of the Public Shower Facilities. ARTICLE XXIV - COVENANT OF QUIET ENJOYMENT 24.1 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. ARTICLE XXV. LESSOR'S RIGHT OF ENTRY 25.1 The Lessor or its agents shall have the right to enter upon the 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 Project; and if the 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 repairs; but if the Lessorexercises its option to make emergency repairs, such act 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 terms hereof, Lessee shall reimburse Lessor for all such repairs upon receipt by Lessee of Lessor's notice of repairs made and statement and proof of costs incurred. 55 59 ARTICLE XXVI. NO REPRESENTATIONS BY LESSOR 26.1 Lessee acknowledges that it has examined the Leased Premises and knows the condition thereof and accepts the Leased Premises in its present condition, "as is," and without any representations or warranties of any kind or nature whatsoever by Lessor as to its condition or as to the use or occupancy which may be made thereof. The Lessee assumes, in accordance with provisions of this Lease, the sole responsibility for the condition, operation, maintenance and management of the Leased Premises and all improvements now or hereafter situated thereon, and the Lessor shall not be required to furnish any facilities or services, or any funding, or make any repairs or structural changes, additions or alterations thereto. ARTICLE XXVII . LESSEE TO COMPLY WITH ALL LAWS 27.1 Lessee, and Lessee's officers, employees, agents, and contractors performing anywork on the Project, shall at all times complywith all laws, ordinances, regulations and orders of Federal, State, County and municipal authorities pertaining to the Lease, the Project and Lessee's improvements and operations thereon. With respect to the provision or delivery of health care at the Project, Lessee and/or its agents or contractors shall complywith all applicable laws, including the Health lnsurance Portability and Accountability Act ("HlPAA") and regulations protecting the confidentiality of patients' records, the Medicare Ethics in Patient Referrals law ("Stark "anti-kickback" law), and all pertinent IRS requirements, including the requirement of "fair market value" for all business transactions with health care providers or others with respect to the Project. 27 .2 Lessee shall pay all costs, expenses, fines, penalties and/or damages which may be 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. 27.3 Lessee covenants and agrees that there will be no discrimination as to race, color, religion, sex, intersexuality, gender identity, sexualorientation, marital and familialstatus, age, disability, creed or national origin in its use of the Project. ARTICLE XXVIII. SURRENDER OF THE PREMISES 28.1 The Lessee shall, on or before the last day of the term herein demised, or the 56 60 sooner termination thereof, peaceably and quietly leave, surrender and yield upon to the Lessor the Project, together with any and all equipment, fixtures, furnishings, appliances or other personal property located at or on the Project and used by Lessee in the maintenance, management or operation of the Project, excluding any trade fixtures or personal property which can be removed without material injury to the Project, free of all liens, claims and encumbrances and rights of others and broom-clean, togetherwith allstructuralchanges, alterations, additions, and improvements which may have been made upon the Project, in good order, condition and repair, reasonable wearand tearexcepted, subject, however, to the subsequent provisions of this Article. Any property which pursuant to the provisions of this Article is removable by Lessee on or at the Project upon the termination of this Lease and is not so removed may, at the option of the Lessor, be deemed abandoned by the Lessee, and either may be retained by the Lessor as its property or may be removed and disposed of by Lessor at the sole cost of the Lessee in such manner as the Lessor may see fit. lf the Project and personal property are not surrendered at the end of the term as provided in this Article XXV|ll, the Lessee shall make good to the 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 sunender the Project as and when herein required. 28.2 The Lessee covenants and agrees that it will not enter into any subleases, subtenancies, licenses or concession agreements relating to the Project for a period of time beyond the stated expiration date of this Lease. ARTICLE XXIX. FORCE MAJEURE 29J Either party hereto shall be excused from performing any of its respective obligations or undertakings provided in this Lease, except as provided in Article XXVII hereof, "Surrender of the Premises," and excepting any of its respective obligations or undertakings to pay any sums of money under the applicable provisions hereof, for so long as the performance of such obligations are prevented or delayed, retarded or hindered (plus such additional time mutually consented to 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, 57 61 insurrection, riot, mob violence, sabotage, malicious mischief, inability to produce or general shortage of labor, equipment, facilities, materials or supplies in the open market, failure of transportation, strikes, lockouts, action of labor unions, condemnation, public requisition, laws, order of government or any other cause, whether similar or dissimilar to the foregoing, not within the reasonable control of the respective party if such party hereto gives notice of such delay to the other party within twenty (20) days of the occurrence of such event. ARTICLE XXX SIGNAGE/NAMING RIGHTS lnterior/Exterior Signage/Sponsorship: All signage and sponsorships, shall be subject to approval by the City, including, without limitation, the names affixed thereon and any sponsorship names. Lessee shall have the right to erect interior and exterior signage and secure sponsorships in connection therewith, subject to approval by the City, as required by the City's Naming Ordinance, as codified in Chapter 82, Article Vl, Sections 82-501 through 82-505 of the City Code, as shall be amended from time to time. Any interior temporary signage, i.e. banners, shall be subject to the prior written approval of the City Manager. Lessee shall be entitled to keep all naming rights revenues derived from any approved signage or sponsorships; provided Lessee dedicates and utilizes such revenues exclusively for the maintenance, management and/or operation of the Wellness Center. ln no event may any approved interior or exterior signage include the names of any company selling the following types of products ("Prohibited Names"): firearms, alcohol, tobacco products, sexual products. Additionally, the permissible content of any advertisements shall not be of a sexually offensive nature; promote unlaMul or illegal goods, services or activities; contain images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation; or contain non-alcoholic brands that are competitive to Coca-Cola, so long as the City's exclusive non-alcoholic beverage partnership with Coca-Cola is valid and in force. ARTICLE XXXI. MISCELLANEOUS PROVISIONS 31.1 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 62 Lessee shall, at the option of the Lessor, run concurrently and not successively. 31.2 All arrearages in the payment of rent shall bear interest at the rate of ten percent (19yo) per annum from the date when they became due and payable hereunder until the date when they are actually paid. 31.3 Although this is a long-term Lease, the relationship between the parties is that of landlord and tenant, and all statutory provisions in the State of Florida regulating the relationship of landlord and tenant, respecting the collection of rent and other charges, or the repossession of the Leased Premises, shall accrue to the Lessor hereunder. 31"4 ln the event of a breach or threatened breach by the Lessee of any of the agreements, conditions, covenants or terms hereof, the Lessor shall have the right of injunction to restrain the same, and the right to invoke any remedy allowed by law or in equity as if specific remedies, indemnity or reimbursement were not herein provided for. 31 .5 ln the event of any default on the part of the Lessee, as determined by Article XIX of this Lease (Default Clause), in the performance of or compliance with any of the terms, 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 the 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 Receiverby 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 propertywhich is subject to the Lessor's liens, or to the solvency or insolvency of the Lessee, and without reference to the commissions of waste. 31.6 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 time during the term of this Lease to give full effect to all of the terms, covenants, conditions and provisions of this Lease. 31.7 The captions of this Lease are for convenience and reference only and in no way define, limit, or describe the scope or intent of this Lease nor in any way affect this Lease. 31 .8 The index preceding this Lease, but under the same cover, is for the purpose of convenience and reference only and is not to be deemed or construed in any way as part of 59 63 this Lease, nor as supplemental thereto or amendatoryr thereof. 31.9 This Agreement shall be governed by the laws of the State of Florida regardless of the diversity of citizenship of the parties in interest or the place of execution of this Lease. 31.10 That all covenants, promises, conditions and obligations herein contained or implied by law are covenants running with the land and shall attach to and be binding upon the heirs, executors, administrators, successors, legal representatives and assigns of each of the parties to this Lease. 31.11 Time is of the essence in every particularand particularlywhere the obligation to pay money is involved. 31.12 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 Certified Mail, Return Receipt Requested, and shall be deemed given when it shall have been deposited in the United States Mails with sufficient postage prepaid 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:City Manager, City of Miami Beach, 1700 Convention Center Drive, Miami Beach, FL 33139 Gity Aftorney, City of Miami Beach, 1700 Convention Center Drive, Miami Beach, FL 33139 and with a copy to: To the Lessee: and with a copy to: Where the parties on either side, Lessor or Lessee, consist of more than one person, notice unto or default by one of the persons on that side shall constitute notice unto or default by all of the persons on that side. 31.13 lf, in connection with the enforcement of this Lease and by reason of the Lessee's failure to keep and observe all of the covenants and conditions herein contained bythe 60 64 Lessee to be kept and performed, 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. 31.14 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. 31.15 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 cause of action for money damages due to an alleged breach by the Lessor of this Agreement, so that its liability for any such breach never exceeds the sum of Ten Thousand ($1O,OOO.O0) Dollars. Lessee hereby expresses its willingness to enter into this Agreement with the Lessee's recovery from the Lessor for any damage action for breach of contract, or any other cause of action for money damages, to be limited to a maximum amount of Ten Thousand ($10,000.00) Dollars. Accordingly, and notwithstanding any other term or condition of this Agreement, Lessee hereby agrees that the Lessor shall not be liable to Lessee for damages in an amount in excess of Ten Thousand ($10,000.00) Dollars for any action or claim for breach of contract, or any other cause of action for money damages, arising out of the performance or nonperformance of any obligations imposed upon the Lessor by this Agreement. Nothing contained in this subsection or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon Lessor's liability as set forth in Florida Statutes, Section 768.28. 31 .16 lf a dispute arises out of or relates to this Lease, or the breach thereof, and if 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. 61 65 31,17 A memorandum of agreement reflecting the execution hereof, and any modifications, assignrnents ortransfers of this Lease, shall be recorded in the public records of Miami-Dade County, Florida, at Lessee's cost. THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK. 62 66 !N WITNESS WHEREOF, the Lessorand Lessee have hereunto affixed their respective hands and seals at the place, and on the day and date first hereinabove wriften. Signed, sealed and delivered in the presence of: Attest:CITY OF MIAM! BEACH Rafae! E. Granado, City Clerk Philip Levine, Mayor Witnesses:SABRINA COHEN WELLNESS CENTER PROJECT, INC. a F lorida not-for-profit corporation Signature Signature Print Name Print Name/Title Signature Print Name 63 67 STATE OF FLORTDA ) ) SS: couNTY oF MIAM|-DADE ) The foregoing instrument was acknowledged before me this day of ,2015, by Mayor Philip Levine, Mayor, and Rafael E. Granado, City Glerk, on behalf of the CITY OF MIAMI BEACH, known to me to be the persons described in and who executed the foregoing instrument, and acknowledged to and before me that they executed the instrument for the purposes therein expressed. WITNESS my hand and officia! seal, this _ day of 2015. Notary Public, State of Florida at Large Commission No.: My Commission Expires: STATE OF FLORTDA ) couNTY oF MrAM!-DADE ) ) SS: The foregoing instrument was acknowledged before me this day of 2015, by on behalf of the***, :..";:r;::l::i,;JH:";:,.;:Hffi.* to and before me that they executed the instrument for the purposes therein expressed. WITNESS my hand and officialseal, this _ day of 2015. Notary Public, State of Florida at Large Commission No.: My Commission Expires: F:\ATTO\TORG\Leases\SabrinaCohenFoundationWellnessCenterLease Final 12-3-2015 64 68 Exhibit "A" Site Plan of City's Property 65 69 Exhibit "B" Conceptual Plan for Wellness Genter 66 70 71 Exhibit "C" Legal Description of Leased Premises 67 72 Exhibit "D" City Vending Contracts 68 73 ,of,+fr1 ao//-;777b ' Agreement'fon Snack N/l aCIhlnes '. 1, by meffioli Trading Corp. 74 qEcTtoN 1 2. 3" 3.2 3,2.1 . 3.2.1.1 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 q, 9. .10. 10.2 10.3 ' . i o,+ : 10.5 10.6. 10.7 10.8 10.9 ' 11. INDEX TITLE PAGE 75 sEcrpN 12. 12.4 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 21.15 21,16 21.17 22. 23. TITLE PAGE Reasonab|eness.............,............27 76 CONCESSION AGREEMENT BY AND BETWEEN CITY OF MIAMI BEACH, FLORIDA, AND BETTOLI TRADING CORP. FOR OPERATION OF SNACK Ii/IACHINE CONCESSIONS AT VARIOUS LOCATIONS ON CITY OF MIAMI BEACI,I PROPERTIES PURSUANT TO REQUEST FOR PROPOSALS #44.10/11 THIS AGREEMENT made the&o aay of Nr.: , zlll.,between the CtTy OF MtAMt BEACH, a municipa! corporation of the State of Florida (hereinaftbr called "City'), having its principal address at 1700 Conveniion Center Drive, Miami Beach, Florida, iStSg, lnO BETTOLT TRADTNG CORP., a corporation established pursuant to the laws of the State of Florida, with offices at 6095 NW 167 Street, Suite D, Miami, Florida 3301S (hereinafter cal led "Cohcessiona ire"). WITNESSETH WHEREAS, on July 13,2011, the Mayor and City Commission approved the issuance of Request for Proposals (RFP) No. 44-10/1 't; 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 Comtnission 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 succeJsful 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 doncessionaire, and the Concessionaire hereby accepts from the City, the exclusive right to operate the following described concession within the Concession Locatiofts, 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. 77 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 City 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 bxercised by the City), and a "Contract Year" shall be defined as each one (1) year period during the Term, 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 Agreement, to operate snackvending machine concessions, in the locations delineated in Exhibit 2.0 herein (hereinafter referred to as the "Concession Locations"). sEcTtoN 3_usE(s). The Concessionaire is hereby authorized to conduct the following kind(s) of business(es) in the concession Locations, as provided below, allat its sole coit and'expense: 3.1 Concessionaire shall install, operate, manage, service and maintain Snack Vending Machines (as defined in Subsection 3.2.1.1 ) and Change Machines (as defined in Subsection 3.2.2.1), at the Concession Locations, which shall' . provide snack services for patrons, employees, and the general public 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 Py tne 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. 78 3.2 Scope of.Services. 3.2.1 3.2.1.1 3.2.1.2 3.2.1.3 3.2.1.4 Snack Machines. Definition. Snack Machine shall be'defined as arry and all equipment that is used to hold and dispense products to be offered for sale as provided pursuant to this Concessidn 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 ($0.25), dimes ($0.t0; and nickels ($0.0S1. Controls. Each Snack Machine must be equipped with a rron-resetting transaction counter, or 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 eduipment 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 certairr outdoor City parks arrd other venues that may be subjected to the natural 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 arty 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.. 79 ,,r.,.U 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 Concessionaire shall obtain written approval from the City Manager, or the City Manager's designee, prior to the installation, 'tiansfer or removal of any Srrack Machine. 3.2,1.5.2 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 maximurn 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 offered forsale with a "sell by" date that has expired. 3'2'1'6 2 Sffi:l y:,liilS SIli'ff,n"urd incrude hearthy snacks such as whole grain, multigrain or vegetable chips and crackers; nuts; reduced fat popcorq backed or popped chips; sugar free chewing gum; fruit trail mix; rrutrition, granola, or trail bars;fresh fruits and yogurt. The City's Par:ks and Recreation Department will review and approve any product to be sold in the Snack Machines slX",i' i JL lffi I ffi .t', iIffi il J-:lT.'#::: J if il3 Machines. 3.2.1.7 Cleanlinessln 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, alt portions of the Snack Machines, Change Machines, and Concession Locations, retrospectively, shallat alltimes be maintained in a clean and sanitary manner. 80 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 Change Machines shall be operable during the days and hours of operation set forth in Section 9 herein. Chanqe Michines. 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 ($5.001, and ten dollar ($10.00) denominations, and will provide change in United State coins in one dollar ($1.00), quarters ($0.2S1, dirnes ($0.t0; and nickels ($0.05). 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 shall be 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 obtairl wr:itten 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 Chanoe Machines. The condition and quality of Concessionaire's Snack Machines shall'at alltimes 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. 81 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: 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 tirne to thoroughly and appropriately clean each Machine as it is replenished, maintained and/or serviced. This includes cleaning with a sanitizing solution, the interiorand exteriorof each Machine, each time that Machines are re-stocked, seryiced, or maintained All 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 fonruarded to the City, along with the monthly report (see Section 5) that shall be provided to the 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 arry equipment that is not immediately repairable, within two (2) business days, if found to be inoperable. Concessionaire shall post and rrraintair,r Concessionaire's information, includirrg a contact name and toll free customer service telephone nurnber, immediately adjacent to the coin slot, of a size no less than 4" x 6", on each Sndck Machine and Change Machine, to facilitate responding to refunding, re- stocting, maintenance, and repair related problems that may arise. Concessionaire shall maintain an inventory of all Snack Machines and Change Machines, with corresponding identification irtformation. 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 82 3.2.4 3.2.4.1 3.2,4.2 3.2.5 3.2.5.1 Refund Procedure. ' ln addition to any other remuneration provided herein, Concessionaire shall provide two "banks," each of one hundred dollar:s ($100.00) in cash, to the City. One shall be held by the City Finance Department's City Hall Cashier, and the other shall be held by the Parks Department Administrative Otfice, located at the 21'r Street Recreation Center, 2100 Washington AventJe, for the purpose of distributing refunds due to any malfunction of the Snack Mdchines. An individual iternized refund list, including the amounts and names of the persons the funds were refunded to, will be maintained by the City Hall Cashier and by the Parks Department, respectively, and will be submitted to the Concessionaire u.pon requested replenishment of the "bank" funds by the Ci$. Malfunctions of Snack Machines that are, reported to the Concessionaire shall be forwarded to the City, in writing, including the amounts and names of the persons the funds were !'efunded to, on a monthly basis, along with (and at the . same time) all other reportin$ documents required under this Agreement Pricing and AvFilabilitv of Services. lnitial prices for Snack Machine pioducts shall be in accordance with the attached schbdule 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. 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 Managei or his designee's satisfaction that the commercial demand does not exist for the additional locations and/or products, the Cortcessionaire 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 83 3,2.6 3.2.7 3.2.8 Ithat all or a portion. of Concessionaire's proposed IServices, pursuantto Subsection 3.1 (and as delineated in Subsection 3.2) are no longer desired, then the City rnay revoke Concessionaire's rightto provide all ora portion bf said services, and terminate all or a portion of this Agreement, without cause, and without liability to the City, upon sixty (60) days written notice to Concessioriaire.' Concess ionai re' s S upervisorv/Manager,ne nt Employee. On or before the Commencement Datb of this Agreement Concessionaire shall designate (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 qursuant to this Agreement. Concessionaire's supervisory/management employee shall be available via telephone, at all tirnes during which the snack Machines at all Concession Locations are operating, as provided in Section g herein. Removal of Snack Machines and/or. Change 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 conrpliance with the applicable section(s) as set forth herein, and without riabirity to the City. Hurricane Eyacuation Plan. Concessionaire agrees that upon the issuance df a HurricaneWarning by the Miami-Dade County Office of Emergency Management, it shall ensure that all exterior snack Machinei and Change Machines, and any and all other items used in the concession operations shall be secured. Additionally, and notwithstanding the foregoing, concessionaire agrees thit 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 Machirres 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. 10 84 3.2.9 Concessionaire's failure to remove Snack Machines, Change Machines, or any and all other items 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 Gity may, upon written notice to Concess ionai re, immed iately termi rtate this Agreement. Citv Business Tax Rgceipts. 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 law, as amended from time to time, for its proposed uses, as cohtemplated in Section 3 of this Agreernent, For purposes of this Agreement, Concessionaire sha ll obtain the appl icable "Coin Vend ing Distributor" and/or "25 Cents and Over Machine" category City Business Tax Receipts. 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 Guar@lee (MG). ln consideration of the City executing this Agreembnt and granting the rights provided in this Agreement, commencing, May 1, 2012, and thereafter on May 1ttof 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 (3%;. "gt," shall mean that consumer price 3,x?J"?J;:il'#1,:lJl;;?ilfi il,:'":;i:I,:J:H'lH"?"'x.""',,i1"",1 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 11 85 4.2.2 4,2.3 ; l' 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 shall be increased annually in the event the number of Snack Machines is increased pursuant to Subsection 3.2.1.S.2. of this Agreement. The MG shall be increabed based orl 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,O()O ANNUALLY. Percentaqe of Gross Metered Receiots (PGMR) Dur:ing the Term of this Agreement, in the event that the amount equalto twenty percent (20Yo) of concessionaire's annual Gross Metered Receipts (PGMR) exceeds the Miniinum Guarantee (MG) provided in Section 4.2 above (as increased annually pursuant to Subseclion 4.2.1.), then the concessionaire shall also pay to the city within thirty (30) days of the anniversary of this Agreement, the difference between the amount of the PGMR and the MG amount, each year during the Terrn 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 coflected or accrued, derived by the concessionaire under the privileges granted by this Agreement, Any amdunts that may be due for any Federat, 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 authoiity, shall be the sole responsibility of C.oncessionaire. I ntentiorral ly Om itted. lnterest for Late Pavrnent. Any payment which concessionaire is required to make to city which is not 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 fonruarded to the City as part of said payments. lt is the city's intent that it is to receive alr paymenis due 4.3 4.4 4.5 4.6 12 86 from Concessionaire as net of such Florida State Sales and.Use Tax. 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 systenl of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to inspection and audit, 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 bd required by an independent CPA in orderto audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. A monthly report of gross metered receipts, as wetl 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 recelved no later than thirty (30) days after the close of each month. sEqTroN 6. INSPECTTON AND AUptT. 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 dnd available to the City Manageror his designee, as they may deem necessary. Concessionaire shall maihtain all 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 Mqnager 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 Ter:m ' of this Agreement, and three (3) times within the three (3) year period following terrrrination 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 Concessionairg'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 fina! 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. 13 87 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 renewal term), Concessionaire ahd City rnay meet to review Concessionaire's performance under the Agreement. At the meeting, Concessionaire and City may discuss quality, operational, maihtenance ahd any other issues regarding concessionaire's performance under the Agreement. SECTTON 7. TMES. ASSESSMENTS. AND UTtLIT|ES: 7.1 Concessionaire agrees to and shall pay before delinquency all taxes (including but not limited to resort taxes) and assessments of any kirrd assessed or levied upon Concessionaire by reason of this Agreement or by reason of the business or other activities and operations of Concessionaire uporl 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 anOlor assesiment Uy appropriate proceedings diligently conducted in good faith. Concessionaire may refrain frorrr 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, additional delinquency 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 Utilitigl 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 Sndck Machines under this Concession Agreement. lf. not currently existirtg, requests for installation of new and/or additional outlets shall be submitted in writing to the City Manager or his/her designee,fdr review and approval. lf approved by the City Manager or nislher designee, installation of new and/or additionally outlets will be performed by the City and/ot-an electrical contractor approved by the City, in writing, toperform said work on the City's behalf, at Concessionaire's sole costind expense. 7,3 ' Procedure lf Ad Valorem faxes Assessed. Notwithstanding Subsection 7.1 herein, the parties contemplate that the concession uses and operations contemplated underthis Agreement are for 14 88 public purposes and, therefore, no ad valorem taxes should be assessed by the Miami-Dade County Tax Appraiser as a result of such operations. lf,. however, said taxes are assessed, Concessionaire snait be solely responsible for payment of same, in the same manner as taxes {ue pursuant to Subsection 7.1 herein. SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS. '8.1 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. Addiiionally, Concessionaire's vendors (i.e. entities who provide producti and/or Snaif 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 revlse the terms and conditions'relating to its employees and/or independent contractors. 8.2 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, well gioomed and shall comport. 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 th; City may default Concessionaire pursuant to Section 13 herein, 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 Minager or his designee. 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 removar of ritter, garbage and debris, said removal to bb 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 operatiorts. 15 89 10.2 10.3 10.4 10.5 10.6 10.6.1 10.6.2 I ntentionally Omitted. lntentionally Omitted. I ntentionally Omitted. Qrderlv 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 allsnack.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 Danqerous Materials. The concessionaire agrees not to use or permit in the concessiorr' Locations the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, cornbustible powered erectricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible rnaterials, or explosives of any kind, or any substance or thing prohibited in the standard poticies of fire insurance companies in the state of Frorida. Any such substancesor materials found being used within or in the vicinity of the Concession Locations shall be immediately removed andlshall be considered cause for default and/or termination. Notwithstanding any contrary provisions of this Agreement, concessionaire, afterthe commencement Date, shalt indehnify and hold City harmless from any loss, damage, cost, or expefise of tne city, including, without limitation, reasonable altorney's fees, incurred as a result of, arising from, or connected with the placernent by Concessionaire, and/or its employees, vendors, agents and/or subcontractors, afterthe commencement Date, but during the term of this Agreement, of any hazardous substdnce or petroleum products on, under, in, upon, or in the vicinity of the concession Locations as those terms are defined by applicable Federarand state statute, or any environmenta! rules and environmental regulations promulgated thereunder; provided, however, concessionaire shalt have no li;bility in the event of the willful misconduct or gross negligence of the city, its agents, servants or employees. The frovisions of this Subsection 10.6 shall survive the termination or. earlier expiration of this Agreement. 10.6.3 16 90 '10,7 10.8 10.9 Security. The Concessionaire shall be responsible for and provide reasonable security measures which ntay be required to protect the Snack Machines and change Machines at all concession Locations, Under no circumstances shall the city be responsible for any stolen or damaged goods, materials and/or other equipment, including but not limited to the snack Machines and . change Machines, nor shall city be responsible for any stolen or damaged personat 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 dpplicable law. lnsoection. Thteoncessionaire 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 officer, 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 theirduties 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 lnsurance 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. 17 91 Bodily lnjury $1,000,000 per person Bodily lnjury $1,000,000 per accident Property Damage $1,OOO,OOO per accident Failure"to procure or rnaintain the required insurance program shall, at the City's discretion, either (i) constitute an automatic default of the Concession Agreement under which the Gity may, upon wriften 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 least 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, Concessionaire 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, rnaintain 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 ins0rance, and any sums expended by City in obtaining said insurance, shallbe 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 (12Vo) until paid, or, at its option, the City may declare the Agreement in defdult 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 shallfile and maintain certificates of all insurance policies with the City's Risk Managemerrt Departrnent 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 tenaneies of Concessionaire outside this Agreement, Concessionaire shall give City prompt written notice of any incident, occurrence, claim settlement or judgrnent 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 bther insurance protection for such aggregate limits. SECTION 12. INDEMNITY, ln consideration of a separate and specific consideration of $10.00 and other12.1 18 92 12.2 12.3 12.4 12.5 12.6 12.7 good and valuable consideration the receipt and sufficierrcy of which are hereby acknowledged, concessionaire shall indemnify, hold harmress 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, In addition, in consideration of a separate and specific consideration of $10.00 and other good and valuable consideration 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 rnisconduct of concessionaire, and/or its vendors, agents, servants, employees and/or subcontractors a nd/or su bconcessiona ires, not included in the paragraph in the subsection above and forwhich the cih7, its agents, servants or employees are alleged to be liable. Subsection s 12.1 and 12.2shall survive the termination or expiration of this Agreement Subrooation. The terms of insurance policies referred to in section 11 shall.preclude subrogation claims against concessionaire, the city and their respective officers, employees and agents Force Maieure. 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 occurring on the concession Locations during or in connectiorr 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 Goncessionaire 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.s above, and the concessionaire hereby expressly waives all rights, claims, and demands 19 93 against the City and forever releases and discharges the City of Miarni Beach, Florida, from all derhands, claims, actions and causes of action arising from any of the aforesaid causes. $EgrrgN 13. DEFAULT ANp TERMTNATION. Subsections 13.1 through 13.3 shall constitute events of default underthis Agreement. 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 Concessionbire's remedies under this Agreement, including but not limited to those setforth in Subsection 13.5 herein, 13.1 Bankruptcv. 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 arry part of the business property shall be appointed and shall not be discharged within sixty (60) days after appointrnent, or if either party shall make an assignment of its property for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, state, or otherwise, or if such petitions shall be filed against either party and shall not be dismissed within sixty (60) days after such filing, then the other party may immediately, or at any time thereafter, and without further demand or notice, terminate this Agreernent without being piejudiced as to any remedies which may be availabre to it for: breach of contract. Default in Payment. 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 fairure 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 tinte thereafter, and without further demand or notice, termirrate this Agreement withbut 13.2 13.3 94 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 lt shall, within such period, commence with due diligence and dispatch to cure such default and thereafter completes with dispatch and due diligence the curing of such default, but in no event shall such extended cure period exceed ninety (90) days from the date of written notice thereof. In the event Concessionaire cures any default pursuant to this Subsection, it shall promptly provide City with written notioe of same. 13.4 Citv's Remedies for Concessionaire's Defautt. it any of the events of default, as set fortn in this Section 13, shall occur, the City may, after notice (if required) and the expiration of cure periods (as . provided above), at its sole option and discretion, institute such proceedings as in its opinion are necessary to cure such defaults and to compensate City for damages resulting from such defaults, including but not lirnited 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 terrnination 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 set forth above, City shalt 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 13.5 b. the right to maintairt any and all actions at law 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 rtotice (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 termindtion shall become effective upon receipt of a written notice of termination by the City, but in no event shall Cqncessionaire 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. 21 95 13.6 Termination for Convenierice/PartialTermination. 13.6.1 Notwithstanding the provisions of this Section 13, this Agreement may *il:'Jl Hi:3:,1,X l'J;"" IJ il [?ili J ,. I T [,li i,fj' * ^ ?ll5i ffi ,ft :i notice to Concessionaire. 13.6.2 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. ln 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 partialty terminated 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 becorne effebtive upon thirty (30) days prior written notice to Concessionaire. I 13.6.3 Notwithstanding 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 3.2.1, which, if exercised by the Ciiy may necessitate a termination of a portion or all of the Agreement. in that event, the city shall also have no liability 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 ci$, 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 alt its snack Machines, change Machines, and any and all other equipment, fixtures, personal ploperty, etc. upon thirty (30) days written notice from the city Manager orhis designee unless a longer time period is agreed to by the city. 13.6.4 13.7', 22 96 Concessionaire's obligation to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy of the Concession Locations (or portions thereof) 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,OOO; per day' as liquidated damages for such trespass and holding over. SECTION 14" lntentionally Omitted. SECTTON 1 5. ASSTGNMENT. Concessionaire shall not assign, sublease, grant any concession or license, permitthe use of by any other person other than Concessionaire, or othenruise 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. SECTTON 17. Np |MPROPEF,USE. The Concessionaire will not use, nor sutfer or permit any person to use in any manner whatsoever, the Concession Locations, operations, or facilities for any improper, immoral or otfensive 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 contractors from and against damage, penalty, fine, judgment, expense or charge suffered, imposbd, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation oicasioned by any act, neglect or omission of ine Concessionaire, its vendors, employees, agents, and/or subcontractors regarding the Concession. ln the event of any violation by the Concessionaire, or if the Cig 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 Agreement, 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 cprrectdd to the satisfaction of the City. sEcTtoN 1q. PRtcE scHEDULES. Concessionaire agrees that prices charged fbr 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. Atl 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 97 within the Concession Locations a new updated Exhibit 3.2.5.1willbe incorporated into this . Agreement. . Shall not be arbitrarily or unreasonably exercised. The Concessionaire agrees to refriirr from the sale of any item identified as prohibited by City law and/or otheiappiicable law and to sellonly those items approved by the City. SE-CTION 19. NOTICES.. All notices from the City to the Concessionaire shall be deemed dutyserved upon receipt, if mailed by registered or certified mail with a return receipt to the Concessionaire at the following address: Mr. Maurizio L. Bettoli' BettoliTrading Corp. d/b/a'BettoliVending 6095 NW 167rh 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 followirrg addresses: : City Manager 1 7 0' ?y.i: lii3l' t?".?i| r,,," Miami tseach, FL 33139 With copies to: Office of Real Estate, Housing & Communlty Development City of Miarni Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attention:Anna parekh / Director ' The Concessionaire and the City rrray change the above mailing address at any time upon giving the other party written notification. All notices under this Concession Agreement rnust be in wr,iting. . SECTION 20. LAWS. 20J Compliance. s,x:xr nl: ;T :'1ffs1'L:l'l],x1"?: iJ':x'i? fJy;JHin;:f,:i3ru Hi 24 98 not limited to all applicable environmental city, county, state, and Federal ordinances, statutes, rules and regulations. Governinq Law. This Agrebment 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 terrrrs of this Agreement, and any applicable general or special law, sdid general or special law shalt govern, unless othenruise provided herein. Equal Employment Oppgrtunitv. Neither concessionaire nor any affiliate of 'concessionaire perforrning 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 corelative business enterprises No Discrimination. .The Concessionaire agrees that there shall be rto.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, servicp, maintenance, or operation within the Concession Locations. All concession operations and services offered shall be made available to the public, subject to the right ofthe concessionaire and the city to establish and enforce r:uleJ and regulations to provide for the. safety, orderly operation and security of the operations and the facilities. , compliance with American with Disabitities Act (ADAr and any .otherapplicable accessibility standards. concessionaire agrees and acknowledges that, if applicable, it shall comply with ADA standards, Florida Accessibility code standards,'and arry other applicable accessibility standards required by law, SECTION 21. MISCELLANEOUS. 21.1 No Partnership. Nothing contained 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 20.3 20.4 20.5 21.2 25 99 21.3 21.4 21.5 21.6 21.7 21.8 modification to this Agreement may be agreed to by the 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. Complete Aoreement. This Agreement, together with all exhibits incorporated hereto, constitutes all the understandings and agreements of whatsoever nature or kind existirtg between the parties with respect to Concessionaire's operations, as contemplated herein. Headinos. The section, subsectiort and paragraph headings contained herein are for convenience of reference Only and are not intended to define, lirnit, or describe the scope or intent of.any provision of this Agreement, Binding 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 SeverabilitlL 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 shallbecome a violation of any local, state, or Federat 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 Entry. The city, at the direction of the city Manager or his designee, shall at all times during days and hours of operation, have the r:ight 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 26 100 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 lohg as this Agreement rertrairrs in etfect. Siqnaoe. 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, andshall be in accordance with all applicable Municipal, county, state and Federal lawsand 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 sarne. I ntentionally Om itted. Conflict of lnterest. Concessionaire shall perform its services under this Agreement and conduct the concession operations contemplated herein, in a rrranner so as to show no preference for other concession operations/facilities owned, operated, managed, or otherwise controlled by concessionaire with regaid to its responsibilities pursuant to this Concession Agreement I ntentionally Om itted. lntentionally Omitted. No Waiver. No waiver of any covenant or oondition of this Agreement by either party shall be deemed to imply dr 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 Beneficiary. Nothing in this Agreernent 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. Attorneys'Fees. lf it becomes necessary for City or Concessionaire to enforce their respective rights under this Agreement or any' part hereof through litigatiorr, concessionaire and City agree that the prevailing party shall be entitleu to recover from the other party all costs and expenses of such litigation, 27 101 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 br:each 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 $10,000.00, for any action for breach of contract arising out of the performance or non- performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be i waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 68.28" SECTION 23. VENUE. : This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all tie ter,ms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade courtty, Florida. clTY AND coNcEsstoNAtRE HEREBY KNowlNGLy AND ]NTENTIONALLY WAIVE THE RTGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT GITY AND CONCESSTONAIRE MAY HEREIN AFTER TNSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE GONCESS]ON LOCATIONS" [The remainder of this page has been left intentionally blank] 28 102 lN WITNESS WHEREOF, the parties hereto have caused their names to be sigrred and their seals to.be affixed, all as of the day and year first above written, indicating their agreement /h *alc tt I upStrs Print Name Print Name fmXCOt$lLLWCON\$ALL\ASSETVENDING\Bettoli V€nding Contract (For Form Approvat 4-6-12).doc Signature r, l-l*u.iuio BdT"lr APPROVEDASTO.FOBM & IANGUAGE *# &"^M*# CITY OF MIAMI BEACH, FLORIDA LI TRADING CORP. 103 EXHIBIT 2.0 (PAGE I OF 2) 6(9 oo m 6 ro(9 oo N G(, oo E N o E+o 5o(, oU6 @ 19 6! ! oo- =o I o c .G .C 0, otd =oE U o ooo @ @(, otr6 o .U oL Tao0@.E E o ooo I o 3 .9E d co 6 oo o&EIooco Eo tnol-3P.(J :ls-+JV) 1-)o vl OJc EU ro NdoN c.l 104 EXHIBIT 2.0 (PAGE 2 OF 2) ooo|n00Hmr)vlc0l(9l EI ooooooul r.. n ut:l 4.id bl w'! .^ >tol!rl oc3E Ec6.LEEE;990s.=>EE e.E o .:- FLE:OLa.e OE+s5s>E=igf -9o o ruf,c0 E E' C' oo,a CL o 0, Lomo ou o E! .E Eo ,6 og (, ll €E (, E 0ru co N:t, Ef .E .s otF Coji (oor_Uo E, cU ail rg o_ oom<)\ ooo) oo(ott aorn ao an orn4 r,lH oro(r.} ora(n $ otn(o Fl {r} N 6l N N N N 6H Fl'\t o oa o a6 o o on a{4 a oo(o 1f, o o o J O O o o o (\ n f.lltr oom om<,, ccn oU}rn v) orn o oorn q t/l oo d otno- (f){/} H o d H o F.r{r''l rnr.t{r} ooro oofo6 ooq d 14 oom orort otnr{ o rr1rlr/} oom od mtr ooo 00{/} H N r{c'til oor{ oo+a or cE E oz o UUt fo OJ ocrh Eoz co OIs.c G 3 ad dN c .q o0 oe. od & o6- 0) c 0,I .c. ao 3o od oU uc 6J oIJ o co(J 3 fo 3o oe oo GC oCc l 66- ,oo .E EG v NL 3 o EcG G o lt = oToF 105 EXHIBIT 3.2.1,4 (PAoE 1 0r 3) Measure your ccrnrnute to ccnvenience store in steps, r./ i r,( Y:,'//{3-N W ,J 106 ,i* BW [$E *$ bws:l4- o),*s'" --1,"' C ..,.-*" O $i".! "tu F.t\a' J i ii '- OL ettt,Y)'-f- L- ()L,,,ii{ # A., l-r.- t$,o itrf xlw9.g? .0 $ -{,a c-l co t-- co ><lll ',iftrwsffi oihtSffiii 3.['6'l:.:" $..i'.t- tu_n ''",.t*',;i O ;i.,,! 107 . .',1' 1l:': ; lidr,llrd r.1.lir '. r'n:,, *,'-,i 1l:ri:) a 108 EXHtBtT 9.2.5.1 s / Crackers Candy / Chocolate / Pastries tOO% Milk / 8oz too% Milk I 76oz lce' Crea m lce Cream Premium Health Snacks Health Snacks Premium Refriserated food items small Refrigerated food items larse ,w) 109 EXHIBIT 5.0 BETTOLIVENDING 6095 N"W. 167TH STREET SUITE D.5 HIALEAH, F1.33015 TEL 305-626 -0740 FAX 30s-623-0108 Full Line Vending Snack, Soda, Juiie, Food, Coffee, Water, OKEETtsELEEM.S. 22OO PINETIURSTDR. Greenacres, FL.33413 Customer: Address Total Sales Total Commissions Due 110 t/rt/rr 2 otl: elaof i t, IMarch 1.4,20'1,? Mayor Matti. Horrera Bower Mayor of City of Miarni Beach 1700 Convention Center Drlve Miami Beach, FL 33138 Deu.Mayoi: . lhis lgttq confiirns the agreement made by and anlong the City of Miami Beach, Florida (,,City,,), .Cboa-Cola Refreshmentq IISA, Inc. d/b/a Florida Coca-Cola Bottling Compan/ ("Bottlep') and Coca-Coia nirth , ,dmericq a division of The Cooa-Cola Company ("Company', and collectivety with Bottier, ,,Sponsot',), which sets forth certain exclusive rights granted to Bottlor by City, as set forth in the Terrn Sheet and E-xhibits attashed ,lhgreto, all of which are attached hereto as .A.ttachment 4. I.. Term-Sheqt'andDeflnitiveAgreeinenl The Term Sheet and Exhibits attached thereto are hereby incorporated hirein in their entirety. This letter arid the Term Shee!'togethet with any other attachments referenced in either, will constitut" a fegaiiy binding 6greement (]hg '{qreryenf') when this letter is signed by all pagies in the spaces provided below. Itt eapitalizeO t-erms not defined in this letter shall have the meanings assigned to them in the Term Sheet. fiis letter;hsll prevail in1he event of any.conflict between the provisions of this letter and the Term sheet..n 2. Ad.vertipirsgRights (a) City 4grges thaf Bottler'S advertising shall be positioned at all times in such a manner that the advertising message is'in no wby obscured (electroniJally or otherwise) and is clearly visible to the general publio. The Products shall be p_rominently listed on any menu boards locued at the Facil.ities and all Equiplnent (as srrctrtirm is defined herein) d,ispensing Products shali be prominently identi{ied with the appropriate trademarks/logos. (b) City further agrees that all Products will be dispensed in Sponsor's Equipment and that no other trademarked, equipmentn ooolers or containers will be perrnitted. 3: Product,&iehts ' (a) City shall punchase or shall oause its Concessionaires to purohase, all Products, (and cups, lids and.carbon dioxide, ifapplioable) directty frorp Bottler. (b) City hereby grants'to Bottler the exclusive Beverage rights at the Facilities, exc6pt as may be otherwise provided for in this Agreemeht and Exhibits. ' (c) If City contracts a concessionaire, City *n, "uur" concessionaire to purcha.se from Bottler all requirements for Beverages (and cups, lids and carbon dioxide, if applicable). SUoh purchases will bo made at prioes and on terms set forth ln Bottler's existing agreement with concessionaifo, if any. . If no agieement 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 (including pricing) to City or concessionaire if concessionaire has an existing agreement with Bottler. I 111 t4. Eouinment and Service Il't' '. i . the Term Sheet. 'Prior to Bottler's instaliation oiBottter,s Equipment ai apartioular Facility, the City shall provide'Bottler with wrifien confirmation that it has condueted an insniction of the electricrl *"*in" it srnh E'qnilttv anrl' ':ha1,.P.ased onsuch inspectiorl the City finds that the electrical ,.*i." at the Facility is propor and adequate for, 'inslnlletion nfElnlflertqF.ntri.nrnant N^frrrilhc+ohzlina+lranraa-,lir^ if ^+--,,]:-^r-l:-.!-i;1-,---', 1---a-t .. i Bottler's Equipment at a Facility, Bottler's Equipment is damaged as the direcl result of dJfective electrical sorvice at the Facility, then the City.will reimburse,Bottler for the cost of repair or replacement, as the case may be, ofBottler's Equipment, pursuant to the filing of a clairn with the City,s selGinsurance fund. Notwithstanding:the preceding, th: glty. shall not be responsible nor liable to Bottler undei this subseition'for any daniages to notiler,s' Equipment which is not caused as a direct result of defective blectrical. service u a Facility (incl-ud,ing without liqitatioir, any darnagc to Bottier's Equipment whichis caused due to the negligence or misconduct of Bottler,s . employees, conbactors, and/or a$ents, or from any other cause or act other than faulty electrical service). (b) ' Founleir-r.E-suiomqnt an$ Serv,icg: During the Term, Company will loan to Cit51, purcuant to the . terms of Company's equipment placement agreement, at no cost, that Fountain Beverage dispensing equipment'reasonably required and as mutually agreed upon to dispense a quality fountain Beverages at the Facilities('sountairi Equipment')(collectively, Bouler Equipment and Fountain Equipment are called ;g;"fpi."fl.")..i" 'ioe rnakers or water filters will be provided. All Fountaid Equipment provided by Company witt at all'times' 'remain the property of company and is subject company's equipment agreement, but qct iease payment will bc.charged. To the extent that Eountain Equipment loaned ftorn Company under this Agreemeni is located at Facilities that are owned, controlled or managed by a concgssionaire of -ity or other p.iro* not pafly to this |greemenl, City will include provisions in its agreembnts with suoh concessionaires that recognize that the. 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 rmechanical"puio ,uurorably needed for Fountain .' Equipnrent. Any removai, rerirodel, relooatlon or reinstallation of dispensing "quiti*int, navor cnanges, siuhmeiize/winterize, Iine changes, or servioe nicessitated by damage or adjustments io ttre equipment resullng '.'ftom. misu$e, abuse, failure to follow operating instructions,.service by unauthorized personnel,. unneoessary calli'(equipment.was not plugged in, CO2 or fountain synrp coritainer was empty), or criils that are notthe reiult of mechanica^l failure (coliectively "special Servioe Calls'), are not consiieieA regular service and will not U"provided free of oharge, Charges for Special Service Calls will be charged at bompany's (or Bottler,s) then; ounrent rate and will be 'invoiced'on a semi-annual basis. Charges will include labor, travel time, parti, an{ adrninistrative costs. 5.' , ' Qompetitive Pro..duots ho-hibitej. :" ' ' . (") City'-agrees that it will not linowingly permit any Competitive 'Products to be sotd, dishibuted, served; sempled, rnarketed, advertised" or promoted in any manner at the Facilities, or in association with City,.ttri Facitities or the City trademarks, during the Term, excepi as outlined in this Agreement. .. - (b). frtl'aSrees that City will not grant any rights,. or enter into any contractual'or other retationship, . ',wherely City, the Facilitjes, and/or the City trademarks will'be, or have the potential to be, associaled in any manner, with imy Qompetitive Products, except as outlined in this Agreement and flre Term Sheet. :'(a) ' Bottler Eduipment and Service: During the Term, Bottler will loan to City, pu$uant to the terms of Bottler's eouipment placrment agreements,'at no cost, that Beverage vending equipment reasonabty .iquirJ *J * mutually agreed upon to dispense.Froducts at the Facilities ("Bottler Equipment")- In addition, Botler'will provide. at no charge regular mechanioal repair reqsonably noeded for Bottler Equipmentn as further outlined in exhibit Z to' t ottler wttn wrltt€n contirmation that it has condueted an..inspeotion of &e electrical seryico at sugh Facility and that,.b.ased ol3iclr inspectiorl the City finds that the electrical service at the Facility ir p.opor and adequate for instal,lation of Bottlen'.s Equipment. Notwithstanding the preceding, if at any time foltowing Aottt.r,r installation of I :, ) ! 112 :'I ,: (c) lf City learns of aw C_ornpetitive Products being marketed, advertised, or promoted ir,r any manner . which implies an association with City, Facilities or City iradernarks (hereinafter refened to as "Ambush'. Marketing"), Ci{y will promptly notiry Bofilor in writing of the Ambush Marketing; an4also will primptly use its efforts, and cooperate in good faith with Bottler, to prever.rt or stop such Ambush Marketing in order to pi6t.citt. exclusive associational rights granted to Bottler under this Agreement. ..(d) Spqqial PromotionelEvenls Exc_eption. See Exhibit g. ,. grv LA-.vrt 9. ' (e) . The City will provide Bottler with no'less than thirty(30) cdlendar days prior written 4otice of each e've.nt.which it iirtends to designate as a Speciirl.prombtional Event. (D The private, personal consumption of Competitive Products by athletes, coaching staff, musicjans, acto-rs, comedians, or_other entertainment personalities appearing and performing at the fo'acility iJ afloweO and wili not be. considered a Special Promotional Event. City shall use effortslto onsure suoh oonsumption is lirnited to private areas and may not be permitled in any area of the Faoility to which the public o. any.member of the print or. eleetronic meilia has legal access, G) hoduct availability at Facilities for privato events. A private event dt a Faeility shall mean the use' of a.Facility, either through the rental' of the Facility or though the issuance of a City-dppioved Special Eventppr-rnlt, by a persori(s) or business entity (ies) (i,e. such as a corporation) which is not open or acceisible to the" generil public either fiee or via a purchased ticket. For example purpos"r only, private events mgy include, but not be limited, -to the foliowing: weddings, bar mitzvatr/bat miizvatr anO corporate events. produci avaUauilitv anJpxolusivity at privato events shall be haridled as follows: Only Produots will be. sold, distributed, sampied or" otherwise served at Facilities at any time. Notwithstanding the ,foregoing, Competitive Products may be disiributea' at'nb oosl by the user of the Facility for private events, proi,ided that Products will continue to be th; only iroducts' sold, distributed, iampled, or otherwise served by Facilities concession operations. (h) Product availability at Facilities as it relates to charitable oVents (including, events produced by' not-fot-profit entities with valid tax exemption from the IRS) at Faoilities or at City-Pennittei Special -events (e.g,' Relay for Life, Aids Walk, American Cancer Society), shall be handled as followi: Only produots will be soii, . . " distribulea; $Plld or otherwise served.at Facilities at any time. Notwithstandin! the foregoing, Competitive ; Plgdu9ts,may be.distribute.d al no cost by the charitable'organization using the Facility proviaeJthat pioducts will conrinue to be the only Products sold, distributed; sArnpled, or otherwise served by Facilities consession .operationsandthdtBottlerhadopportunitytosupplyProductsforthecharitableeventanddeclined. ' (a) Pricing, Pricing (inciuding price inireases) will be implemented as outlined in the Term Sheet. rtiaders in select Beverage dlspensers, which are idintified as high trailic locations. Bottler will pay for the credit card roaders in an.aggregate amount of not to exqeed Ten Thousand Dollars ($10,000). ttrii funding will be ""ury:d ovel the_Term of.the Agreernent. City shall have no responsibility to fund'any overage for payment of the credit card readers should they exoeed Tsn Thousand Dollars ($10,000). Bottler shall bi rosponsible for atl. 'rnaintenance and repair of the credit card readers. Upon.termination or expiration of the Agreemeng City shall. ' return all credit card readers to Bottler. 7, Trademarks: Aoprovals . ' :(a) . ' City acknowle{ges that The Coca-Cola Company is the owner of alt dght and title in the trademarki "Coe,a-; Qola", "Diet Coke", "Sprite";."DASANl", "Minute Maid", "POWER{DE", "Faniar' ,,vltamlnwater" .,Fult Throttle", 'NoS!, and oxher iladernarls pf The Coca4ola Company, ar.rd it aoquires no rights whatsoever in these trademarks. 113 by virtue of this Agreement. City agrees to submit all proposed uses of The Coca-Cola Company m*fs 1o Sponsor. . for approval prior to use, but such approval shall not be unreasonably withheld. ,. (b) Bottler acknowledges that City is the owner of all right rind title in the service mark.,MiamiBeach- and that '' Bottler acquires no rights whatsQevqr in the service mark by virtue of this Agreement. Bouler shall have the right to ,- 'usb the city's service mark during the Term in connection with its martJting activities at the Facilities. Bottler - egrees to subnit all proposed risds of City's servicc marks to City for approval -prior to,use, but such apprqvat shall ., .not be unreasonably withheld: ' 8. Termination '' , (a) Notwithstandi4g the other provisions of this Agreement, if any federal, state or losal law, 6e, .regulation or_order prohibits, restricts or in any manner interfei.es with the sale or advertising of gilrugo ei;y:time iluring the Tep of this Agreernent, and the City fails to ctue such,breach within thirt| (ro) days-followm! written notice of same from tsottler theq at its option, Bottler may terminate this Agreefient and iity rt uU 1ij' return any Equipment, Td (ii) pay to Bottlet the uneamed portion of pre-paid Sponsorstrip Fees for the egreement Year in whioh thp termination occurs (pro-rated through thcdate of termination), if any, as well as any othe; upfront flmding deeped eamed over the T6rm; if any, prorated through the date of tegnination: (b) City represents and wanants that it has full right and authority to enter i4tp this Agreement and to . grant and. conyey to Bottler the riglrts set forth herein. ln the event of expiration or revooation of suc-h authority, and.' if the City fails. tb cufe sush breach within ihirty (30) days following revocation of full riglrt and authority, then at its ,option, Bottler may terminate this Agreement, and City shall (i) retum any Equipmqnt; and (ii) pay to Bottler the Ynearned.p0r.tion of pre-paid Sponsorship Fees for the Agreement Year in which the termination-oocurs (pro-rated through'the date of termination), if any, as well as any other upfront funding deemed earned over the Term, if any,prg*ated throygh the date of termination,. (c) If Bottler breaches any of its material obligations under this Agrrement, and fails to cure such freach within thirty (30) days following written notice of same from lhe citg then Clty may terminate this Agreement and Bottler shall remove al.l Equipment from thc Faoilities, arid the City shall bi entiited to retain the eamed potlion of any pre'paid Sponsorship Fees for the Agreement Year in whioh the tennination ooours (pro-ratod ttrrough the date of termination),if any; other upfront funding tleemed earned over the Term, ii any, prorateO tt oough the date of termination; and any fees or payments due for the Agreement year in which the termination o.rur., soih ,as commission fees, if any. (d) Notwithstanding the above, nolhingin this section shall operate to restrict any other remedies that elther party may have against the other in the event of a material breach by a defaulting party. 9. Insuranco' Thb.Bottler acknowle{ges thatthe City is self-insured, as provided in Attachment B to this Agreement. Bottler shall, at its sole cost and expense, obtain, provide and maintain, during the Term; the following types and.'amounts of insuiance, which shall be maintained with insurers lioensed to sell insurance inthe StatJoiFlorida' and have aB+ VI or higher rating in the tatest edition of AM Best's Insurance Guide: l) Commercial Generat Liability. A poticy inoluding, but not limited to, oommercial general liabiiity, including bodily injury, personal injury, property damage, in the amount of $1,000,00dper oocu.n"nc". Coverageshall be provided on an occfiTence basis.. '4 114 2)Workers' Compensation per the statutory limits of the State of Florida and Employir's Liabilit/ lnsurance" 3) Automobile Liability - $1,000,000 combined siirgle limit for all owned/non-owhed/hlred automobiles. Saiil policies of insurnnce-shall be primary for Sponsor/Bottler's'negligerlce only. to and con6ibuting with any other insurance maintained by Bottler or City, and att shall name City of Miami beach, Florida as an additional 'insured on the cornmercial qeneral liability. and automobile liability poficies. Sponsor shall provide thirty (30) days written notice to City prior to policy cancellation. t Bdttler shall filc and maintain certificates of the above insurance policies 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 sont by rogistered mail or by an ovem[ght courier sewice (such as Federa] Express) that provides-a confirming reoeipi. ,A=copy of the notice must be sent by fax when the notice is sent by mail or courier. Notice is considered dul'y given wiren it isproperly addressed and deposited (postage prepaid) in the mail or delivered to the courier. Unless otherwise designated by the parties, notice must be sert to the following addresses: (A). Notice to Sponsor. coca-cola Refreshrnenls USA, Inc. d/b/a Florida coca-cola Bottling company 3350 Pembroke Road" Hollywood, Florida 33021 Attention: V.F. Market Unit, Sorlth Florida Fax: 954-986"3'173 Ticket Addre5see: V.P. Market Unit, South Florida Fa:r: 954-986-3173 With acopy to:Coca-Cola Ref,reshments USA, Inc. 2500 Windy Ridge Pkwy Atlant4 Georgia 30339 Attention:. General Counsel (B) Notice to.City. f1:fi, ^f I\if :^-: D^^^L fi B'."J*ffi1"?"4:LerDrive Miami Beach, Florida 33138 fil:tt,'liil1?x;**u' ,1., GoverningLaw This Agreement and any dispute arising out of or relating to this Agreement shall be gof,emed by and construedin accotdance with the laws of the State of Fforida, without reference to iti conflict of law niles. 12. Co,Bpllqnce with Law 115 i' Each of the parties hereto agrees that irwill, in its performance of its obligations hereunder,if.rlly oomplywith all applicable laws, regulations and.ordinances of all relevant authorities and shall oUtain all-licenses, registrations or other approvals required in order to fully perform'its obligations hereunder. 13. Retention of Rishts ' No party shall obtain, by ttris Agreement, any right, title or ihterest in the trademarls.of the other, nor shall this Agreement give Bny party the right to.use, refer to, or incorporate in marketing or other materials iho namu, logos, tradernarks, service marks or copyrights ofthe other, except as may be expressly provided and autlrorized ,herein., 14. . Jury Waiver . , EACII PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUMARILV AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTEER IIEGAL PROCEEDING ARISING OUT OF OR IN CONNEC"TION WITH THTS AGREEMENT ANDTHE TRANSACTIONS IT CONTEMPLATES.'THIs wAIvER APPLIEs To ANY,ACTIoN oR LEGAL PRoCEEDING, WIIETHER ARISING rN coNTRAcr, ToRT on ornEnWrie.,- 15. EnJire Agreement ; This 1{greement and its exhibits cor$ains the entire agreement between the parties with respect to the subject 'matter hereof This Agreemeni may not be assigned without the prior writtentoment of alt parties; proviied, however, that'Bottler may assign this Agreement in connection with its ieorganization or tf.te gale of all oi ,substdntial'ly all of its assets. All amendments to or w4ivers of this Agreement must be in writing signed by all the . part'ies. The Cocr-Cola Company, acting by and through its Coca,Colr"North Ameriba Divlsion Print Name: B,Y: By: 9,ba rifle, lr)aypr . Cgba-Cola Refreshments USA, Inc. dibla Florida Coca-Cola Bqttling Compeny PrintName: ^truwu 9lzzl2. ffi alt,fit EiFOR AFPRO\GD A8 TO FORM & TANGUAGE 3'l5- tL* Hr-ffi.r City of Miami Beach Y-*f,-pffe{a{ Deb ; 116 .t I Attachment A - TFRM SHEET EXCLUSIVE NON.ALCOHOLIC BEVERAGE AGREEMENT . CITY OF MIAMI BEACH AND COCA.COLA REFRESHMENTS USA, ING. ANd COCA-COLA NORTH AMERICA, A DIVISION OF THE COCA-COLA DEFINITIONS: Fottler: Coca-Cola Refreshments USA, lnc" d/b/a Florida Coca-Cola Bottling Company Companv: Coca-Cola Noilh America, a'division of The Coca-Cola Company Sponsor: .Collectively, "Bottler" and "Companf' gi$ Ciry of Miami tseach Aqleementi Exclusive Non -Alcoho lic Beverage Agreement Facilities: lncludes the following Miami Beach property, including any land, building, structures aild/or other.faiilities thereon: Miami tseach 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 Beaqh Convention Center; allcurrentl! existing City of Miami Beach owned parks and recreational facilities; all currently existing City of Miami Beach owned public parking garages wh,ich are either direcfly 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 0n .behalf of the City; .all currently existing pubtic beachfront boncessions which are either direcily opeiatbA Oy the City or by a third party who, pursuant to a concession or management agreerrrent with the City, .is contractually aUthorized to operate and manage such concession on behalf of the City; and any additionai future Facilities or expansion of existing or future Facilities, inctuding but rlot limited to, the ooncession facilities at 21st and 46t street and at South. pointe Park and thd Miami. Beach Convention Center faciltty expansion, except as rnay be otherwise be eiclUded in the Agreement. Beveraqe: all non-alcoholic beverages of anV kind includins but COMP 117 not limited to coffee products; tea produc[s; ccincentraGO energy drinks, including those in small servings; protein- enhanced dairy beverages; frozen drinks (e g, -ICEE) and, smoothies made from concentrate; and the prermix 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. frorn the public wat6r supply, or unbranded juice squeezed fresh at the Facilities. Products: Beverage prodr,rbts purchased direcfly from Bottler, or. with written Bottler approval from, or Botflerls authorized distributor, or sold through vending machines owned arrd stocked exclusively by Bottlgr. Comoetltive Products: Beveraqes 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 ternt'"Agreement Yea/' means each consecuiive twelve-month period during the Term,. beginning wlth the first day of the Term. 3. EFFECTIVE DATE: January 1,2012 4. EXPIRATION DATE: December 31:, 2A21as to all Facilities 5. SPONSORSHIP FEE: $3,725,000 for the Terin of the Agreement. ...' First installment of $800,000 (includes sponsorship fee for Agreement Year One and signing bonus) will be paid, within sixty (60) days of execution of the Agreernent by all parties. fh" portion -pertaining to th.e signing .bonus ($a75,000) willbe deemed earned bver the Teim 'arrd the portion pertaining to lhe sponsorship fee for the Agreemeht Year One ($325,000) shall be deemed earned eventy oir a monthly basis during the first Agreement year.. $325.,000 due each Agreement Year thereafter during the Terni. of the Agreement, due upon the anniversary dalte of the Agre€ment dnd will be deeined earned over the Agreernent Year. (Subject to purchase of a minirnum of 22,500 cases of bottles/cans Der vear.) 6. .COMMISSIONS: Cornmissions to be paid qr.larlerly in arrears by Botiler to City based upon cash collected less taxes and as per the Commission Rate Structure according to Botileds sales records. (Exhiblt 1) I 7. COMMIJNITY: SUPPORT/ iBottler will provide City with a total of $17,000 in cash for the 2 118 COMPLIMENTARY PRODUCT; purcftase of equiprnent or other products (mutu5tty agreed I Bottler shall provide City, upon Cig's request, with up to 4S0standard physical cases of complimentary product (12 ounoe CSD cans.and/or DASANI 12 ounce botiles) per Agreement year for a Product bank to be used by the City. if City does not request complimentary Product by the end of each year, any remaining complimentary Producl shall be retained by Botfler with no further obligation to Account. Botfler Will provide complirnentarv Product donation report uDon Accounfs reouost.8. ADVERTISING & SPONSORSHIP:Bottler has the exclusive right to advertise prodr;.rcts.(i) at the'Facilities and (ii) in connection with the Facitities. No permanept or temporary advertising, signage or trademark visibility for Gompetitive Products are ptirmitted anywhere at the Facilities, except as permitted pursuant to the Agreement. Advertising rlghts are further delineated in Exhibit 2. Boftler has the exclusive right to advertise the products as the ,,Offlcial,, or "Exclusive' sofl drink, sports drink, dairpbased protein drink, yatel tea, energy drink, 11d/or juice or juice drink, etc., of the Facilities, of the Cig of Miami. Beach and oJ South 'Beach. Bbttler will be the exclusive advertiser of products associated with the Facilities. 9. ,PRODUGT,RIGHTS: Bottler has the exclusive right to sell or distribute products at the. Facilities. No Competitive Products may be sold, dispensed, sampled or served anpvhere at the Facilities, or: on flie City's publio rights-of-ways, except as may othenruise be provided ior in this Agreement lO.EXCEPTIONS: Except for those Facilities spOcifica,lly enumerated in Section 1., "Facilities" shall NOT include any Cig of Miami Beachpropefi (including any City-owied land, buildings, structures, and/or other facilities thereon) which-. as of the. EffectiveDate-is used, occupied, controlled, and/or managed and operated by a third party (or parties) pursuant to any of the following agreemenis between the ,City and suitr third paily(ies): (i) lease agreemen,t; (ii) concession agreemgnl; (iii) operation and management agreement; (iv) development agreement; (v) easement agreement; (vi) license atrd/or use agreement; (vii) revocable permit; andlor (viii) any gther written instrument between the City and such.third party(ies) which establishes a contractual' 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 octupied by.a tenant through a lease or rental agreernent (including,ylfrout limitation, leases er rental aoreements for office. I ,t . 119 retail, and/or commdrcial uses(s) ih eity-oilned,."bultdings} any City property nianaged and operated, and/of otherwiseused, by a third :party(ies) pursuant to a mhnagement agreement or concession agreement; private upland owner beachfront concesgions which are isqued a permit by the City (and which are neither operated direcfly by the City, nor byr.a third party on behatf of and pursuant io i contratt wittr ltre City); sidewalk cafes which are issued a permit to operated pursuant to -the City's Sidewalk Caf6 Or{inance, as rnay beamended from time to time; . "public-private,' projects developed and constructed pursuant to a Development Agreement (pursuant to the requirements of the Florida Local Govemment Development Agreement Act under Chapter, 163, Florida statutes); any hotel or retail development reiat'ed to the expansion of the Miami Beach Convention Centel that is not managed as part of the Convention Center,operations (e.g.. adjacent. comrnercial retail, hotel, otc.); public bus shelter advertising managed by a third party under contract with the City; and advertising permitted pursuant to ttie Cih/s currentagreement for the public bike-share concession. Notwithstanding the preceding, the .Cig wllt: i) make reasonable .good faith efforts to m6et with the bike-share concessionaire and negotiate an amendment to the existing bike-share concession agreement, which must also be subject to qgreement by the bike-share concessionaire, to prohibit the bike-share concessionaire, from .advertising Competitive'Products; ii) if City renews the bike-shaie concession agreement with the bike-share concessionaire, then, as a condition to suoh renewal, the City Manager will recommend that such renewal be conditioned that such renewal include aterrn prohibiting the bike-share concessionaire ffom advertising Competitive Products; and iii) no adVertising of competitive Products shall he permitted on bike-share station kiosks during the Term should the City, after the Effective Date, approve advertising for placernent.on bike-share kiosks. Should the City enter into any new bike-share agrdements 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 a pre- existing concession and/or use agreernertt (i.e. in effect prior to the Effeotive Date of the Agreement) with a Compeiitive Products supplier, those Facilities wilt come undir this Agreement after sgch Competitive products agreement is terminated or expires, or until such time as the concession or use agreement with the City for those Facilities is terminated, expires or is subject to any renewal provisions. The current 120 list of such facilities, and their exiiration Aiies, areEs to[ows: 1) 21il StreeU46th Stieet Beachfront Concessionh', wilcox, lnc,- 11t30t2012 i 2) South Pointe Park Corrcession/Blissberry - 11tg}t2}12 3) Normandy lsle Pool Concession Stand/E. Gomez - 11t0912011 City agrees that it will not knowingly permit any Competitive Products to be sold, distributed, seryed, sampled, rnarketed, adveriised or promoted at the Facilities, or in'association wit'h City, except, and as further explained, in Exhibit g:. Third party exhibitor set ups at Facilities or during City- fermitted Special Events in accordance with. the- City s Special Event Permit Guidelines, as same may 6e amended from time to time.o Charitable events at Facillties or at City-permitted Speciat Events where Competitive 'product are donated to the charitable event;o Availability at City-Permitted Special Events onty within Special Event Permit Area (aS such term is deflned in the Clty's Special Event Permit Guidelines, as same may be . iilili:lJ'4ruff.Lo,,:'ffi)"r.nt. at the Miami Beach Gorr Club, and up to four (4) sponsorship events at the Normandy Shores Golf Club each Agreement year;.. up to three (3) sponsorship events at the Miami Beach Convention Center each Agreement year (the number limitation for the spo4sorship events at the Miami Beach Convention Center,is subject to a review after three (3) Agreement Years);o a mutually agreed upon number of sponsorship eventg at the Fillrilorp 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 Maior Sponsorship public Eveht,, each Agreemen,t Year, which includes an event sponsored by,a manufacturer, distributor, or rharketer of Competitive Products under a master sponsorshlp 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 eveht where a competitor is the presenting, tifleor other primary sponsor of the event, The number limitation for City-lssued Special Events is subject to a rcvlew after three (3) Agreement Years. : iI I 121 .t : ,i, .t i Wtrenever possible, City will make reasonable lgood falth effofis to encourage third party users of the Golf Cburses and Convention Center, and Special Event olganizers, to use Bottler's Products for their non-alcoholic beverage needs. Since third party organizers who apply for Speiiat Event Perrnits will b9 ,permitted to sell only Botiler's producta, City will amend City's Speeial Events Permit Applioation and City will provide Sponsor contact information through. the City,i Special Eyqnts Permit Application process. ,1 {. MARKETING: PROGAM:Bottler agrees' to provide Account with annual in-kind marketing, support fund with an approxirnate retail value of Two Hundred Thousand Five Hundred Dollars (g200,S00) as further delineated in Exhibit 3. 12.'RECYCLTNG : PARTNER:Bottler shall be designated the official "RecyclinEi partned' of Account, ln consideration of this designation, Botfler shallprovide, at their cost, the seruices/products delineated in Exhlblt 4, with a mlnlmum total value of $15,000; and up to $25,000 over the entire Term.13.VENDING. PROGRAM/OTHER' EQUIPMENT Cig agrees that Bottler shall place a mlnimum of sixty-five (65) Product vending r.nachines in mutually agreed upon locationsat the Facilitles, and tsottler will loan to City at no co$t, Beverage dispensing equlpment as reasonab[ fouired and as mutually agreed upon to dispense Products at he Facilities, and in accordance with Exhiblt 5. 14.GITY SUPPORT:ln consideration of the partnership, City grants to Botfler: Twenty-six.(26) rounds of golf each Agreqment year (rnax of eight during peak season; no. more ,than twelve at Miimi Beach Golf Course; benefit do.es not roll over); a minimurn of fOur (4) free tickdts to at least six (6) ticketed: events at Facilities each Agreement Year, subject to availability (e.g, 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. lS.PRICING: Bottle/Can Pricing: City is entitled to purchase botile/can Products from Bottler in accordance wlth the price schedule set forth in Exhlbit 6; prlces shall remain in effect until J;uly 31 ,2012. Thereafter, such prices will be subject to an annual increase of no more lhan four percgnt (4%) over the previous Agledment Year's price. i Fountain Products or Georgia Coffee Pricing: Boitter will.sell foUntain ProltU,cts to City at the National Account prices. as 122 I I t announced by the Bottler in January of each year. Georgia Coffee pricing shall be provided {uartbrly based on bommoriity markets. Purchasing: All Product shall be purchased direcily from Bottler, exiept for those Products that tsottter idenilfies tan 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 Botiler, then, Botfler may terminate this Agreement, and City shall (i) feturn any Equipment, and (ii) pay to Bottler the unearned portion of any pre-paid Sponsorship Fees for the Agreement year in which the termlnation occurs (pro-rated through the date of termination). lf Bottler 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 Cit1r, tnen, dity may terminate thls Agreement, .and tsotfler shall (i) remove any fquipment, and (ii) pay to Cify the eamed portion of any pre- paid Sponsorship Fees or other fees or payments due f6r the Agreement year in which the termination occurs (pro;rated through the date of termination), City snan not be in default in the event of any ctaim filed in relation to City's restriclion on Competitive pioduqt sampling; provided, hovyever, the Bottler shall have the following remedies: 1) ability to renegotiate financial terms, as appropriate, within a specified time (e.9. g0 days); or, 2) failing to negotiate terms acceptable to both parties within speoitied time, tsottler may terminate the Agreement, and City shall (i) return any Equipment, and (ii)'pay to tsottler the unearned portion of any pre-paid Sponsorship Fees for the Agreement Year in which the termination occurs (pro-rated through the date of termination). Nothing in this section shall op6rate to restrict either party's other remedies in the event of a material breach -Q1r the other. lT.MAINTENANCE & SERVIGE:Bottler agrees to provide reasonable service and rnaintenance for the equipment during the Term. City shalt allow Botiler toenter its premises for the purpose of inspgction or performance bf such maintenance and repair, or necessary replacement or return of the equipment, Botiler and City will establish a mutually agreed.upon refund bank and customer service program, as delineated in Exhiblt Z. lS.REPORTS/AUDITING: Bottler rrvjll1rovlde an annual business review report within g0 123 days following each Agreernent year during ltfre T-erm; terrnination of the Aoreement. Gommission reports will be provided monthly. Th6 format of such reports shall.be mutually agreed upon. City has the rightto audiUinspect account Statements with reasonable prior notice to Bottler and du,ring normal. business hours. lf -City requests an audit, City agrees to pay for such audit.' Account records must be retained 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 lears following. expiration or .8 124 Exhlbit { to Term Sheet coMTrrflsstgNS lrsrrt 20 oz. PET,carbonated/NESTEA@ 20 oz. PET Minute Maid@ 20 oz: PET DASANI@ 300 iml PET DASANI@ 20 oz. PET POWERADE@ 2O oz. PET vltarnlnwater@ 16 oz. cans lnergy Beverages 16.5 oz. PET FUZE @ 15.2 oz. PET Minute Maid@ Julces to Go Commission Rate -_.=-- $Qo/o 30Yo 307o 3Oo/o ' : 30o/o 15o/o 307o 15o/o : 15o/o Commission,Rate . 30o/o 30% Sovo 30o/o 3Oo/o 15o/o 30% 15o/o 15o/o Vend PriCC $1.25 , $1.25 $1.25 $0.75 $1.50 $1.75 $2.00 $2.00 $1.50 All other public locitions (such qg-Qouth B,each): Produpl 2Q oz. PEI carb,onated/NESTEA@ 20,o2:. PET Minute Maid@ ' 20 oz:. PET DASANIO 3OO mIPET DASANI@ 20 oz. PET POWERADE@ 2O.'oz. PET vitaminwater@ 16 oz. cans Energy Beveiages .16,5 oz,.PET FUZE@ 15.2 oz...PET Minute.Maid@ Juices to Go. Vend, Price $1.s0 $1.50 $1.50 $1.00 $1.75 $2.00 $2.25 $2.25 $1.75 ln Agreement Years Four and Seven, the Vend Prices will increase by twenty-five cents for each Product listed abcive. For example, in Agreement Year' Four, 300ffi1. OASnrut will increase to $1.00Vend Price'and then in Agreement Year Seven, 300rn1. DASANI will increase an additional twenty-five cents to $:1.25. The Cornmission Raies 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 paities; but note that.commission rates wlllremaln the same. Commissions"are paid based'upon cash collected after deduiting taxes, deposits, recycllng fees, othe_r' handling febs, communication charges and credit.and debit-card fees,'if Jny, bomrnisgions 6hall not be payable on any sales from vending machines not filted or serviced exclusively byBottler.' Bottler 'may adjust the vend prlces and/or comm[ssion rates as nec6ssary to tetteci changes in its costs, inCluding cost of googg, upon prior. written notice and approval by City. Comrnissions will be paid each month folloriving the month in -which they are earned, Utn an accounting of all sales and monies in a form reaionably satisfaciory to the bity,'and shall become imrned.iate property of City. 9 125 (Except as otherwise l9tad., the following rights may not be transferred or assigned by Botfler)1. Re_cognltlon of Bottler as the "official Non-Alcoholic Beverage Sponsof' of Cii/. Official statuswill include -O{ncQlsfatu_s Recognition for City across all non-alcoholic beverage categories. Le, "Coca-Cola Official Soft Drlnk of Miami Beach" and officialstatus Recogni6on for South Beach across all non alcoholic beverage categories (1.e. "POWEMDE Official Sports Drink. for South Beach")' 2. Official Sponsor Status (for Products) of all City-produced citywide Speoial Events, whether now existlng.or as 'may exisi in the future (i.e. including, without llmitation, and for example purposes only Sleepless Nights); BotUer to have hlghest sponsorship level and benehts 'available other than presenting or title sponsorship. ln addition, Botfler will be recognized as the 'Title Sponso/' of Gity's "Fire on the 4h Annual lndependence Day Celebration" each Agreemenl Year during the Terrn.' 3. Recognition of Bottler as the "Official Recycling Partner" for the City of Miami Beach & South Beach4. Joint BottlerCIity Logo placement on City and City-related websites (e.g. Mlami Beach Convention Center, Miami Beach Golf Club, Normandy Shores Golf ilu6, MEmi B;;;h Culluie vrreb 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 6n ,gov domains. Ci$ wlll use reasonable commercial efforts to include 1oint BottbrToity Logo ori'all ,printed convbntion and tourism materials, as appropriate and avaitable.' 5. 'WaMer of any Special Event Permit and/or Permit Application Fees for Bottte/s use of cettaln Account Facilities for, up to two (2) mutually agreed upon svents per Agreement year, .based on availability. For pdrposes of the.Special Event Pennit and/or pdrmit,foplication Fee waiver, thbse Facilities shall lnclude public beachfront areas and Parks and Recieailon iacilities wn"r". Special'Events are perrnitted. All other fees and. costs of productlon, lncluding but not limited' to' taxes, security, sanitation, etc., shall be the responsibrility of Botfler: Rignt may not be transferred or assigned. 6. ' Waiver of any rental or use fees for Bottier's use of certain City Facilities:for up to (two) 2' mutually agreed upon events per Agreement Yebr, based on avaitabitity. For purposes of fne' rental or use fee waiver, these Facilities shall include the usei of meeting room spece or'ballroom space at the Mlami Beach Convention Center. All other fees and co-sts of production, including but not limited to taxes, security, audio/visual, decoration, etc,, ghall be the, responsibility of the Botuer. Right may not be transferred or assigned.' 7. Unlirnited, royalty-free Product sampllng at City.produced and/or sponsored evehts; Royalty-free- Product sampling permits per Agreement Year, as follows: 48 permlts each Agreement Year, but perrnits will be limited to not more than six (6) permits in any one month perlod. Right may not be transferred or assigned, lf Sponsor does not use;ll 4g' perinits by the end of each Agreement Year, any remainlng permlts will not roll-over to the following Agreement Year, but will be forfeited. Exhibit 2 to Term Sheet ADVERTISING RIGHTS ' Mutual agreemeht on the development and use of a joint logo between Botfler and Account. Right to usa mutually agregd Upon joint logo on any point-of-sale, marketing materlals, and/or 8. g. signage that may be mutually agreed upon. , 10. Royalty-free advertisement in City's magazlne (i.e. MB Magazine); minimum of a quarter page each issue; larger ad size as may be avaitable. Right may be transferred or assigned. 11, Royalty-free ptominent advertisernent ln any speclal promotional Event proqJams or collaterals produced for,City-produced cityruide Special Promotional Events (i.e, lncluding, without limitation, July 4' and Sleepless Nights). City shall use best efforts to'provida a fu'l| page ad. l0 126 I; I.; 12,The right to brand City's public beach concession area(s) Wth approvbd Bottler "tnO City loin, branding graphics (e.9. concession stands, storage shed, umbrellas, etc,),' subject to proposed branding meetlng .all necessary administrative and regulatory 'approvals. .lmplementation of any approved branding shall be at the Botfleris expense. All trademark usage must be pre-approved prlor to usage..The ereclion of any other.slgnage other than vendiqg machlne display shall be subject to approval by the City.' 13, One Royalty-free joint City/Bottler message PSA advertising panel at the 5m afld Alton bus . shelter; produotion/installation costs paid by Bottter, Minlmum of futl us'e of one PSA ad. panelfor the entire term of the Agreement- , space.avallability (remnanQ basis; production/installation costs paid by Bottler. Rlght may be transferred or assigned.':, 15, Minimum of one (1) one'rnonth Royalty-free electronic joint City/Bottler mesgage PSA run:' .. on Atlantic Broadband and Welcome Channel; Additional inonths based on ongoing availdbitity; 1.6. Minimurn of one (1) unlimlted run on MBTV of City/Bottler message PSA;. 17. Royalty-free POF ticket ad based on space availabllity; productlon costs paid by Bottler. ' The parties agree to perform such addltlonal maiketing activitieg, as the pafties may mutually agree. upon to drive trafflc to the Facilltles and to increase Product sales. ll 127 :.; I Exhibit 3 to Term Sheet i' MARKETTNG PROg.RAM Bottler shall provide City for approval with the proposed annual marketing plan for promotion of the partnership no lator than ninety (90) days prior to the beginnlng of each Agreement Year, except for the flrst Agreement Year when themarketing plan shall be provided to the City within ninety (90)' dals dfter execution of Agreement. The annual value of the marketing plart shall be no less than $200,500, as detdrrnined in good faith by Bottler and based on generally accepted marketlng. values. Some examples of activation may include the following; however, actual marketing programs will depend. on availability of these programs. . c lncluslon .of the City in the My Coke Rewards program, or other customer rerrvard progratTl offered by Bottler, through an annual promotional program (e.9. sweepstake ); esflrnated valua'' $i00,000, or eqUivalent value. Activation based on avallability' . Truck-back promotions.program . value: $24,000/year based on avdilabilityo Box T.opper program or other similar hlgh-vlsibility promotional program; value:.$25,000/year r Neck Ringer program: a Neck Ringer program shallbe available with a rninimum distributlon of :negk ringers r Touring Program: Bottler will bring the Open Happiness Tour, or such other promotional touring 'prograrn offered by Bottler, to the City based on availability r Bottler to develop and implement at least flve (5) strategic marketing partnerships with the . Account and the Bottle/s other sponsorship partners during the Term of'the Agreement. Such stidtegic rnarketing partnerships may include, but are not limited tq, cross promotlon, product, ti0kets, etc., with other brands or products currently under a sponsorship or other , promotional/marketing agreement with the Bottler. , . Lebron James EvenUcelebrity eventi value: $45,000 based on avallability, or equivalent value Qity acknowledges the intent of the Bottler to develop a Jolnt marketing logo incorporating the Bottler's mark and ihe City's mark. Bottler shall obtain approval from the Clty, ln wrltinf, of the jolnt logo for use in promotion.of the Agreement, including, but not llmlted to, its use in all comrnercial, marketing, media advertisements, web sites and promotional products. A partt's use of the other party's marks ln promotions, on 'products and signage, shall bq'first. qpproved by the other party in writing, and all uses of a party's maks shall be ackrtowled$ed as hat party's intellectual property and include appropriate trademark notices. ' Tne partles agree to perform those additional marketing activities, as fhe parties may mutually agree Upon to drive trafflc to the Facilitieg 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: cofisum€f sweepstakes, or other such similar sweepstakes) for mutually agreed upon promotlons each year during the Term to promote Bottler Products and City. t2 128 Exhiblt 4 to Term Sheet RECYGLING PARTNERSHIP Bottler shall be designatad the official 'Recycling Partner' of City. Bottler shall proVlde, at its qost, the following services/products (value of $15,000-$25,000):o Assess, consult and offer a Recycling Program Plan for bottle/oan recycling initiatives.' Propose messaging strategy for the City's bottle/can recycllng initiatives (withln 00 days after execution of Ag reement) . Provlde Temporary recycling bins for qpecial events (minlmum of 30) to City at Bottler's cost;. Provide Recycling bins for placement in Facilities or agreed upon public areas (minimum of 15) to City at Bottle/s cost; design subject to review and approvalbf City; . ,. Place r€verse vending maghines (crushers) ln vending banks. in the Facillties; rrrlnlmum of five (5) crushers placed during the first five Agreement Years of the Term, at Bottler's cost... 'Use of Recycling Educational Vehicle (REV,) or other Education Recycling rndterial,'at City .eveints; scheduled at least one time every 18 months during the Term. 13 129 l i 'l I I i. t: I Exhlbit 6 to Term Sheet vENprNG PROGRATU "P$t"t shall place, at thair cost, all vending machines in agreed upon iocations.pursuant to the following: 1) Bottler shall provide to City within 90 days after execution gf'Agreement the proposed equipment plan for the Agreement Term; to include the machine allocation plan bi type (e.g. ., interactive vending qachines, glass front etc.)'and tocation; equipment replacement scnedu6; and vend front replacement and schedule for existing vending machines that need the vend.. front replaced. All equipment shall be UL energy star rated. 2) Bottler shall install vending rnachineswithin 180 days afterthe proposed equlpnrent plan has bedn approved by all parties. Both parties agree that the installation of vending rnachines shqil be completed wlthln 180 days after the proposed equipment ptan has been approved by all parties, Agreement execution. The already approved beach themailc yend fronts will be used unlgss other mutually agreed upon vend fronts have been selected and approved, and if beach thematlc vend fronts are availab'l€. The vend fronts shall include adverflslng panels for use by the City, as approved by Bottler, provided that the vending rnachlnes are equipped"with' advertising pahel(s). Bottler shall pay all costs for: the production and instaltatiori of the City' vend fron't adVertisihg pahels. A minimurn of two (2) and a'maximum of four (4) City vend panel ads shall be,produced/installed eacft Agreement year. ' 3) Bottler shall provide within g0 days after execution of Agreement the proposed credit card reader installation plan and schedule.. All credit card reader installation shall be completed within Agreement Year Qne. . 4) City shall provide all electrical power nocessary tb operate the vending machines, and Clty shall pay up to $200 for the cost of any electrical modifications. or connections necessary to' accommodate any new vending'machine placernent, upon mutual agreement of tfre proposed .location for the placemeht of the vending rnachine. 5) All vepding machines remain the property of the Botfler.' 6) Boftler shall provide a .product llst to the City to be included in the'vending program, Any changes to the Product list shall be provided to the Account prlor to Pioduct placement in.a the appropriate vending products for inilusion in vendlng machines located .in any City par[. The City's Park and Recreation Department shall provide approval, in wrlting, of the products to . be sold irt the vanding machines placed in City parks. 7) Bottler shall rnaintain vending machines reasonably well-stocked with Products. l4 130 Exhlbtt 6 to Term Sheet lr .!' 1;I f' I IINITIAL PRICE SCHEDULE* Packaoe 20 oz. CSD 12 oz. CSD 15.2 oz. MMJTG 12 oz. DASANI@ 1 liter CSD 20 qz. DASANI@ .20 oz. vitamlnwatdr@ I oz. CSD 20 oz. NESTEA@1 Minute Maid@ Refteshment 20.o2:. POWERADE@ 16 oz. Monster@ 2 liter CSD 16.9 Honest Tea@ 500 mlGotd Peak@ 8oz. alUrninum bottle Pgst.ME .5 gallon BIB CSD and NCB 2,5 gallon BIB CSD and NCB 5 gallon BIB Unsweet NESTEA@ 2.5 gallon BIB Unsweet NESTEA@ 5 gallon BIB Premium NCts 2,5 gallon BIB Premium NCB 5 gallon BIB Frozen Dispensed 2.5 gallon BIB Frozen Dlspensed (Frac) Dark Roast 10O,2.75 oz $110.38 Llght Roast 128,2.25 oz $117.87Decaf 75,2.00 oz $07.95Organic 7512.75 oz $'110.10 Price per case $17.8s $23.36$8.88 . $16.29 $10.82 $27.00 $16.00 $17.85 'i $19.00 $34.00 $'12.35 $12,60 $13.e9 $16.48 Price oer oallon $12.24 $11.82 $12.40 $12.75 $13.30 $13.88 $14.26 $52.89 per 1,200 $34.55 per 2,000 $25.00 pe.r cylinder (ptus $75i00 deposit) Cuos 24 o0nce tids 24 ounce @ 20|b. cylinder *All prices are per standard phy$lcal.cass and excluslv6 of taxes, depcits, handllng fees, and recycllng faes. g-eg,lgle 64,02 Brew: Prlce Per Gase and backaloe Slze: (nrrces effecuve fsr the period :1t1t2012. 313112012) (All coffee Is prlceil FOB to Dlstributor, pr{cos do not incruOe any dlstrlbutor markup.)Product Package SmallFilters Large Fllters $110.38 $117.87 $110.10 l5 : I !, It I 131 Exhibit 7 to Term Sheet MATNTEMNgE & SERVICE During the Term, Bottler will loan to Account, pursuant to the terms of Botflefs equlpment placement agreements, at no cost, that Beverage equipment reasohably required and as mutually agreed upon to dlspense Beverages at the Facilifles. Bottler qgrees that all equipment shall be new or in "like neW' condition and that it shall operate and . lnanage the equipment, seivices and facilities offered in a firsl-class manner. BotHer shall provide Clty wlth the Mainten'ance Plan and Schedule for all Bottler equipment within g0 days of execution of Agfeement, to include the Bottle/s plan and schedule for servicing the city. Bottler shall provide throughout the Terrn of this Agreement,'at Bottler'e expense,,all repairs, replacerients and technicalservices necessary to maintain and preserve the Boifler's equipmlnt in a decent, safe, healthy and sanitary condition satisfactory to City and in cempliance wittr applicable laws, Bottler warrants that it shall oorrect all mechanical problems with vending machines no later than four (4) business days after notiie and no later than twenty-four (24) houri after notice for all other dispensing equipment. Acts of vandalism to Bottler's equipment wlll be reported tb Bottler immadiately and addressed within four (4) business days. lf the vending machine is repairable, the vendind ma9hine will be repaired within four (4) business days" lf the vending machine is not repairable, vendlng machine willbe condernned and swapped within seven (7) business days, Bottler is the only party allowed to make repairs on Botfler-owned equipment. All vending machines shall display a "service hotline" sticker to expedite calfs. A toll free C1-gOO,)number shall.be provided and a 24-four hour per day, seven days a week continuously operafln$ telephone answerlng servic'e shall.be provided. , A reimbursement fuhd in the amount adequate to handle all necessary refunds between service calls shall be made available to City at designated location(s) putually agreed upon by Cig and Bottler. Each person requesting b refund shall complete a form which shall be maintalned liy the City and provided to the Bottler as required. The reimbursement fund shail be checked Uy tne'Bottleilno less than once a'month and replenished as needed. lnforrnatlon on refunds snilt be pi'ovided on each machine. I i t. t. I t6 132 Exhibit E The. term "Special 'Promotional ,Events" ("Event") shall mean and is limlted to the following:concerts; theatrical or comedic performances; conventlons; trade shows; religious events; athlegcevents; or other special events occurring at a Facility that meet the fottowing r6quirements: (i) tfreyare sponsored by a manufacturer, distributor, or marketer of Competitive Piodu'Cts under a niaste'rsponsorship agreement with the owner or operator of the stiqect Event (including, withoutlimitation; a qoncert or theatrical prod.uction company, or a trade show or cont;ention production .'company, but NoT including in any'lnstance ttie city or its affitiates or A;"t.il (iij they are' conducted on a natlonal or reglonal multi-market basis; (iiD tfrey are NcAA coillgiate'chdmpioi sllp' athletic events; and, (iv) the event sponsorship agreement ieferred to tn s,iUrection 1i; abovbrequires,on-site temporary signage for Competitive plod ucts The term 'special'PromoUona! Events E*ceptions" shall refer to those exceplons grant6d under the 'Agreement, for each..Agreement year, to permlt the following fifteen (15) S6oial piomotiohat Eventsat the following Facilities; (i) four (4) events at the Miami Beach Cott itu5i.(ii) four p) gvents at theNormandy Shores Golf Club (The Miami Beach Golf Club and Normanuv Srriies eo)rbiuu may atso. be refdrred to collectively herein as "Golf Courses");(iii) three (3) events at the Miami BeachConvention Center ("C_onvention Cente/'); and. (iv) four-(+)'City Approved ,jjoi Sponsili;ip Fili; S-pecial Events (as deflned below); provlded, however, ttiat the nrimUer timitation for C1y AbprovedMajor Sponsorship Public Speicial Events shall be revisited and reviewed by the-par6er,l[ Jooofaith, at the conclusion of the third Agreement year. ' a- Golf Courses and Convention Center/Special Promotional Events Exception. tn anyAgreernent Year, temporary signago (such as, but not limited to, Oan*i"iior Competitive Products rnay_ be diqplayed at each of the Golf Courses during up to four (4) SpecialPromotional Events, and during up to three (3) Speciat pro-moiionat eveirti dt tt,eConvention Center ; PROVIDED, HOWEVER, that ii) Sponsors Beverage avaitabillty,marketing, advertising, prdmotional, and other rights under this Agreeitrent witt nototherwise be affected during any such Event; (ii) Competitive products miy be tfistriOuteO aino cost, but no Competitive Products will be sold or bthena/se niaOe aviitable during theEvent(except as permitted in this exception); (iii) no blockage of any signage or othertrademark/service. mark display Sponsor may have'at the Floitity wiit oicuiouring theEvent, except for incidental.blockage due to thl construction and/oiplacement of a pe-rso;r,t l!lq". or. other structure necessary to and actually used duiing the Event; or, in the bas" oiNCAA championship events , religious events or political conventions where'nb advertising. is allowed and all advertisers are treaied equat witr all'signage covered in ihe seated area of the Facility; (iv) all temporary signage for Competitive Products will be prompfly removedfrom the Facility upon the conclusion of the Event;'and (v) at no time will the Cimpetitive' Products rnaki any statements,. or use any ternforary signage, ifiat uses the. trademarks/service .marks of the City of Miami Beach; South- geaLn, bolf Courses or theConventibn Center, nor in any way associate these Competitive Froducts with the City ofMiami Beach, "Squth Beach," the Golf Courses, or the bonvention Center. The SpecialPrornotional Events at the Golf Clubs and the Convention Qenter must occur dver a feriodof no more than twenty-four (24) hours. Tho twenty;four hours does not lnctrjde set'up ti ,tear down time iequlred, or NCM.Championship events or poliflcal convenflons whioh tnav .exceed the aforestated time limitation. The Convention Center may use the filree one Oii ! a, II t. I t7 133 I I . (one day = 16r"n,r-four hours) in the aggregate in each Agreement Year durinb lhe Term. Aggregate, as used in this paragraph, shall mean the totat of twenty-four hours rfiiulipiled by . the total number of Special Promotional Events permitted, as provided for rherein. Foi example purposes only, the Miami Beach Convention Center are provided three Special Promotional Event Exceptions per Agreement Year, As such, the three dpecial promoflonal Events may ocqur in the Miami Beach convention center for a total of 72 hours in ah' Agrbementyear (24 hours x 3 events = 72 hotirs/year). City Approved. MaJor Sponsorshiil Public Special Events/Special Promotionat Events Exception. ln any Agreement Year, temporary signage (such as, but not lirnited to, banners) for Competltive Products may. be displayed during up to four (4) Special Promotional Events for City Approved Major'Sponsorship Public Special Evente. The term "C,JY 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-puichased ticket) held on City property, and permitted pursuant to the City's approved-Speclal Event Permit process, as same may be amended from time to time durlng the ferm'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 sponsoredby a manufacturer, distributor or marketer of Competitive Products pursuant to a sponsprship 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, preseniing, tiile,.brought to you by, or other prlmary 'sponsor of the Event. _Temporary signage for Competitive Products at ilty epprovpi n4ajor Sponsorship Public Events may be displayed as an Event "namirlg sponso/', Event "presented by'sponsor, Event "brought to you by" sponsor, or as a sponsor represented asa "Gold" or "Platinum" (or such other equlvalent) sponsor of the Event; PROVIDED, HOWEVER, that (i) Sponsor's Beverage availability, marketing, advertising, promotional,. and other rights gnder this Agreement will not otherwise be affectad dur:ing an/such Event; (ii) no blockage of any slgnage or other trademarUservice mark display Sponsor may have at the Facility will occur during the Event, except for incidental blockage due io the construction and/or plaeement of a person, stagb or other structure necessary to and actually used during the Event; or, in the case of NCAA champlonship evehts, religious events or political conventions where no adverlising ls allowed and all advertisers are treated equal wlth all signage covered in the seatLd area of the Facility; and (iii) all . temporary signage for Competitive Products will be prornptly removed frorn 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, cjr in any way associate these Cornpetilive Products with the City of .Miami Beach Facilities. Notwithstanding the above, Competitive Products' may be distributed, sampled or made available during a City Approved Major Sponsorship Public Special Event for whlch there is a Special Promotional Events Exception. Such distribution, sampllng or availability shall occur ONLY within the approved sile ptan for the event. However, should concession service (sales) for any non-alcoholic beverage other than Froducts be required or necessary for the event, and there are no existing co.ndesslons at the location of the City Approved Major Sponsorship Public Special Event foi whtch therels a Special Proinotional Events Excsption, the City Manager shall subntit a letter to SpOnsor requesting that Sponsor grant a waiver to perrnit such sale at the Evbnt; ouflining the detalls of the exception and the business reasons for the request and such gequest shail require Sponsor's prior written approval. Sionsor reserves the right to notlapirwe tfre 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 Cig Manager's letter. - 18 134 T-he Special Promotional Event Exception for a City Approved Major Sponsolsh'ip. public Special Event must occur over a period of no more than seventy-two (72) hours. The seventy-two hours does not lndude set up or tear down time.requlred, or NC44 Championship events or political conventions which may exceed the aforestated time limitation. The seventy-two hours may be used in the aggregatg 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 Promotional Events Exceptions,.as provided for herein. As such, the four Special Promotional Events may occur on public pioperty for a total of 288 hours in an Agreement year (72 hours x 4 events = 288 hour$/year).' Other permitted Exceptions. Exhibitors at Conventions or trade shows, or third party exhibitor set ups at Facilities shall have the right to serve Competitive Products within their booth provtded that'same is limited to the duration of the correspondlng event and, provided further, that the Competltive Products are not marketed, advertised or.promoted in asssciation with the Qlty of Miami Beach and/or the Facilitles, and their respectlve trademarks, For example purposes only, a Cadillac booth at the Auto Show in the Convention Centgr would be allowed to'give away bottled watei with the Cadillac Logo. Notwithstanding, Sponsor's Products would continue to be the only Products allowed to be sold, distributed or sampled at the Facility's concession operations d. Competitive Beverages may also be permitted to be distributed, .at no cost, at thhd party events that are not affiliated with the City, but where the City has permitted the event through the issusnce of a City of Miami Beach Special Events Permit, subject to the City's notificatlon to Sponsor prior to the event; and, provided further, that the third party event operator is not a manufacturer, distrlbutor or seller of a Competitive Product; that the Competitive Products are not marketed, advertisdd or promoted'in associatlon with the City of Miami Beach or the Facilities, and their respective trademarks; that ho Competitlve Products will be sold during su{h event; and that the distribution of the Competitive Product is limited to Special Event Perrfilt Area.(as such-term is defined in the City's Special Event' Permii Guidelines, 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 wherb one of the event spohsors.mlght request to be permitted to dlstribute free bpttled water to the event partlcipants. Notwithstanding the above, Sponsor shall have first right of refusal to provide. donated Beverages through a sponsorshlp agreement to the non-profit events,lpermitted by the City through the issuance of a Clty of Miami Beach Special Events Permit, ltnown as th6 Whlte Par$, Wiirter Party and Miami Beach Pride (based on the level of non-alcohollc. 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 eleots to participate, Sponsor witl notify the organizer six (6)' months prior to start date of W'hite Party, Winter Party and Miaml Beach Pride events, lf at'. ahy fime durlng the Term the $p6nssr cannot of does not provlde donated non-alcoholic Beverages through a sponsorship agreement to these three (3) non-profit'events for this purpose, these three (3) events shall be permitted to secure Competitive Products for use' and sale consistent with the use and sale of non-alcoholic Beverages ln the 2012 White Party, Winter Party and Miami Beach Pride events Fer Sectiorr 9 of Term Sheet, No Competitive Products may he sold, dispensed, sampled or served anywhere at the Facilities, or on the City's puHic rights-of-ways, unless otherwise expressly spelled out in the Agreement. l9 135 dsffitrtr.201't ProduqlList ffiWC.r*Ijrta cll{t o.*.rrra YatClh EeL CtffirCrr* 6l|r|rf.Cotrlrn olr cs*r Calilna Fm {lLtcclr Oa( C*r rdllr t r*. ar(b4rc t&lrrY.L &t$ ira( 8!.lL!ltn t afatdack$rAhfrh Srrg! fr$. Orol.&refrilr cnlr fan! llorb.ny li&filAldDmnfil. 10.$t llltFhlLmtdrri$ill ltEF r[h,rrhfur Jrutl0 Frla lrm.o Tar Pl{.oirt frrF$|ttrr&rrrf[ Ffllt Fersh Llmd Lkna Ofinlr Itrrb.ny Lrmllld.9nri ,ffiIIRO rruft rwh {*.d, O.rprtpilr0[! 10il{ 86n}{rlcof atltafstrffiW 8Br&afry litrlor Parh rdlnla t&tkrlPmlb Allr6rrf ,llrp}?ry Bllr n$rbrrt Aarl Eany P!illnn{t|ErllmC.bdr re&Itr flilffirdltr *.$ffi,lisr tl(,( { &l$rbidry Pimllnrurr I F{KrC, (onlsfrqlt} foru ( rlwl ifr.sd.:ry IgKndrl { Ontre} }Ifr.rrl {frcflc.l Clt url lil{ti.tr l L.Mdr }n.delrrCiFc&h) O{an .( nrr$.Ir}afibl Clci farf.€toredfrrit lnb. (onrB.l ltrSililftllijrxr I rnr ;,,: :.$x xr(I:s P@C, lQe:.,o travhi ib.tb tt.tcr (,ll;t r$huc t{rr.{t!., *ot$.{rt{r*r.llt $r.r* trlltct ?'Inr&.d? thaaiila go€sul PhrL.ms. CirF. gs,{t lrl.tril.liB Fr.a Ebfitr lranillr 0elr C&ryCor,r Ottny Cck! ,f(! okicolr obrcollursilt&ft Urfi&!|Fn dhlCol. Irbicd0 urL&rlrb s,,lt Sprffr lrn{DbtlFrt(t Ffiar *, l[nh Fme i, B[.] Ch..tt &r{iBcatLrt Ohr Br.q a A.nd 3aUpbhlm P&bt.'r t&lfllr lrrld LfMtda Mlm& firld Fhl L.fiamd. lrlnub *dd fo[Fsmh !lltdatltrLam0& Fmrlr Onnll Frrnr trn&nfi, fi(|tr Onl. lmir OnrB*z.o S.renm r dhlir Ab 3r{ffi6'r OatOhlrrrlrl@qmtd*6r(5rll&rrttolt{.ltlrts.lt rt cu ffimW\\slfl"nnh LtCi6€t$affiottird l{haot{flfia. A&6lrta;a6' Alu.n!ryh abrdsr ttrr-ttrib,3&li *ilitr.htr ' Sstexd Lreid. i{i.h. Om|idr ftrh.! "Oen Tn i.tu! "tuio Rrd tB Lltr Roar Vrrlr. l&llltO6 l{6ia 8l!d IrLh gbnd illtuttli*s{.st& Laly Ftr.lt Pulalr Orrrt. Wtmr fir (.sai UrlFhtLmild. Rrrda!.rry lnrp!.n})lmuAcrry$rt*n*r* Gro&t Frtrlr Qa.fi Irr Srarr Laiur qildLd rc' rffd#rd.fft rE}ti4ffi@ffiffi Unrs*t mmffi'quoArpL OflssISsrnmtlrfi, tln, Erny ffil&$ Ms t,lLtlqCn rtrr..t ffiupfiffiffi r|cri &.:, ftratr'.{rtsi loda eer{rtlay PruL.*ndt trothrl S.n{inytLnd ILrriilhiii Chffild. $fiLdmlfm*S*tld&n It*aal$. i U-{L afi$.{firyOnlntrr ,archlrrlti tt. tLln lhlrt . Pdl*lnilrr Bl68dry o,lr8r ilrnto|${rtuL ilol, t(!t n rFb.fly&i#xadliiyOierllstr flrrl!.4i}.l ls*fh lfdfrid.! Ps.lrr tr5 ffix ITAHN I lu 1 t } il ntrere;.,{ifl;mrwrya; Ig.cr{crl0ln.lt V Srl.ln,tld,8..ttrgl&t; i irC t ny ffiffine# Orlfkul (onnf. uxfol 94..Ltie.cialitr{titii:li.Bqh{id olar &rgw im lordd qury 136 trii i-*ffis -l o 2ox; rraIgE{&LAYoUTPI.AN ALLISON PARK iii$RE 137 EiEEEEEEEiEEEESEiEEiiii*-Ei=EgEE'= :EE*EgEgEEE*EiEEEEEEiEiEE-iEiEE*=E E 5ilEEEi EEAE iEg SgEg ig gl;gE g 3 I Ei iE E; E E EEEEEEI EEEE *=E '€=a* EE ',*=$ E E g EE EE gl i, *HE,iEi;gEiEEEE;*:E;1ii[!*!E5g$$g$.EEE:iaag EH i: iEiEEEE iiEfu EEi siEEi EEs EEEEi i : E EE i:EiEiEI =E EE iEEEiEE iEEEi EEi EiiEi iEE gEiEi i E E EE : : ;; ii eEIEEEF EEEES gii EciEE ;?E ?*,'E EE iEEE iEE iii ii Ei iEEEEEi EEEEi FEE EE3Ei gEE iEEiE E E E iEEEEEigi Ei Eg EiiiEiE EEEit E:g gaEgg EEi EEgEE g Et E EEE;giEiE :E =E *;ai;EiE uS:;is *= ,;iE=s'EcE ';E=EsE ua*is uFu;E*EEE EEE Eg = x.U € L_*"1 nd'n&# =s !i= >= =t<_s e= == (h fTl Z Uz\o 138 n --. "r-r. * I--ryre FROM: DATE: SUBJECT: ::. tfit.ielt5 a.ftr c Ar f, rl,: r r;t}[*l{\*f*i ,l700 Conveniion Center Drive, Miomi Beoch, Florido33l39 www.miomibeochfl.gov OFFICE OF THE CITY ATTORNEY Tel: 305.673 .7 470, F ox: 3O 5.673.7002 TO: COMMISSION MEMORANDUM MAYOR PHILIP LEVINE MEMBERS OF THE CITY COMMISSION CITY MANAGER JIMMY MORALES RAUL l. ^cutL^rfil/;lh€CITYATTORNEV t ,.t U DECEMBER 9, 2015 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA CALLING FOR A MARCH 15, 2016 SPECIAL ELECTION, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORATE OF THE CITY OF MIAMI BEACH, FLORIDA, A QUESTION ASKING WHETHER THE CITY SHOULD LEASE 5,100 SQUARE FEET OF BEACHFRONT PROPERTY AT ALLISON PARK, 6475 COLLINS AVENUE, TO SABRINA COHEN WELLNESS CENTER PROJECT, INC., A NON.PROFIT CORPORATION, FOR 99 YEARS, REQUIRING, PER RESOLUTION 2015 CONSTRUCTION/OPERATION OF PRIVATELY FUNDED WELLNESS CENTER WITH 50 FOOT HEIGHT LIMIT, WHICH MAY INCLUDE ADAPTIVE GYM, POOL, AND PHYSICAL THERAPY FACILITIES EXCLUSIVELY SERVING PERSONS WITH DISABILITIES, LEASE RESTRICTIONS PROHIBITING ASSIGNMENT OR SUBCONTRACTING WITHOUT CIry CONSENT; RENT TO CITY, $18.00 ANNUALLY. Ballot Question: The attached Resolution has been prepared calling for a City of Miami Beach Special Election to be held on December 9,2Q15 for the purpose of submitting to the City's voters the following question Pursuant to Section 1.03(bX1) of the City Charter: Asenda Ite. R? K- Date 12-9-lS139 Referendum Re: Approval of City's Lease of Gity Property for Sabrina Cohen Wellness Center Project Should City lease 5,100 square feet of beachfront property at Allison Park,6475 Collins Avenue, to Sabrina Cohen Wellness Center Project, lnc., a non-profit corporation, for 99 years, requiring, per Resolution 2015-_: . Construction/operation of privately-funded Wellness Center with 50 foot height limit, which may include adaptive gym, pool, and physical therapy facilties exclusively serving persons with disabilities, . Lease restrictions prohibiting assignment or subcontracting without City Consent, . Rent to City, $18.00 annually? Backqround Analvsis: Section 1.03(bX1) of the City Charter provides in pertinent part: The only limitation concerning alienability of City-owned park, recreation or waterfront property is the restriction of the sale, exchange, conveyance or lease of ten (10) years or longer (including option periods) of park, recreation, or waterfront property in the City of Miami Beach, unless such sale, exchange, conveyance or lease is approved by a majority vote of the voters in a City-wide referendum. This provision shall be liberally construed in favor of the preservation of all park, recreation and waterfront lands. The proposed Leased Property is located in a waterfront park, as defined by Section 1.03(bX1). On September 30, 2015, the City Commission adopted Resolution No. 2015-29150, approving a conceptual plan for the Wellness Center and authorized the City Manager to negotiate a ninety- nine year ground lease (the "Ground 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 to develop, design, construct, finance, equip, operate, and maintain a Wellness Center, including the design and construction of public restrooms; and which 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. On October 5, 2015, the Finance and Cityruide Projects Commission Committee 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. On October 21, 2015, the City Commission accepted the recommendation of the City's Finance and Citywide Projects Commission Committee, and approving, on first reading, a draft ninety- nine year lease ("Ground Lease"), in substantial form, between the City and the Foundation for the use of the Leased Premises; 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; and 140 further waiving, by a 5l7th 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. The proposed Ground Lease is the subject of a companion agenda item being considered at the December 9,2015 City Commission meeting. The proposed Ground Lease further delineates the conditions for the design, construction, equipping and operation of the Wellness Center, on the Leased Premises, which may include an adaptive gym, pool and physical therapy facilities, with ancillary uses as a caf6, office, and ADA related research, exclusively serving persons with a temporary or permanent disability, with no City funding or financing therefor; provides for a 99- year term of the leased property once certain conditions are satisfied; contains covenants running with the land, prohibiting any assignments or subcontracting without the consent of the City; and contains operational directives that include a priority for Miami Beach disabled residents, disabled military servicemembers and disabled seniors; and providing rent to City of $18.00 annually. Pursuant to directive of the Miami-Dade County Elections Department, the final date by which the City may adopt its Resolution placing a ballot measure on the March 15, 2016 ballot is December 22,2015. Accordingly, this matter is timely presented to the City Commission and adoption of the attached Resolution may take place at today's meeting. Recommendation: The Administration recommends that the Mayor and City Commission adopt the Resolution and place the ballot question on the March 15,2015 ballot. T:\AGENDA\201S\Decmeber 9\Wellness CenteACity Afty Comm Memo Ballot Question Wdlness Center 141 RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA GALLING FOR A MARCH 15, 2016 SPECIAL ELECTION, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORATE OF THE CITY OF MIAMI BEACH, FLORIDA A QUESTION ASKING WHETHER THE CIry SHOULD LEASE 5,100 SQUARE FEET OF BEACHFRONT PROPERTY AT ALLISON PARK, 6475 COLLINS AVENUE, TO SABRINA COHEN WELLNESS CENTER PROJECT, INC., A NON.PROFIT CORPORATION, FOR 99 YEARS, REQUIRING, PER RESOLUTION 2015 CONSTRUCTION/OPERATION OF PRIVATELY FUNDED WELLNESS CENTER WITH 50 FOOT HEIGHT LIMIT, WHICH MAY INCLUDE ADAPTIVE GYM, POOL, AND PHYSICAL THERAPY FACILITIES EXCLUSIVELY SERVING PERSONS WITH DISABILITIES, LEASE RESTRICTIONS PROHIBITING ASSIGNMENT OR SUBCONTRACTING WITHOUT CITY CONSENT; RENT TO CITY, $18.00 ANNUALLY. WHEREAS, following a duly noticed first reading on October 21, 2015, and a duly noticed second reading/public hearing on December 9,2015, the Mayor and City Commission oftheCityofMiamiBeach,FloridaadoptedResolutionNo.2015--,acopyofwhich is attached hereto and incorporated by reference herein as composite Exhibit "1," approving a ground Lease agreement (Lease) with Sabrina Cohen Wellness Center Project, lnc. (Lessee) for the construction and operation, at Lessee's sole cost, of three story circular building consisting of 19,000 square feet and a height of approximately 50 feet from base flood elevation), for an ADA-accessible Wellness Center (which may include an adaptive gym, healing room, pool and physical therapy facilities, with ancillary uses as a caf6, office, and ADA related research), at Allison Park, 6475 Collins Avenue (Leased Premises) adjacent to ADA accessible park; and WHEREAS, the Lease, attached hereto as Exhibit "B" to Composite Exhibit "1," delineates the conditions for the design, construction, equipping and operation of the Wellness Center exclusively serving persons with a temporary or permanent disability, with no City funding or financing therefor; provides for a 99-year term of the Leased Property once certain conditions are satisfied; contains covenants running with the {and, prohibiting any assignments or subcontracting without the consent of the City; and containing operational directives that include a priority for Miami Beach disabled residents, disabled military servicemembers and disabled seniors; and providing rent to City of $18.00 annually; and 142 WHEREAS, pursuant to Section 1.03(bX1) of the City Charter, the Lease is contingent upon and requires approval by a majority of the voters voting thereon in a City-wide referendum; and WHEREAS,purSuanttoResolutionNo.2015.-,theaccompanyingLease attached as Exhibit "B" to Composite Exhibit "l," has been fully negotiated and is incorporated herein for the purpose of providing the public with full and complete information regarding the proposed Lease, in advance of the voter referendum required thereon. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CIry GOMMISSION OF THE CITY OF MIAMI BEACH: SECTION 1. ln accordance with provisions of the Charter of the City of Miami Beach, Florida and the general laws of the State of Florida, a Special Election is hereby called and directed to be held in the City of Miami Beach, Florida, from 7:00 a.m. to 7:00 p.m. on Tuesday, March 15,2016,for the purpose of submitting to the electorate the question as set forth hereinafter. SECTION 2. That the appropriate and proper Miami-Dade County election officials shall conduct the said Special Election hereby called, with acceptance of the certification of the results of said Special Election to be performed by the City Commission. The official returns for each precinct shall be furnished to the City Clerk of the City of Miami Beach as soon as the ballots from all precincts have been tabulated. SECTION 3. That the said voting precincts in the City of said Special Election shall be as established by the proper and appropriate Miami-Dade County Election Officials. All electors shall vote at the polling places and the voting precincts as determined by the Miami-Dade County Election Officials as set forth in the attached Exhibit "2". SECTION 4. Not less than thirty days notice of the adoption of this Resolution and of its provisions calling this Special Election shall be given by publication in the Miami Herald, a newspaper of general circulation in Miami Beach, Miami-Dade County, Florida. Such publication shall be made in accordance with the provisions of Section 100.342, Florida Statutes, and Section 38-3 143 of the Code of the City of Miami Beach. SECTION 5. The Notice of Election shall be substantially in the following form: THE CITY OF MIAMI BEACH, FLORIDA NOTICE OF SPECIAL ELECTION NOTICE IS HEREBY GIVEN THAT A SPECIAL ELECTION HAS BEEN CALLED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AND WILL BE HELD IN SAID CITY FROM 7:OO A.M. UNTIL 7:00 P.M. ON THE 15th DAY OF MARCH, 2016, AT WHICH TIME THERE SHALL BE SUBMITTED TO THE DULY REGISTERED AND QUALIFIED VOTERS OF THE CITY OF MIAMI BEACH THE FOLLOWING QUESTION: Referendum Re: Approval of City's Lease of City Property for Sabrina Cohen Wellness Center Project Should City lease 5,100 square feet of beachfront property at Allison Park,6475 Collins Avenue, to Sabrina Cohen Wellness Center Project, lnc., a non-profit corporation, for 99 years, requiring, per Resolution 2015- . Construction/operation of privately-funded Wellness Center with 50 foot height limit, which may include adaptive gym, pool, and physical therapy facilities exclusively serving persons with disabilities, . Lease restrictions prohibiting assignment or subcontracting without City Consent, . Rent to City, $18.00 annually? Said Notice shall further set forth the several polling places in the election precincts as established in accordance with Section 3 hereof, and shall further set forth pertinent information regarding eligibility of electors to participate in said elections. SECTION 6. That the official ballot to be used in the Special Election to be held on March 15,2016, hereby called, shall be in substantially the following form, to-wit: 144 ..OFFICIAL BALLOT'' Referendum Re: Approval of City's Lease of City Property for Wellness Genter Project Should City lease 5,100 square feet of beachfront property at Allison Park,6475 Collins Avenue, to Sabrina Cohen Wellness Center Project, lnc., a non-profit corporation, for 99 years, requiring, per Resolution 2015- . Construction/operation of privately-funded Wellness Center with 50 foot height limit, which may include adaptive gym, pool, and physical therapy facilities exclusively serving persons with disabilities, . Lease restrictions prohibiting assignment or subcontracting without City Consent, . Rent to City, $18.00 annually? YES NO SECTION 7. The form of the ballots to be used in this Special Election and their preparation shall be in compliance with all statutory requirements relating to the use of mechanical or other approved voting machines or devices. SECTION 8. Registration of persons desiring to vote in the Special Election shall be in accordance with the general law of the State of Florida governing voter registration. Qualified persons may obtain registration forms to vote at the Office of the City Clerk, City Hall, 1700 Convention Center Drive, First Floor, Miami Beach, Florida 33139, during normal business hours, and at such other voter registration centers and during such times as may be provided by the Supervisor of Elections of Miami-Dade County. The Miami-Dade County Supervisor of Elections will register voters for this Special Election until 5:00 p.m. on _, 2016. All persons eligible to vote at this Special Election must be registered before the time and date set forth herein or have registered previously, as provided by law. Each person desiring to become a registered voter shall be responsible for properly filling out the registration form and returning it to the Miami-Dade County Elections Office. All questions concerning voter registration should be directed to the Miami-Dade County Elections Office, 2700 N.W. 87th Avenue, Doral, Florida 33172; Telephone: (305) 499-VOTE (8683). 145 SECTION 9. That the absentee voters participating in said Special Election shall be entitled to cast their ballots in accordance with the provisions of the Laws of the State of Florida with respect to absentee voting. SECTION 10. That the City of Miami Beach shall pay all expenses for conducting this Special Election and will pay to Miami-Dade County or directly to all persons or firms, upon receipt of invoice or statement approved by the Supervisor of Elections of Miami-Dade County, Florida. SECTION 1 1. lf any section, sentence, clause or phrase of the ballot measure set forth above in this Resolution is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of said ballot measure. SECTION 12. This Resolution shall be effective immediately upon its passage. PASSED and ADOPTED this ATTEST: RAFAEL E. GRANADO CITY CLERK day of 2015. PHILIP LEVINE MAYOR 146 COMMISSION ITEM SUMMARY Condensed Title: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORTDA APPROVING, UPON SECOND AND FINAL READING OF THIS RESOLUTION AND FOLLOWING A DULY NOTICED PUBLIC HEARING, A GROUND LEASE AGREEMENT lN THE FORM ATTACHED TO TH|S RESOLUTTON, BETWEEN THE Ctry (OWNER OR LANDLORD) AND SABRINA COHEN WELLNESS CENTER PROJECT, tNC. (TENANT), tN CONNECTTON WITH THE USE OF 5,100 SQUARE FEET OF CITY-OWNED LAND, LOCATED AT ALLISON PARK, HAVING A STREET ADDRESS OF 6475 COLLINS AVENUE ( LEASED PREMTSES), FOR A TERM OF NINETY-N|NE (99) YEARS, FOR THE PURPOSE OF CONSTRUCTING AND OPERATING AN ADA ACCESSIBLE WELLNESS CENTER AT THE TENANT'S SOLE EXPENSE. !ntended Outcome S Build and maintain 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 " Item Summary/Recommendation : At the July 8, 2015 City Commission Meeting, 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 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 September30, 2015 City Commission meeting, the Mayorand City Commission adopted Resolution No.2015-29150, approving Option A, which covers a foot print of 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 concept of expanding the parking lot, increasing the standard parking spaces to 103 plus the Proposed 17 ADA spaces, for a total of 120 parking spaces; by demolishing the existing restrooms, and requiring the Foundation to construct public restrooms on the 1"' 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, allat the expense of the City. Atthe 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, which final negotiated ground lease shall be subjectto approval bythe City Commission and by a majority of the voters in a City-wide referendum, pursuant to Section 1.03(bX1) of the City's Charter. On October 5, 2015 the Finance and Citywide Projects Commission Committee 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. On October 21 , 2015, the Clty Commission accepted the recommendation of the FCWPC; waived, by 5/7tn vote, the competitive bidding requirement in Section 82-39(a) of the City Code, as being in the best interest of the City; waived, by 5/7'n vote, the appraisal requirement in Section 82-39 (b) of the City Code, as being in the best interest of the City; and approved, upon first reading, a draftof the lease agreement in substantial form. Pursuant to Section 82-38 of the City Code, the City's Planning Department proposed a Planning Analysis, a copy of which is attached hereto as Exhibit "A", was completed and found that the proposed Lease for the construction of a public health and wellness center at the Leased Premises is consistent with the Goals, Objectives, and Policies, and that said use would not have a negative impact upon the surrounding area. Administration Recommendation : The Administration recommends approving the proposed lease, a copy of which is attached hereto and incorporated herein reference as Exhibit "B" Financial lnformation : Source of Funds: Amount Account OBPI 1 Total Financial lmpact Summarv: n-Offs: Department Director Assistant City Manager City Manager JR JLMEXHIBITlr!lMIAMIBEACH AGENDA ITEM - DATE - 147 r915.20r5 City of Miomi Beoch, ,l700 Convention Center Drive, Miomi Beoch, Florido 33,l39, www.miomibeochfl.gov COMMISSION MEMORANDUM To: Mayor Philip Levine and Members of the City Commission FRoM: Jimmy L. Morales, City Manager DATE: December 9,2015 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY GOMMISSION OF THE CITY OF MIAM! BEACH, FLORIDA APPROVING, UPON SECOND AND FINAL READING OF THIS RESOLUTION AND FOLLOWING A DULY NOTIGED PUBLIC HEARING, A GROUND LEASE AGREEMENT IN THE FORM ATTACHED TO THIS RESOLUTTON, BETWEEN THE ctry (OWNER OR LANDLORD) AND SABRTNA COHEN WELLNESS CENTER PROJECT, tNC. (TENANT), !N CONNECTTON WITH THE USE OF 5,100 SQUARE FEET OF CITY.OWNED LAND, LOCATED AT ALLISON PARK, HAVING A STREET ADDRESS OF 6475 COLLINS AVENUE (LEASED PREM|SES), FOR A TERM oF N|NETY-NINE (99) YEARS, FOR THE PURPOSE OF CONSTRUCTTNG AND OPERATING AN ADA ACCESSIBLE WELLNESS CENTER AT THE TENANT'S SOLE EXPENSE. 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 Commission embraced the idea of implementing an ADA Accessible Beach Program, including an accessible outdoor fitness circuit 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. At the July 8, 2015 City Commission Meeting, 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. 148 At the September 30, 2015 City Commission meeting, the Mayor and City Commission adopted Resolution No. 2015-29150, approving Option A, which covers a foot print of 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 concept of expanding the parking lot, increasing the standard parking spaces to 103 plus the Proposed 17 ADA spaces, for a total of 120 parking spaces; by demolishing the existing restrooms, and requiring the Foundation to construct public restrooms on the 1"' 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, all 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, 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(bX1) of the City's Charter. On October 5,2015 the Finance and Citywide Projects Commission Committee recommended that the Administration negotiate a ground lease for the use of the Leased Prehises, in connection with the development of the Wellness Center, based upon the essential terms approved at the September 30, 2015 City Commission meeting. On October 21,2015, the City Commission accepted the recommendation of the FCWPC; waived, by 517'n vote, the competitive bidding requirement in Section 82-39(a) of the City Code, as being in the best interest of the City; waived, by 5/7'n vote, the appraisal requirement in Section 82-39 (b) of the City Code, as being in the best interest of the City; and approved, upon first reading, a draft of the lease agreement in substantial form. Pursuant to Section 82-38 of the City Code, the City's Planning Department proposed a Planning Analysis, a copy of which is attached hereto as Exhibit "A", was completed and found that the proposed Lease for the construction of a public health and wellness center at the Leased Premises is consistent with the Goals, Objectives, and Policies, and that said use would not have a negative impact upon the surrounding area. ANALYSIS The Administration recommends approving the proposed lease, a copy of which is attached hereto and incorporated herein by reference as Exhibit "B". Attachments o Exhibit "A" - Planning Analysis Memoo Exhibit "B": - Proposed Lease JLM/EC/JR T:\AGENDA\201S\December\Parks and Recreation\MEMO - Sabrina D Cohen foundation Wellness Center (Second and Final Reading).docx 149 MIAMIBEACH PIANNING DEPARTMENT COMMISSION MEMORANDUM ,l^, *:::J;ffiI::w Planning Di DATE: December 9,2015 SUBJECT: Planning Analysis of Proposed Lease Agreement between the City of Miami Beach and Sabrina D. Cohen Foundation, lnc. for a Wellness Center, located at 6475 Collins Avenue. BACKGROUND Section 82-38 of the Code of the City of Miami Beach requires that any proposed sale or lease of City-owned land be analyzed from a planning perspective so that the City Commission and the public are fully apprised of all conditions relating to the proposed sale or lease. The proposal is to execute a lease agreement between the City of Miami Beach (landlord) and Sabrina D. Cohen Foundation, lnc. (tenant). The proposed lease agreement will allow for the construction of a public health and wellness center, to be located a|6475 Collins Avenue. ANALYSIS 1. Whether or not the proposed use is in keeping with city goals and objectives and conforms to the city comprehensive plan. Gonsistent - The future land use designation of the site is Recreation and Open Space including Waterways (ROS). The proposed Wellness Center use is consistent with the ROS designation which permits the following: Recreation and Open Space including Waterways (ROS/ Purpose: to provide development opportunities for existing and new recreation and open space facilities, including watetways. Uses which may be permitted; recreation and open space facilities including waterways. lntensity Limits: intensity may be limited by such setback, height floor area ratio and/or other restrictions as the City Comrnrssrbn acting ln a legislative capacity determines can effectuate the purpose of this lands use category EXHIBIT + 150 Analysis of Proposed Lease Agreement for Sabrina D" Cohen Wellness Center December9,2015 Page 2 of 3 and otherwise implement complementary policy. However, in no case shall the intensity exceed a floor area ratio on 0.5. ,AHison Park consists of four parcels with a total land area of approximately 132,400 square feet, According to the regulations of the Comprehensive Plan, a floor area ratio (FAR) of 0.5 is permitted; which allows for a maximum square footage of 66,200 square feet. The proposed Wellness Center would be 15,400 square feet Wellness Center, which is only 23.3o/o of the allowable floor area on this site. The impact on adjacent property, including the potential positive or negative impacts such as diminution of open space, increased traffic, noise level or enhanced property values, improved development patterns and provision of necessary services. Based on the proposed use of the property, the city shall determine the potential impact of the project on city utilities and other infrastructure needs and the magnitude of costs associated with needed infrastructure improvements. Should it become apparent that further evaluation of traffic impact is needed, the proponent shall be responsible for obtaining a traffic impact analysis from a reputable traffic engineer. Consistent - No s(gnificant negative impacts are anticipated by the proposal. There will be a slight diminution of open space; however, the use of that area will remain as a recreational use. An initial concurrency review indicates the conversion of 5,100 square feet of open space to a 15,400 square foot Wellness c,enter would generate approximately 34.10 trips during peak hours, so traffic impac'ts should not be significant; however, this will be further analyzed as part of the certificate of appropriateness and building permit process, The noise produced by the uses inside the building should be contained within structure. The Wellness Center will provide an amenity that will not negatively impact property values. The proposed building will be in the center of Allison Park, so it will be setback away from surrounding resklential buildings, further minimizing its impact. Since infrastructure irnprovements are included in the budget and funding for the Wellness Center under article Vl of the lease, the impact will be minlmal. ln addition, the building will require approval from the Historic Preservation Board, which will further ensure that the building fits with the surrounding context. 3. A determination as to whether or not the proposed use is in keeping with a public purpose and community needs, such as expanding the city's revenue base, creating jobs, creating a significant revenue stream, and improving the community's overall quality of life. Consistent - This proposed use does keep with the public purpose and community needs. The Jease agreement will improve the community's overall quality of life by providing a state of the art public health and wellness center catering primarily to individuals living with physical and cognitive disabilities, seniors, and able-bodied individuals with temporary injuries. The Wellness Center will create jobs necessary for the implementation of activities proposed and jobs related to ancillary uses on We ore comnilled b povtdirlg excellent puAic selice ond sofety to all vrho live, wo*, ond play in anr vihont, tropicol, historic communiy, 151 4. Analysis of Proposed Lease Agreement for Sabrina D. Cohen Wellness Center December 9, 201 5 Page 3 of 3 site. The Facility will provide the community preference and discounts to Veterans and Miami Beach Residents for services provided at the Wellness Center. A determination as to whether or not the development is in keeping with the surrounding neighborhood, will block views or create environmental intrusions, and evaluation of the design and aesthetic considerations of the project. Consistent - The surrounding neighborhood will not be negatively affec*ed, as the proposed wellness center will not block view corridors from the adjacent buildings. The new building will be located in the middle of an existing park. The Wellness Centerwould be 3 stories tall and have a total of 15,400 square feet, designed to fit within the existing sidewalk system on site. The first floor foot print will be 5,100 square feet providing public Restrooms and Showers. The design and aesthetics for the proposed structure will be reviewed by the Historic Preservation Board prior to permit approval. The building will not be located within any environmentally sensitive or dune preservation areas; therefore, no negative environmental impacts are expected. Additionally, all applicable environmental assessments, including any required remediation, will be part of the building permit review process, The impact on adjacent properties, whether or not there is adequate parking, street and infrastructure needs. Consistent - The impact on adjacent properties should be minimal, as the building will be located within a public park. Adequate parking is available to serve the existing park and the new Wellness Center, and a North Beach Trolley stop is located in close proximity. Additionally, the proposal includes an increase in the amount of accessible parking available on-site. Such other issues as the city manager or his authorized designee, who shall be the city's planning director, may deem appropriate in analysis of the proposed disposition. Not applicable - The Planning Department has no other issues it deems appropriate to analyze for this proposal. GONCLUSION The proposed use for the site is consistent with use will generate no negative impacts for the continue to serve the public interest. the Goals, Objectives, and Policies. The surrounding area. The property would 5. 6. TRM/RAM/FM T:\AGENDA\201S\DecembeAPLANNlNG\Sabrina D Cohen foundation Wellness Center - Planning Analysis.docx We ore commitled to proiding excellxt public service ond sofety lo oll who hve, work, ond flay in anr vibront, tropicol, historic comnunity, 152 CITY OF MIAM! BEACH a Florida municipal corporation Lessor and SABRINA COHEN WELLNESS CENTER PROJECT, INC. a Florida not-for-profit corporation Lessee LEASE 2015 EXHIBIT ,6 153 TABLE OF GONTENTS ARTICLE PAGE I. DEMISE BY LESSOR, EFFECTIVE DATE AND DEFINITIONS... ................ 11 Section 1.1 Recitals Section 1.2 Demise Section 1.3 Effective Date Sectionl.4 Definitions II. DURATION AND TERM ......... 15 Section 2.1 Commencement and Maturity Dates; Possession Period; Pre- Possession Period; Site lnspections; Easements il!. AMOUNT OF RENT.. .............. 18 Section 3.1 Rent and payment schedule !V. USE AND POSSESSION OF WELLNESS CENTER .................. 18 Section 4.1 Permitted uses defined Section 4.2 Secondary Use as Nutrition Caf6 Section 4.3 Use by Gity Section 4.4 Joint Use Section 4.5 Amendment to Approved Uses V. OPERATION OF THE WELLNESS CENTER ..,.,......21 Section 5.1 Hours of Operation Section 5.2 Management Section 5.3 Labor/Personne!/MaterialslEquipmenUFurnishings Section 5.4 Orderly Operation Section 5.5 Security Section 5.6 Fees for Services offered at the Wellness Center Section 5.7 Operationa! Priority and Discounts 154 VI. REVENUE FROM THE WELLENESS CENTER RELATED ACTIVITIES/FINANCIAL RECORDS AND REPORTS.......... ...........23 Section 6.1 Revenue from Wellness Genter Related Activities Section 6.2 Financial Records and Reports VII. BUDGET AND FUNDING FOR THE WELLNESS CENTER ......25 vil. NET LEASE ............ ...........26 Section 8.1 Net lease defined X. PROVISIONS REGARDING PAYMENT OF TAXES ................... 26 Section 9.1 Lessee Pays AllTaxes Section 9.2 Contesting Tax Validity Section 9.3 Failure or Refusalto Pay Tax Section 9.4 Proration X. LESSOR'S INTEREST NOT SUBJECT TO MECHANICS'OR MATERIALMEN'S L|ENS...... .............29 Section 10.1 Notice to Third-Parties Regarding Liens Section 10.2 Releasing and Discharging Liens XI. LESSOR'S RIGHTS AND REMEDIES........ ..............29 Section 11.1 Landlord-Tenant Relationship Section 11.2 Al! Rights and Remedies Section 11.3 Rights and Remedies Gumulative x[. INDEMNIFICATION OF LESSOR AGATNST LtAB1LtrY............... ................ 30 Section12.1 lndemnificationClause Section 12.2 lndemnification Clause For Lease Challenges Section 12.3 Compliance With All Laws, Etc. Section 12.3.1 Rules On Hazardous Materials Section 12.3.2 Hazardous Materials Defined 155 Section 12.3.3 Further Disclosure of Hazardous Materials Section 12.3.4 Lessor's Right to lnspect Section 12.3.5 Default Section 12.3,6 Lessee Receives Property "As Is" XIII. FIRE AND WINDSTORM, ETC. INSURANCE PROVISIONS ..... 33 Section 13.1 Property All Risk Coverage Policies Section 13.2 Worker's Compensation Section 13.3 Automobile tnsurance Section 13.4 Propefi lnsurance Section 13.5 Additional lnsured Section 13.6 Waiverof Subrogation Section 13.7 Acceptability of Insurers Section 13.8 Verification of Goverage Section 13.9 Special Risks or Circumstances Section 13.10 Use of lnsurance Proceeds Section 13.f 1 Financing of Premiums Section 13.12 Default after Casualty Section 13.13 Excess lnsurance Proceeds Section 13.14 Gonstruction lnsurance Requirements XIV. LESSEE'S DUTY TO PAY INSURANCE PREMIUMS............ .... 39 Section 14.1 Obligation and Proof of Payment Section 14.2 Lessor's Option to Pay xv.ASSTGNMENT "........... ............39 Section 15.1 Right and Conditions of Assignments Section 15.2 Notice and Approval Section 15.3 Operational Subcontracts xvl. GoNDEMNATION CLAUSE.. ..............41 Section 16.1 Division of Condemnation Proceeds 156 Section 16.2 Lessee's lmprovements Section 16.3 Taking Rendering Project Unsuitable for Permitted Uses...............42 XVII. ADDITIONAL IMPROVEMENTS ...,.,...,..42 Section 17.1 Proposed lmprovements Defined; Gonsistency with Concept Plan Section 17.2 Lessee's Responsibility for Design and Approvals Section 17.3 Preliminary Plans and Specifications Section 17.4 Pre-construction site work Section f 7.5 Review of Preliminary Plans and Specifications Section 17.6 Phasing for Review of Preliminary Plans and Specifications Section 17.7 Design Review Board Approval Section 17.8 Public Facilities and Goncurrency Section 17.9 Construction Plans and Specifications Section 17.10 Diligence in Construction Section 17.11 Conditions Precedent to Gonstruction Section 17.12 Lessor's Cooperation in Obtaining Approvals Section 17.13 Lessee's Right to Terminate Section 17.14 Commencement and Completion of Construction of Proposed lmprovements. Section 17.15 Unavoidable Delays Section 17.16 Gompletion of Construction Section 17.17 Licensed Architects and Engineers Section 17.18 Gonstruction Cost Certification Section 17.19 Conditions Precedent to Commencement of Operations XVIII. COVENANTS RUNNING WITH THE LAND CONCERNING THE USE OF THE LEASED PREMTSES ............50 Section 18.1 Restrictions: (a) Lessee Remains a Not-For-Profit Corporation (b) Public Health and Wellness Center (c) Open to Public; (d) No Discrimination 157 (e) Lessee's Gosts (f) Security (g) Personnel (h) lnsurance obligation (i) Signs subject to approval by Lessor and pursuant to Gity Gode Section 18.2 Violation of Restriction is Event of Default xtx. DEFAULT CLAUSE... ............. 51 Section 19.1 Event of Default Section f 9.2 Statutory Landlord - Tenant Proceedings Apply Section 19.3 Thirty Day Cure Period Section 19.4 Lessor's Other Remedies Section 19.5 Liquidated Damages Section 19.6 Receiver XX. LESSEE'S DUTY TO KEEP PREMISES !N GOOD REPAIR ..... 53 Section 20.1 Lessee's Govenant Regarding Maintenance and Repair Section 20.2 Lessee's Govenant Regarding xxt. DEMoLTTION GLAUSE............... .............54 Section 21.1 Lessee's Right to Demolish Conditioned Section 21.2 Value of Reconstruction Section 21.3 Expense of Demolition and Right to Salvage XXII. ADDITIONAL COVENANTS OF THE LESSEE... ...... 55 Section 22.1 Destruction or Gasualty No Entitlement to Termination Section 22.2 No Subordination of Lessor's Title Section 22.3 Govenant Regarding Surrender Section 22.4 Further Covenant Regarding Encumbrances XXIII. CITY'S OBLIGATIONS RELATING TO THE PUBLIC COMPONENTS ....... 55 Section 23.1 Parking Lot Expansion Project. 158 Section 23.2 Public Restroom Facilities. Section 23.3 Public Shower Facilities. xxv. covENANT oF QUTET ENJOYMENT.......... ............ 56 Section 2.1 Lessee's Right to Quiet Enjoyment XXV. LESSOR'S RIGHT OF ENTRY ................56 Section 25.1 Lessor's Right of Entry XXVI. NO REPRESENTATIONS BY LESSOR ....................57 Section 26.1 Lessor's Absence of Warranties Regarding Property and Lessee's Acceptance of Premises XXVII. LESSEE TO COMPLY WITH ALL LAWS ................. 58 Section 27.1 Lessee's Gompliance With All Laws Section 27.2 Lessee's Obligation to Pay Fines, Etc. Section 27.3 No Discrimination Clause xxvil. SURRENDER OF THE PREM!SES......... ..................58 Section 28.1 Surrender of the Premises Section 28.2 No Subleases, Etc. xxlx. FoRcE MAJEURE ..................59 Section 29.1 Force Majeure xxx. SIGNAGE/NAM|NG R|GHTS............... ...... 59 xxxt. MtscELLANEous pRovlstoNs............ ................... 60 Section 31.1 Grace Periods Run Concurrently Section 31.2 Arrearages Section 31.3 Landlord-Tenant Relationship Regarding Collections Section 31.4 Lessor's Remedies Not Othenrise Provided 159 Section 31.5 Section 31.6 Section 31.7 Section 31.8 Section 31.9 Section 31.10 Section 31.11 Section 31.12 Section 31.13 Section 31.14 Section 31.15 Section 31.16 Section 31.17 Receivers Cooperation Gaptions Index Laws of Florida Apply Covenants Running With the Land Time ls of The Essence Notice Attorneys'Fees Venue Lessor's Limitation on Liability Mediation Recording in the Public Records 160 LEASE THIS INDENTURE (the "Lease"), made and entered into at Miami Beach, Miami-Dade 2015, by and between:County, Florida, this _ day of CITY OF M!AM! BEACH, a Florida municipa! corporation (hereinafter referred to as "Lessor" or "City") And SABRINA COHEN WELLNESS CENTER PROJECT, INC. a Florida not-for-profit corporation (hereinafter referred to as "Lessee" or "Foundation") W!TNESSETH: WHEREAS, the Lessor is the owner of the fee simple title in and to that certain property located at6475 Collins Ave, Miami Beach, Florida, a/k/a Allison Park, hereinafterdemised and more particularly described in the site plan attached as Exhibit "A" (the "City's Property", or"Allison Park" , or the "Park"); and WHEREAS, 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") forthe 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, 9 161 outdoor exercise equipment and picnic tables, and re-designing the existing parking lot to provide seventeen ('17) additional ADA accessible parking spaces; and WHEREAS, at the July 8, 2015 City Commission meeting, the Foundation requested that the City grantthe 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 one of the first cities to have a state of the art public Wellness Center, complementing the already approved ADA Beach Program, so that members of the general public who have physicaland cognitive disabilities, or able bodied individuals with a temporary disability, will be able to use the facility to improve their quality of life, while providing disabled Miami Beach Residents, disabled Military Servicemembers, and disabled seniors with a discounted price for the use of said services; and WHEREAS, the services to be provided by the Wellness Center will also include research and product testing, subject to funding availability, with the goal of developing medication, health products and technologies which will enhance the quality of life for persons living temporarily or permanently with a physical or cognitive disability; and WHEREAS, on September 30, 2015, the City Commission adopted Resolution No. 2015- 29150, approving a conceptual plan for the Wellness Center (the "Conceptual Plan"), attached as Exhibit "8"; 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 .2 (the "Leased Premises"), to develop, design, construct, finance, equip, operate, and maintain a Wellness Center, including the design and construction of public restrooms; and which 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, the City has agreed to pay forthe expenses of relocating the three turtle exhibits and signage relating thereto, currently located at the Leased Premises, to a different location in the 10 162 Park, which location shall be determined by the City Manager, in his sole discretion; WHEREAS, on October 5,2015, the Finance and Citywide Projects Commission Committee 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, on October 21,2015, the City Commission adopted Resolution No. 2015- , accepting the recommendation of the City's Finance and Citywide Projects Commission Committee, and approving, on first reading, a draft ninety-nine year lease ("Ground Lease"), in substantial form, between the City and the Foundation for the use of the Leased Premises; 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; and further waiving, by a 5l7th 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; and WHEREAS, on December 9, 2015, the City Commission adopted Resolution No. , approving the Lease, at a second and flnal reading, during a public hearing. NOW THEREFORE, the Lessor and the Lessee, for and in consideration of the mutual c,ovenants, 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 ! DEMISE BY LESSOR. EFFECTIVE DATE AND DEFINITIONS 1.1 The recitals set forth above are true and correct and are incorporated herein by reference. 1.2 Upon the terms and conditions herein stated, and in consideration of the payment from time to time of the rents herein stated, and for and in consideration of the prompt performance by the Lessee of all of the covenants hereinafter contained by the Lessee to be kept and performed, u 163 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 Lessee, and the Lessee does hereby lease of and from the Lessor, the property, situate, lying and being in Miami-Dade County, Florida, together with all buildings and other improvements located thereon, as more particularly described in the attached Exhibit "C": subject to the following: (a) Conditions, restrictions and limitations, now appearing of record; (b) City and/or County Zoning Ordinances now existing, or which may hereafter exist during the life of this lease; (c) All matters shown on the Boundary Survey; (d) All of the terms, covenants and conditions contained in this Lease. (e) Planning Director analysis and City Commission determination of waivers of public bidding and appraisals under Miami Beach Code Sections 82-39(a) & 82-39(b)); 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; and the adoption of a resolution by the City Commission accepting the certification of the official results of the March 15, 2016 election with respect to the Referendum. lf the Lease is not approved by voters during the March 15, 2016 referendum and the City Commission does not accept the certification of the official results of the March 15,2015 election, the Lease shall be void ab initio, without the need for further action by any of the parties, and the parties shall have no obligations or liabilities of any kind or nature whatsoever hereunder. This property is hereinafter referred to as the "Leased Premises". The Leased Premises and Wellness Center shall be collectively referred to herein as the "Project". 1.3 Effective Date. lf the Referendum is successful and all requirements of the City Code and applicable law are satisfied, this Lease shall be effective upon the City Commission's adoption of a resolution accepting the certification of the official results of the March 15, 2016 election with respect to the Referendum ("Effective Date"). 1.4 Defined Terms. As used herein the term: t2 164 "Citv" shall mean the City of Miami Beach, a Florida municipal corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139, ln all respects hereunder, City's obligations and performance is pursuant to City's position as the owner of the Leased Premises acting in its proprietary capacity. ln the event Cityexercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, laws and ordinances (including through the exercise of the City's building, fire, code enforcement, police department or otherwise) shall be deemed to have occurred pursuant to City's regulatory authority as a governmental body and shall not be attributable in any manner to City as a party to this Lease or in any way be deemed in conflict with, or a default under, the City's obligations hereunder. "Citu Code" the MiamiBeach City Charter and Code of Ordinances. "Citv Commission" shall mean the governing and legislative body of the City. "City Delavs" shall mean the number of days in which the City performs any obligation under Section 17 hereof in excess of the number of days set forth for such performance therein. "City Manaqer" shall mean the Chief Administrative Officer of the City. The City Manager shall be construed to include any duly authorized representatives designated in writing with respect to any specific matte(s) concerning this Lease (exclusive of those authorizations reserved to the City Commission or regulatory or administrative bodies having jurisdiction over any matte(s) related to this Lease). "Commence Construction" or "Commencement of Construction" shall have the meaning as set forth in Section 17.15. "Complete Construction" or "Completion of Construction" means the date Lessee has completed the Wellness Center substantially in accordance with the requirements of the Approved Plans and all conditions of permits and regulatory agencies have been satisfied, all Governmental Authorities have issued a Certificate of Occupancy, the Wellness Center has been accepted by the City and is ready for occupancy, utilization and continuous operation for the uses and purposes intended by this Lease, without material interference from incomplete or improperly completed Work, and substantially all of the furniture, fixtures and equipment ("FF&E") required forthe opening date has been purchased, delivered to and installed in the Wellness Center. "Disabled" as referred to herein shall refer to an individual with a temporary or permanent physical disability, including, but not limited to: (1) a physiological disorderorcondition, disfigurement, or anatomical loss that affects one or more bodily functions; (2) an individual with a physical impairment that substantially limits one or more major life activities such as caring for one's self, performing manual tasks, walking, or working; (3) a mental disability that prevents the person from performing day-to-day physical activities; or (4) a medical condition which may prevent the person from performing dayto-day physical activities including, without limitation, Cerebral Palsy, Developmental Disabilities, Down Syndrome, Lupus, Multiple Sclerosis, Parkinson's Disease, Scoliosis, or Stroke. "Foreion lnstrumentalitv" means a foreign (i.e., non-United States of America) government or instrumentality thereof or a Person controlled thereby. A Person shall be deemed to be "controlled by" a foreign government or instrumentality if such government or instrumentality, l3 165 directly or indirectly, directs orcauses the direction of the management and policies of such Person. "Lease Year" means a year, other than the first and last year of the Term, consisting of twelve ( 1 2) consecutive calendar months. The first Lease Year during the term of this Lease shall commence on the Possession Date and end on December 31't of the first full year. The second and following Lease Years shall commence on the 1't day of January each calendar year and end on December 31't of such year, except that the last year shall commence on the 1st day of January and end on the Maturity Date (as defined in Section 2.1). "Miami Beach Resident" means any person who has resided in the City of Miami Beach for longer than six (6) consecutive months. Proof of residency may be established by presenting two of the following documents: a driver's license, voter's registration, automobile registration, a recorded deed, a lease for place of residence, or a utility bill. Lessee may require annual recertification for Miami Beach Residents. "Military Servicemember" means any person who is on active duty in, or a veteran of the United States Armed Forces. A veteran of the United States Armed Forces shall mean any person who served honorably on active duty in the armed forces of the United States. The Foundation will accept a Form DD Form 214,Cerlificate of Release or Discharge from Active Duty (discharge papers marked "General and Under Honorable Conditions" will be deemed sufficient) to substantiate that the person is a military veteran. "Outside Construction Commencement Date" means two (2) years from the Effective Date, by which date Commencement of Construction must take place, as such date may be reasonably extended for a Force Majeure Event and/or City Delays, if any. "Outside Comoletion Date" means two (2) years from obtaining full building permit, bywhich date Completion of Construction shall have occurred, as such date may be reasonably extended by (i) the number of days by which the Outside Construction Commencement Date was extended, and thereafter for (ii) a Force Majeure Event and/or City Delays. "Outside Openinq Date" means two (2) years from obtaining fullbuilding permit, the date by which the opening date must have occurred, as such date may be reasonably extended by (i) the number of days by which the Outside Construction Commencement Date was extended, and thereafterfor(ii) a Force Majeure Event in accordance with this Lease, or(iii) City Delays. "Outside Possession Date" means May 1, 2018 or the Outside Construction Commencement Date, whichever occurs first, by which date the Possession Conditions must be satisfied, as such date may be reasonably extended for (i) a Force Majeure Event or (ii) City Delays. "Pa[tjes" means City and Lessee, and "Party" is a reference to either City or Lessee, as the context may indicate or require. "Seniod' means a person who is 62 years of age or older. l4 166 "Sublease" means any lease, sublease, license or other agreement by which Lessee demises, leases, or licenses the use and occupancy by another Person of a portion or all of the Wellness Center. "Subtenant" means any person using and occupying or intending to use and occupy the Wellness Center, or any part thereof, pursuant to a Sublease. "Transfer' means any sale, assignment or conveyance or any other transaction or series of transactions in the nature of a sale, assignment or conveyance of: (a) the Wellness Center or any part thereof; (b) any legal or beneficial interest in the Wellness Center, or any part thereof; (c) any direct or indirect legal or beneficial interest in Lessee (including the syndication of tax benefits); or any series of such Transfers that have the cumulative effect of a sale, transfer or conveyance of any of the foregoing (a), (b), or (c). ARTICLE !I - DURATION AND TERM 2.1 The duration and term of this Lease shall be for a period of ninety-nine (99) years, commencing on the Possession Date, as such term is defined in Section 2.1{a) hereof, with the last day of the lease term being the Maturity Date ("Term"). (a) Possession Date: Conditions Precedent to Possession. The Parties recognize that, as of the Effective Date, there remain various items and matters to be satisfied, obtained and approved in orderthat the Wellness Center mayproceed as intended by the Parties. The date that the City delivers possession of the Leased Property to Lessee according to this Section 2.1(a), as designated by the City to Lessee in writing, is referred to hereinas,the''@.'.TheCityshallnotbeobligatedtodeliverpossessionof the Leased Property and Lessee's rights as tenant hereunder shall not become effective until each of the events described in this Section 2.1(a) irrevocably shall have occurred, at which time, the City shall deliver possession of the Leased Propertyto Lessee, Lessee shall take possession thereof and the lease provisions of this Lease shall become effective. Until that time, this Lease shall not be in effect or enforceable. The conditions precedent to deliveryofpossession(collectively,the''@'.)areasfol|ows: (i) There exists no uncured Event of Default; l5 167 (ii) Lessee shall have entered into, and delivered to the City, a duly executed copy of, the General Construction Contract (and all then existing change orders thereto), in form and substance and with a General Contractor approved pursuant to Subsection 17 .3by the City Manager reflecting the guaranteed maximum price forcompletion of the Proposed lmprovements (as defined in Section 17.1); (iii) Lessee shall have delivered to City written evidence reasonably satisfactory to the City of the existence and availability of liquid assets to fund the development, design, construction, finance, equipment and operation of the Wellness Center; (iv) Lessee shall have provided to City, and City Manager shall have approved in its sole discretion, any changes to the budgeted improvement costs, provided that City Manager shall not withhold its approval so long as Lessee has obtained and delivered to the City written evidence of the existence and availability of liquid assets to fund the Wellness Center; (v) Lessee shall have obtained, and shall have delivered to City, a copy of, all governmental approvals necessary for the Commencement of Construction and necessary for construction of all vertical elements of the Wellness Center; (vi) Lessee shall have delivered to City, and City Manager shall have approved, the schedule of performancefortheWellnessCenter(Cityagreesthatitshall not withhold approval thereof so long as the same reflects Completion of Construction by the Outside Completion Date and Lessee has provided reasonable evidence that such schedule is reasonable); (vii) Lesseeshall havepresentedevidencereasonablyacceptable to the City that all required insurance coverages are in place; and (b) Pre-Possession Period. From and afterthe Effective Date, the Parties shall each use their respective diligent and commercially reasonable efforts to achieve the Possession Date timely. (c) Leased Premises Site lnspections. Commencing on the Effective Date, and thereafter until this Lease is terminated or the Possession Date occurs, the City shall l6 168 permit Lessee commercially reasonably access to the Leased Premises site to conduct at Lessee's sole cost and expense, physical inspections, tests and studies of the Site and to the extent necessary to carry out the provisions of this Lease; provided, however, that such access shall not materially interfere with any ongoing use and operations at the Park or the City's construction activity relating to the adjoining accessible park. Lessee, at all times and at its sole cost and expense, shall maintain or shall cause its general contractor or other contractors in privity with Lessee to maintain comprehensive general liability insurance as required in Article 13. Lessee shall restore any damage to the Leased Premises site caused by any such inspections, tests or studies, including any damage in connection with the discovery, exposure or release of hazardous substances or materials in, on or about the Leased Premises site that are not introduced to the Leased Premises site by Lessee, its agents, representatives, contractors, invitees or employees. (d) lndemnification. Whether or not the Possession Date occurs, Lessee shall indemnify, defend and hold City and its respective officers, employees, agents, representatives, consultants, counsel and contractors (of any tier) harmless from and against all claims, actions, suits, charges, complaints, orders, liability, damages, loss, costs and expenses (including any attorneys'fees and costs of litigation) related to, arising from or in connection with the acts or omissions of Lessee, its agents, representatives, contractors or employees, including injury or death to persons or damage to their property, while exercising Lessee's right to access the Leased Premises site and performance of such inspections, tests or studies pursuant hereto, except to the extent resulting from the sole negligence or willful misconduct of City or its officers, employees, agents, representatives, consultants, counsel and contractors. The indemnification obligations of Lessee set forth in this Subsection 2.1 (d) shall expressly survive the expiration or termination of this Lease and notwithstanding any provision of this Lease to the contrary, City shall have all rights and remedies available at law or in equity in the enforcement of such indemnification obligations of Lessee or arising from Lessee's failure to perform such indemnification obligations. (e) Failure to Satisfv Conditions. Notwithstanding anything contained in this Lease to the contrary, if: (i) any of the Possession Conditions have not occurred by the Outside Possession Oate; (ii) Lessee does not commence construction by the Outside Construction Commencement Date; (iii) Lessee does not Complete Construction by the Outside Completion Date; or (iv) the opening date does not occur by the Outside Opening t7 169 Date, then Lessee hereby waives any further right to cure, and the City shall be entitled to immediately terminate this Lease upon written notice to the Lessee; provided that Lessee shall also have the right to immediately terminate this Lease upon written notice to the City on or before the Outside Possession Date and in any such event, the Parties shallthereafter be released from all obligations set forth herein, except any such obligations that expressly survive termination. (f) Easements. The parties agree that this Lease shall be subject to and contingent upon the execution of certain easements, including any applicable access easements. The Parties shall also enter into any easements which may be required by Lessee to connect utilities or in connection with any cantilevered elements, as shown in the Approved Plans. The Parties shall thereafter cause the Easements to be promptly recorded among the public records of Miami-Dade County, Florida. The Easements shall be held in escrow by the City and released therefrom and recorded among the public records of Miami- Dade County, Florida prior to the Commencement of Construction. ARTICLE III- AMOUNT OF RENT 3.1 The Lessee covenants and agrees to pay to the Lessor an annual rental of $18.00 peryear, payable annually in advance, the first such annualpayment being due and payable on the lst day of January of every year during the entire term of the Lease. ARTICLE IV. USE AND POSSESSION OF WELLNESS CENTER 4.'l The Wellness Center shall be used by the Lessee solely and exclusively as a state of the art public health and wellness center catering exclusively to individuals living with physical and cognitive disabilities, and able bodied individuals with a temporary disability. lt is understood and agreed that the Lessee shall be required, at a minimum, to provide the activities and services described in Sections (A) through (C) below. Additionally, the Wellness Center shall be used by the Lessee during the entire term of this Lease onlyforthe purposes described below, and for no other purposes or uses whatsoever. ln the eventthat the Lessee uses the Premises for any purposes not expressly permitted herein, such use shall be considered an Event of Default and the Lessor shall be entitled to allthe remedies set forth in Article XIX hereof, or without notice to Lessee, restrain such improper use by t8 170 injunction or other legal action. The activities and uses permitted under this Lease shall be limited to and only include: (A) Adaptive Fitness Program; (B) Adaptive Gym, including training; (C) Healing Room for yoga, meditation, and/or art therapy; (D) Physical Therapy; (E) AdaptiveAqua-Therapyservices; (F) Research & Product Testing Room (subject to funding availability); (G) Office of the Foundation; (H) Conference Room; and (l) Library; 4.2 Secondarv (ancillarv) Use. Subject to approval by the City in its regulatory capacity in accordance with the City's Land Development Regulations, Lessee shallalso be authorized to use a portion of the Wellness Center, not to exceed 1,200 square feet, as a Nutrition Caf6, offering healthy juices and food options ("Food and Beverage Service") for patrons of the Wellness Center. 4.2.1 Citu 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 othenruise violate, the City's exclusive vending contractwith 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 exclusive vending contract with Bettoli Trading Corp. ("Bettoli Contract") (collectively referred to herein as the "City Vending Contracts"); copies of which are attached hereto and made a part hereof as composite Exhibit "D". 4"2.2 Prohibitions reqardino Sale or Use of Expanded Polvstyrene Food Service Articles or Plastic Straws. Pursuant to Section 82-7 of the City Code, as may be amended from time to time, effective August 2,2014, the City has prohibited the use of expanded polystyrene food service articles by City Contractors, in connection with any City contract, lease, concession agreement or Special event permit. Additionally, pursuant to Section 82- 385 of the City Code, as may be amended from time to time, no polystyrene food service articles will be allowed in the right-of-way, and no polystyrene food service articles can be provided to sidewalk caf6 patrons. t9 171 Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded polystyrene is more particularly defined as blown polystyrene and expanded and extruded foams that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead foam), injection molding, foam molding, and extrusion-blown molding (extruded foam polystyrene). Expanded polystyrene food seruice articles means plates, bowls, cups, containers, lids, trays, coolers, ice chests, and all similar articles that consist of expanded polystyrene. Lessee agrees not to sell, use, provide food in, or offer the use of expanded polystyrene food service articles at the Wellness Center or in connection with this Lease. Lessee shall ensure that all vendors operating in the Wellness Center abide by the restrictions contained in this Subsection 4.2.2. A violation of this section 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 46-92 (c) of the City Code, which states that it is unlawful for any person to carry anv 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. 4.3 Use bv the Citv. Lessee and the City have agreed that the Proposed lmprovements will provide a Wellness Center which has facilities which may also be used by the City. Accordingly, the City shall have the right to use the Wellness Center, orany part thereof, subject to availability, for City-sponsored public meetings, training, and clauses, as may be reasonably deemed necessary and appropriate by the City Manager. Any City use of the Wellness Center shall be without the payment of any rental or use fee, except that direct out-of-pocket expenses incurred in connection with such uses shall be paid by the City (including without limitation, reasonable out of pocket expenses incurred by Lessee in order to open and make the Wellness Center available in connection with such City use). Lessee agrees to coordinate and cooperate with the City for public use of the Premises by the City, which coordination and cooperation shall not be unreasonably withheld or delayed, and provided that such City uses(s) does not materially interfere with the operations of the Wellness Center by the Lessee. Such public use of the Wellness Center by the City shall be conducted pursuant to policies and procedures, 172 which shall be established and mutually agreed upon by the Lessee and the City. 4.4 Joint Use. The parties agree and acknowledge that, in furtherance of, and consistent with the goals and priorities and approved uses, the Lessee and the City may agree to mutually coordinate, sponsor and provide certain additional recreation and leisure activities and/or programs on the Wellness Center. The Lessee and the City shall mutually agree upon and approve any such activities and/or programs in advance of their implementation; the programs and/or activities must be consistent with the operation of the Lessee; and may not materially interfere with the operations of the Lessee. Subject to the preceding criteria, the Lessee and the City hereby agree that each party will be responsible for its respective costs associated with the provision of said activities and/or programs. 4.5 4.5 Amendment to Approved Uses. Any change to the approved uses set forth in Sections 4.1 and 4.2herein, which are consistent with the operation of the Lessee, shall be approved by the City Manager before implementation, and shall be memorialized in writing through an amendment to the Lease. Any change to the approved uses, which are determined by the City Manager, at his sole and reasonable discretion, to not be consistent with the approved uses, shall be approved by the Mayor and City Commission, ARTICLE V. OPERATION OF THE WELLNESS CENTER 5.1 Hours of Ooeration. The Lessorand Lessee herein agree that normal hours of operation for the Wellness Center shall not exceed the timeline between 8:00 AM to 8:00 PM, Monday through Sundays ("Permitted Hours of Operation"), but at all times shall maintain regular operating hours, with a minimum of five days per week and a minimum of forty hours per week ("Minimum Hours of Operation"), not to exceed the Permitted Hours of Operation. Consistent with these parameters, upon opening for business, Lessee and Lessor shall mutually agree upon the initial hours of operation and memorialize them in writing. Any further change in the hours of operation 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 determination by the City Commission. The failure of the Lessee to operate the Wellness Center continuously during its scheduled hours shall constitute a default under this Lease. 5.2 Manaqement. Lessee must manage and operate the Wellness Center activities, services and programs, for the purpose of coordinating, implementing and 21 173 supervising all approved uses; supervise and direct all Wellness Center employees, officers, agents, contractors, invitees, visitors, and guests on the Wellness Center;and develop and implement programs and activities which support and promote the goals and priorities and approved uses set forth in Subsection 4.1 and 4.2. 5.3 Labor/Personnel/Materials/EquipmenVFurnishinqs. Lessee must provide and maintain, at is sole cost and expense, all labor, personnel, materials, equipment, and furnishings, as reasonably required, to operate the Wellness Center as a full service comprehensive health and wellness center, in accordance with the goals and priorities and approved uses set forth in Subsection 4.1 and 4"2" 5.4 Orderlv Operation. Lessee shall have a neat and orderly operation at all times and shall be solely responsible for the necessary housekeeping services to properly maintain the Wellness Center. There shall be no living quarters nor shall anyone be permitted to live within the Wellness Center. Lessee shall make the Wellness Center available for inspection by the City Manager or his authorized representatives during hours of operation. 5.5 Securitv. Lessee shall be responsible for and provide reasonable security measures as may be required to protect and secure the Wellness Center and any materials, equipment, and furnishings thereon. Under no circumstances shall the Lessor be responsible for any stolen or damaged personal property of the Lessee and/orthe Wellness Center's officials, employees, contractors, patrons, guests, invitees, and/or any other third parties. 5.6 Fees for Services offered at the Wellness Center. The cost of the services offered at the Wellness Center (including the Nutrition Cafe) shall be subject to the prior written consent of the City Manager, which consent shall not be unreasonably withheld. 5.7 Operational Prioritv and Discounts. To the extent permitted by applicable laws and subject to demand, disabled Miami Beach Residents, disabled Military Servicemembers, and disabled seniors shall receive priority for all programs and services ("Priority Categories"), with disabled Miami Beach Residents receiving the first priority, followed by disabled Military Servicemembers, and thereafter followed by disabled seniors ("Priority categories' H ierarchy). a. Promotion. ln order to promote the operational priority, Lessor and Lessee shall promote the opening of the Wellness Center; however, all promotional 22 174 materials and advertisements shall be approved, in writing, by the City Manager, prior to publication. Lessee shall provide an exclusive initial registration period of thirty days ("lnitial Registration Period") for the Priority Categories, based upon the Priority Categories' Hierarchy. Thereafter, when applicable, and subject to the established Priority Categories' Hierarchy, the registration period for Priority Categories shall take place before registering others. The Priority Categories shall not be denied services or placed on a waitlist unless there is no availability and the individual has attempted to register after any advertised time period. b" Discounts. Additionally, Lessee shall provide a 15o/o discount to the individuals in the Priority Categories in connection with the services offered at the Wellness Center. ARTICLE V!. REVENUE FROM THE WELLNESS CENTER RELATED ACTIVITIES/FINANCIAL RECORDS AND REPORTS 6.1 Revenue from the Wellness Center Related Activities. The Lessor herein acknowledges that the Lessee may derive additional revenues from a portion of the approved uses it conducts on the Wellness Center (such revenue generating uses may include, from time to time, special events on the Wellness Center, fundraising, specialty sales, classes, lectures aM providing Food and Beverages). The Lessee herein acknowledges that any and all revenue generating uses conducted on the Wellness Center must be directly related to, consistentwith, or used to help fund the Lessee's management, operation, and maintenance of the Wellness Center, and, in the event that annual revenue(s) pertaining to the Wellness Center exceed expenses during a particular budget year, the Lessor and the Lessee agree that such excess revenue, if any, shall first be applied to offset any of the capital improvements and/or infrastructure maintenance costs (as set forth in Section XX), and may, thereafter, be applied by the Lessee to support the other charitable, public health, wellness, educational, research or public service programming of the Lessee within the City of Miami Beach, Florida for the benefit of Miami Beach Residents living with a temporary or permanent disability, in the current year and/or future years. Any revenue generating uses conducted on the Wellness Centerthat are not consistentwith the approved uses in Subsection 4.1 or 4.2,or consistentwith this Section 6.1, shall first be approved, in writing, by the City Manager (prior to commencement of same). For purposes 23 175 herein, "revenues" shall also be deemed to include public/private grant funding and unrestricted donations and contributions received by the Foundation specifically ear-marked toward the operation of the Wellness Center. No portion of the net earnings resulting from the operation of the Wellness Center shall inure to the benefit of any private individual. 6.2 Financial Records and Reports. Lessee shall maintain at the Wellness Center, or at the location set forth in the Notices section of this Lease, or at such other place within 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 at the Wellness Center relating specifically to the operations of the Wellness Center, 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 no later than one hundred and twenty (120) days following the closing of Lessee's fiscal year (June 1't - May 31't), Lessee shall provide the City Managerwith an annual report of all uses, services, programs, events and activities (including without limitation, allrevenue generating uses) conducted upon the Wellness Center for the prior year("Programmatic Plan Report"), along with audited financial statements. Said statements shall be certified as true, accurate and complete bythe Lessee and by its certified public accountant. 6.3 Additionally, in the annual Programmatic Plan Report, Lessee shall include the number of persons participating in the programs and services provided at the Wellness Center, including a breakdown of the disabled Miami Beach Residents, disabled Military Veterans and a third category for visitors with a disability who received services at the Wellness Center for the given year. ARTICLE VII. BUDGET AND FUNDING FOR THE WELLNESS CENTER 7.1 No Liabilitv to Citv. The parties acknowledge that the City shall have no responsibility to fund the construction of the Proposed lmprovements or the operation, maintenance, or payment of capital improvement costs of the Wellness Center. Throughout the Term of this Lease, the Lessee shall be solely responsible for obtaining public/private grant funding and individual/corporate contributions, to fund Proposed lmprovements and to 176 fund the continued management, operation and maintenance of the Wellness Center, including capital renovations and improvements, as may be approved by the City. The Lessee's lack of funds to construct the Proposed lmprovements, to operate, to maintain, or to fund any necessary capital improvement costs shall constitute a default underthis Lease. Further, the parties acknowledge, that by the City, in its proprietary capacity, reviewing financial or other materials of the Lessee or providing other approvals contemplated under this Lease, the Citydoes notundertake responsibilityorliabilitywhatsoeverforsuch matters, including operationalmatters, health care compliance matters, budgets, and such approvals shall not obligate the City in any way or relieve the Lessee of its responsibility for the actions or omissions of the Lessee or its agents or representatives. 7.2 Throughout the Term of this Lease, the Lessee shall prepare and present, by May 1Sth of each year, a proposed, detailed line item annual operating budget for the Wellness Center for the period from the next June lst to May 30th, for review by the City Manager. Said budget shall include a projected income and expense statement; projected year-end balance sheet; statement of projected income sources; and application of funds. Additionally, the budget shall also include, without limitation, the following detailed projections: A. Gross revenues by categories from all revenue sources and revenue generating uses derived on the Wellness Center; 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; and G. Projected capital improvement costs. 7"3 Programmatic Plan. Accompanying the Lessee's proposed annual budget shall be the Wellness Center's programmatic plan forthe Wellness Center's upcoming flscal year, detailing the then-known (planned) uses, services, activities, events, programs, and operations, and the number of users anticipated. ARTIGLE V!I!- NET LEASE 25 177 8.1 Lessee shall pay to the Lessor absolutely net throughout the term of this Lease, the rent and other payments hereunder, free of any charge, assessments, impositions, expenses or deductions of any kind and without abatement, deduction or setoff, and under no circumstances or conditions, whether now existing or hereafter arising, or whether within or beyond the present contemplation of the parties, shall the Lessor be expected or required to make any payment of any kind whatsoever (unless reimbursed by Lessee) or be under any other obligation or liability as to the Wellness Center, except as otherwise specifically stated in this Lease; and the Lessee agrees to pay all costs and expenses of every kind and nature whatsoever arising out of or in connection with the Premises that may arise or become due during the term of this Lease. Lessee shall be responsible for all expenses relating to the operation and maintenance of the Wellness Center including, without limitation, utilities, any applicable taxes (personal and ad valorem). ARTICLE !X. PROVISIONS REGARDING PAYMENT OF TAXES 9.1 Lessee covenants and agrees with Lessor that as a further consideration for the making of this Lease, the Lessee is obligated to and will pay all taxes levied or assessed at any or all times for and after the year in which the Possession 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 Project or this Lease, including the land and all buildings, (and such personal property by way of furnishings or equipment which 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 their terms 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 installments, the Lessee shall be responsible for such installments during the term of this Lease, and may pay such sums in installments, and the Lessor shall be responsible for any such assessments extending beyond the term of this Lease. 26 178 9.2 Notwithstanding the foregoing, Lessor acknowledges that Lessee is a 501(c)(3) non-profit organization, and therefore may seek exemption from any and all applicable taxes levied or assessed by any and all taxing authorities. lf Lessee desires to contest the validity of any tax or tax claim, Lessee may do so without being in default hereunder as to its obligation to pay taxes, provided Lessee gives Lessor written notice of its intention to do so and furnishes Lessor with a bond from a corporate surety qualified to do business in the State of Florida, in one and one-half times the amount of the tax item or items intended to be contested, conditioned to pay the tax or tax items when the validity thereof shall finally have been determined, which written notice and bond shall be given by Lessee to Lessor not later than a day which is thirty (30) days before the tax item or items proposed to be contested would otherwise become delinquent. lf prior to the giving of such bond, Lessee shall have paid into the Registry of a court of competent jurisdiction a sum of money to pay or apply on the payment of such taxes, and if such money is so paid into the Registry of the Court that it may never be withdrawn excepting for its application upon the payment of the contested taxes without the consent in writing of the Lessor hereunder first had and obtained, then the amount of the bond required by the terms of this Section 9.2 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 othenarise provided for in this Article, need be given by Lessee to Lessor. None of the provisions of this Section 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 is otherwise effectively stayed not later than a day which 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 Section 9.3 of this Article lX, to pay such taxes as then assessed and levied, notwithstanding any pending or proposed suit to contest those taxes. 9.3 ln the event the Lessee shall for any reason fail, refuse or neglect to pay any taxes referred to in Section 9.1 of this Article lX within the time specified therein, or if 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 Section 9.2 of this Article lX within the time therein specified, then and in any such event, the Lessor may at its option pay such taxes as then 179 assessed and levied and the amount or amounts of money so paid, including reasonable attorneys'fees and expenses which may have been reasonably incurred in connection with such payments or by reason of the nonpayment thereof by the Lessee, togetherwith interest on all such amounts at the rate of ten per cent (10%) per annum from the date of payment, shall be repaid by the Lessee to the Lessor and the payment thereof may be collected or enforced by Lessor in the same manner as though such amounts were an installment of rent specifically required by the terms of this Lease to be paid by Lessee unto Lessor; but the payment of any such taxes by the Lessor shall not waive the default thus committed by the Lessee. 9.4 Notwithstanding the foregoing, taxes (afterdeducting allavailable discounts if utilized) for the last year of the term of this Lease will be prorated as of the termination date of the term of this Lease, Lessee paying such taxes for that 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. ARTIGLE X. LESSOR'S INTEREST NOT SUBJECT TO MECHAN!CS' 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 Lessor in the Leased Premises to any mechanics' or materialmen's liens or liens of any other kind or nature; and all persons dealing with the Lessee are hereby notified of the fact that they must look only to the interest of the Lessee in the Wellness Center and not to any interest of the Lessor. 10.2 Lessee covenants and agrees with Lessor that Lessee will not permit or suffer to be filed or claimed against the interest of the Lessor in the Leased Premises, or the interest of Lessee in the Wellness Center, during the continuance of this Lease any lien or claim of any kind, and if any such lien is claimed orfiled it shall be the obligation of the Lessee, within thirty (30) days after the lien or claim shall have been filed among the Public Records of Miami-Dade County, Florida, or within thirty (30) days after the Lessor shall have been given notice of any such lien or claim and shall have transmitted written notice of the receipt of 180 notice of such lien or claim unto the Lessee (whichever thirty (30) day period expires earlier), to cause the Project to be released and discharged from such lien or claim, either by payment into court of the amount necessary to relieve, release and discharge the Project from such lien or claim, or in any other manner that as a matter of law will result, within the period of thirty (30) days, in releasing and discharging the Lessor and the title of the 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. ARTICLE XI.LESSOR'S RIGHTS AND REMEDIES 11.1 Although this is a long term Lease, all of the rights and remedies of the respective parties shall be governed by the provisions of this instrument and by the laws of the State of Florida as they exist from time to time, as such law relates to the respective rights and duties of landlord and tenant. 11.2 During the continuance of this Lease, the Lessor shall have all rights and remedies which this Lease and the law of the State of Florida assures to it. 11.3 All rights and remedies accruing to the Lessor shall be cumulative; that is to say, the Lessor may pursue such rights as the law and this Lease afford to it in whateverorder the Lessor desire and the law permits, without being compelled to resort to any one remedy in advance of any other. ARTICLE XII.INDEMNIFICATION 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, 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 defense, including appeals, as and when such fees and expenses become due and payable, in addition to any other sums which the Lessor may be called upon to pay by reason of the entry of a 29 181 judgment against the Lessor or any of them in the litigation in which such claim is asserted. The Lessor's protections stipulated in this Section 1 2.1 shall not extend to or cover any losses or damages resulting out of the sole negligence or willful misconduct of the Lessor or its officers, agents, employees and instrumentalities or any liability of Lessor to third parties. 12.2 Lessee shall also protect, defend, indemnify and hold Lessor harmless against any loss or damage, including attorneys'fees and costs, arising out of or resulting from any claim, action or law suit brought by a third party to (i) challenge the validity or enforceability of this Lease, or any City action relating to this Lease, including challenges to the referendum approval contemplated of this Lease; (ii) challenge the Lessor's title to the Leased Premises; or (iii) enjoin this Lease. lf any litigation is instituted against the Lessor and/or the Lessee as a result of the approval of this Lease, then the Lessee shall defend the Lessor and save the Lessor harmless from any and all reasonable attorneys' fees and court costs that may be incurred, both at the trial and appellate level. Counsel in such actions shall be selected by Lessee, subject to approval of Lessor, which approval shall not be unreasonably withheld or delayed. 12.3 Lessee, including Lessee's officers, employees, agents, and contractors, at Lessee's expense, shallcomplywith all laws, rules, orders, ordinances, directions, regulations and requirements of federal, state, county and municipal authorities pertaining to this Lease and Lessee's use of the Wellness Center and with the Covenants Running with the Land, regardless of when they become effective, including, without limitation, allapplicable federal, state and local laws, regulations or ordinances pertaining to air and water quality, 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 Lessor or Lessee with respect to the use or occupation of the Wellness Center. 12.3.1 Lessee shall (i) not cause or permit any Hazardous Material to be brought upon, kept or used in or about the 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 Material so brought upon or used or kept in or about the Project. lf Lessee breaches the obligations stated in the preceding sentence, or if the presence of Hazardous Material on the Project results in contamination of the Project, or if contamination of the Project by Hazardous 182 Material othenruise occurs, then Lessee shall indemnify, defend and hold Lessor harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Project, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Project, damages arising from anyadverse impacton marketing of space, and sums paid in settlementof claims, attorneys' fees, consultant fees and expert fees) which arise as a result of such contamination. This indemnification of Lessor by Lessee includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground watrer on or under 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 Lesso/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. 12.3.2 "Hazardous materials" mean (a) pesticides and insecticides; (b) petroleum and its constituents; (c) any substance which is or may hereafterbe defined as or included in the definition of "hazardous substances," "hazardous materials," "hazardous wastes," "pollutants or contaminants," "solid wastes" or words of similar import under the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. 59061, et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. 51801 et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 56901 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. 51251 et seq., Chapters 376 and 403, Florida Statutes; Chapter 24 of the Code of Metropolitan Dade County; (d) any other substance, the exposure to or release of which is regulated by any governmental entity having jurisdiction over the Project or the operations thereon; and (e) any substance that does or may pose ahazard to the health or safety of the persons employed at or invitees on the Project. Notwithstanding the foregoing, "Hazardous Materials" shall not include chemicals and materials customarily used for property maintenance, which can include, but not limited to, cleaning supplies, pesticides for landscape maintenance and chemicals for aqua therapy pool maintenance, so long as used as intended. 3l 183 12.3.3 At the Possession Date , and on January 1 of each year thereafter (each such date being hereafter called "Disclosure Date"), including January 1 of the year after the termination of this Lease, Lessee shalldisclose, in writing, to Lessorthe names and amounts of all Hazardous Materials, orany combination thereof, which were stored, used ordisposed of on the Project, or which Lessee intends to store, use or dispose of on the Project. Notice of Lessee's use of Hazardous Materials on the Project shall not be a waiver of any of Lessor's claims, defenses or rights related to Lessee's use of such materials. 12.3.4 Lessor and its agents shall have the right, but not the duty, to inspect the Pro.lect at any reasonable 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 Prolect 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. 12.3.5 Any default under this Section 12 shall be a material default enabling Lessor to exercise any of the remedies set forth in Article XIX of this Lease ("Default Clause). 12.3.6 Lessee acknowledges it is receiving the Leased Premises in "as is" condition and Lessor is not responsible for the existing condition of the Leased Premises, including any underground conditions. ARTICLE XIII - FIRE AND WINDSTORM. ETC. INSURANCE PROVISIONS Lessee shall maintain, at its sole cost and expense, the following types of insurance coverage upon completion of construction and issuance of the certificate of occupancy for the Project: 13.1 Notwithstanding the foregoing, as of the Possession Date, Lessee shall purchase and maintain CommercialGeneral Liability lnsurance, on an occurrence form, in the amount of $1,000,000 per occurrence, for bodily injury, death, property damage, and personal injury, $2,000,000 aggregate. This policy must name the City of Miami Beach, Florida, as additional insured. 13.2 Workers Compensation lnsurance shall be required under the Laws of the State of Florida and employe/s liability insurance of not less than One Five Hundred Thousand ($ 500,000) per occurrence. 32 184 13.3 Automobile lnsurance shall be provided covering all owned, leased, and hired vehicles and non-ownership liability for not less than the following limits, subject to adjustment for inflation for a $1,000,000 combined single limit (only if Lessee provides transportation services). 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 coverthe 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. 13.5 Primary Coveraoe. 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 insurance maintained by the City of Miami Beach shall be excess of the Lessee's insurance and shall not contribute with it. 13.6 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. 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 behalf of Lessee. 13.8 Waiver of Subroqation. Lessee hereby grants to City of Miami Beach a waiver of any right to subrogation which any insurer of Lessee may acquire against the City and against those for whom the City is in law responsible including, without limitation, its directors, officers, agents, and employees, by virtue of the payment of any loss under such insurance. Lessee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Miami Beach has received a waiver of subrogation endorsement from the insurer. 13.9 Acceptabilitv of lnsurers. lnsurance is to be placed with insurers with a current A.M. Best's rating of no less than A:Vll, unless otherwise acceptable to the City of Miami Beach Risk Management Office. 13.8 Verification of Coverage. Lessee shall provide the required insurance certificates, endorsements or applicable policy language effecting coverage required by this Section. All certificates of insurance and endorsements are to be received prior to any work JJ 185 commencing. However, failure to obtain the required coverage prior to 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. 13.9 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. Certificate Holder CITY OF MIAMI BEACH c/o INSURANCE TRACKING SERVICES 17OO CONVENTION CENTER DRIVE MIAMI BEACH, FL 33139 Compliance with the foregoing requirements shall not relieve the vendor of his liability and obligation under this section or under any other section of this agreement. 13.10 ln the event of the destruction of or damage to the buildings, or of any of the improvements, byfire, windstorm orothercasualtyforwhich insurance shallbe payable, and as often as such insurance money shall have been pald to the Lessor and the Lessee, sums so paid shall be deposited in a joint account of the Lessor and Lessee in a bank in Miami-Dade County, Florida designated by the Lessor, or, in the alternative, if the parties agree to execute a Work Letter and Escrow Agreement, the insurance money shall be deposited into Lessee's attorney's escrow account, subject to disbursements pursuant to the agreed upon terms of the Work Letter and Escrow Agreement. As such, said insurance money shall be available to the Lessee for the reconstruction or repair, as the case may be, of any building or buildings, damaged or destroyed by fire, windstorm or other casualty for which insurance money shall be payable, and shall be paid out bythe Lessorand the Lessee from the joint accountfrom time to time, or from the Lessee's attorney's escrow account, pursuant to the Work Letter and Escrow Agreement, as the case may be, based upon the estimate of any architect licensed in the State of Florida having supervision of such reconstruction and/or repair, certifying that the amount of such estimate is being applied to the payment of the reconstruction and/or repair and at a reasonable cost therefor; provided, however, that 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 186 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 general contractorand construction agreement shall be subject to the prior written approval by the City Manager. 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, or into the Lessee's attorney's escrow account, as the case may be, and shall be paid out for the replacement or repair, as the 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 shall be of the same or greater value as the building and the improvements upon the Leased Premises were immediately prior to such damage or destruction, and shall have the same rebuilt and/or repaired and ready for occupancy and have received the appropriate certificate of occupancy and/orcompletion from the City's Building Departmentwithin two years from the time when the damage or destruction occurred, and shall within that period replace and repair as the case may require, personal property destroyed or damaged; this obligation of the Lessee to rebuild and repair the buildings and improvements, and to replace and repair the personal property, shall exist and be enforceable irrespective of the availability of any insurance funds for any of these purposes. With Lessor's prior written consent, the two-year period for reconstruction or repair shall be enlarged and extended by delays caused without fault or neglect on the part of the Lessee, by act of God, strikes, lockouts or other conditions beyond the Lessee's control. 13.11 Nothing herein contained shall be construed as prohibiting the Lessee from financing the premiums on such policies, or from such payments having a deductible amount not exceeding five percent (5%) of the insurable value of the improvements. 13.12 lf at any time any such insurance money comes into the possession of the Lessor and the Lessee 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 35 187 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 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 Project herein described, and without prejudice to their rights to the benefit of such insurance money as payment of such rental and other charges. 1 3.1 3 lt is agreed by and between the Lessor and Lessee that any excess of money received from insurance or other sources remaining in the joint bank account or Lessee's attorney's escrow account, as the case may be, after the completion of the reconstruction, replacement or repair of such building or buildings and personal property, and if there is no default on the part of the Lessee in the performance of any of the covenants of this Lease, shall be paid to Lessee. Notwithstanding the foregoing, in the event the Lessee fails for any reason to: (1) submit a complete building permit application within six (6) months from the date of the damage ordestruction occasioned byfire, windstorm orothercause forwhich insurance money shall be payable; or (2) commence the reconstruction or repair of such building or buildings within twelve (12) months after the submission of the building permit application; or (3) provide, within twelve (12) months from the date of the damage ordestruction, and in the manner required by Section 13.10 of this Article Xlll, a sufficient sum of money to prosecute the reconstruction and repairwork with such dispatch as may be necessary to complete the same within twenty-four (24) months after the occurrence of such damage or destruction occasioned as aforesaid, except in the case of Force Majeure, as provided in Article XXV|ll, or Unavoidable Delays under Subsection 17 .15.1, then and in every such event, the Lessee shall be deemed to have refused to carry out its obligation to reconstruct, replace and repair, and the amount so collected or the balance thereof remaining in the joint account, or in Lessee's attorney's escrow 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 Lessorshall have the option, notwithstanding its retention of such sum, to terminate this Lease. 13.14 Construction lnsurance Reouirements. Any improvements to the Wellness Center shall be approved in writing by Lessor, in advance of commencement of any work. Any contractor approved pursuant to Section 17.3, that the Lessee hires to conduct improvements 188 to the Wellness Center, (i) shall be a contractor licensed in the State of Florida and (ii) shall maintain the following insurance coverages, subject to the same requirements as in the preceding Section 13.5 through Section 13.9, in connection with the approved work: 13.14.1Worker's compensation insurance covering all employees of the Contractors {as required by the laws of the State of Florida) and employer's liability insurance of not less than Five Hundred Thousand ($500,000) per occurrence. 13.14.2 Comprehensive general liability insurance in an amountof not less than Two Million Dollars ($2,000,000) per occurrence covering personal injury and property damage, Four Million Dollars ($4,000,000) aggregate. This policy must name the City of Miami Beach, Florida, as additional insured. Such coverage shall include, but not be limited to, the following: i.Blanket contractual liability insurance covering all indemnity or hold harmless agreements. ii. Protective liability insurance for the operation of the lndependent Contractors. iii. XCU coverage (explosion, collapse ordamage to underground property). iv. Products and completed operations for $2,000,000 {for three (3) year extension beyond completion of prolect). 13.14.3 Excess umbrella liability insurance with a limit of not less than Three Million Dollars ($3,000,000) peroccurrence and in the aggregate in excess of the above mentioned insurance, which shall be required only in any "wrap up" 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. 13.14.4 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 or apparatus attached thereto. 13.14.5 As applicable, to be determined bythe City's Risk Management Department, Builder's Risk lnsurance (standard "All Risk" or equivalent coverage) in an amount not less than the cost of construction, written on a completed value basis or a reporting basis, for )t 189 property damage protecting Lessee, City, and Lessee's General Contractor, with a deductible of not more than Fifty Thousand Dollars ($50,000), subject to adjustment for inflation (except as to flood and windstorm, with regard to which the deductible shall be a commercially reasonable amount); or 13.14.6 lnstallation Floaterforthe installation of machineryand/orequipment into an existing structure. The coverage shall be "All Risk" coverage including installation and transit for one hundred percent ( 100%) of the "installed replacement cost value", covering the City as named insured, with deductible of not more than Five Thousand and 00/100 Dollars ($5,000.00) each claim. 13.14.7 A payment and performance bond forthe project cost may be required by the City, in its sole discretion, with the City reflected as a dual obligee thereunder. ARTICLE XIV. LESSEE'S DUTY TO PAY INSURANCE PREMIUMS 14.1 Lessee covenants and agrees with Lessor that Lessee will pay the premiums for all of the insurance policies which Lessee is obligated to carry under the terms of this Lease, and will deliver to the Lessor evidence that all such premiums have been paid on or before the effective date of each such policy or proper evidence of extended credit and/or evidence of financing the payment of such premiums, and Lessee will cause renewals of all expiring policies to be written, and the policies or copies thereof, as the Lease may require, to be delivered to the Lessor at least ten (10) days before the expiration date of such expiring policies. The parties note that in Section 13.14.5, Lessor may review insurance coverages and require increased coverage consistentwith 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 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 collectible as though it were rent then matured hereunder, and shall be due and payable forthwith, or in lieu thereof and 38 190 notwithstanding the procurement and renewal of such policies by the Lessor, this lndenture and the terms created hereby may, at the option of the Lessor, be terminated and declared at an end and all of the right, estate and interest of the Lessee in such event hereunder shall immediately cease and become null and void. ARTICLE XV - ASSIGNMENT 15.1 This Lease, or any portion thereof, is not freely assignable, and no assignment, transfer, sublease, concession agreement, management agreement, or license agreement with respect to the Wellness Center, or any portion thereof, shall be valid unless there is a prior written consent by the Lessor, which consent shall be within the sole discretion of the Lessor. With respect to any transfer of any direct or indirect legal or beneficial interest in Lessee or any transfer conveying all or any portion of Lessee's rights and interest in and to the Lease (an "Assignment"), any such Assignment shall require the prior written consent of the Lessor, at Lessor's sole discretion, which consent, if given at all, at a minimum shall be predicated upon: (i) the transferee or assignee assuming all obligations under the Lease, including allCovenants Running with the Land contained therein; (ii) the transferee or assignee curing any defaults under the Lease; (iii) the transferee or assignee not being a Foreign lnstrumentality; (iv) the transferee or assignee having sufficient liquid assets to operate and maintain the Wellness Center; and (iv) the transferee or assignee executing all documents required by the Lessor to effectuate the transfer including, without limitation, an assumption agreement, duly executed by the Assignee of this Lease and in recordable form. 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 and any other information which Lessor, in its sole discretion, may require to evaluate the Assignment, advise the Lessee in writing as to whetheror not 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 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 191 assignment shall be effective with respect to each such item. 15.3 Operational Subcontracts. Lessee shall not enter into independent contractor's agreements with subcontractors underthe supervision of Lessee, in connection with all or any portion of any work and/or service which may be performed relating to any of the approved uses in Section 4.1 or 4.2 (collectively, "Operational Subcontracts") without the prior written consent of the City Manager, which consent, if given at all, shall be in the Manager's sole judgment and discretion. Any attempt to enter into such Operational Subcontracts (unless approved) shall be void. At City Manager's request, Lessee shall provide supporting documentation evidencing the fair market value for such transaction or arrangement. Additionally, Lessee shall ensure that any subcontractor will comply with all insurance requirements with respect to payment or reimbursement for health care-related services. ARTICLE XV! - CONDEMNATION CLAUSE 16.1 lt is further understood and agreed that if at any time during the continuance of this Lease the Leased Premises or the improvements and buildings located thereon or any portion thereof be taken, appropriated or condemned by reason of eminent domain, there shall be such division of the proceeds and awards in such condemnation proceedings, and such abatement of rent and other adjustments made, as shall be just and equitable under the circumstances. lf the Lessor and the Lessee are unable to agree upon what division, annual abatement of rent or other adjustments are just and equitable within thirty (30) days after such award shall have been made, then the matters in dispute shall by appropriate proceedings, be submitted to a court having jurisdiction of the subject matter of such controversy in Miami-Dade County, Florida, for its decision and the determination of the matters in dispute. lf the legal title to the entire 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 shallbe compensated for Lessee's interest in the improvements under this Lease in accordance with the condemnation award. 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 192 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 renders the Project unsuited for the permitted uses as provided for herein, Lessee, may at its sole option and expense, remove all of its personal property from the portion of the Project taken, however, Lessee shall continue to be liable under this Lease and continue its rights and obligations as to the remainder of the Property not so taken, unless released in writing by Lessor. ARTICLE XVI! . PROPOSED IMPROVEMENTS 17.1 This Lease is made with the understanding and agreement that Lessee will design, develop and construct the proposed improvements, at its sole cost and expense, valued at no less than $3,500,000 on the Leased Premises, subject to the prior written consent of the Lessor (the "Proposed lmprovements"). The Proposed lmprovements are contemplated to construct a state of the art public Wellness Center, which will consist of: (A) a three (3) story circular building, on the footprint of the Leased Premises, having no more than 1 9,000 square feet of floor area, and a height not to exceed fifty (50) feet from base flood elevation, which shall be consistent with the conceptual plan presented by Lessee to Lessor, attached as Exhibit "B" to this Lease (the "Concept Plan"); (B) the construction of public restrooms ("Public Restroom Facilities"), comparable in size and constructed to the specifications (equipment, materials and standards) of the restrooms currently in the Park, which will be demolished in connection with the related Parking Lot Expansion Project, The Public Restroom Facilities may be constructed, at the discretion of the Lessee, as part of the first story of the Project, or, in the alternative, at a separate location at the Park, which separate location shall be determined by the City Manager in his or her sole discretion. Upon completion of the construction of the Public Restroom Facilities, as evidence from the issuance of a Ce(ificate of Occupancy from the City, in its regulatory authority, and upon acceptance by the City, shall become the sole property of the City and the City shall be responsible 41 193 for its operation, maintenance and repair, as more particularlysetforth in Section 23.2; (C) the design and construction of public showers ("Public Shower Facilities"), comparable in size and constructed to the specifications (equipment, materials and standards) of the public showers currently in the Park, which will be demolished in connection with the Proposed lmprovements, at a different location within the Park, which location will be subject to the written approval of the City Manager, at his sole discretion. Upon completion of the construction of the Public Shower Facilities, as evidence from the issuance of a Certificate of Occupancy from the City, in its regulatory authority, and upon acceptance by the City, said Public Shower Facilities shall become the sole property of the City and the City shall be responsible for its operation, maintenance and repair, as more particularlyset forth in Section 23.3; and (D) any site work, such as grading, and site improvements, such as landscaping, which may be required by the City, in its regulatory capacity, including any City departments or City boards, in connection with the issuance of the full building permit and/or the construction and development of the Project. 17.2 Desion and Governmental Approvals. Lessee is solely responsible for the design of any improvements to the Leased Premises, and obtaining all approvals from City and 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 approvals from the Florida Department of Environmental Protection and Florida Fish and Wildlife Conservation Commission. 17,3 Lessor's approval of General Contractor/Construction lnsuranceAlVork Letter. The general contractor and the construction agreement between the Lessee and the general contractor shall be subject to review and approval by the City Manager, in his sole discretion. The approval of the construction contract shall also entail approval of the requisite construction insurance coverages, as set forth in Section 13.14, plus any additional insurance coverages which the City may reasonably require from the Contractor, subcontractor and/or architect. Following Lessee securing full building permit, and prior to commencement of construction, Lessee shall execute a Work Letter and Escrow Agreement, including a cash deposit, in the amount of the cost of the Proposed lmprovements (as set forth in the construction contract between Lessee and the approved contractor), which willbe deposited into Lessee's attorney's escrow account to guarantee the diligent and timely prosecution of the construction. 17.4 Pre-construction site work. Lessee shall be responsible for any site and 42 194 underground studies, and any remediation which may be needed in connection with the development of the Wellness Center at the Leased Premises. The Development of the Wellness Center shall neither impact the surrounding areas nor compromise nor modify access to the beach from its current condition. 17.5 Lessee, at its own cost and expense, shall submit to Lessor (acting in its proprietary capacity as owner of 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 lmprovements (the "Preliminary Plans and Specifications"). Lessee shall submit the Preliminary Plans and Specifications for review by the City, in its regulatory capacity, at the 30o/o, 600/o and g0% of plan completion stages. 17.6 Lessee shall submit its Preliminary Plans and Specifications to Lessor's City Manager for approval within one year of the Effective Date. The failure of Lessee to timely submit its Preliminary Plans and Specifications to the City Manager shall constitute a default under this Lease. The City Manager shall have ten (10) 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 may, submit the Preliminary Plans and Specifications to the City Commission for its review and approval as Lessor (acting in its proprietary capacity as owner of the Leased Premises), at the next City Commission meeting, along with a written report of the Administration's review and recommendations, including a review 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 Lessor disapproves the Preliminary Plans and Speciflcations, then Lessee shall, submit a revised modification to the Preliminary Plans and Specifications to meet Lessor's objections, which revised modification, shall be submitted and reviewed as provided above. Failure of the Lessee to submit revised Preliminary Plans and Specifications within sixty days from the date of Lessor's disapproval, but no later than one year from the Effective Date, shall constitute a Default under this Lease. 17.7 Lessee shall, within two months of Lessor's approvalof the Preliminary Plans and Specifications, but no later than one year from the Effective Date, submit an application for 43 195 approvalof the design forthe Proposed lmprovements to the City's Historic Preservation Board (HPB) and to other City boards, as applicable. Failure of the Lessee to submit its application, as provided in this Section, to the HPB, by the date which is two months from the receipt of Lessor's final approval as above provided, but no later than two years from the Effective 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 requirements for roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation (the "Concurrency Req uirements"). 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, consistentwith the Preliminary Plans and Specifications, as approved by the Lessor, the HPB, and other City boards, as applicable. The Plans and Specifications shall be submitted to the Lessor"(acting in its proprietary capacity as owner of the Leased Premises) within six months from the date on which the HPB approves the Proposed lmprovements, but no later than two years from the Effective Date (if appealed, the time shall run from the issuance of a final nonappealable order). The Plans and Specifications, or modifications thereto, shall be reviewed bythe City Manager, within ten (10) business days, except for modifications thereto, which shall be reviewed within ten (10) business days, solely for consistency with the Preliminary Plans and Specifications as the same may have been modified by the HPB or other City boards, as applicable. lf Lessor disapproves the Plans and Specifications, then Lessee shall, submit a revised modification to the Plans and Specifications to meet Lessor's objections, which revised modification, shall be submitted and reviewed as provided above. Lessee shall pursue approval by the City of the Plans and Specifications diligently and in good faith. 17.10 Any building operation, once commenced, must be carried through continuously to completion, but any 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 44 196 Lessee shall not be deemed to cause the Lessee to be in default under this Section 17.10, 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. 17.11 Conditions Precedent to Lessee's Commencement of Construction of the Proposed lmorovements. Lessee cannot commence construction until the 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 provided 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 by the general contractor and architect; (a) Lessee has obtained and delivered to Lessor copies of all final Permits and Approvals required to commence construction; and (5) Lessee shall have delivered to Lessor original certificates of the policies of insurance required to be carried pursuant to this Lease. Failure of Lessee to obtain the final building permits within two years from the Effective Date shall constitute a default under this Lease. 17.12 Lessor (solely in its capacity as the owner of the Leased Premises and not in its regulatory capacity) shall reasonably cooperate with Lessee in obtaining the Permits and Approvals required to construct the Proposed lmprovements, shall sign any application reasonably made by Lessee that is required in order to obtain such permits and approvals and shall provide Lessee with any information and/or documentation not othenrvise reasonably available to Lessee (if available to Lessor) that is necessary to procure such permits and approvals. Any such accommodation by Lessor shall be without prejudice to, and shall not constitute a waiver of, Lessor's rights to exercise its discretion in connection with its regulatory functions. Lessee shall reimburse Lessor, within ten (10) days after Lessor's demand, for any reasonable out-of-pocket cost or expense payable to Lessor's technical consultants (otherthan Lessor's employees), such as architects and engineers, so incurred by Lessor in connection with Lessor's assistance in obtaining the permits and approvals required by the Proposed lmprovements. 17.13 The Lessee's riqht 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 liability to the Lessee with regard to 45 197 the lease. 17.14 Commencement and Comoletion 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 two years from the Effective Date (the "Construction Commencement Date") and (b) thereafter continue to prosecute construction of the Proposed lmprovements with diligence and continuity to completion. "Commence Construction" or "Commencement of Construction" means the commencement of majorwork (such as pilings or foundations)forconstruction of the Proposed lmprovements. PromptlyafterCommencementof Construction, Lessee shall notify Lessor in writing of the date of such commencement. Any and all preliminary site work (including, without limitation, any environmental remediation and ancillary demolition) shall not be deemed to be Commencement of Construction. Failure of Lessee to timely commence construction shall constitute a default under this Lease. lf, after Lessee has commenced construction, Lessee fails to diligently prosecute construction of the Proposed lmprovements (subject to unavoidable delays), and such failure continues (subject to unavoidable delays) for thirty (30) consecutive days after Lessee's receipt of notice of such failure, Lessor shall, in addition to all of its other remedies under this Lease, have the right to seek such equitable relief (either mandatory or injunctive in nature) as may be necessary to cause diligent and continuous prosecution of construction of the Proposed lmprovements (subject to unavoidable delays) by Lessee, it being understood that construction of the Proposed lmprovements is a material inducement to Lessor to enter into the Lease and monetary damages shall be inadequate to compensate Lessor for harm 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 "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, 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 46 198 the Proposed lmprovements set forth in this Lease shall be extended to the extentperformance is delayed by unavoidable delays. 17.16 Completion of Construction of the Proposed lmprovements. Substantial completion of the Proposed lmprovements shall be accomplished in a diligent manner, and in any event no later than two years from the issuance of a full building permit. "Substantial Completion" as used herein shall require the issuance of a temporary or final certificate of occupancy by City's Building Department. Such date may be extended for good cause shown upon request in writing to Lessor's City Manager, which extension by the City Manager shall not be unreasonablywithheld. Finalcompletion of the construction of the Proposed lmprovements, shall be accomplished in a diligent manner, in each case in a good and workmanlike manner, in substantial accordance with the Plans and Specifications (with no material deviations exceptas expressly permitted herein), at Lessee's sole cost and expense. Upon SubstantialCompletion of construction of the Proposed lmprovements, Lessee shall furnish Lessor 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; (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 personality) for which the construction of the Proposed lmprovements has been completed. Lessorshall have an unrestricted license to use such "as built" plans and survey for any purpose related to the Leased Premises without paying any additional cost or compensation therefor, subject to copyright and 47 199 similar rights of the Architect to prohibit use of designs forpurposes unrelated to the Leased Premises, as such rights exist in law or may appear in the Architect's contract, and subject to applicable public records laws. The foregoing requirement with respect to "as built" plans shall be satisfied by Lessee furnishing to Lessor, at Lessee's expense, a complete set of Plans and Specifications, with all addenda thereto and change orders in respect thereof, marked to show all changes, additions, deletions and selections made during the course of the construction of the Proposed lmprovements; and (e) a Contractor's Final Affidavit in form and substance reasonably satisfactory to Lessor executed by the General Contractor (i) evidencing that all contractors, subcontractors, suppliers and materialmen retained by or on behalf of Lessee in connection with the Construction of the Proposed lmprovements have been paid in full for all work performed or materials supplied in connection with the Construction of the Proposed lmprovements and (ii) otherwise complying with all of the requirements 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. 17.18 Upon SubstantialCompletion of the project, Lessee shallcertifyto Lessorthat 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 Completion of the Project and provided Lessor all of the items set forth in the preceding Section 17.16; (2) Evidence deemed sufficient, in the City Manager's reasonable discretion, substantiating that the Wellness Center has sufficient funds to operate the Project during the first year of operation, including a cash reserve moving forward; and (3) Evidence that Lessee has deposited $25,000.00 in a maintenance account and $10,000.00 in a capital improvement account to cover the cost of maintenance during the first year. Thereafter, every year, Lessee shall deposit any additional funds as may be needed to ensure a minimum balance is maintained in each account, as reasonably determined by the City Manager, subject to increases which may be necessary, based upon needed repairs or capital 200 improvement projects. ARTICLE XVIII.COVENANTS RUNNING WITH THE LAND CONCERNING THE USE OF THE LEASED PREMISES 18.1 The Leased Premises shall hereby contain the following restrictions, covenants and limitations: (a)That the Lessee shall at all times remain a not-for-profit corporation of the State of Florida and shall maintain its exemption from taxation under 501(c)(3) of the lnternal Revenue Code; That the Lessee shall continuously operate the Project as a public health and wellness center serving members of the general public who have a physical disability; That the Lessee shall affirmatively make the Leased Premises, its facilities, and the Lessee's programs and activities open to persons with a physical disability of all races, colors, creeds or national origins, and take reasonable steps to publicize the availability thereof; 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 Leased Premises be in any person or entity other than the Lessee, without the prior written consent of the City Commission, 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 forthe improvements and the general upkeep of the Project, and all replacements necessary in connection therewith, shall be the sole cost and expense ofthe Lessee; That the Lessee shall provide personnel on the Project during operating hours and either a security service or electronic security service during non- operating hours during the entire term of the Lease, proof of which shall be (b) (c) (d) (e) (0 (g) 49 201 provided to Lessor via copy of security agreement and receipts therefor. That the Lessee shall be obligated to provide, amongst other insurance coverages stipulated in Article Xlll, public liability insurance and property damage insurance, at its cost and expense, for the Project during the term of this Lease. Exterior signs, if any, will be of a design and form approved by the Lessor, and in accordance with the Miami Beach City Code and other applicable laws and codes. Lessee shall assume the cost of any such signs. Lessee shall remove all signs upon the termination of this Lease and any damage or unsightly condition caused to the Leased Premises because of or due to such signs shall be corrected or repaired by Lessee to the satisfaction of Lessor. 18.2 The violation by the Lessee of any of the covenants, restrictions and undertakings as set forth in Section 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 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, and Lessee after such notice and opportunity to cure has failed to cure, as provided for in section 19.3, it shall and may be the Lessor's right to declare such demised term ended and to re-enter upon the Leased Premises and the building or buildings and improvements situate thereon or any part thereof, either with or without process of law, the Lessee hereby waiving any demand for possession of the Leased Premises and any and all buildings and improvements then situate thereon; and the Lessee covenants and agrees that upon the termination of the demised term, the Lessee will surrender and deliver up the Leased Premises peaceably to the Lessor, its agents and attorneys, immediately upon the termination of the demised term; and if the Lessee, its agents, attorneys or other persons or entities claiming by or through Lessee, shall hold the Leased Premises or any (h) (i) 202 part thereof one (1) day after the same should be surrendered according to the terms of this Lease, they shall be deemed guilty of forcible detainer of the Leased Premises under the Statute and shall be subject to eviction or removal, forcibly or othenruise, with or without process of law. 19.2 Although this is a ninety-nine (99) year lease, the parties understand and agree that the relationship between them is that of landlord and tenant, and the Lessee specifically acknowledges that the statutory proceedings in the State of Florida relating to the recovery 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 violation within such time period. lf the default complained of is of such a nature that it cannot be cured within thirty (30) days, and if the Lessee has commenced taking all reasonable steps to cure such defaultand 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 othenarise enforce the termination of this Lease. Nothing herein contained shall be construed as precluding the Lessor from having such remedy as may be and become necessary in order to preserve the rights and the interests of the Lessor in the Leased Premises and in this Lease even before the expiration of the grace or notice periods provided for in this Section 19.3 if, under particular circumstances then existing, the allowance of such grace or the giving of such notice would prejudice or endanger the rights and estate of the Lessor in this Lease and in the Leased Premises, or the public health, safety and welfare. 19.4 ln addition to the rights set forth elsewhere in this Lease, Lessor shall have the right to pursue any or all of the following: (a) the right to injunction or other similar relief available to it under Florida law against Lessee; and/or (b) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from Lessee's default. 19.5 lt is further covenanted and agreed by and between the parties hereto, in the event of the termination of this Lease at any time before the expiration of the term hereby created, for the breach by the Lessee of any of the covenants herein contained, that in such case all of the right, estate and interest of the Lessee in and under this indenture and in the Leased Premises hereinabove described, and all improvements and buildings then situate on the Leased Premises, together with all rents, issues and profits of the Leased Premises and the improvements thereon, whether then accrued or to accrue, and all insurance policies and all 51 203 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 itto be the fact that for breach and consequent cancellation of a long-term lease of this character, the Lessor will sustain substantial damage, being damage of such character as to make it most burdensome and tedious, if not actually impossible, to ascertain with mathematical precision, and each of the parties therefore having agreed upon this provision for liquidated damages in the interests of obviating whatwould othenruise be burdensome and difficult litigation to maintain orto 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 assigns unto the Lessor all of the rents, issues and profits which might otherwise accrue to the Lessee for the use, enjoyment and operation of the Leased Premises, and in connection with such pledging of the rents, the Lessee covenants and agrees with the Lessor that if the Lessor, upon the default of the Lessee, elects to file a suit to enforce the Lease and protect the Lessor's rights thereunder, then the Lessor may, as ancillary to such suit, apply to any court having jurisdiction thereof for the appointment of a Receiver of all and singular the Leased Premises, and the improvements and buildings located thereon; and thereupon, it is expressly covenanted and agreed that the court shall forthwith appoint a Receiver with the usual powers and duties of Receivers in like cases, and such appointmentshallbe made by such 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 landlord's lien or to the solvency or insolvency of the Lessee, and without reference to the commissions of waste. ARTICLE XX - LESSEE'S DUTY TO KEEP PREMISES IN GOOD REPAIR 20.1 Lessee covenants and agrees with the Lessor that during the Lease term the Lessee 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 necessaryto keep the building and improvements on the Leased Premises in a good state of repair and condition. 204 20.2 Lessee covenants and agrees with the Lessorthat Lessee shall be obligated to pay for all utilities utilized on the Leased Premises for the entire term of this Lease. 20.3 Lessee shall be responsible for the operation, maintenance and repairof the Wellness Center including, without limitation, roof, structure, mechanical, plumbing, electrical, and general maintenance and upkeep, as well as all utilities. ARTICLE XXI . DEMOLITION CLAUSE 21.1 Although it is the Lessee's duty underthe terms hereof to keep and maintain any buildings and improvements on the Leased Premises in good repair, this shall not be construed as empowering the Lessee to at any time tear down and destroy any buildings or improvements, on the Leased Premises, or any part thereof, unless and until the Lessee: (a) Follows all procedures necessary for development approval as provided for in this Lease, and causes construction plans and specifbations for the new building or the new construction to be prepared in full accordance with all applicable laws, building codes, zoning ordinances, statutes and regulations, and delivers the plans to the Lessor at least ninety (90) days before the work proposed to be done pursuant thereto is actually commenced; and (b) Obtains the written approval of the construction plans and specifications by the Lessor, in Lessor's discretion, which shall, in writing, approve or disapprove such plans and specifications within twenty (20) days working days after their delivery to the Lessor; and (c) Furnishes the Lessorwith all requisite Construction lnsurance requirements setforth in Section 13.14. 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 not be considered part of the cost of any subsequent 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 53 205 22.1 Lessee covenants and agrees with Lessor that no destruction trc any building or improvement by fire, windstorm or any other casualty shall be deemed to entitle the Lessee to surrender possession of the Leased Premises or to terminate this Lease or to violate any of its provisions or to cause any abatement or rebate in the rent then due or thereafter becoming due under the terms hereof. lf the Lease is canceled as the result of Lessee's default at any time while there remains outstanding any obligation from any insurance company to pay for the damage or any part thereof, then the claim against the insurance company shall, upon the cancellation of the Lease, be deemed immediately to become the absolute and unconditional property of the Lessor. 22.2 Lessee covenants and agrees with Lessor that nothing in this Lease contained shall ever be construed as empowering the Lessee to encumber or cause the Lessor to encumber or subordinate the title or interest of the Lessor. 22.3 Lessee covenants and agrees with Lessor that at the termination of this Lease the Lessee will peaceably and quietly deliver possession of the Project and all improvements thereon unto the Lessor. 22.4 Lessee shall not mortgage, pledge, hypothecate or othenrvise encumber its leasehold interest without the prior written consent of Lessor, as provided for in this Lease. ARTICLE XXIII- CITY'S OBLIGATIONS RELATING TO THE PUBLIC COMPONENTS 23.1 Parkinq Lot Expansion Proiect. The City, at its sole discretion, and subjectto funding availability and appropriation, may redesign, develop and construct the Parking Lot at the Park (the "Parking Lot Expansion Project"); however, at a minimum, the City shall increase the number of accessible parking spaces at the Park to 17 spaces. The City and Lessee shall cooperate with the other during the development and construction of the Parking Lot Expansion Project and Wellness Center, in an effort to minimize the impact to the public's use of the existing facilities, including the existing public restrooms, showers, park and beach. 23.2 Public Restroom Facilities. Lessee shall construct, on behalf of the City and as more particularlydescribed in Section 17.1, Public Restroom Facilities. The Cityshall be responsible for the operation, maintenance and repair of the Public Restroom Facilities, in accordance with the same standards as other City park restroom facilities. The City shall be responsible for all repairs to the Public Restroom Facilities, including, roof, structure, mechanical, plumbing and electrical components, and for any utilities associated with the sole operation of the 206 Public Restroom Facilities. Notwithstanding the foregoing, if the Public Restroom Facilities are designed and constructed attached to the Wellness Center, Lessee shall be responsible forthe cost and expense of maintaining the roof, exterior walls and adjoining structural elements. ln such case, the parties agree to cooperate and grant each other access to the Project or Public Restroom Facilities, as applicable, as may be necessary including, without limitation, for any necessary repairs. 23.3 Public Shower Facilities. Lessee shall construct, on behalf of the Cityand as more particularly described in Section 17.1, Public Shower Facilities. The City shall be responsible for the operation, maintenance and repair of the Public Shower Facilities, in accordance with the same standards as other City park restroom facilities. The City shall be responsible for all repairs, including, roof, if any, structural, mechanical, plumbing and electrical components and for any utilities associated with the operation of the Public Shower Facilities. ARTICLE XXIV. COVENANT OF QUIET ENJOYMENT 24.1 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. ARTICLE XXV. LESSOR'S RIGHT OF ENTRY 25.1 The Lessor or its agents shall have the right to enter upon the 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 Project; and if the 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 repairs; but if the Lessor exercises its option to make emergency repairs, such act 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 terms hereof, Lessee shall reimburse Lessor for all such repairs upon receipt by Lessee of Lessor's notice of repairs made and statement and proof of costs incurred. 55 207 ARTICLE XXVI . NO REPRESENTATIONS BY LESSOR 26.1 Lessee acknowledges that it has examined the Leased Premises and knows the condition thereof and accepts the Leased Premises in its present condition, "as is," and without any representations or warranties of any kind or nature whatsoever by Lessor as to its condition or as to the use or occupancy which may be made thereof. The Lessee assumes, in accordance with provisions of this Lease, the sole responsibility for the condition, operation, maintenance and management of the Leased Premises and all improvements now or hereafter situated thereon, and the Lessor shall not be 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 27.1 Lessee, and Lessee's officers, employees, agents, and contractors performing any work on the Project, shall at all times comply with all laws, ordinances, regulations and orders of Federal, State, County and municipal authorities pertaining to the Lease, the Project and Lessee's improvements and operations thereon. With respect to the provision or delivery of health care at the Project, Lessee and/or its agents or contractors shall comply with all applicable laws, including the Health lnsurance Portability and Accountability Act ("HlPAA") and regulations protecting the confidentiality of patients' records, the Medicare Ethics in Patient Referrals law ("Stark "anti-kickback" law), and all pertinent IRS requirements, including the requirement of "fair market value" for all business transactions with health care providers or others with respect to the Project. 27.2 Lessee shall pay all costs, expenses, fines, penalties and/or damages which may be 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. 27.3 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 Project. ARTIGLE XXVII! - SURRENDER OF THE PREMISES 28.1 The Lessee shall, on or before the last day of the term herein demised, orthe 56 208 sooner termination thereof, peaceably and quietly leave, surrender and yield upon to the Lessor the Project, together with any and all equipment, fixtures, furnishings, appliances or other personal property located at or on the Project and used by Lessee in the maintenance, management or operation of the Project, excluding any trade fixtures or personal property which can be removed without material injury to the Project, free of all liens, claims and encumbrances and rights of others and broom-clean, togetherwith all structural changes, alterations, additions, and improvements which may have been made upon the Project, in good order, condition and repair, reasonable wear and tear excepted, subject, however, to the subsequent provisions of this Article. Any property which pursuant to the provisions of this Article is removable by Lessee on or at the Project upon the termination of this Lease and is not so removed may, at the option of the Lessor, be deemed abandoned by the Lessee, and either may be retained by the Lessor as its property or may be removed and disposed of by Lessor at the sole cost of the Lessee in such manner as the Lessor may see fit. lf the Project and personal property are not surrendered at the end of the term as provided in this Article XXVlll, the Lessee shall make good to the Lessor all damages which the Lessorshall suffer by reason thereof, and shall indemnify, the Lessoragainst 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. 28.2 The Lessee covenants and agrees that it will not enter into any subleases, subtenancies, licenses or concession agreements relating to the Prolect for a period of time beyond the stated expiration date of this Lease. ARTICLE XXIX - FORCE MAJEURE 29.1 Either party hereto shall be excused from performing any of its respective obligations or undertakings provided in this Lease, except as provided in Article XXVII hereof, "Surrender of the Premises," and excepting any of its respective obligations or undertakings to pay any sums of money under the applicable provisions hereof, for so long as the performance of such obligations are prevented or delayed, retarded or hindered (plus such additional time mutually consented to by the paffes) by act of God, weather or unusual severity, fire, earthquake, flood, hurricane, explosion, action of the elements, war (declared or undeclared), invasion, 57 209 insurrection, riot, mob violence, sabotage, malicious mischief, inability to produce or general shortage of labor, equipment, facilities, materials or supplies in the open market, failure of transportation, strikes, lockouts, action of labor unions, condemnation, public requisition, laws, order of government or any other cause, whether similar or dissimilar to the foregoing, not within the reasonable control of the respective party if such party hereto gives notice of such delay to the other party within twenty (20) days of the occurrence of such event. ARTICLE XXX SIGNAGE/NAMING RIGHTS lnterior/Exterior Signage/Sponsorship: All signage and sponsorships, shall be subject to approval by the City, including, without limitation, the names affixed thereon and any sponsorship names. Lessee shall have the right to erect interior and exterior signage and secure sponsorships in connection therewith, subject to approval by the City, as required by the City's Naming Ordinance, as codified in Chapter 82, Article Vl, Sections 82-501 through 82-505 of the City Code, as shall be amended from time to time. Any interior temporary signage, i.e. banners, shall be subject to the prior written approval of the City Manager. Lessee shall be entitled to keep all naming rights revenues derived from any approved signage or sponsorships; provided Lessee dedicates and utilizes such revenues exclusively for the maintenance, management and/or operation of the Wellness Center. ln no event may any approved interior or exterior signage include the names of any company selling the following types of products ("Prohibited Names"): firearms, alcohol, tobacco products, sexual products. Additionally, the permissible contentof anyadvertisements shall not be of a sexually offensive nature; promote unlavvful or illegal goods, services or activities; contain images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation; or contain non-alcoholic brands that are competitive to Coca-Cola, so long as the City's exclusive non-alcoholic beverage partnership with Coca-Cola is valid and in force. ARTICLE XXXI. MISCELLAN EOUS PROVISIONS 31.1 All periods of notice andlor 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 210 Lessee shall, at the option of the Lessor, run concurrently and not successively. 31.2 All arrearages in the payment of rent shall bear interest at the rate of ten percent (10yo) per annum from the date when they became due and payable hereunder until the date when they are actually paid. 31.3 Although this is a long-term Lease, the relationship between the parties is that of landlord and tenant, and all statutory provisions in the State of Florida regulating the relationship of landlord and tenant, respecting the collection of rent and other charges, or the repossession of the Leased Premises, shall accrue to the Lessor hereunder. 31.4 ln the event of a breach or threatened breach by the Lessee of any of the agreements, conditions, covenants or terms hereof, the Lessor shall have the right of injunction to restrain the same, and the right to invoke any remedy allowed by law or in equity as if specific remedies, indemnity or reimbursement were not herein provided for. 31 .5 ln the event of any default on the part of the Lessee, as determined by Article XIX of this Lease (Default Clause), in the performance of or compliance with any of the terms, 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 the 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 commissions of waste. 31.6 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 time during the term of this Lease to give full effect to all of the terms, covenants, conditions and provisions of this Lease. 31.7 The captions of this Lease are for convenience and reference only and in no way define, limit, or describe the scope or intent of this Lease nor in any way affect this Lease. 31 .8 The index preceding this Lease, but under the same cover, is for the purpose of convenience and reference only and is not to be deerned orconstrued in any way as part of 211 this Lease, nor as supplemental thereto or amendatory thereof. 3{.9 This Agreement shall be governed by the laws of the State of Florida regardless of the diversity of citizenship of the parties in interest or the place of execution of this Lease. 31.10 That all covenants, promises, conditions and obligations herein contained or implied by law are covenants running with the land and shall attach to and be binding upon the heirs, executors, administrators, successors, legal representatives and assigns of each of the parties to this Lease. 31.11 Time is of the essence in every particularand particularlywhere the obligation to pay money is involved. 31"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 Certified Mail, Return Receipt Requested, and shall be deemed given when it shall have been deposited in the United States Mails with sufficient postage prepaid 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:City Manager, Gity of Miami Beach, 1700 Gonvention Genter Drive, Miami Beach, FL 33139 City Aftorney, City of Miami Beach, 1700 Convention Genter Drive, Miami Beach, FL 33139 and with a copy to: To the Lessee: and with a copy to: Where the parties on either side, Lessor or Lessee, consist of more than one person, notice unto or default by one of the persons on that side shall constitute notice unto or default by all of the persons on that side. 31.13 lf, in connection with the enforcement of this Lease and by reason of the Lessee's failure to keep and observe all of the covenants and conditions herein contained bythe 60 212 Lessee to be kept and performed, 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 andlor 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. 31.14 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. 31 .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 cause of action for money damages due to an alleged breach by the Lessor of this Agreement, so that its liability for any such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars. Lessee hereby expresses its willingness to enter into this Agreement with the Lessee's recovery from the Lessor for any damage action for breach of contract, or any other cause of action for money damages, to be limited to a maximum amount of Ten Thousand ($10,000.00) Dollars. Accordingly, and notwithstanding any other term or condition of this Agreement, Lessee hereby agrees that the Lessor shall not be liable to Lessee for damages in an amount in excess of Ten Thousand ($10,000.00) Dollars for any action or claim for breach of contract, or any other cause of action for money damages, arising out of the performance or nonperformance of any obligations imposed upon the Lessor by this Agreement. Nothing contained in this subsection or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon Lessor's liability as set forth in Florida Statutes, Section 768.28. 31 .1 6 lf a dispute arises out of or relates to this Lease, or the breach thereof, and if 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. 61 213 31.17 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. THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK, 62 214 IN WITNESS WHEREOF, the Lessorand Lessee have hereunto affixed their respective hands and seals at the place, and on the day and date first hereinabove wriften. Signed, sealed and delivered in the presence of: Attest:CITY OF MIAMI BEAGH Rafael E. Granado, City Clerk Philip Levine, Mayor Witnesses:SABRINA COHEN WELLNESS CENTER PROJECT, INC. a F lorida not-for-profit corporation Signature Signature Print Name Print Name/Title Signature Print Name 63 215 STATE OF FLORTDA ) ) couNTY oF MIAM!-DADE ) SS: The foregoing instrument was acknowledged before me this day of 2015, by Mayor Philip Levine, Mayor, and Rafae! E. Granado, Cigr Glerk, on behalf of the CITY OF MIAMI BEACH, known to me to be the persons described in and who executed the foregoing instrument, and acknowledged to and before me that they executed the instrument for the purposes therein expressed. WITNESS my hand and officialseal, this _ day of 2015. Notary Public, State of Florida at Large Gommission No.: My Gommission Expires: STATE OF FLORIDA ) SS: couNTY oF M|AM|-DADE ) The foregoing instrument was acknowledged before me this on behalf of the day of 2015,by***. :::r;:::'#ff::JH:Hffi.* to and before me that they executed the instrument for the purposes therein expressed. WITNESS my hand and official sea!, this _ day of 2015" Notary Public, State of Florida at Large Gommission No.: My Gommission Expires: F:\ATTO\TORG\Leases\SabrinaCohenFoundationWellnessCenterLease Final 12-3-2015 64 216 Exhibit "A" Site Plan of City's Property 65 217 Exhibit "B" Conceptual Plan for Wellness Center 66 218 219 Exhibit "G" Legal Description of Leased Premises 67 220 Exhibit "D" City Vending Contracts 68 221 tlol(q/// 3o//-d777b I Ag 0 .t'a ffiettoli Goncession Snack MI achines Treding Corp. 222 INDEX TITLE PAGEqE9r!oN 1 '2. 3. 3.2 3.2.1 3.2.1.1 3.2.1.2 3.2.1.3 3.2.1,4 3.2.'t.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 ?..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. . 1.0.4 1Q.s 10.6 10.7 10.8 10.9 ' 1',t. \-a--'-z't" 223 SECTION 12. 12.4 12.5 12.6 12.7 13 13.1 13.2 13.3 13.4 13.6 13.7 . 14. 15.'16. '17. '18. 't 9. 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 21.15 21,16 ' 21.17 22. 23. TITLE PAGE 224 CONCESSION AGREEMENT BY AND BETWEEN CITY OF MIAMI BEACH, FLORIDA, AND BETTOLI TRADING CORP. FOR OPERAT]ON OF SNACK MACHINE CONCESSIONS AT. VARIOUS LOCATIONS ON GITY OF MIAMI BEACH PROPERTIES PURSUANT TO REQUEST FOR PROPOSALS #44.10111 TH,ls AGREEMENT made the3rs oay ot F{u , zolz,between the ctw oF MtAMt BEACH, a municipal corporation of the S_tate of Florida (hereinaftbr called ',City,'), having itsprincipal address at 1700 Conveniion Center Drive, Miami Beach, Florida,liirgg, ,nd BETTOLI TRADING cORP., a corporation established pursuant to the laws of the State ofFlorida, with offices at 6095 NW 167 Street, Suite D, Miami, Florida 33015 (hereinafter called "Cohcessiona ire"). : WITNESSETH WHEREAS, on July 13,2011, the Mayor and CityCommission approved the issuance ofRequest for Proposals (RFP) No. 44-10/1 1 , to soiicit proposals for ihe operation of snackvending machine concessions at various locations on City-owned properties ana facilities; and. WHEREAS, on August 5, 2011, said RFP was issued, with an original opening date ofSepternber 7 ,2011; and WHEREAS, on October 19, 2O11,the Mayor and Cig Commission adopted ResolutionNo. 201 1-27776, accepting the recommendation of tire City Manager jertaining to theranking'of proposals, and authorizing the Administration to enter iito negotiations withBett,cliTrading Corp. dibla BettoliVending (Concessionaire), as the.u"""".tuifiopo."r,forthe operation of said snack machine concessions; and '' -'-'r. WHEREAS, the Administration has successfully negotiated the foregoing ConcessionAgreement with Concessionaire. NOW THEREFORE, in consideration of the premises and the mutual covenants andconditions hereln contained and other good and valuable consideration, the receipt andadequacy of which are hereby conclusively acknowledged, it is agreed Oy tnl-fartieshereto 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 ritnin tn"Concession Locatiofts, as defined herein, in conformance with the purpose" ,nJ for theperiod stated herein, and subject to all the terrns and conditions herein contained and fairlyimplied by the terms hereinafter set forth. 225 SECTION 1. TEro. 1.1 This Agreement shall be for an initial term of five (5) years, commencing on May 1, m12 (the "commencement Date"), and ending on Aprir'30, 2017. 1.2 Provided that the Concessionaire is not in default under Section 13 hereof,. and at the City's sole discretion, thd City, through its City Manager, may extend the term of this Agreement, upon the same terms and conditions ai set forth h^erein, fo1five (5) additional one (1) yearterms; by providing written not'rce to Concessionaire no later than sixty{60) days prioi io the eipiration of the initial term or of a renewal term (as ihe case miy be). 1.3 For purposes of this Agreement, the "Term" shall be defined as the initial. term and renewalterm (if bxercised by the City), and a 'Contract year" shall be defined as each one (1) year period during ihe ferm, cornmencing on the Commencement Date, or the anniversary of ttre Commencement Date, and ending one year thereafter. The City hereby grants to the Concessionaire the exclusive right, during the Term of this {greernent, to operate snack vending machine concessions, in the locaiions delineated in . Exhibit 2.0 herein (hereinafter referred to as the',concession Locations,,). sEcTtoN 3. usE{s). The Concessioniire is. hereby authorized to conduct the foltowing kind(s) of business(es) inthe concession Locations, as provided below, all at its soie cost and expense: 3.1 Cohcessionaire shall install, operate, manage, service and maintain SnackVending Machines (as defined in Subsection g.z.t.1) and Change Machines (as defined in Subsection3.2.2.1), at.the Concession Locations]which shall' . provide snack services forpatrons, employees, and the generalpublic at Cityowned properties and facilities throughout the.Term oi tnis Agreement, in accordance with the scope of services delineated in Section.3.-2. The City hereby approves the use of the Concession Locations, for theptacement of the specific Snack Machines, as reflected in Exhibit 2.0, whichshall off_er for sale the specific products at the specific prices reflected inExhibit 3.2.S.1 ' Any amend-ment to any Exhibit atiached hereto must be approved in writing by the City Manager or his designee'prior to irnplementation of same, and, if. . approved, a new and/or updated Exhibit shall be attached and incorporated herein. 226 3.2 Scooe of.Services. Snack Machines.3.2.1 3.2.1.1 3.2.1.2 3.2.1.3 3.2.1.4 Definition. Snack Machine shallbe'defined as any and all equipment that is used to hold and dispense products to be offered for sale as provided pursuant to thisConcessidn 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.($0.25), dirnes ($0.t0; and nickels ($0.OSy. 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.g and ai may also be required by other applicable law (as provided in Section 20.1), and shall include DEX resideni capabilities. Condition. As of the Commencement Date, all equiprnent including, . without limitation, any aM 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 prdof Snack Machines be provided at certain outdoor City parks arrd other venues that may be subjected to the natural 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 Exhibit 3.2.1.4., Thereafter, Concessionaire shall not change, alter, or modify such City-approved design, type, mater,iai 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 227 3.2.1.5 3.2.1.7 3.2.1.5,1 3.2.1.5.2 3.2.1.6"2 Placement. Placement of snack Machines shall be in accordance with and shall not exceed the maximum numbers and typits, as setforth at the Concession Locations referenced in Exhibit 2.0. Concessionaire shall obtain written approval from the City Manager, or the City Manager's designee, prior tothe installation, 'tiansfer or removal oi any Srrack Machine. Notwithstanding Subsection 9.2.1.8, ' City and Concessionaire may, from time to time, rneet to review and, subject to the City Manager's priorwritten consent, revise the maximurn 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 comparabre to that avairabre in other: pubric vending machines located in public facilities in other world class citiei on par with.the city of Miami Beach or, in the alternative, and at a minimum, comparabre to the quarity of.products provided by privately owned businesses selling like products within the city of Miami Beach. No product shall be offered for sale with a "sell by" date that has expired. 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; rrutrition, granola, or trail bars; fresh fruits and yogurt. The City,s Parks and Recreation Department will review and approve any productto 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. Cleanlinessln 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, asset 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. 228 5.2.2 3.2.3 3.2.1.8 3.2.2.1 3.2.2.2 3.2.3.1 Operation Schedule. snack Machines and change Machines shail be operabreduring the days and hours oioperation set forth in section g herein. Chanqe Machines. D'efinition. change Machine shail be defined as any and a[ equipmentthat is required pursuant to this concession ngre,m;nt that iscapabre of providing change, primariry for the [rrpor.. of usein a Snack Machine, which will accept United States papercurrency in one do[ar ($1.00;, five dollar ($S.00), anO Ln doilar !$10 00) denominations, and wiil provide cnihge-il UnitedState coins il,ol".g:tLry tSt.OOy, quarters (OdZsy, dimes($0.t0; and nickels ($0.0S), for purposes of-this subsection, and'this Agreement, snackMachines, as defined herein, that are equippEo and capabre ofproviding change (without the requireruniinrt, pri.[r.. u"made) shallalso be considereil Change Machines. Placement. phange Machines shaI be provided by concedsionaire ateachinterior (i.e. not subject to'the naturar "t"menirj ConcessionLocation where two (2) or more snack naacnines are iituareo. Concessionaire shall obtain wr:itten approva! from the CityManager, or the City Manager,s design"", jrior*io theinsta llation, tra n sfer or rernovai-of a ny c hi n ge' Mr.r, in". The condition and quarity of concessionaire,s snack Machinesshall.at alltimes be maintained ih a manner that is consistentwith the conditibn and. quarity of -simirar pubric vendingmachines located in public facitiiies iri otner world class citieson pat with the Ciry of Miami Beach. nccorOinjty,concessionaire shail not onry, at a minimum, ensuie tnaiarrsnSck Machines p.raced in the concession Locations are-weilmaintained and in .usabre condition, but shart ,onur",.'r.indicated in this subsection, to high ongoing maintenancestandards for same, consistent ,ajitn tfre atorementioneOcondition and quality. 229 3.2.3.2 ' The concessionaire shalt be responsible for all maintenanceand repair of snack Machines and change Machines,ncluding but not timited to: 3.2.3.2.1 c-reaning and porishing of snack Machines and change Machines, and removar of ritter within and surroundiig th e concessio n Locatio n (s) created by fi lring, servicing: and/or maintaining of Machines. The concessionaire shail ensure that each route driver,s schedure ailows fortime. .to thoroughly and appropriateiy clean each. Machine as it is reprenished, mainiained and/or serviced. . This i.ncrudes cteaning with a sanitizing sorution, the interior and exterior of each Machine, eacf,time that Machines are re_stocked, serviced, or, maintained. 3-2.3.2.2 Ail snack Machines and change Machines shall bechecked weekry and accurate records of service cals. (including time and date, location, m."hine type and seriar number) are to be maintained, and tonviroed tothe city, arong with the monthry report (see section 5)that shail be provided to.th6 ciiy wrtnin inirty 1so; o"y6. of the end,.of each month 3.2.9.2.9 rhe concessionaire shart maintain ail snack Machines. and change Machines in good working order and shail repair or.reprace any equifment that iinot immeJiatety tepairabre, within two (2) business days, if found to beinoperable. 3.2.3:2.4 concessionaire shail post and maintainconcessionaire's information, incrudin! a contact nameand toil free customer service tere-phone number, immediatery adjacent to the coin srot, of a size no ressthan 4', x 6,,, on each Sndck Machine and ChangeMachine, to facilitate responding to refundinj, ,i_stocking, maintenance, ano'refair Lraieo p'rourems that' may arise. 3.2.3.2.5 concessionaire shail maintain an inventory of ail snackMachines. and change Machines, with corresponding ide ntification inforrnalion. 230 3.2.4 Refund Procedure. 3.2.4,1' ln addition to any other remuneration provided herein, Concessionaire shall provide two ,,banks,,, each of one Irul!.red dollar:s (9100.00) in cash, to the City. One shail be held by the City Finance Department,s City Hall Cashier, and the other shall be held by the parks Department Administiaiiveoffice, rocated at the 21't street Recreation center, 2100 washington AventJe, 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, respectivety, and will be submitted to the concessionaire upon requested replenishment of the "bank" funds by the City. 3.2.4.2 Malfunctio.ns of snack Machines that are, reported to the concessionaire shall be forwarded to tfre city, in writing, including the amounts and names of the persons the fund-s were refunded to, on a monthly basis, along with (and at the lame time) all other reportin$ documents required under lhis Agreement. 3.2.5 Pricinq and Ayailability of Services. 32 5', l5[j,Iin-ri,"'ilil*"y::1ff ii,lixTi,**:! i:^,]; subsequent changes proposed by concessionaire to saidprices must be submitted in writing to the City Manager or his {esignee, and prior yvritten "pprorl ,r.i u" iecrred-from the City before implementing any changes to same. 3.2.5.1.1 The City Manager or his designee may reguest servicesat additionar rocations and/or request additionar products for snack.Machines at any time durirrg the Term. The Concessionaire may, at its sole cosiand expense, test market these additional locations and/orproducts for a sixty day (60) period, lf the Concessionaire demonstrates to the City Manager or his designee's satisfaction that the commercial demanddoes not exist for the additional locations and/orproducts, the Concessionaire will not be obligated to continue the additional locations and/or produ6ts. 3.2.5.2 ln the -event that the city Manager or his designee determin-e, in their respective sole option and discrelion, 231 3.2.6 3.2.7 3.2.8 I dtrat. atl or a portion . of Goncessionaire,s proposed servrces, pursuantto subsection 3.1 (and as delineated insubsection 3.2)are no ronger desired, then the city may revoke concessionaire's rightto provide altora portion bfsaid services, and terminate a[ or a portion of thisAgreement, without cause, and without riabirity to the city, upon sixty (60) days written notice to concesliorraire.. on or before the commenffi Agreementconcessionaire shall designate (and provide notice of same-in writingto the city), a supervisciry/management emproyee who shail be . authorized ahd responsibte to act on behalf oi concessionaire withrespect to directing, cqordinating, and administering all aspects ofconcessionaire's day to oay opeiations pursuant to ini, Rlieement. concessionaire's supervisory/management employee shall beavailable via teJephone, at all tirnes duiing which the snack rraacninesat all concession Locations are operating, as provided in Section g herein. concessionaire acknowredges th@ances underwhich the city Manager may require the removal of any or ail of thesnack Machines and/or change Machines. As such, coh".siionrtii.agre.e! that'any or all of its snack Machines and change Machinesused in the concession operations wifl be removJJ irom theconcession Locations upon fifteen (1s) oays written notice toconcessionaire, and said removal shali be dorte in .onrfriance withthe appticable section(s) as set forth herein, and without ifiiirity to tn"City. Hurricane Evacuation plan. Concessionaire. agrees that upon the issuance of a Hurricanevvarntng by the Miami_Dade County Office of EmergencyManagement, it shall ensure that ail exterior snack Machines andchange Machines, and any and all other items ,r"o in tn"concession operations shail be secured. nooitionarry, andnotwithstanding the foregoing, concessionaire agree, inlt ,ponreceipt of notificatio! flo, tne bity Manager or his dJsignee, whetherin writing.or verh-aily, which may be comniunicated to c6ncessronairevia telephone, fax andior emlir, ail exterior snack rraacninls anochange Machines, and any and alr other items useJ in theconcession operations shalt be removed from the concessionLocations and stored at a private, off-site rocation, witnin i+ norr. otsaid notification. 10 232 3.2.9 concessionaire's fairure to remove snack Machines, changeMachines, or any and alt other items used in the concessionoperations upon notice from the city Manager or his designeeyjlnin the time period provided in this sub-section ,rlr, at thecity's sole discretion, constitute an automatic.defautt of theAgreement under which the city may, upon written notice toconcessionaire, immediatery terminaie this Agreement. Qitv Business Tax Receipts. Concessionaire shall obtain, and .maintain curfent and.in goodstanding throughout the Term of this Agreement, at its sole cost andexpense, any Busine.ss Tax Receipts required by City law, asamended from time to time, for itsproposed uses, as 6oirteinplated insection 3 of this Agreement. For'purposes of this Agreement,concessionaire shail gblain the appricbbre "coin v"noing disiriuuto/,and/or "25 cents and over Machine" category city ts-usiness TaxReceipts. 4,2 gecurity Deposit. concessionaire shall furnish to thetity Manager or his/her designee asecurity Deposit, in the amount of rhree rnouianJ Doilars tss,o60i-..security for the faithful performance of the terrns and condiiions oi itrisconcession Agreement, to be remitted on or before the commencement Min imum Guarantee (MG). ln consideration of the City executing this Agreembnt and granting the rightsprovided in this Agreement, comm6ncing irtay l, z,olz, and thereafter onMay 1ttof each yelr during tne ferm of this Agreement, the Concessionaireshall pay to the city a Minimum Guaranteed (rilG) nnnrri'con;i5l]ffifi;. Twelve Thousand Dofiars ($12,000), prus appr[auie sares and Use Taxes(as provided in Section 4.6 herein);'said MG'snariol suoiect to the annualincreases in Subsections 4.2.1 .ana q.Z.Z Oelow. 4.2.1 commencing with the third contract year, said MG shall beautomaticaily increased annuaily, on the anniversary oi tn"commen.cement Date, by the greaier of (i) the consumer price rndex(cPl), or (ii) three percent (3%t ,,cpl,, snljt mein that ionsum"l. pri."index established by the Buieau of Labor iirtirti.r of the uiiiteoStates departrnent of Laborwhich is entitled'Con.ur"r price lndex,Ail Urban consumers, city Average A[ rtems; iioaz-a+ = too), oi, inthe event said index is no longeiprovided by'said Bureau of u.no,,statistics, the index furnished oy siia eureau or oin"r rg"..y *hil[ii 11 233 '4.2.2 4.2.3 i most accurate, completely replaces, and/or is the equivalent of theabove referenced index, whichever is greater. Add-itionally, commencing with the first anniversary of this Agreement,the MG shall be increased annually in the event the number of snackMachines is increased pursuant to subsection 3.2.1s.2. oJ'il.,i.Agreement. The MG shail be increabed based on tne pio;ecteo clas.sification (Low = $150, Medium = $300 and High = dSOd) oteacf,additional Snack Machine, as contained in Exhibit:2.0. tN NO EVENT SHALL THE MG BE LESS THAN $12,OOOANNUALLY. Dur:ing the Term otffit that the amount equartoyllly_percent (20%) of concessionaire's annuat crois Iraetereo neceipii(PGMR) exceeds the Minihum Guarantee {MG) prorio"J in section 4.2above (as increased annuaily pursuant to Subsection 4.2.L), then theconcessionaire shall also pay io the city within il irtv rsol days of theanniversary of this Agreemenf, the difference between the amount of thePGMR and the MG amount, each year during tne ierrn oiini, Agreement,including any renewal terms. The term "gross metered receipts" is understood to mean all incomeregistered at each and every snack Machine, whether cotiecteo or accrued,derived by the concessionaire under. the privireges lianteo by thisAg.reement. Any amounts that may be due f9q ,nyi""o" "i, st"t", or citysaies tax, or other tax, governmentat imposition,'"a""rrr"nt, charge orexpense of any kind and required by riw to be remitGJ to the taxingauthority, or other governmental authority, shall be the sole responsibility ofC.oncessionaire. lntention a lly Omitted. lnterest for Late payrnent. Any payment which Concessionaire is required to make to City which is notpai{ 9n or before the respective date provided roiin tnis-drlement shail besubject to interest at the rate of twelve percent (12"/i p""i"nnrr, or thehighest rate allowed pursuant to Florida r'i*, *ni.i.,"*ii!-gort"r, from thedu.e date of payment untir such time as payment is actuaily received by theCity. Sales and Use Tax. It is also understood thit the required Frorida state sares and Use Tax shafibe ddded to Concessignrlg,g payments a1d fqnruardeU folne city;, ffi;;said payments. lt is the city's inient that it is io ieceiv. ,ii-p.yr"hts due 4.3 4.4 4.5 4.6 12 234 from concessionaire as net of such Florida state sales and Use Tax. Concessionaireshallmaintainc,rrent,@ncialrecordsonan accrualbasis of acco.unting related to its operations pursuant to this Agreernent. bystemsand procedures used to maintain these records shail include a systefi of internalcontrols i::^:i_1.^.::,:tlp^,:.::rj:,"_l,1lt be maintained in accordance-with g"n"irity ;ccepted ff:T,llrlg:jlft"^:11-d r,!?lt be open to inspection and audit, out nJipno#oflins, oy IP,9IY^Y:.1-ln:: :r his desisnee upon reasonabte prio,. i"irb;i #;,;:i;;'#;jbusiness hours. Such records and accounts shall include a breakdown oi gr;..;uceipts,expenses, and profit and loss statements, and such records shall be maintiinJ as wouldbe required by an independent CPA in orderto audit a statement of annual gross receiptsand profit and loss statement pursuant to generally accepted accounting piinciples. A monthly report of gloss metered receipts, as well as CompuVend data in a formatconsistent with Exhibit 5.0, must be submitted to the Ciiy, through the iinrn..Department's Revenue Manager, to be received no later than inirty tgo'l oayd after theclose of each month. ON Concessionaire shall maintain its rinanciat.reqol!s. pertaining to its operations for a periodof three (3) years after the conclusion of the initial ierm, or [f ,ppnoved) the last renewa]term, and such records shall be open dnd.available to the city Mlhag.r * ni. oesign"e, asthey may deem necessary. Concessionaire shall maintain ail such ricords at iis firincipatoffice,.currently located at 6095 NW 167 street, suite D4, Miami, Florida, 33015 or, ifmoved to another location, all such records shall be.relbcated, at Concessionaire'sexpense, to a location within the City of Miami Beach, within ten (10) Oays, wiitten noticefrom the City Manager or his designee that the city Jlsires to review said records" The City Manager or his designee shall be entitled to audit Concessionaire,s recordspertaining to its operation as often as it {9gm9 reasonably necessary throughoutlhe Termof this Agreement, and three (3) times within the thre6 l3fyear perioit foilowing teiminationof the Agreement, regardless of whether such terininatiln results from the natural'expiration of the Term orfor any other r€ason. The City shall be responsiUre'foi'[aying a1' costs associated with such audits, unless theaudit(s) reveals a deficiency ornvE percent(5%) or more in concessionaire's statement of grosi i"."ipi. for any v""r 6r v".i. audited,in which case the firm shall pay to the city, -within thir&-{30) days of the audit beingdeemedfinal (as specified below), the cost of the audit ani , ,r, dqual to tne amount orthe deficiency revealed by the audit, plus interest; provided, ho*"u"r, the audit shall not bedeemed final urrtil concessionaire has received the audit and has had a reasonableopportunity to review the audit and discuss the audit with the City. Nothing .ont.i;A withinthis Section shall preclude the City's audit rights for resortiax cotteciion"t;;J;;"; Concessionaire shall submit at the end of the_initial term (and, if approved, any renewalterm), a certified audited annual statement of gross recdpts, in a form consistent withgenerally accepted accounting principles. 13 235 It is Concessionaire's intent to stay informed of comments and suggestions by the Cityregarding concessionaire's performance u.nderthe Agreement. within thirty (30) days afterthe end of the initial term (and, if approved, each renEwal term), con""rsitnriie ano citymay meet to review concessionaire's perforrnance under the Agreement. Aitd;eeting,concessionaire and city may.discuss quality, operationai, ma-intenance and ;ny otherissues regarding concessioniire's perforrnance under tne ngreeme;i. -- -"- ""' concessionaire agrees to and shafl pay before derinquency ail taxes{including but not limited to resort taxesj ano assesiments or any kindassessed or levied upon concessionaire by reason of this Agreement or byreason of the business or other activities and operations of Concessionaireupon or in connection with the snack Machines and/or the concessionLocations. concessionaire wiil have the right, at i6 "* ;plnse, to contestthe amount or, validity, in whole or in part,-of any tax ,nJi&-..r.ssment byappropriate proceedings diligenfly conducted in good faitr" concessionairernay refrain from paying a tax or assessmentto thL extent it is contesting theassessment or imposition of same in a manner that is in accordance withlaw; provided, however, if, as a resurt of such contest, aoJitionat derinquencycharges become due, concessionaire shalr be'responsiole for suchdelinquency charges, in.addition to payment of the contested tax and/orassessment if so ordered. concessionaire shail atso pay for any fees imposed by raw for licenses orpermits for any business, activities, orbperations of concessionaire upon theconcession Locations, as permitted pursuant to this Agreement. Utilities. Electrical service, including maintenance of ouflets, shall be provided by thecity at the concession Loiations at no cost to the concessior,raire, if andwhere feasibte. No water service wirt be provideJ ay il;;i'd in connectionwith the operation of snack Machines under this concessioi ngreernent. lf. not currently existing, requests for installation of new and/or additionaloutlets shall be submitted. in writing to the.city M"n"g.ioi hisiner oesignee,for .review. and. approvar. rf app-roved by'the citv nri.lger or his/herdesignee, instanation of new andior additionaily outr&s wiriGilrririill tvthe city and/or an electrical contractor approved by the city, in writing, toperform said work on the city's behatf, at'conce"ionri*;.'sore cost andexpense. Notwithstanding SubsectionJ. t-nteiil the parties contemplate that theconcession uses and operations contemplated unoer tni, ngr*r"nt are for 7.2 7,3 14 236 public purposes and, therefore, no ad valorem taxes should be assessed bythe Miami-Dade county rax nppraL"i u. , resurt of such operations. rf,however, said taxes .are assessed, concessionair" 1n.rr o" soreryresponsible for payment of same, in thesame manner as taxes due pursuantto Subsection 7 .1 herein. '8'1 ln connection with the performance of its responsibilities hereunder,concessionaire may hire its own emptoyees wno wifl be emproyees ofconcessionaire and not emproygg. ;;;Gts. of the city. Additionary,concessionaire's vendors (i.e. "ntiti". *no"iiovioe products and/or snackand change Machines to concessi"..i*) .il-rrr not oe conslo-#j'rgents o,employees of the city. concessionaire Jniiiserect the number, function,quarifications, compensation, incruding b"n"rit, (if bny), and may, at its' discretion and at any time, adjust or r"rt" irru i"rrri" ,nd "onoitions retatingto its employees andlor inde[endent *nirrriorr. 8'2 concessionaire shall ensure that all its. employees and vendors while' working at or within the Concession Location, oor"r" alrin" g"ces ofpersonal grooming. The conoessionaire shatt nire p"opi" ioffi* in itsconcession operation who are neat, clean, well gioorn"J 5no ,n.ii.*p.,t' themselves in a professional and courteous manner, and ensure that itsvendors comprv with same. The conce.;;;;;";il ;rv;.;$1.=nireo by. same, shall never have been convicted oi " r"tony. ll co*".sionairemateriary fairs to compry^with tnis -lrovision tn" citv-r.v" defaurtConcessionaire pursuant to Section f S nlrein. SnackMachines,anoffibemadeavailabletopatronstwentytour(24) hours a day, seven oays i week, oaseo on the particrr.riorrc of operation of eachindividual concession Location, "r"nt. olror." ,riJri" p"rlritting. Any change in the days ;:j!Xg" operation shall require the prior written-coir"ni "r the city Minager or his 10.1 The concessionaire accepts the Concession Locations in their ,,AS ts,,"wHERE ls" condition. doncessionaiie assumes sore responsibirity andexpense for maintenance of the immediate confines s-rirrounaing theconcession Locations. This sha, inciuoe 6"*i ;f iittJi g"ru"ge anddebris, said removat to bb the' .ot" .rurponsibirity and bxpense ofconcessionaire. Dairy maintenance snatt.ue i."orpiiJn;; a,, days andhours concessionaire operates. concession"i= ;;;;Ll,'"[o ,t its sore costand expense, to pay foi ail garbage oisposar g.n"i"i"d'by-i[ operations. 15 237 10.2 10.3 10.4 10.5 10.6 10.6.1 10.6.2 10.6.3 lntentionally Omitted. I ntentionally Omitted. lntentionally Omitted. Orderlv Operation. The concessionaire shail have a neat and orderty operation at ail times andshall be solely responsible for the necessary id."[;;;ing,services toproperly maintain the snack Machines, change Machines and concessionLocations. The Concessionaire shall make available allsnack Machines andchange Machines within the concession Locationr io,. u*r;;;t,"; ffi;;days and hours of operation by the city Manag", * 'hi. authorizedrepresentativds). No Danoerous Materials. The concessionaire agrees not to use or permit in the concession' Locations the storage and/or use of gasorine,'fu"t oit., diesel,illuminating oils, oil larnps, cornb ustibre piwered .r""i*"ity proo uqinjgenerators, turpentine, benzene, naphtha, pfopane, natuiar gr", oiother similar substances, combustibre mateiiah, or exf losir;J;f a.ykind, or any substance or.thing prohibited in the sta-n<Lrd poticies offire insurance companies in the state of Florida. anv,r.n substancesor materiars found being used within or in the vicinity of ineconcession Locations shiil ue immediately ,emoveo and shall beconsidered carrse for default and/or terminaiion. Notwithstanding any cortrary provisions of this Agreement,concessionaire, afterthe commencement Date, shail indemnify andhold city harmress from any ross, damag", .o.i, oi"rp"r.u of the' city, including, without limitation, reasonaile attoiney,s fees, incurredas a resurt of, arising from, or connected with thL pr.."r"ni uvconcessionaire, and/or _its emproyees, vendors, agents and/orsubcontractors, after the commencemeniDate, but i*'i.,g the term ofthis Agreement, of any hazardous substdn"" or p"t.t"r, productson, under, in, upon, or in the vicinity of the concession Locations asthose terms are,defined by apprica-bte reoerara.o St"t" statute, orany environmental rules.and environmenta I regulations promutgaieJ thereu nder; provided, however, concessionaire shart have no riabiri$in the event of the willful misconduct or gross ""giig;;; of the city,its agents, servants or employees. The provisions of this Subsection 10.6 shall survive the termination orearlier expiration of this Agreement. 16 238 14.7 10.8 '10.9 Security. The concessionaire shail be responsibre for and provide reasonabre securitymeasures which may !e_ required to protect ine snrc[ Machines andchange Machines at,ail concession Locations, Under nb circumstancesshall the city be responsibre.!or any sioten o,, o*"gj'ioods, materiarsand/or other equipment, incruding bui not rimited to tn""sn.i[ Machines and' change Machines, nor shail cit/ue responsibre ror any .tr"n or damagedpersonal property of concessionaire's emproyees, runioi.lpltrons, guests,invitees, and/or other third parties. -"'rrv'Yvv' vvrrvvro' P concessionaire shail not permit the use 9f afy veh.icre, in any way that :',",J:f ::lI"*T,,.I1lg:^:y^sll1"9if 90","rI"*,'vJnicresmayonrybedriven and/orparked in areas dlsignaied forsuch purposes #:5ffiJ',U;for by dppticable law. lnsoection The concessionaire agrees thatthe snack Machines, change Machines andconcession LocationJmay be inspecteo ,t.r,v iir"'orrilg'i"vs and hours'of operation by the city Manag", dr ni= o"signee, or by any other municipar,county, state officer, ^or agency having responsibirit"l* io, inspections ofsuch operations. The con cLssio na ire h"ereby ;, G;i ;r-ai1ns ag ainst thecity for compensation for ross or Jrr"g" sustained by reason of anyinrerference (which lnterference.,.i.f bythe c-ity, musi o" ,".lonrbre) with theconcession operation by any pubric agency or officiar in enrorcing their dutiesor any laws or ordinances. Any such-interference (*hil i;i;rference, if by [irtjfl;fl#i,J,,?reasonable; inatt noi t"ti.r" tne conces.it-n"tr" rrom anv aEcION 11. TNSURA t-oncessionaire shafi maintain, at its sore.cost and- expense, the foqowing types ofinsurance coverage at ail times'throujnoutirre term oril,i5ngr*ment. a' comprehensive General Liability in the minimum amount of one MillionDoltars ($1,000,000) per o:,"-rrl^".T:-ro.ooJity inj.r,yH;;;p!,t_-v irr.gu.This policy must also contain coverage for piemrses operations, p.roducts,. completed operations and contr:altual irOitity (with hold harmlessendorsemdnt). b' workers compensation lnsurance and Employers Liability lnsurance shallbe. provided as required under the Laws "ith;-dt"t of Florida. c' Automobile lnsurance for any vehicles used for, or associaied withconcessionaire's operations shall be provided-.ou"ring rrio*i"i, j".."0, ;*1"1'*o vehicles and non-ownership riauiritv ror not leis than tne iottowing 17 239 Bodily lnjury $1,000,000 per person E:"1'J#tsT,,n" 3l:333:333 ffii :::l5:Xl Failure'to procure or rnaintain the required insurance program shall, at the city,s'discretion, either (i) constitute an automatic default or ine-con""""ion agreement' under which tfre City may, upon written notice to Concessionaire, immediatelyterminate the Agreement; or (ii) the city, in its sole discretion, ,ry olt in g,,. , i:::i:e itserf, in which case said insurance shart be charged t""t to tn.uoncessionaire as provided in the following piragraph IL:::[,::.:li::y*.ce referred to above shall.not be subiectto cancenation orchansinscoverage except upon at least thirty (30) days prior written notice to the C1y, anJ then 6nl! lubject to the prior written approvai oi tre city Manager or his oesig;e. prior to theCommencement Date of this Agreement, ConcessiSnaire shall provide City with acertificate of lnsurance f9r.e_aglr such policy. ALL poLrdies sHnr-r- NAME THE ctry oFMIAMIBEACH FLORIDA.AS AN ADDlrloilAL NAMED rr,rsuneo. nrrsucrrpo-iicies, andany replacement or subslitute policies, shall be obtained from companies authorized to dobusiness in the State of Florida with an A,M. Best's lnsurance Guide (latest edition) ratingof B+ Vl, Should Concessionaire failto obtain, maintain oi renewtne policies of insurancerefened to above, in the required amounts, the city may, at its sore d;;;;;automatically terminate this Agreement or, in the alternative, deem to obtain suihinsurance, and any sums expended by city in.obtaining iaiJ insuiance, rnrrr n"iupaid byconcessionaire to.city, plus ten percenl (o%) of ine amount of premiums paid.tocompensate C]ty for its administrative costs. li Concessionaire fails to repay City,sexpenditures within fifteen{15) days of demand, the total sum owed shall accrue interest atthe rate of twelve percent (12vo)-until paid, .oi, at its option, the City may oectare tneAgreement in defdult pursuant to Section 13 heiein. Said policies of insurance shall b_e primary.to and'contributing with any other insurancemaintained by Concess!9n3iqor City. Contessionaire shall file and maintain certificates ofall insurance policieswith the City,s Ris[ Management Oetartment showing saiJ folicies tobe in fullforce and effect at alltimes during thl course o?ttu cohtract. lf any of the required insurance coverages golfail.aggregate limits, or apply to otheroperations or tenancies of Concessionaiie outside thisXgr;ment, Concessionaire shallgive Cily prompt written lgtice of any incident, o..rrr"n"E, "t"i, rlttr"r""iJi;iogr"ntagainstsuch insurance which may diminish the protection sucn insurancearforoilne City.Coircessionaire shallfurthertakeimmediate steps to r"stoie such aggregate limits orshallprovide bther insurance protection for such aggregate rimits. SECTION 12. INDEMNITY. ln consideration of a separate and specific.consideration of g10.00 and other12.1 18 240 12.2 12.3 12.4 good and valuable consideration the receipt and sufficiency of which are le1eby acknowredged, concessionaii.e srrait inoenrniiv, rr"ra harmress anddefend the city, its agents, servants and emproye". i.*.nd against anyclaim, demand or cause of action of whatsoeve, ftind or nature arising out oferror, omission, or negligent act of concession"ir., "nJlo, it, vJnoois,agents, servants, . empioyees andlor subcontractors and/or subconcessionaires in the performance of services under thii Agreement. ln addition, in consideration of a separate and specific consideration of$]0 9.4 and other good and varuable con=ioerJio, t-f,L r"[ipt and sufficiencyof which are hereby.ackn^owredged, concessionaire shari indemnify, hotdharrnless and defend the c.ity, itJ agents, ""*"nt. oi "rpiov""r, from andagainst any claim, demand or cauie of action or*r,aGiei kind or naturearising.out of any misconduct of concessionaire, anoloiits vendors, agents, :erya.nq,. emproyees and/or subcontractors andior rru"on"".sionaires, notincluded in the paragraph in the subsection above ano ioiwnich the city, itsagents, servants or employees are alleged to be liable. Subsection s 12.1 and 12.2shall survive the termination or expiration of thisAgreement Subroqation.Thelffi; insurance poricies refened. to in section 11 shail.precrudesubrogation craims against concessionaire, the-Citt;il their respectiveofficers, employees and agents Force Maieure. Neither party shall be.obligated to perform hereunder and neither party shallbe deemed to be in default if performance is prevint;J b;, ' a. earthquake; hurricane; frood; act of God; civir commotion occurring onthe concession Locations d.uring or in connection witrr any event orother matter or condition of like iature; or b. any law, ordinanc_e, rure, rgguration or orderof any pubric or miritaryauthority stemming from the existence or ""o'nimi. o,. "n"rgycontrols, hostilities, or war. I ntentionally Omitted. @aras. I he concessionaire h.ereby expre-ssly waives all ctaims against the city forlos.s or damage sustained 6y the concession"ir" i..rriinj?iom Rre, water,naturaldisasters/acts of God (e.g. hurricane, tgrqado, etc.;] civircommotion,riot, or any other Force Majeuie jontemprated in subsec*on i z.s above, andthe concessionaire hereby expressry waives art rrgnts, cLir., ,no demands .. 12.5 12,6 12.7 19 241 against the City and forever releases and B.9qch, Florida, from all demands, claims, arising from any of the aforesaid causes. Subsections13.1tnrougnffiventsofdefaultunderthisAgreement'An :::::,8"d:1":ll.p:"9:ry':ionaire.,s.halr entiile c,ty b ;;ise any and art remediesdescribed as citv's remedies under this Agre;ml.l,-i^.rrjNg iri#iiiriid.t ffi:r"'ffforth in subsection 13.4, An event of default ov citvsnau "r,titrl concessionaire to exerciseany and all remedies described as concesiionaire's ,"r"di". under this Agreement,including but not limited to those set forth in subsection 13.5 herein. discharges the City of Miami actions and causes of action f3. I 13.2 13.3 Bankruptcv lf e.ither the city or concessionaire shall be adjudged bankrupt or insolvent,or if any receiver or trustee of ail or: any pari otine business property ofeither party shafl be appointed, or if any receiver of ail or any part of thebrsiness property sharibe appointed and shail not be oEcnargeo within sixty(60) days after appointrnent, or if either party shall make an assignment of itsproperty for the benefit of creditors, or ihall rie a votuntary petition inbankruptcy, or insorvengy, o,r shail appry for reorganl.iio" o,. arrangementwith its creditors uH:-r t-he bankrupiiv-o,, insorvlnc/ r"*, n"* in force orhereinafter enacted, Federar, state, or'ottrerwis", orli "r"'ipetitions shail befiled against either party and shail not be dismisseo witnirisixty (60) daysafter such flling, then the. othel party may.immediatery, or at any timethereafter, and without further demand or notice, terminaie this Agreementwithout being prejudiced as to any remedies *f i"f, r"v U" *ailable to it forbreach of contract. ' I ru' vv Default in Payment. ln the event concessionaire fairs to submit anypayment within five (5) daysof its due date, there shall be a late charge of $SO.OO per day for such latepayment, in addition to being subject to interest at the olG or t*"rve percent(12%) Ber annum or at the rrignesi rate ailowabb bt Fr"ril;iaw, whichever isgreater. lf_any payment and accumulated penalties .i" not ,"olved withinfifteen._('15) days after the payment auL aate, and such fairure continuesthree (3) days after written notice thereol tfren'tne Ciiy inafi'witnout furtherdemand or notice, terminate this concession Agre;;;i without beingprejudiced as to any remedies which may be available to it for breach ofcontract. Non-Monetarv Default. ln the event that concessionaire or the cityfails to perform or observe any ofthe covenants, terms or provisions under this egr;um;ni, -ano such fairurecontinues thirty (30) days after written notice thLreof rrornlne other partyhereto, such non-defauliing party may immediately or at any tirne thereafter,and without further demand oinotiie, terminate inir-ngi"l*"nt withbut 20 242 being prejudiced as to any remedies which may be available to it for breach of contract. ln the eventthat a default is not reasonabty susceptible to beingcured within such period, the defaulting party shall not be considered indefault if it shall, within such period, commence with due diligence and dispatch to cure such default and thereaftercompleteswith dispatih anddue diligence the curing of such default, but in no event shall such extended cure. period exceed ninety (90) days frorn the date of written notice thereof. ln theevent Concessionaire cures any default pursuant to this Subsection, itshallpromptly provide City with written notice of same. 13.4 City's R.emedies for Concessionaire's Default. Itany ottne s Section 13, shalloccur, theCity may, after notice (if required) and the expiration of cure periods 1as. provided above), at its sole option and discretion, institute such proceedings as in its opinioh are necessaryto cure such defaults and to combensateCi-ty for dam.ages resulting from such defaults, including but hot limited to the rightto give to Concessionaire a notice of termination of this Agreement. lf suchnotice is given, the term of this Agreement shall termin"i" ,pon ine datespecified in such notice from City to Concessionaire.' On the date sospecified, Concessionaire shall then quit and surrender the ConcessionLocations to City pursuant to the provisions of Subsection 13.7. Ufon tnetermination of this Agreement, allrights and interestof Concessionaire in and' to the Concession L-ocations and t6 tnis Rgreement, and every part thereof,shall cease and terminate and,City may, in addition to any otneriights anOremedies it may have, retain all sums paid to it by Concessionaire uider thisAgreement. ln addition to the rights set forth above, City shalt have G rightsto pursue any and all of the following: a. the right to injunction or other similar relief available to it under Floridalaw against Concessionaire; and or b. the right to maintain any and all actions at law or suits in equity orother proper proceedings to obtain damages resulting fiom Concessionaire's default. lf an event of default by the city, as. set forth in this section 13, shalt occur,the concessionaire may, after notice (if required) and the expiration of thecure-periods (as provided above), at its sole option and discretion, terminatethis Agreement upon written notice to the cityand/or sue for damages. saidtermina'tion shall become effective upon ieceipt of a written ilotice oftermination by the city, but in no event shall bqncessionaire specify atermination date that is less than sixty (60) days from tne date of the writtentermination notice. on the date specified in the notice, concessionaire shallquit and surrender the concession Locations to bity pursuant to theprovisions of Subsection 13.7. 13.5 21 243 13.6 13.6.1 Notwithstanding the provisionsof this section 13, this Agreementmaybe.terminated, in whole or in part, UV tn" City, for convenience andwithout cause, upon rhe furnishing tr tnirtv'ibol o"d;fi; writtennotice to Concessionarre. 13'6'2 concessionaire acknowledges that the city may develop a scheduleof capital improvements, iniruding a[ or a portion of the concessionLocations, which may entail a Itosure-&;i";r";r;#, of theconcession Locations, at the citv's soie discretion. rn the event that lr.f; :%::,."?i"ff :1,.*;,1,.:,::t_:l*x:*".,x*r,[:T.,rffi :lthe parties agree that the portion of'the Agieemenrrereren-"ing saioindividuar concession Locations snarr o-e orrtilir/ t"r,iinrt.o ro,. p![':q'iJff ;!li,iT,:ffi i:::#il::,S"ff 1,,#,*ltmi:l:been closed. such a termination =nrrr o'""or" .n".t,t L'rp"n thirty(30) days prior written notice to Concesstonatre. ti'o'a Notuithstanding subsections 13.6.1 and. 13.6.2 above, the city andconcessionaire aiknowredge that tne city atso nas .;d; rights insubsections 3.2.5.2 ana z,-?,r, wnicn, i exerciseo by the city maynecessitate a termination of a portion or ail of the Ag;;;;rt. rn thatevent, the city shail atso have no riabirity to concessionaire, in thesame rnanner as provided in subsection:13.6.4 berow.- -'" - 13'6'4 ln the event of terminatlo1 0r partial termination by city of theAg.reemenr pursuant ro this suusfciion r5.o,'b"l"";il;',[ hereinacknowledges and agrees that it shart not nave any ilJ,d;and, orcause of action of whatsoever kind or nature,.against the city, itsagents, servants and emproyees (incruding, bui noi ririLJ io, craimsfor inte rfere n ce in business or oa mages iol inte iri piion'or r"-ri.". o,.interference in its concession operitions uy concessionaire or itsvendors). 13.7', At the expiration of tnit Rgt"ement, or in the event of termination or partial' termination .of t!" Agreement, concessionaire shall surrender theconcession Locations ii the same condition as the concession Locations' were prior to the commencement Date of this Agreement, reasonable wearand tear excepted. Concessionaire .f,rff -r"roie all its Snack Machines,. change Machines, and any and a, otn"i"q-ripment, fixtures, personarpropertv, eg_ upo.n thirrv (30) days written noii"L?ro, i'd;,ty ilrilg", o,.his designee unress a ionger'time perioJ" i. .gr."d to by the city. 22 244 concessionaire's obligation to obserye or perform this covenant shall survivethe expiration or otheitermination of this Agreement. continuedo".rp.n.yof the concession Locations (or portions tnireorl after termination (or partialtermination) . of the Agreement shail constitute trespass by theconcessionair.e, and miy be pro.""rt"J-as such. rn addition, theconcessionaire shall pay to the city on" itiou""nd dollars ($1,000) per day' as riquidated damages for such treipass anJ nohing or"r. - . ' - - -t SECTION 14.' lntentionaily Omitted. SECT|ON 15. ASSTcNMENT. concessionaire shall not assign, sublease, grant any concession or license, permit the useof by any other person other tian concessiJnaire, oi other*ise transrer all or any portion ofthis Agreement and/or of the conbession Locations *inoriin" prior written consent of theCity Commission. SECTION 16. lntentionaily Omitted, The concessionaire wiit not 6nor suffer or peirnit any.person to use in any mannery*lr:"""J:l *:""1"1.:ii: !::"],".1., opgratidns, oi r".'iriii". for any improper, immorat iecrof r a: pnrce s es. concessionaire agreea that pno'es charg{ jor goods/products in the snack Machines shallbe consistent with the price scheouteis) herEin .rri*itt"i'Uy the Concessionaire andapproved by the city and incorporated herein "r &hi;it 5.2.5,1 to this Agreement. A1subsequent price increases and amendments t" E;hjbitJ.z.s.1 rhust be approved inwriting bythe city Manager, or his designee, arrd priorto iucn cnanges being implemented or orfensive purpos, o1 fo=ny prrpo." i.;i;irjil ffi;i!i#i't'i.',l:A'ilfi:'jlMunicipal ordinance, rure, ordei o, ..guritiorlil"r;"y glr"rn*"ntar rure or regurationnow in etfect or hereafter enacted or aiopted. The conceisionaire will protect, indemnify,and forever save and xeep narmLi.ir'".citv, its agentd, employees and contractors fromand against damage, .penarty, fine, judgment, eip"nie ol cnarge suffered, imposed,assessed or incurred for any vioration, 6r breacn fi ";, L*, ordinance, rure, order orregulation occasioned by,any act, negiect or omission or ine concessionaire, its vendors,employees, agents, and/or suocontrictor"og"rJ;g'il; ;;n""ssion. In the event of any'violation by the concessionaire, or it tre citv-or its lutnorized representative shall deemany conduct on the part of the concessionaire, its ,enJor., agents, emproyees and/orsubcontractors, to be objectionable or im.proper, the city.trrtt n"r" the option, at its solediscretion, to either Ii) lYiotn"ticatty termin.t! t'" A!r"Jru,i, ,pon prior written notice toconcessionaire, or t6-tiil .rtp"nJ inJ'.on..rsion operations should the concessionairefail to corect any suclt violation, conduct, or practice to tre satisfaction of the city within .twenty-four (24) hours after receiving written ;;i; ;i'i;" nature and extent of suchviolation, conduct, or practice, and sich suspension shall.continue until the violation iscured. The concessr.ollire furthercgr"", not to commence operations during thesuspension until the violation has been-correct6d to the satisfaction of the City. 23 245 within the concession Locations a new updated Exhibit 3.z,s.1will be incorporated into thisAgreement. . E'!' rrsrr v'4'u'| T.he city shall have the final right of appr:y:il?r att such prices and changes, but said rightshall not be arbitrarity or 11rJa-.-t";5ly exercised. ftre bo.ncessionaire agrees to refrainfrom the sare of anv item io"niineJ ,r'p;;ffiit"d t;';i;iil and/or orher appricabre rawand to sellonty thoie items appro;Jby the City. $-ECTtoN 19. NOTTCES. AII notices from the city tothe concessionaire shall be deemed dulyserved upon receipt, ifmailed bv resistered or certified mait*itn ,i"ili.;"ffii: the'corrcesrilnrii" at therorrowing address: Betto,i rrafffuH1l1f#,I3lj,yTo,,n Miami, Florida 3301S All notices from the concessionaire to the city shatl be deemed duly served upon receipt, ifmailed by registered or certified mail, return receipt r"qo"rt o, to the cityof Miami Beachat the followirrg addresses: : City Manager City of Miami Beach 1700 Convention Center Drive Miami tseach, FL 33139 With copies io: office of RearEstate, .Housing & community Deveropment City of Miarni Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attention: Anna parekh / Director Theconcessionaire.and the citymay change the above'mailing address at anytime upongiving the other party written nl,tirirition. At noticewno"i'ini, concession Agreementmust be in writing. SECTION 20. LAWS. 20.1 Compliance. concessionaire shartcompry with a[ appricabre city, Miami_Dade iounty,state, and Federar ord ina nces, statute{ iubs a na regGil;., incruding but 24 246 ' not limited to all applicable environmental City, County, State, and Federalordinances, statutes, rules and regulations. '' 20.2 Governinq Law. ' This Agreement shall be deemed to have been made and shall be construedand interpreted in accordance with the taws of the state oriioriir'.ii.r.. or. any inconsistency between the terms.of this Ajreement, and any applicable. generar or speciar raw, said generar o,, ,puJirr r.* ,h"li gorlil'rnt..,. othenruise provided herein. vvve'! '! '|' 20.3 20.4 20.5 21.1 21.2 entgrprises vvr'vrqrr,e vuo,rEDi . No Discrimination. 'The concessionaire agrees that there shall be no.discrimination as to race,color,...national origin,- r".1.,.g,.ot, sex, gendgr iOentit,, ,eru"f orientation,disability, marital and famiriir status, oi.g", in its emproymentpractice or inthe operations referred to by this concession Agreement; and further, thereshall be no discrimination-regarding any use, service, maintenance, oroperation within the ConcessiJn Loc-afions. Allconcession operations andservices offered shail be made avairabre to the_ pubric, subject to the right ofthe concessionaire. and the city to estabrish and enforce rures andregulations to provide for the safeiy, orderry op"rriion inJsecurity of theoperations and the facilities. , '' ["1]IT" .^"1T,:"1: :ffi y a ff i I iate of concess io n a ire perfo rm i n g :*,;:,:^Tj:::*l^:l -p::.:1 1 n","to, wi u d isciil;;t" ",;;i.:i'' il;:H:f :,"j, : pl],,--": I f"r. emp loyme nt beca use of rac;, ;;""q U :J"i.. tity, ril;i;ri; ;ffi;; ft ,'u"ir il ,marilal nrfamilial atal,.^ ^- --^ A- :: ?:l* IlT1i?l .h ty: o r as6. c o n"er. io ni ir,e wi I ir; i; ;il' [,ln "illH;to utilize minorities and femar-es in the *ori roi"";"d il;;;;;r,; ffi;:i: WnoarOS ffl Til":.,:: :gl,:":,: 19 :.Il.Ilqg g.9, I.l, if a p p I ica b I e, it s h a I I co m p rywith ADA standards, Frorida Rccessioility. code standards,. # il;:ili"lapplicable accessibility standards required by law, .--'--' i No Partnership. Nothing contained in this Agreement shall constitute or be construed to be orcreate a partnership or joint venture between the city andconcessionaire, Modifications. This Agreement shall not be changed or modified except by agreement inwriting executed by all parties heret6. Concessionair. aclno,]uedges that no 25 247 21.3 21.4 21.5 21.6 21.7 21.8 modification to thsAgreement may be agreed to by the city unress approvedby the Mayor and city commission except where such authority has beenexpressty provided herein to the city Manag"i oini" a.ilgn"". 9.omotete nqreement. This Agreement, together with all exhibits incorporated hereto, constitutes allthe understanding_Jand agreements of wnatsbeveinrtrre or: kind existirtgbetween. the parties witn' respe"i to conr".rion"iJ, operations, ascontemplated herein. Head,inqs. The section, subsection and paragraph headings contained herein are forconvenience of reference onry aid'are not in-tendeo "-i"ii.",'i,rii'lldescribe the scope or intent of^any provision oi i'n-i, n-gr";"nt, tsindinq EfFect. This Agreement shail be. birrding upon and inure to the benefit of the partieshereto and their respective srciessors and permitted assigns. Clauses. The illegality or inv.alidity of any term or any clause of this Agreementshallnot affect the vatidity of the remainder ottne'n!ree;;;i; ,-no tf," Agreementshatl remain in fuil force and effect as if such iil"g;i"; irirjiia term or crausewere not contained herein unless the elimi'n.tion ol" sucn provisiondetrimentaily reduces the consideration ftrat eitneip;nr;; to receive underthis Agreement or materiary aneci, th; ;ntirluind 'Iperation of thisAgreement rrrrrs',Y vl SpverabililL lf any provision of this Agreement or any portion of such provision or the.application thereof to any person or circumstance shall be herd to be invaridor unenforceable, or sha, become a vioration oi;.y b;;r, ffi*;?ffi;Ilaws, then the same a: qo applied shall no longer be a part of thisAgreement but the remainder oiih" Agreement, such provisions and theapplication thereof to other persons or circumstances, shail not be affectedthereby and this Agreemeni as so modified remain; i;i;il;or"e and effect. Riqht of Entrv. The city, at the direction of the city Manager or his designee, shafi at ailtimes durins davs and hoyrs or opJrriion, irrJ'tn" ,di'il;;i";';;.';iupon any and all parts of the Concession Location.%ii-ne purposes otexamining the same for any reason rerating t" it," "nrig"iions or parties tothis Agreement. Not a Lease. It is expressry understood and agreed that no part, parcer, buirding, facirity, 21.9 26 248 21.10 gguinment or space is leased to the concessionaire, that it is aconcessionaire and not a lessee; that the Cor;;;;;;irll rignt to operatethe corrcession sha, continue oi,il * rong ".1il. nJi"lr"nt rernains in Siqnaqe. concessionaire shail provide, at its sore cost and expense, any requiredsigns at its concessions. Art advertising, signage and postings shail be.approved, in writing, by the city in its pr6priitarv .#.irv, and shail be inaccordance with a[ appricabre Municipar, county, state and Federar rawsand regurations. Any signage poste-o uy coice-sJu:nlire within eachconcession Location, andTor 6n its snacr nrracnines ,nJ'di"nge Machinesshall be subject to the prior approval of the citv .. io-size, shape andplacement of safne. lntentionaily Omitted. Qonflict of lnterest. concessionaire shail perform its services under this Agreement and conductthe concessionoperaiions contemltriJo n.r"in, in a rnanne.r so as to showno preference for ?ll: "^ol.^:.,:lo,n,onegtionrlfr"liiL='",ined, operated,managed, or othenarise..co.ltlorfa uy concesri";;i;;viiti regaro to itsresponsibirities pursuant to this condssion ngru.r"ni ""' I ntentionally Om itted. I ntentionally Omitted. No Waiver. No waiver of any covenant or oondition of this Agreement by either partyshall be deemed to.imply or "on.t,irii'a waiver i. n" rrtr* of the same ffi[:#Jr condition or of any other covenant or condition oi ni, 21.11 21.12 21.13 21.14 21.15 21,16 21.17 Nothing in this Agreel:nt shail confer upon any person or entity, incruding, :":l,}"11p,""-o^r:^r"lT31c3;slonaires,'otiler*,an irr";;;i;,"to and their E:3::'X,",;:'ff ,."."T'"andpermitt"aii'ig.';il'idffi"ffi ffli:$l; Attorneys'Fees. lf it becomes necessary forcity orconcessionaire to enforce their respectiverights under this Rgreernent oi-rnv prrt n"L"i inlulgn litigatiorr,concessionaire and c]ty agree frat tne'prevairing party shail be entiiled torecover from the other party ail costi'and exien*l oilu"h litigation, 249 including a reasonable attorneys' fee and costs, for all trial and appellate.. proceedings. The city desires to enter Nto tnifEEnrent only if in so doing the city can place a limit onits liabilitv for anv cause of action rir uigggn-9f ihis A;;;ent, so that its iirulritv for anysuch breach never exceeds the sum or $ t o,ooo.00. "iil;sionaire hereby expresses itswillingness to enter into this Agreement with a gro,ooo.odtimitation ;" 6;;;i for anyaction for breach of contraJt. Accordingly, and in consioeration of the separateconsideration of $10.00, the receipt of wh.icliis'n.i"6v r"[n-owledged, the cityshallnot beliable to concessionail,e f9r damages to concess'ion"ir" rn an amount in excess of$10'000'00, for any action for breac"h of contract arising out of the performance or non-performance of any obligations imposed .rpon tn" Clti-oy tnt Agreement. Nothingcontained in this paragraph or etsewhere in this ngiee;;t is in any way intended to be a ffiffi:of limitation ptJceb upon the City's liability"rr ."ir"rtn in Ftorida statutes, section sEcltoN 23. VFNUE. I his Agreement shall be enforceable in Miami-Dade county, Florida, and if legal action isnecessary by either party with t".p"ti to the enforcern.rit or any and alt the terms orconditions herein, exclusive venue'forihe enforcem;;l;;"r.e shall lie in Miami-Dadecountv, Frorida. crry AND coNcessroNArii irneav KNOWTNGLY ANDINTENTIONALLY WAIVE rrrc NrONr TO TRIA'EiIUNV IN ANY ACTION ORPRocEEDtNG THAT clrY AND corlcessloNAtRi rtreinenerN AFTER tNslrurE.AGAINST EACH OTHER WITH NiSFCCT TO AN' ilATTER ARTSING OUT.OF ORRELATED TO THIS AGREEMENT Oi THE CONCES'idN LOCATIONS. [The remainder of this page has been reft intentionary brank] 28 250 'lN wlrNESS WHEREoF, the parties hereto have caused their names to be signed andyre,':"ffiI,,i to be affixed, alt as of the Jav and year first-auove written, indicaiing their Attest:CITY OF MIAMI BEACH, FLORIDA TRADING CORP. BETTOLTVENDING Signature / CITY CLERK /h *r-tc lh t t-t=strs "ffi frES## * i,^,f6i'Xilftqit fu,**# f-lou.i*io MIT,-I; Print Name F:\Rl-tco\$ALL\ECoNuALLrAssEnvENDrNG\Bertori vending contract (For Form Approval4-o-12).doc 251 EXHTHT 2.0 ]PAG[ 1 tr 2) o o of ulor-5lJ.U:f!-.l-) tJ1 .ltil ltl ol .= -CLJ ro thog ta oo'c E q, o olol 6|o o CJ o{(9 oo =N o(9 OJo .E' cN ou @ o(, 0,) IU z 13 5o (9 c,MG Et uo ! 66- =o o .e .C 0/ ol'.d G U I o lclo loo oo- IGoco E .g E lotdG ooco 6 6 o ocl 5l 3l:lcl EI>t oo o m o o o o(J Eo 6 oao: o 3ulL-lolfl N oN qr{ N 252 EXHtBtr 2.0 {PAtr z1Fzt ooolnooHm6 ol EI ;! o a ru l (u o Ito I{,'a CL o o oUq, BU oqJ .c 1'o oE c,a GE (9: o'o o G Eftr'= 5 o F ooo00()oJlF. n h:l*joigl va s* ql EI o oE,4d"o q c6.c'= s'='i': < 1id 99o>'=>uoF u.c o- 'SEbEo6- O E5s>:o<aou:>= ooarllt ooor o(o ooms oo an oo(nlt lnH aolo<4 rnol <l otn(o F{ N m N N N Nl€ld st o a a o o C){o ooro <l> o a o a o o o o o N cq oomul ooo<1, o (/} oVt 3att> tn lt> o aom 6€ c{ < o Ln .ri <.r} d a o r..Fi r''l s]d<l\ ao(oo ooan ooo tlt oo o(n d tn c.l oulrl ccr o d m aoo oo'<4 3l +) l.(UI EI(J l'iO-lIca ls "d li -J+rlEro l!o- IS N d fr @N 0, 0(J f,ol>t EI ,el 2l 5lzl I e"l frl 31. *li Elaol>!li .u lp -u lrLIOElo D(c dY og o o clGI*l 5l :l -i PI sl r! oF 253 EXHtflT 3.2.1.4 {PA0E 1 0r 3i Measure ycur ccrnr.nute to convenience store in steps, ..,( i,. i; :; i, 1 ( i, r'*;" ." ;y ; i/$t7*,;:,a{3 Aqh-J yjhkh'.ffin En:aM 254 .'lr;:*{i:l$hF ?i3:;.F,r*d =ir*lF.d.Ji -..r O:&va uDJ,,,Aig* 6)g*ffi,1E *.Bjss r-E"ET(D :\:i :lwI C]'.*-sr lrl- ,(} ! l .^..,,, - 'ts iii,'- .- .j i.1 : ,,F--Il 4,.un -FJk- or:T- cL*?,c Ct[l .r .a""::''(':.atr{,_.-u-,i". I(x t-F r ()(" \ h*-":'L'-*r c€ u- f:i,OW f,m*.tg> .s, '.& q ac! co t-,- co x LU "-Ht'ii'B[:J* c! o.' -^ n: - - l"+ o. tlr_, s dte - -., !t:-,- - al. ! ', .ari ilr'{::1' 255 ,,-, EXHTBIT 3.2.1 .4 {plcr 3 0F 3) I: a'rir'r-,--r...=- 256 EXH|B|T S.Z.S.1 Chips / Crackers Candy / Choialate I pastrieJ LAO% Milk / 8oz too% Milk / 16oz lce'Cream lce Cream Premium Health Snacks Health Snacks Premium Refrigerated food items small Refrigerated food items large y$ 257 Customer: Address EXHIBIT 5.0 BETTOLIVENDING 6095 N.W. 167TH STREET SUITE D.5 HIALEAH, Fl.33015 TEL 305-626-0740 FAX 305-623-0108 Full Line Vending Snack, Soda, Juice, Food, Coffee, Waler, OKEETIEELEEM.S. 22OO PINEHURSTDR. Greenacres, FL. 33413 Soda 51 76 Total Sales 258 r/n/rr 2 otl: eTaof I I ' . lvfayor Matti.Herrera Bower , Mayor of City of Miami Beach : . 1.700 Convention Center Drive Miami.Beach, FL 33l3g Dear:Mayor: March : 1.4,20\? This letter confirrns the agreement made by alq anionc the city of |.r1ami Beach, Florida (,,city,,),'cbca'Qola Refreshmen$ usA, lnclalb, Fl"rtd" co.u-coiisottfi"sLorg*y (,,Bottrer,) and coca-cola North .'-{meric4 a division of The cocacola co;e;;{ ("cornpany", .niior[oi"ery with Bottrer, ..sponsod), whichsets forth oertain exclusive rights grant'ed to ilotir.i uy city, * *i;;hi. the Term sheet and dxhibits attachedlhgreto, all of which are attached t-erto:u, ntta"t..rt .f. ..{ The Term Sheei and Exhibits attached thereto T. lf.ovir,.9+9r.rt.a hi.rein in their entirety.'thi, trn , and the' Term sheeq'together with "nv otrr..-attu.-r,rlntr,r"r"."nc.a ,liirr.i, *il1 ,.o.*liJut: " r.g.iiy binding dgreement(the 'Agreemenr') when rhir i.tt", ir rigr.J uv ar.r pagies r, ;i; ;;;r'provided betow. A, iapitarizedterms notdefined in this letter shall havethe ."iiiog. Lrigried to urern ii'ttre iilsh*ffiil, i"'ii."."Jr,r, preva, in,the. eventof any.conflict betrveen the provisioniof this letterano itle rerrns.treet. 2. .AdvertiSing Bjghts . . -(a) city agrees that Bottler'i ,ur.:,::g^:h"ll b1, nositilned at all times in such a manner thar the4(vertising message is{n no wby obici'ed rJ""tr*rJ"fly;rFffitro ind is clearry ri.ior.io tie generalpublio.The Products shall be prominently risteo o,i any menu boards ror"tJ'uitt. paciritils anJ urilquip**r (as suchtel" is defined herein) dispensing Products sharibe p'"*i;;;;itiJ;;;ifi;;;rd ;;.'ffiffi#t11"**k*ogo." o) city f'urther agrees that all Produots will be dispensed in sponsor,s Equipment and that no othertradeniarked, equipment, coolirs or containers *iil uu p.r*ittu[. ' --- "' 3: ProductRishts (4 city stratl purchase or shall oause its concessionaires to purohase, all products, (and cups, Iids and..CatQon dioxide, if applicable).directly from nottier" (b) city hereby Srants to Bottler the.exclusive Beverage rights at the Facilities, excopt as may beotherwise provided for in this egreement rina nxtriUits. ' (c) If city contracts a concessionaire, €ity-will cause concessionaire to purchase from Bottler allrequirernents for Beverages (and cups, lids anJcarbondioxid.,li"nnrl""ule). srroh purchases will be made atprices and on terms set forth in sottitt'r- ."itiing agreement with concessionaiio, if any. . If no agieement existsbetween concessionaire and Bottler, r*J ori.r,uis witt:ue-m.-a-e'-ul pri"", and on tems set forth in thisAgreement' city ackaowledges that itrr. *ili-u, no duplioation oiuiio**"qs, funding o.,u"nbrrt, (includingpricing) to city or concessionaire if concessionaire r.r"r "n .*t.iin;;;;;*, with Bottler. I 259 '4. EouipJnent and Servicp t.t' i i I (a) ' BottlerEQuipmentand'service: DuringtheTenn,Boftlerwillloantocity,punuanttothetermsof . . Bottler's equipment placement agreements,'at p lost? that Beverage vending equipment,.*o"uofr'.ro;ffi;;mutually agreed upon to dispense'hoducts at the racilities ("Bott[r Equiprienf,). tn addittn, Bottler will provide.: . lt n9 charge regular.rneclranical repair reasonably needed for eohler equipment, as iurtirei-outrin d in Exhibit ? to '" . the Tent4 Sheet. 'prior to Boulei,s installarion oigottiiJG*p*." .i ?;;; F;ii,rr, * Ciry shall provide'Bottler with wriuen confirmation that it has.cogucted an i;.doi1;n of the electricar service at such Facility and' ' . 'lhtl,.b,ased onsich inspoctioq tdait ira, mut trr" a.ct i.!iL*i", ar flre Facility is proper.and adequate for' ' installation of Bottler',s EquipmenL Nonvithstanding the preceaini ir at any time f"ll*"i;;;"tger,s insrallarion ofBottler's Equipment at a Facility, Bottler's Equipmlnt ir au*rgra-us the direcl result of defective .electrical scrviceat the Facility, then the city.will reimburse.bottler for the *--rt oirepair or replacement, as the case may be, ofBottler's Equipment- plrsuant to the filing of a clairn with the city,s self-insurancg. fund. Notwithstanding the' , ' preceding, the City. shall not be responsible nor liable to Botrler "";r" fl* rr'l*ri""-;", ul, uurur* to BottlerrsEquipment which is not caused as a direct result of defective btectrical service at a nacitity (includ,ing without. licritatiorg any darnage to Bottier's Equipment which is caused due to the negligence or misbonduct of bottler,s' ' employees, contractors' and/or a$ents, orfromany othercause or act otherthan 6,ity.rr.tr,.a service). (b) ' Fountein.Equinme,4t and seryice: During the Terrn, company will loan to city, pursuant to the' ' terms of Company's equipmentplacement agreement, at no cost, that Fountain Bevemge dispensingequipment'reasonably required aL{as.mutually agreeJupon to oispeni" a quality fountain Beverages at the Facilities('fountairi Equipuienf')(pollectively, pJtfler p{{n3""t *a r*itu'irlilrtd;;rJ."ir"a ,,Equipmenr,i). No'ice rnakers or water filters will be-provided.' ell'rountairi nqJfr.nt provided by company will at all times" 'remain the property of company and is subject company's equipment agreement, bot no..i"*" payment will bE.' charged' To the extent that Eountain Equipment rounia rronr'Co*puIy unau, tt ir egr".m.nt is tocated at . .Fiacilities that are owned, controlled or managed uy u "on.er*ionaire of city or other persons not party to rhisAgreement, city will include provisions in its agreembnts-wiirr.u.r, .on".rrioruli..Jtt,o rrrogrize that the. Fountain Equiprnent is owned by company and that obligates the concessioniires to honor the terms andconditions such equiprnent agreement , -- . ---- -----' l"-. "" " 'lor.rpany (or Bottler) will. provide at no charge regular mechanical repair reasonably needed for Fountain. !oyinm,"nt: ,Ar{ removai,-rerirodel, relocatioi or-reinstauation of oispensing equipmefi, flavor changes,strrnmerize/winterize, Iine changes, or service nicessitated by damage or adjustmJnts io irre equipment resultlng. from misu$b, abuse, fallure to fillow operating instructia*, J.*i" uv unauthorized.personnel, unneoessary calls" .(equiprqe'l YT not,PlY:ggeg i} 99, or tounLin ,y*p "orituin"i ** empty), or cills that are n6t tre rcsult of'' mechanical failure, (coliectively "special Service caits'1, are not *nriiri.a .d;;;;il il;iuffijprovided free of, charge. charges for special Service iitts witt be charged "i E"rp;;y,, (or Bot6er,s) ihen' ; cur't€nt rate and will be 'invoiced'on a semi-annual basis. Charges rvill Include labor, i'ravel time, parts, an{. - adrninistrative costs. .'.ffinott1wi.ncrypermitanyCompetitiveFroductsib.,otd,distributed' served, sampled, marketed, advefiised, or promoted in any marurer at the iacilities, or in association with City,.theFacitities orthe city trademarks, during the Term, excepi* .rtii"Jii thilg#;rr-' l* (b) Ci-ty-'agrees that City witl not grant any rights,_or enter into any contractual or other relationship,' ' ,wherepy City, the Facilities, and/or the City trademarks *ilt-'b", or have the-potential to-be, associated in any' manner' with.bny Qompetitive Products, except as outlined i*this Agreement and the Term Sheet. 2 I : ! 260 i: , t--:- -r(c) If city learns of any cornpetitive.Products_beiug marketed advertised, or promoted irn any rnunner. whieh implies' an association with iity, pacltities o, City [uO.r*fo ftereinafter refened to as ,,Ambush " Marketihg")' ci'tv will promptly notisr dottler in writing orirrr ari*h M;keting; *a:ui.'i",r primptry'use itsefforts' and cooperate in good ffuh with Bottler, tg nryyer.r1 or stop such Amhsh Marketing in order to piotect theexclxive associationar rights granted to Bottreiundei 0ris egreem;n;, -.' (d) Soqqial promotional EVents Exoention. See Exhibit g. . G) ' The city will provide Bottler w-ith no'less than thirty (30) calendar days prior writtenlnotice of eachelent' which it intendi to desi gnate as a spec iirr. promotionor eruri.' (D The private, personal consumption of competitive Producb by athletes, coaching staf!, musicjans,' actors' comedians, or other entertainment pusonalities rqer.il;49 performing at the Facility is allowed and will'not be considered a speoial Promotional Evenr. ciry iriuri orl.r"rtr:i, ."rr'*;;;;;"*rption is lirnited roprivate areas aod may not be permitted in any area or ine nacitity to which ttre public or any .member of the print or _eleejlonic media has legal access. {g) Product availability ar Facilities for private events. { nl,vate event dt aFacitiry shall mean the use' of aFacility, either through the rintal of.the Faciliivo.ir,rouJ'the jssuance of a city-approved special EventPgr'mit, by a penon(s) or business entity (ies) 1i.e._sucrr as a io'rporation) which is not open or accessible to thegeneral public either tee or via a purchasea e {": ".rrpr"llrp.1es only, private ev"nt, *py incrude, but notbe lirnited,'to the foliowing: weddings, bar mitzvatr/bat mizv; r,a "o"po*L uruotr. p.oouct avalability andexclusivity at private events shall uJrranurea ; f"lil;'6nty-. r.oau"s *ilr u.roH,^distributed, sampled or' othenryise served at Facilities at any time. Notwithstanding tt " o',egoing, Co*prtitir, ,rJuoo may be distrlbuted' at'nb cost by the user of the Facility for private evenB, p.itd;Jr#proiucts ,i1r ""ntiouJto be the only products. . sold, disrribute{, iampred, or otherwise sirved by raciiities;;;;;i., operations. cilifies as i-t relates to pharitable ove{s (including, events produced by' not-for-profit entities with varid ta-x exeqption_frop the rnsj ,, r^.rria+ ;r "rct y:p"*ii"c special Events (e.g.,' Relay for Life, Aids walk, American cancer society), siruf ue tranoled as-follows: Only pro<lucts will.be sold,' . "' distributed, s'arnpled or otherwise served at.raciriti'es ai*, ii*L.*otwithstandin! the foregoing competitive. : ProductS.may bi'distributed at no cost bythe charitaUf.lorgan;ion using the Faoility provided that productswill cbntinue to be dhe only Produit, ,old, distributed; ril;il; ", otherwise served by Facilities concession.' operations and thdt Bottlerhad opportunity to supply proar.tr roiihe charitable event and declined. .' 6, Consideration, (a) ' Pricing' Pricing (inciuding price inireases) will be implemented as outlined in the Term Sheel (b) Credit Card Readers and Fundi-\u,,%.B.ottlerandCitywillmutuallyagreetoinstallcreclitcard readers in select Beverage oispensiii;hid;;identified as.hish rnffin lmotinnc D^#t^- .-.!,r .- - . r, .r:9::Il* ashjeh trairic locationr. 'nofrr., *irifay ror the credit, ::f.f:i:f,i:flffi1-#i1:Hj,::::1,:,:q*"::j:"::ls,::lr-41,*r' ;il!'?1ffi?i,fiT"13{ld o*f -Ur-t t"* lf.fe.fgreement Ciry shatl have no,..porrlUilit-ffirH'any overage forpayrnent ofthe ffiff1::*J:1i":*:Yl;*?":j,:"dl:11$+:1D:,;i; d,,i'ij. ffi,?i'#Tt'.';H:"ff1';:'l,i [m"]?:::"il*:r:#"1lf"f:*:-d readers. upon terminaii".'"i J.pii"iffi""i'1il: l!,.:"j#H'l'd1lllreturn all qedit sad readers to Bottler. 7. Trademarks:Aoprovals (a) ' city acknowlerflgesthat rhe cooa-cola'co*p*y i, the owner of alt r.ight and title in the ftademarks ,tcoca-Qola", "pi61coke", "sp1ite",."DASANI,,, "MinurcMaid;, ,powrneor,, .Fi.,t",, ,.rn"rir*""iI:i;u:Fn.ur|i[: 'Nos'P and other Eademarl*'ofrhe coca{ota company, aadit *q""1'r",.lgil=;ffi;;rL fr,** irademarls. 261 by virtue of this Agreement' city agrees to submit all proposed uses of The.cocacola company ,r.ta to Sponsor. for approval prior to use, but sucA app.oval shall not b.'*rr.*;;;ly i,i,t i,.to. . - ----'-- :.(b) Bottler acknowledges that city is the owner of all right.at'd title in the service mark lMiamiBeach. and that' Bottler acquires no rights il,atsoeue,, in tt," ,"*i.. mrt uyii-rru";l;hir Agreemenr- B"iiiri ri"rr have the righr to'usb the City's servici mark during the Term in connecti6n *iif, i,r'ru*"ting activities at the Facilities, Bottler'egrees to subnit all proposed dsis of City's service marla to Cirrfb;upproual prior to.use, u*lr.i""o#;ffi:; .,, .not be unreasonably withheld: ' 8. Termination " (a) Nonvith.standing the other nrovr:r^o11:l-lhir. Agreement, if any federat, rtu" or local law, rule,regulation or order prohibits, reitricts or in 'any manner interfeief with the sale. or advertising of Beverages ai any:tirne during the Term of this Agleernenq anaine city fails tn .* rur, b:uurh witirin thirty (30) days following .written notice of sam'e frgm golttler fl,.q ut its optiln, eoftbr may te*irt this Agreerirent and city shall (i)' 'return any Equipment' Pd (ii) pay to Bouier *," ,rir*Ja p-",ti"n o?pru+"ia sponsorship Fees for the AgreemenrYear in which the termination occurs (pro+ated rhrough tt" o"t"orieilrinaiorr)rituny, ;.;i.i;, any other upfrontfunding deeped eamed over the Term;'irany, prorated through the date of termih-ation. O) City represepts and warrants that it has full right and autholity to enter into this Agreement and to. Srant and conYey to Bottler the rights set forth herein. In the rr1n pr1*p;,ation or;;".fi';isuch authority, and' . if th€ city fa,s. tb cuie such breach within'thirty (39ry;r. .f"ri"**i **"ation of fu, riglrt and authoriry, then at its.option, Bottler may terminate this Agreement, and.City shall fO iJtum fly Eggipmqnt; and (ii) pay to Bottter thounearned portion of pre-paid sponsorship tr'ees ror trre agreemeni ilar in-wrrict tire termi-niiJ, oo.rr, (pro-ratedthrotrgh the date of termination), if any, as well u, uny ofr"iupnort tnaing aeernea;;;;;;, the Tenn, if any, . prg-rated ttroyeh the date of terminatitn,. 'rvu'b wv,rsu Earrlsq ov. (c) If Boltler breachcs any of its material obligations under this Agreement, and fairs to cure suchfreach within thirty (30) days following wrilten notice of same frorn the city, then ciry may termi4ate thisAgreement and Bottler shall remove ail Equipment from thc Facilities, arid the city shall be entitled to retain theearned portion of any pre'paid sponSorship hees for the agr".rent tu* irr which tt. ,.*irrriin ocsurs (pro_ratedtttrough the date of termination),if any; other upfront fu1diig d.;;;i;.d over the Term, if any, prorated throughthe date of termination; and any fees or puy*"nt due for *[ egrc"."ir year in which theiermination occurs, suchas cominission fees, if any. '- -'"* .:....,. (d) Notwithstanding the above, nothingin this section shall opemte to restrict any other remedies thateither patty may have against thi other in tire evenf of a matr.i"l ;r;;; by a defaultirrg party, 9. Insurance. i. Thb Bottler acknowle{ges that the city is self-insured, as provided in Attachment B to this Agreement. : tsottler shall, at its sole cost and expense, obtain,.provide and maintain, duringthe Ter.m, the following types and.' 'amounts of insurance' which shall be maintained with insurers Iioensea to se-llinsuranc;;il state of.Floridaand have aB+ VI or higher rating in the latest edition of .A,M s.rti, I;irrunce Guide: 1) commercial Geneml Liability. A policy including, but not limited to, comrnercial general liability,including bodily injury, personal injury, proqertl damace, iirthe amount of $1,000,000 per oocurrence.Coverage shall bE provided on an occunence-basis.. '4 262 2) l X;:,i-t#".""mpensation per the statutory limits of the stare'of Florida and Employir,s {,iability ' 3) Automobile Liability - s1,000,000 combined single limit for alr ownedlnon-owned/hlred automobiles. Saiil policies of insurance shall be primary for sponsor/Bottler's'negrigerice only. to and contributing witr anyother insurance maintained by nottllr -ol city, and a[ .]i"]] ;;Ci,7ti rrriuri Beach, Florida as an additional.insured on the commercial glneral liability,anJ automobile tiafifity po[cies. Sponsor shall provide thirty (30)days written nofice to City prior to policy canceltation. t B<ittler shall file and maintain cedificates * ,91j:jnsuran:: policies.with the ciry,s Risk ManagernentDepartment showing said policies to ur in iurr r*ce and effect at a[tilnes duringthe Term. 10.Notices Any notice or other communication undel this Agreement must be in writing and rnust uu .unt by registered mail' ' or by an ovem[ght courier seryicc (such as.Ferl.iJ e.p"*i that proviaesi confi*ing regeipt. A copy of the' notice must be sent by fax when the notice ir .rnt uv ,Iil oi couriur. N;;i.; is clnsiaereo duly given when it isproperly addressed and deposited (postage prepaidj ir-ite mail or derivered.io ttre cou.i"r. Unless orherwise -designated by the parties, notice must ue ririt ilriiio;irg addresses; (A). Notice to Sponsor. cocatola Refreshments usA, Inc. d/b/a Frorida coca-cota Bottring company3350 Pembroke Road ' Hollywood, Florida 33021 Attention: V.p. Market Unit, South FloridaFar 954-986"3173 Tioket Addressee: V.p. Market Unit, South FloridaFax: 954-986-3 173 With a copy to:Coca-Cola Ref,reshments USA, Inc. 2500 Windy Ridge pkrvy Atlant4 Georgia 30339' Attention:. General Counsel (B) Notice to Ciry. fly."J*ffi.T4:l"rDrive Miami Beach, Florida 3313g This Agreement and any dispute arising 9S."{9, re]ging to this'Agreement shail be gof,emed by andconstruedin accordance wkh the laws of the statJof Florida, withouT rlr.r"r." ro its conflict of law rules. 12. Cqtnnliqnce with Law 263 ,iEach of the parties lrcreto agrees that irwill, in its performance ofjts obligations herzunder,,'trfly complywith al} applicable laws' regulations and ordinanceg "i;i ;;r*, authorities and sha, obrain. a, ricenses,. registrations or other approvaG required in order to fury perform'is oiiiguuor$ hereunder, ..,rr: 'Retention of Rights Nq party shall obtain, by this Agreement, any right, title or ihterest in the trademarks.of the other, nor shal{' this Agreement give anv paru ihe right-to.use, {1gi t"fr. ,*d.;l; dkJ;".1il#r"r"riars rhe name,f#il:*-'rartrs, service m*1, o, a"py"*r,u ,r ft. ;h.r,-;;;;;;';;;#;iiil ffi;ied and ",,th;;i;; . f4. . , J.q:v Waiver . . EACII PARTY, To THE EXTENT PERMITTED BY LAw, KN9ryINGLY; VSLUMARILYAND TFITENTIoNALLY wArvEs ITs RIGrlr ro.A rfw nv ryRr, rN ANy AcrroN oR orEERL GAL PROCEEDING ARrsINc ouf or oR.IN coxxfcrioN wrrn Trrrs AGREEMENT ANnTEE rRANsAcrroNs IT co*rEMp,,;rni. -in]J'wiinr,App,,rEs ro ANy.ACrroN oRLEGAL P'ROCEEDING, WHETIIEN.TNiiTXC Nr COINN,iCi],ON, OR OTIIERWISE. , .15. Entiie Ameement " .This Agreement and its exhibits cortains the entire agreement between the parties with respect to tho subject'mat{* hereof' This Agreemend mav *t u" ^rir,93 ffiil;;;iii, w.itt*n .o*urr oi'u[ parties; provided,however' that'Bottler mar ass].sn it',i. agr.m.nt in conn"cti;; ;i; its ieorganization or t[e sare of a, or ffi"u" all of its asseis' All am"no*titt L or waivers ;iihl; ;gr*me.r musr be in writing signed by a1 the . The Coca-Cola Company, acting by and throughits Coca.Cola,North Ameri,ca Dtvis.on City of Miami Beach Ev: Title: By: Print Nami: sk Cpba-Cola }efresh.ments USA, Inc. 4ibla Florida "t 3-t5't?i H 26: h.----. Date ,' 264 Iji t t . Aftachment A : --:'Jr:IFRrvr SHEET EXCLUSIVE NON.ALCOHOLIC BEVERAGE AGREEMENT Eottler: coca€ora _Refreshments USA, rnc. d/b/a FroridaCoca-Cola Botfling Company Snqany: Coca-Cola North America, a,division ofThe Coca-Cola Company Stcon sor: .Collective ly,,,Botiler, and,Cornpany, City:City of Miami tseach Agreqment: Exclusive N on -Alcoho lic Beverage Agieement Facilities: lncludes , the.. following Miami Beach property,including _any rand, buiiding, struc-turei-and/or other facilitiesthereon: Miami Beach Goti Club; the'NormanOy Strores dofclub; The Fiilmore Miami Beach at the .l"lkL -o-i""ron Theater (upon the expiration of the current mrnrg"r.;tagreement); the Miami Beaqh convdn,tion center; .ii .ii*.lvexisting city of Miami Bgach owned parrs-ano'""i"ii.r;r facilities; ali cu*enuy existing city oirr,liami geaoih-il;;; f"*,S*lrlllg.:1. ils:r- wh ich a re either o irecuv ope;.H ;;the C'rty, through its parking System, or by a i[iro'pai) wf,",pursuant to a management or concession agreeinent with theCity, is contractually authorized to operate ;nd ,lr;;;;;;;garag€ on behalf of the C!ty; ."lt currenfly "xiiting prbii.beachfront boncessions which.are either or,..trv op.irfi ;ythe,City or by a third party who, iursuant'to . ;o;;;;;i* ;,manag.ement agreenrent with the city, is contraciuattyauthorized to operate and manage such concession on beharf :f I!: city; 9no any additionai fuluie pacitiines or ";bli"J^ir fr [:3ffi i il:i ffi'":1l ffs ;,ltf.qT.,:$ rj llus*,{,lll:Park and thd Miami. Beach convention ceniei fa;iriiyexpansion, except as rnay be othenarise be "i.[.,d.a ;;1h"Agreement. 265 not limited to cofe :ffi:n"Ll''111. iPlLling those in siiiati Eivi;s-i]"ilffi -enhanced dairy beverages; rrozen ;ilil.?d.d.'"rceEi lilosmoothies rnade from concentrate; and thd p"1e;;;#;,post.mix syrups used !9 orenare ,rorni.ll,- Effi#;;.'Beverage" or,,Beverages,. sdi,Gi include oairv-piiii.Lexcept as noted "Ty: (e.g. milk, yogurt, i". ..r"lrnl,-;;i;, !1awn from the puAlc witer ilppt; or unbranded juice Prqdupts: Beverage prodr,rbts purchased direcfly from Botfler,or with wrkten Botilercpprov"l t r,ir Botflerls authorized !j:I9Yl.^l-9.1,:glg, n1olqrr venoint' irachines owned drrdstocked exclusively by Bott-ler. -"'-e 'r 2i AGB,EEMETTTERMI The Term shail beoin J.a.nuary 1,2012 and will continue until.December 31, zdzr fitu H"rir,l]r,in"n used in this Term "a.kj $-l"T..Asr:eemenl y;;i *""n. each consecutivetwejve-month perioJ Ouring tne Grm,.feginning with fhe firstdqfol thb Term.3. EFFECT|VE OETE Decenlber 31, 2021 as to all Facilities5. SPONSORSHIP FEE: Agreernent year. (subject to prr*.r" ii'.=rir,"i#rn"lize,soo cases ot uotueslcanJ;Jr;;;;i $3,725,000 for the Terin of the Agteernent,.' First installrnent of $80O,OOO linctuOes sponsorship iee forAgreenrent year.one and signing oonuri *i,-u" piio:il;i. :1rdy (00) days of e_xec1tio1 jr tnE elreeinent uv!lr'parn .The portion pertaining to th.e signinf, bonr; ($4,?;:b66i'*1,be deemed earned bvei tnE',ri^ and the portionpertaining to the sponsorshlp fee foi ne ngreem.,itlri, !1e.,qSqZS,000) _sha[ U" deerneO earned eventy on amonthly basis during the first Agreement year.. $325,000 due each Agreer"ni y"., thereafior during the l,9mi,of the. Agreem.,il, a* up;;ih* anniversary date ofthe Agre€ment and wi, be 'oeeineo earnea-'6rriilr," 6, .COMMISSIONS: Commissions to be pakl quarlerly in arrears by Botfler to City l11l,":pg STI ':.-feiil*[l,' il:. and as per thecommission Rate structure "-"Lrffi" to'"Bot-it"url=t "i::lggqlds.(Exhibit i) aBottler will provide City with l totat of $1Z,SOO in cash for the i.1 266 . PRODUCT: Bottler shall provide City, upon City,s request, with up to 4S01f1$ard physicat cases of comptimentary proOuct ffi ou,i..CSD cans.and/or DASANT 12 dunce Lo[tres) p"i Agi""r;t vear for a product bank to oe useJ uy th; aitt ircitvi..lliitrequest comptirnentary prgdugt by the enO of "r.n'V.ri, .nVremaining-comprimentary Froduct sha[ be retained uv ebtil., purcl'lase of equipmeupen) i - with no further obrigation to eccount. Botflei-wirr'prJriJ, complirnenlarv pro$ugt donation report upon Account,s ,lorJ"t8. ADVERTISING & SPONSORSHTP: Bbttter witl be the excrusive advertise, oi pioorrtJlJ-J.iltJo with the Facilities. Bottler has the excrusive right til advertise products.(i) at theFacilities and (ii) .in conniction with the racirit-[sl' -''lio permanent or temp.orary advertising, signag" oi Ga.rirfvisib ility for co m p etitive p rod ucts a re -p'a rm-ittei a nvwne rJ ;i ih.Facilities. except m _pe_rmitted pursuint to the Agr.d.;t.Adveftising rights are further derineated in extrrniiz. i;il;;, lle 9xc]usjve right to advertise the piod-uas as tne ,,otii-crar;'or "Exclusive' soft drink, ,snortg. drink, dairy_'..J prt"in irini,yat?ll tea, energy drink,-qnd/or juice or juice Orirft, etc. oJin"Facitities, of rhe city of Miami'Beach hno-"i s,iriri'a.rli,, 9. ,PRODUCT nrcnrs: Bottl'er has the excrusive right to seil or distribute products aithe. Facilities' No competitiva products may be soto, oispensea, :infl:*.l l".y.ig ,")-here at tne raciriiie-, ;, ilr6'i;.,)i.public rig hts-of-ways, except as may otnerwis! ;";;;id;'il,in this Agreement. lO.EXCEPTIONS: bv a tenant thr:ough. a rease or rLntlr "di#,i!-.itir;riilg,ntg, for office. Except for those Facilities speciflcally enumerated in Seition1., "Facilities" shafl NoT inc]ud" ,,iv-crty of rr,liarni ge;cnproperty (including any City_owned land, OuifOingr, ;iil;;,and/or other facilities thereon) which_as of -the fffeitir"Date-is used, occupied,. conirolled, and/o, ,rn.glJ;aoperated by a thir!_party (or parties) pursuant to ariy ot ineforowing agreemenrs lieiruein tnd .city ano suJr, -iriiro party(ies): (i) lease agreemen,t; (ii) concesiion ,grrem"ntiiiiiloperation and management agreement (ivifrr"l"i,,i,J.tagreement; (v) easernent agreement; (vi) riden.e inJdi'il"agrreement; (vii) revocabre perrnit; androi 1viiil any ot "i*iiGninstrurnent between ttre iity "no sr.n:ti,ini prrtvii..l'*ti.r,,establishes a contractuat right on betratt'of 'il;h "ihird party(ies) for the use,and/or o-ccrpancy of City prd;rty. i;is i:"1 l.l:1:,.Il, loJ F,limited to, any city ni66;;;;ili;; I I'l 267 I ::l:g:d 11!?I of the convenrion c'enter "p;tio;; i".;: I adJacent. comrnercial retail, hotel, etc.); pubric bus sniter I ad.vertisino managed by a third party unoer contract *itt-tn" I ylyf 1l! advertising. permitted pursuant to the City's current I l5!1!l to.tfe Citfs Sidewatk Caf6 or{inance, as-fiay oe I iT:-?:-"!. flgT tiry to . time; , ,,public_privaie, projects used, by a third :party(ies) pursuant ti a manag.*"rfagreement or ionoession agreement; .privhte upUndownerbeachfront concessions which are iseued " p"rmit b, ih; iity(and which are neither operated dir,ecfly bt iG Citv,'.i'r-fy;t!.'11 pq1ty on behatf of and pursuant io a contract with thecity); sidewatk cafes which are issued a permit to operaiea developed and constructed pursuant to'a -o.r.rlp-il-"-nt Agreement (pursuant to the requirements of the norioa'l_ocat !.ov.e.m 1e1 t Developme nt. Ag reeme nt Act u nde r CnapGr-f 6i,Florida statutes); any hotel oi retait developrnent ,"rat!o=iotn"expansion of the Miami Beach convention center *rai i. .rt retail, and/or commd,rcial any .City property nianaged and operat"it; "nalo,,Ah;ffi;; use agreement with the city for those Facilities is'terminated, "xpi*s.or i. rrbj..t t. s. fn, .uiient agreement for the $ubric .bike-share .6n."i.ion.Notwithstanding the. preieding, ttre . City wUf -'U--maie reasonable ,good faith efforts [o meet wiin tne niie_strareconcessionaire and 'negotiate an amendmen.t to tn" a*i.iingbike-share concession.agreement, which must arso bL .,.i6iii"t lo, qsreement by the bike-share concessiohaire, to.piorrinit'iieorKe-share corrcessionaire. from .advertising competitiveProducts; ii) if City renews the bike_shaie ;;ildi;.agreement with'the bike-share concessionaire, then, as acondition to such renewar, the city Manager wiri recommendthat such renewal be conditioned ihat such renewat inctuoe aterrn ._ prohibiting the bike-share c6ncessionaire fromadvertising competitive products; and iit) no "-o*rtising-orcompetitive Products shall be permitted on bike-share sta"tion lrbsks during the Term shourd the city, atter tre-eff;;ii;"Date, approve advertising for pracernent bn ui[e-sr,ire ti"Jk;.Should the_City enter. into. ahy new bike-sh;;"-;g;;;;;;i, during the Term, no advertisinSi qf Competitive proJucts shallbe permitted on the bicycl-s used for that oik.-rr,rr.agreement(s). ' Fudher, for the following locations which are under . ,Or"-existing concession.and/or use agreement (i.€. in "tr".i irio,to the Effective Date. of the {gre€ment) with. e corp"Iiti;"Products supprier, those Fac-itities wiit come ,na.ii ir,i,Agreement after such competitive products ,gr"d"ni"i,terrninated or expires, or untii such time as the "o]n""..ion o.. 268 list of such facilities, a 1; 21tt streeu46h stieet Beachfront concessionhim . Wilcox, lnc,- 11t3Otzo12 --- - -i - 2) south Pointe park concession/Brissberry - llrgotzolz 3) Normandy lsle pool Concession Stand/E. Gomez _ 11n9t2011 city agrees that it wiil not knowingry perrnit any competitive lllr,gE to be sold,.diskibuted, Jerved, samp-led, ml*et"O, aoverusect or promoted at the Facilities, or in association wit'hCity, except, and as further explained, ih gxniOit e:o Third party exhibitor set ups at Facirities or during city- le*jttp_Special Events in accordance witn. ih""Ciry,Special Event permit- Guidelines, as same may Leamended.from time to time.. charitable events at Facillties or at city-permitted specialEvents where competitive 'product are donated to thecharitable event;o Availability at city-permitted special Events only withinspecial Event Fermit Area (as such term is defined in inuCity's Special Event permit Guideiines, as same may beamended from time to time). '-' - . ' 9p to four.(4) sponsorship events at the Miami Beach GorfClub, and _ up to four (4) sponsorship .r",ft* ,i tfr.Na,mandy Shores Golf Club eabh Agreernent year;, ' 1p to three (3) sponsorship events at the Miami Beach.convention center each Agreement year (the nurLl,limitation for the sponsorshif events at the fr4iiri g;."h convention center.is subject to a review "rt"i tt re" tilAgreement Years);. g m!!!qlly agreed upon number of sponsorship events atthe Filtrnorp M.iami Beach at the Jackie Afeasbn il;;;,(up9n expiration of the existing .management agreement). and ' yp to four (4) city'issued speciar Event permits for a "cityApproved .Major Sponsorship public Event", - .er"t,Agreement Year, which includei an event sponsoiea nyamanufacturer, distributor, or marketer oi comp"titiveProducts under a master sponsorshrp agreement *itn in"owner or opeirator of the sponsorship event; an euentconducted on a nationa,t or regional multi-market urri.;and/or an event where a competitor is the pr.."niing, mLor ..other prim_ary sponsor of the event. rne nimierlimitation. for. City-lssued Speciat Events is subje;i i;;review after threq (3t Agreemellyears. : t'I ! 269 ': 'i .r whenever possibre, .cig wiil make reasonabre looa raith 1fforts to encourage third party users of the e"rr co'*"r'.nauonvention Center,, and Special Event olganizers, to useBottler's Products for: their non-arcohoric SeveraJ; ;;.d;.Since.. third. party organizers who appty tor spJiill EvJntPe.rrnits will t9 .permitted. to seil orrry' Boiuer,. iloor.t.l b-itvwill amend City's Speciat Events permit Applioation an,i CiiVwill provide Sponsor contact informafion inrorgh th; a ,OSpecial Events Permit Annlin-atinn ^rrr^aco,11. MARKETING: PROGAM:Bottler agrees' to provide Account with annual in-kind r?rketino, support fund with an approximate retair vaiub otrwo Hundrect Thousand Five Hundred Dollars (gQ00,S00) asfurther delineated in Exhibtt i. Bottler shall be designated the official ,,RecyclinEi partnef ofAccount. ln consideration of this design.tion, -gotfl"i ,nrilprovide, at their cost, the services/pr6oucts'oetin.rt.J lnExhiblt 4,.with a mlnlmum total value of $15,000r.n0'up to$25,000 oyer the entire Term {2;RFCYCL|NG I PARTNER: .l3.VENDING. PROGRAM,OTHER. EQUIPMENT city agrees that tsotfler_shail prace a minimum of sixty-five (65)Produrctvending rnachines in mutuaily agreed upon tocationsat the Facilitbs, and Botfler wifi ro-an -to c-ity at no mit,Beverage dispensing equrpment as reasonanry r6quiieJ;nd ;,mutually agrged upon t9 dispense products at tire racitities, ln consideration of the parinership, city grants to Botiler:Twenty-six.(26) rounds of gorf each Agrelmlnt year (max ofeight during peak season; no. more ,than twerve at r,.aiamiBeach Golf Course; benefit does not roll over); " ,inlru, otfqur (4) free tickets to at reast six (o) ric(etec events-atFacilities.each Agreement year, subiecitb availabiritv re.g, ArtBasel Miami Beach, Auto Show,- South Beach CoiieOVFestivat at the Finmore, etc.). Aooiuonat u.lLL ;iri -;" provided as available. Benefit r{oa.c naf rnl nrrar 14.CITY SUPPORT: l5.PRICING: Bottle/can- Pricing: city is entifled to purchase botfle/canProducts from Botiler in accordance with. tnJ price scrreaJeset forth in Exhrbit 6; prices sharl remain in effect untit.rury ii,2012- Thereafter, such prices wifl be subject to an annuarinorease of no more.than four percent (4%)'over n" prariorc Agledment Year's price. . i Fountain Products or Georgia coffee pricing: Bottter will,seilfquntain Products to city at the National Account prices. -a" 6 270 announced by the BotUer in coff."q pricing shail be provided quartlrry b*"o i. ti,r*.ajtv markets. Purchasing: All product shail be purctrased iirecfly fromBottler, except for those products ttrai Botiler identifies lan u"pUfChaSed ffOm an. aUthnrizerl. (1nna-l^ata rtiatritr,r^, { s.TERMINATION lf city breaches any of its material obligations set forth in thisAgreement, and .fairs to cure such breac-h within ffrirt}, tioi oavsfollowing written notice of same from Botfler, then, Eorttro ,nlvterminate this Agreementl aF City shall til' ieiurn anyEquipment, and (ii) pay to Bottter the unearned'portion of anypre-paid sponsorship Fees for the Agreement year in which thetermination occurs (pro-rated through the date of terminationl. lf Bottler breaches any of its material obligations set forth in thisAgreement, and fails to cure such breach within thirty (30) davsfollowing written notice of 'same frorn cit5r, tnen, bitv mivterminate this Agreement, .and Botfler snifi (i) ,.roi. ,nvEcuipment, and (ii) pay to City the eamed poriil,n ot "nV pi"^paid sponsorship Fees or othbr fees or payments due f6r'theAgreemerrt year ln which the termination occurs tpro*i.Jthrough the date of termination), city.sna.tl not be in defaurt in the event of any ctaim filed inrelation to city's restriction_on cornpetitive piodugt sarnpling; llg-riq?-dt however, the Botfler shall have the fofldwingremedies: 1). . ability to renegotiate financiat terms, as appropriate, within a specified time (e.g. g0 days); or, 2)failingto.negotiate terms acceptable to both parties-wiinin speoirieirtime, Elottlelmay terminatre the Agreement, and citv ir,aii iureturn any Equipment, and (ii)'pay to tsotfler tne irneameo p.ortio.n of .any pre-paid sponsorship rees for the ngreementYear in which the termination occurs (pro-rated tnrougfthe diie of termination). Nothing in this section shail op€rat;br;st;i;t either party's other remedies in thb event of amateriar lieactrby the other. lT.MAINTENANCE SERVICE:Bottler agrees to provide reasonable service and maintenance for the equipment during the Term. city shall allow Botfler ioenter its premises for the purpose of inspgction o,performance bf such maintenance and repair, oi necessaryreplacement or return of the equipment. Fiotiler and city wiilestablish a mutually agreed.upon refund bank and customer service program, as delineated in Exhibit 7 lS.REPORTS/AUDITING: Bottler will provide an annual business review report wmin go 271 I ,days fottowing each..R@16"-1;6 commission reports wifl be provided monthry" inii rorrrt orsuch reports shal be mutuaily.agreed upon. citv nasineilghtto audiuinspect account statements i,vitn ,"ilon"ui"- fi;,notirce to Bottler and during normar. business nours.t rr tityrequests an audit, city agrees to pay for such audrt.' nccountrecords must be retairled for a minimum of two (ii agre.r..tYears. afle.r..the payment of the annuar spons'Jirt,i=r,-i*'i,paid, in addition to the current Agreement'year.of tne ieim,and .for two (2) Agreement y.iars rottowing e;piLti.,i"iip4nination of the Aoreement. 272 Exhibit I to Term Sheet coMMtsstoNS ird*! 2O oz. PET,carbonated/NESTEA@ 20 oz. PET Minute Maid@ 20 oz: PET DASANI@ 300 ixl PET DASANT@ 2O oz. PET POWERADE@ 20 oz. PET vltarnlnwater@ 16 oz. canS Energy Beverages 16.5 oz. PET FUZE @ 15.2 oz. PET Minute Maid@ Juices to Go Produpj 20 o2. PEI carb.onated/NESTEA@ 20,o2:. PET Minute Mai@ ' 20 oz: PET DASANT@ 3OO mIPET DASANI@ 2o oz.PET POWERADE@ 20 oz. PET vitamlnwater@ 16 oz, cans Energy Beveiages '16,5 oz..PET FUZE@ 15.2 oz..PFI Minute.Maid@ Juices to Go qornlqsngt.Fate 30% 30o/o 3Oo/o 300/o " : 3Ao/o 15o/o 30o/o 15o/o : 15o/o Comnlissign Rate . 30%. 30% 30% 30o/o 30o/o 15o/o 30% 15o/o 15o/o Vend Price $1.2s $1,25 $1.25 $0.75 $1.50 $1.75 $2,00 $2.00 $1.50. Vend Pr:rce $1.50 $1.50 $1.50 $1.00 $1.75 $2.00 $2.25 $2.25 $1.75 ln Agreement Years Four and Seven, the Vend pfices will increase by trnrenty-five cents for eaohProduct listed abcive. Fol example, in Agreement Year rour, aoonu. DASANI will increase to $1.00vend Frice'and then ip Agreement Yeaiseven, 3o0rnl. DAdANI will increase ,n iaoiiionrt twenty-five cents to $1'25. The cornmission Rates will not cG-ngu iriing gre 'reim oiini;-agrr"r.nt.There are two vend rates (one for workplace and one fo,. prErirlo".tions) that will be ouflined in thefinalformalagreement between the pa*ies; but note urriiorri".i"iil"ii" i"ilri"ri"j,iin..rr., commissions 'are paid taseo. upon cash collected aftg1 deduct]ng taxes, deposits, recycling febs,othe-r: handling febs, communication charges and credit.ano oebii card fees, if anv. comr.nissionsshall not be pavable on any sales from vending maihi;.-;;f fiued or ;ri"A eiitusivety oyBottler' Bottler 'may adjusi. the vend prices andior commission rates as necdssary to ieflectchanges in its costs, including cost of goog?, ,pon piioi *iiien .notic" and approval !y city.Comrnissions will be paid each month tottoriving'ne iirontn in .wfricn they are earned, with anaccoqnting of all sales and monies in a form reaJonably satisractory to tne bity,.a.J'.nirr becomeimmediate property of City. 9 273 .: Exhibit 2 to Term Sheet ApVERTIS|NG RtcHTS I I r I i I ;(Except as otherwise n3tq9'the following rightg may not be transferred_or assigned by Botger)1. Recognition of Botfler as the.Ofrciil Non-Alcoholi" e;verase SponsoC, of City. Official statuswill include official status Recognition.p, Citv aci"s-Iiii"n-"rohotic beverage categoriesi'e' "Coca-cola official soft Drirk of Miami Beach" anJomciar st tr. n""LdfiJn tor south' Beach across all non alcoholic beverage categories (i.e. "iowefrnft;ffi;i $.rts Dr.inkfor South Beach',) e -"-- \'rvr 2' official sponsor status (for Products) of all city-produced citywide special Evehts, whethernow existing or as may exisi in ttre fyt11p tie. inciuoing, *ithtrt timi6ti;n, ;fi;, exampte' purposes only.,sleepless Nights); Bottler io have trig"h;t +on.oisn-ip ibr"irro benefits'available other than presenting or-title sponsorship, tn-aoaition, Botger iriri u" ,Jognized asthe 'Title sponsofl of Git/s ;Fire on tne lh n"^iri rr,J"p"r;";;;#"iii"f,rltron,,"..n, ' Agreement year during the Terrn.3' Recognition of Bottler as the "offlciat Recycling Partner" for the City of Miami Beach & southBeach 5. Joint Bottler/city Logo. placement on city and city+elated. vrrebsites (e,g. Miami Beachconvention Genter, Miami Beach Golf ciub,. Noinian;t- siil; Go[ ctub, tvtiimi Beachculturb web site tM?_cylr]".-?m); and any oir.,'er ciiy il"usi&; wherher now eristing or asmay exist in ths future' to such extent as pirmitted uyrny f"d;i qr stgrte regulations on ;govdomains' citv will use reasonable comrnercil Jrort!.t"iniiil-irint Botuer/city Logo on a[ .qr]nted convbntion and tourism materiars, as appropriate and avairabre.walver of anv special Event Permit anolor pliiiiil#L;i;;,.,-i]gs for Botttecs use of certainAccount Facirities g:?_,g *g.J2)gutuar[agreed'upon eventi pe.r Aoreement year, .basedon availabilitv. For nu,ro9s9. of flie:sp;dl t;l''r p;,ilii;r;l; ;.lrmit Apptication Fee waiver,thbse Facilities shall include puotic oiachiront areas and parki and Recr,eation iacilities wherespecial'Events a.ie permitted. ntt otneitees';il-;;#i;;fifiL., lnctuding but not timitedto,, taxes, security, sanitation, etc., shall be the r"uponrirrirry of a'"tger:ii;hi;ilnot o"' transferred or assigned, 6' ' waiver of any rental or use fees for Bottlels u-se of certain city Facilities:for up to (two) 2mutuary agreed upon events per Agreernent yebi, oas-". on Jvairpbirity. For purposes of therental or use fee waiver, these Falcilities snariintrro" ii"'*e or r6eiing IJ.H.i.." o.'ballroom space at the Miami Beach convenuon center. nrr otG fees and costs of p.ir.,irl,including but notrgrit:a ro taxes, security, "uoiolulrL],"Jecoration, etc,, shal be the 7' Unlirnited' royalty-free Product simpung at city prooJced and/or sponsored evehts;Royalty'free Product sampling perrniti p6r ngreemri',t i.li, as fottows: 48 permits eachAgreement Year, but pernitiwilt be limited t-o noi ,t=-iiian sx (6) permits tn any one' month period' Right may not be transfe.rred. or assitneJ, -'iispon"or does not use all 4g' perinits by the end of each Agreement Year,. anv rrirNing permits will not roll-over to the^ following Agreernent year, buiwill be forfeited. -'. ''o '8" Mutual agreement o.n the development and use of a joint logo between Botfler and Account.9' Right to use mutually agreed ripon joint logo on any-point-if-sale, marketing materials, and/orsignage that may be mutually agreed uoon. 10. Royalty-free advertisement in Litv's ,.gTr.!.? Ii;".-.M.? Magazine); minimum of a quarterpage each.issue; larger ad.size as may Oe avaitable. night r"it" transferred or assigned.11'Royalty-free plorninent advertisement tn any speiTai-'Fi6motionat Event programs orcollaterals produc,ed for., city-produced cityviJt +;; proilrotionat Events (i.e. including,. without lirnitation, July 4h and sleepless uigrrtsl. c,tv-.n.ir'use oest etro.t.-io'piorio. . rrrrPage ad. - ? -ri-ir lYY , l0 274 ' '; 12' The right to brand City's public beach concession area(s) with appiovbd Botthr Jna city lointbranding graphics (e.g. concession stands, storage' shed, umbrettrr,-Ji,i subject toproposed branding rneeting .all necessary administrative and regulatory'approvals.' .lmplementation of any approved branding shall be at the Boftlerls "*p"n.O. All tademarkusage must be pre-approved prior to usage..The ereclion of any other.slgnage other thanvending machihe display shail be subject to approval by the city. I 13, One Royalty-free ioint City/Bottler message PSA advertising panel at the Ss and Alton bus . sheller; production/installation costs paid by Botger, Minimum of ful use of ona psA ad. panel for the entire term of the Agrsement. 14. Minimurn of one (1) Royalty-free advertising panel atthe 5h.and Altorr bus shelter, on.a.space.avallability (emnant) basis; productlon/installation costs paid by Botler. Right may betransfered or assigned.' 15, Mlnlrnum of one (1) one'rnonth Royalty-free electronic joint City/Botfler message pSA runon Allantic Broadband and Welcome Channel; Additional inonths based in ongoing avaitaibitity; 1.6. Minimurn of one (1) unlimited run on MBTv of city/Botiler message.psA; 17' Royalty'free PoF ticket ad based on space availabillty; production costs paid by Botger.' Right may be transferred or.assigned. The parties agree to perform such addiflonal maiketing activitieg, as the pafties may mutually agreeupon to drive traffic to the Facilttles and to increase proiuct sales.' !'|rY' 'rrv' 1l 275 I . Exhibtt 3 to Term Sheet i uRnxeuuo pnoonnm Bottler shall provide city for approval with the proposed annuar marketing plan for promotion of thepartnership no later than ninetv (e0) days pridr ti ih; bili;;j;g'or "."fr i;;;J;iVJar, exceptfor the first Agreement Year wtien tne ,i*"ting pr"n s["ri[;'piirja"a to the c1y within ninety {90)dals 6fter €xectrtion of Agreement' The innuar value of tnJ [rarreting plarl shall be no tess than$200'500' as det6rrnined- in -good faith bt Bottler "na omui-on generally accepted martetingvalues. sorne exampres of activation may incrude *re iorro*ingJ i,oweiei ;":i;i marketingprograms will depend. on availability of these drogrir". ' ' lnclusion of the city in the My coke Rewards program, or other customer reward programoffered bv Bottler, throush an annuat promotionar prJgr., (" g.;";ffi:);'J"iiil.t"o varue ,' $'100,000, or equivarent varue. Activattn based on'rr.itruiuifr Truck-back promotions.program . value: $24,000ffear basejon availabilitye Box Topper program or other simirar hrgh-visibirity promotionar prograrn; varue:.g25,000/yearr Neck Ringer progr:am: a Neck Ringer program shallbe availabte with a rninimum distribution of:neck ringers. Touring Program: Botfler will bring the Open Happiness Tour, o1 such other promotionaltouring'program offered by Botuer, to the city based on avairability.. Bottler to develop and implement at least five (5) stratlgic marketing partnerships with the' Account and the Bottter's other sponsorship partners duririg the Term of.the Agreement, suchstia'tegic niarketing partnerships may include, but are not ti'imited tg, cross promolon, product,. tiokets, etc., with other brarids or products cunenily under " -rpo;;;;siiJ or otner, promotioriaymarketing agreement with the Botfler.. Lebrgn James EvenUcelebrity event; value: $45,000 based on avallability, or' "qrirrl"nivaluecity acknowledges the intent of the Bottler-to !9v.glop a Jornt marketing logo inco'porating theBottle/s mark and the citv's mark. Bottler shalt gblgin eippro;;i'rrql p" ctty, tn writin[, of the jointlogo'for: use in promotion of the Agreement, inciuJin;, ffi noi'rir'it"o to, its use in a1-commercial,marketing, media adveil'sements, web sites and pror"u"nripi;;"t;. "'l s" u A party's use bf the other party's. marks ln.promotio-ns, on ,products and signage, shall be firstqpproved by the otherr party ln writing, ano ali ,r"...oi.r'q"rtfs-mart<s snarr bt aiiffi"dilj:"Jthat party's intellectual property ano inEiloe appropriate trabernair notices. Tne o3rtp.s agrde-to p?rfo[n those additional marketing.activities, as.the parties may mutualy agree .qpon to drive traffic to the Facilitieq and to increase Pro?uct sates. City agrees to provide Bot,er withreasonabre marketing assets.inventory(e,g.,to be useo win , n,lv btrE n.r.ii..itiq#'rconsumer sweepstakes, or other such similar lweepstakes; for mutuaf[ agreed upJnirJmotion,each year durirrg the Term to promote Botfler prootictJJnicitv. ' I i; L I i t2 276 Exhibit 4 to Term Sheet RECYGLING PARTNERSHTP Bottler shafl be designated the officiafRecycring partne/ of city. Bottler sha[ proVide, at.its.cost, the foilowing services/products (varue of $15,000-$25,000):r Assess' consult and offer a Recycling Piogram Ptan for nottLLan recycling initiatives' ' Propose messaging strategy for the cityt uotflel."n r""v.ling initiatives (within g0 days afierexecution of Agreernent)o Provlde Temporary recycling.bins for Special events (minlmurn of 30) to City at Botiler,s coSt;r Provide Recycling bins for plicement in Facilities oragreed upon public areas (minimum of 1s)to city'at Botfler's cost; design subject to review and a[provaiir c,tv;r Place reverse vending mashines (crushers) in vending brnr.. ininl'Facirities; mrnimum of flve(5) crushers placed during the first five Agreement years of the Term, at Botiler,s cost.', Use of Recycling Educational Vehicle (REV,) or other Eoucation Recycling mdterial, at city'eveints; scheduled at reast one time every 1g months during tne term. t I I ;IiI l3 277 Exhlbit 6 to Term Sheet VEND|NG PROGRAU I 1 t:.' li I Bi:ffiiall place' at their cost, all vending rnachines In agreed upon iocations.pursuant io the 1) Bottler shall provide to City within 90 days after execution ef,Agreement the proposedequipment plan for the Agreement rerm; to'incruo. th1'mactrine allocation plan bi type (e,g.:,.: interactive vending machines, glass front etc.).and location; equipment replaoement schedul,e;' and vend front replacement and schedute for 'exlsung ;enaing machines that need the vend,.front repraced. Ar equrpment sha, be uL energy star ra'tea.2) Bottler shill install vending machines within ido o"vr "rt", the proposed equrprnent pran hasbeen approved by a, parries. Both parties agree tnai the instaration of vending machines sha*be completed wtthin 1g0 days after the proloseO "qripment plan has been-approved by allparties' Agreemeni execution' The already approved'beach thematic yend fronts will be usedunless other mutually agreed upon'vend fronts have been selected and approved, and if beachthematic vend fronts are availab'16. The vend rronts srrait'include advertising panels for use bythe city' as approved by Bottler, provided that the vending rnachines -are equipped.with' advertising pahel(s)' Bottler shall pay all costs forr the production and installatiori of the cityvend front adVertisihs pahels. A minifiurn of tr,'ro (zl anJ ; ,;;ir;;;ir"rrioi",,y vend panetads shart be,produced/instared eacfj Agreement year. "!r'r'rrrs"' -' 'wut tt'r I ' 3) Bottlei shall provide within 90 days ittu d""ru., of Agreement the proposed credit cardreader installation plan and scheiule,. All credit caro reaoer instailatiori s;;i oe completeo. within Agreement year One. .4) city shall provide alleleckical power necessly to oRerate the vending'machines, and city shal' pay up to 9200 for the cost of any erectrtar modifrcations. or connection" necessary toaccommodate any new vending.machine placem."t, ,pi, ,utr.i #;il;f the proposed. .location for the placement of the vending rnachine,5) All vending machines remain the property of the Botfler.' 6) Bottler shall provide a product list to the city to be included in the'vending program. Anychanges lo the Product tist shall be provided io the Account prior to product placement in.a' vending 'machine" Bottler shallwork with the city's parks.no Ru.r-rtion D;;;;ent to tdentifythe appropriate vending products for.inilusionir o*ar^g machines locatedin any city park.The city's Park and Recreation Departmenl.shall provide ipproval, in writing, of the products to. be sold. in the vending machines placed in City p.iX..' 7) Bottler: shall rnaintain vending machines reasonably well-stocked with produc,ts: t4 278 Packaoe 20 oz. CSD 12 oz. CSD 15.2oz.MMJTG. 12 oz. DASANT@ 1 liter CSD 20 oz. DASANI@ .20 oz. vltarninwatdr@ I oz. CSD 20 oz. NESTEA@/ Minute Maid@ Refreshment 20.oz. POWERADE@ '16 oz. Monster@ 2JiterCSD 10.9 Honest Tea@ 500 rnlGold peak@ 8.o2. atuminum botfle .5 gallon BtB CSD and NCB 2.5 gallon BIB CSD and NCB 5 gallon BIB Unsweet NESTEA@ 2.5 gallon BIB Unsweet NESTEA@ 5 gallon BIB premium NCB 2.5 gallon BIB premium l\,lCB 5 gallon BIB Frozen Dispensed 2,5 gallon BIB Frozen Dispensed EXhibit 6 to Term Sheet Friceoqr case $17.85 . $9.46 $23.36 $8.88 $16.29 $10.82 $27.00 s16.00 $17.85 . $19.00 $34.00. $12.35 $iz,oo $1s,99 $16.48 price oer qalloE $12.24 $12.78 $1 1.82 $12.40 , $12.75 $13.30 $13.88 $14.26 . $52.89 per 1,200 $34.55 per:2,000 I, : j; t f'L I I 9uos 24 o0nce Lids' 24 ounce co2 20|b. cylinder $25.00 pe.r cytinder (plus g75t00 deposit) tAll prices are per standard physical. case and excluslvd of taxes, deposlts, handling fees, and recycling fees. [::::r"ffi:m",,*f,"j,30,, n,,o i,.product package . small Filters Large Fllters drstrtbutormarkup,) (Frac) P.at loast 100,2.75 oz $110.3S $110.38 ; ltoht loast 128, 2.25 oz $11;.Bi $1 17.87 iDecaf . t5,2.OA oz $67.95 $67.95 iorganic 75,2,1s oz Si ro.io $110.10 t 15 279 Exhibit 7 to Term Sheet i' MAINTFIIIANGE & SERVIcE i D,r'rring the Term, Bottler will loan to Account, prrsuant to the terms of Botfler,s equipmentplacement agreements, at no cost, that eI*?-gg lquipment reasohably required and as mutuallyagreed upon tb dlspense aeverages at ine facitilies. ' ' Bottler qgrees that allequipment shall be le$/ or in "like nerlr/' condltion and that it shall operate and.rilanage the equipment, siivices ana racitities otr"r"Jln'"'hrJi.rus. ,unn"i. tio[ieisna, providecity with the Malntenbnce Plan and scheaur". ror aiiaotilJr'"iitp."nt w1hin g0 days of executionof Agr'eement, to rnctuoe the B;ttd. r;ai'ano scrreaunloi r*].li.ing the city. Bottler shall provide throughout the Terrn:f.l!i: Agreement, at Botfler,s expense,. arr repairs,' replacernents and technical-service. n"i.."ry to maiitain "nd'pr"r"*e the Botler,s dquipment ina decent' safe, healthy and sanitary conuition 's;tirf*til'io'iiitv "no in compliance with applicablelaws' v' Y rv vrL) Bottler waffants that it shall correct all mechanical problems with vending machines no later.thanfour (4) business days after notice inJ no r"t"i tnrn-tr;.#il;; (24) hours after notice for a, otherdispenSing.eqUipfnent. rlrqrr 'rrvrrur-rvur t<''i, Ireurs afief notlo€ Acts of vandalism to-tsotflers equ.ipment.will be reported tb Botiler immediately and addressedwilhin fsur (4) business davs. lf'the vendin; ;ili;;l;'r"i#.or", the vending machine wi, berepaired within four(4) business oays. litnirlenaing ma.hil;'i. not repairabre, vendrng machinewillbe condernned and swapped wittrin seven o tffil;;; dd' Bottler is the onry party ailowed to make repairs on Botfler-owned equipment. Allvending machines.shall display a 'service hotline' sticker to expediie calls. A toll free ("1-g0o) ill$ffi:Ti'"l,:,ffi'l1iig3^:,,:rt';ii*"Ji p"io"v, ii,"n'i"rd , ,,""[,onti*J'iirv o'p",.,tind .t A reimbursement fuhd in the amount adequate to handle all necessary refunds between servicecalls shall be made available to city ai oliignateo ro".iLn("i mutuatty.agr,eed upon by city andBottter. Each person requestins . ,.rrnJ"-nirri;dffi';'i}"# wnich sr,ari ue mliriiaineo by thecitv and provided to thi Botfl6r as reluiieo. rne ieimuur;;;.i fiJ ili;;;..r"a ov ,n";,.*,fi:ffij";liffiffi: " ,onn ";i;;i;,il;-J;. ffi;'Jli. ,n"6"ii"; *,,iiu-na. sha* be l6 280 Exhlbit 8 The term "special 'Promotional ,Events" ('Event") shall mean and is limlted to the following:coicerts; theatrical or comedic performances; conventions; trade shows; religious events; athleticevents; or other special events occurring at a Facility tnat nieei tne foilowing r-quirementsl (i) theyare sponsored by a manufacturei, distributor, or marketer of Cornpetitive products under a mastersponsorship agreement with the owner or operator of the qubject Event (including, withoutlimitation, a qoncert or theatrical prod.uction crmpany, or a trade ir,ow or-conffiti* production'company, but NoT including in any'lnstance qie city oi iL-affitiates or agents);.(ii) they are' ooriducted on a national or regional multi-market uasis; .iiiiiirre! are collegiate champlonshlp' athletic events; and, (iv) the event sponsorship "grdil"r,t ieferred to in srioslction (i) aboverequires,.on-site temporary signage for bompetitive piooucts. - - - rrr esvesvs\ 'The lerm 'special Promotional Events E>ioeptions" shall refer to those exceptions granted under the'Agreement' for each Agreement year, to peimlt-the-forro*ing ffieen (15) special piomotiohalEvents at the following Facilities: (i) four (4) events at the ruiami eEr;h ootf cirb; (iiilb,i-(iiir"nt" .,,n"Normandy shores Golf club (The Miami Beach Golf club "nJ ruo*"nuv sniries eoii'cluo may atsobe refdrred to collectively herein as "Golf c_orrser;j;iiiD th;;; (3) events at the Miami BeachConvention Center ("Convention Cente/,); and.(iv) iorr'iqi'Ciiy-elpprovea major Sponsorship pubticspecial Events (as deflned below); provided, htwever, iii"iiti" riurnuer timitition ior city npproveaMajor sponsorship Public spdcial Events siratl be r"riiiGo ana reviewed by the paffes, in good.faith, at the conclusion of the third Agreernent year. '. a' Golf courses and convention Centerlspecial Promotional.Events Exception. ln anyAgreement Yea.r, tempor"ry "itnig" (such as, uut not-iimited to, banners) for competitiveProducts rnay= be displayed ai eicn of the corr.couiseg .d{ing up tt fou; (4) speciat, Promptionat Events, :1{ {ru-g yp^.!q_t[q. (Si Soe"irf promotionat Events at theconvention center ; pRoVlbED, riowEven, tirar: -[; spon.or,s Beverage avaitabitity,,marketing' adv-ertising, promotional, ;rnd . otlrer rights under this ngi*ir"nt will not' otherwise be affected during anv such Eyglt, 1ii1 conipetitive pioouc[ *lvG iirtributed atno cost, but no competitive Products will be'sold orbthenvise made availattl ouring tneEvent(except as permitted in this exception); (iii) no uiocrage of-any;ilG" or othertrademaruseMce mark display sponsor may irave'at the r*iritv ;il ;;; during theEvent, except for incidentat,6toiule due to tnl construttion and/or placement of a persop,' stage or other structure necessary to and actuaily used durinl thr'Effi;';i'io'tn" case ofNCAA championship events , retigious events or'politicaiconventions where'nb advertising' is allowed and all advertisdrs are treated-eqrarwitn aiir'gi*dJ.l*,i"0'iilin"".rated areaof the Facilitv; (iv) all temporary signage_for'competiiive Froa-ucts dli6; prJrptrv removedfrom the Facitity upon the conttusion otthe EveiitranO (v) at no time *iiiine-Competitive' Products mare in:r staternenti,., or_ .u-?e .aly ternporary signage, that uses the, tradem6rks/service ,marks of the City of Miami Blach; douth'eeaih, btff 6irrr"" or the' conventibn centei', nor in any way issociata these C,o,;;iiiilE';;til ,iiii tr,," city ofMiami Beach, 'sguth Beach,; the Golf courses, o, irr" bonvention C"ntei.-rn. specialPrornotional Events at the Golf clubs and tne Convenii; q".i;i h-;;t-o-c"Ji'or", a periodof no rnore than twentv+ou1.lzf). h3.urs. rne uentv:r"ui nlrr. oili. i"t ii,jrr'j" set up ortear down time iequireo, or ubnA.championshit;;t" or political"onu"ntions whioh mayexceed the aforestated time limitaiion. ile convention ieritur may use in" fl,r.. one day I i i. IIt. I i t7 281 : i .i (one day = twenty-four hours) in the aggregate in each Agreement year ourinl the Term.'Aggregate, as used inthis paragraph, s-t'litt irean tne toiar br uventy-four hours rfrultiplled by. the total number of special Piomotional qvents [ermitted, as provided for rherein. Forexam,ple purposes only, the Miami Beacn conveniion center are provided three special'Promotionar Event Exceptions per: Agreement year, As such, the threg speciar promotionar lvents may occur in the Miarni Beich Convention C"ntlr for a total of 72 hours in arl' Agreementyear(Z4hoursx3events=72hoursfia4.- -- ' - *-. vr '6 !I\ b' city Approved Majol sponsorsh'ip Public special Events/specieil promothnal EventsException. ln any Agreement Year, tempor"w iignrg" (such as, oui noi'lirnited to,banners) for competitive productr,Tiy be asp6yei guring ,p'tJ r"rir(4) speciatPromotional Events.for-city Approved \r3jor sponi#hip public special Events, The term' "citv Appioved Major sponsorsrrip Pubttc splciai ir"[t'; snarr iJiei']o atiy-rpproreo' public event (i.e. where public aciess is allqwed eittrei via no cost or via pregurchasedticket) held on city property, and permitted purir.ni io ftie city's aoor"r.o'sp,icial EventPermit process, as same may b6 amended frorn time to tinie dJrilg G -i"#'.?fiii. Agreement (for example purpoles o[ly,. this rnrv in"rro", Lut not be limited to events suchas Super Bowl Pepsi Jam and Red Bull tttume);'anJ ,uv "r.o include an event sponsored' by a manufacturer' distributor or marketer of c;i'eiitive proau&s -puisuant to a' spons9rship agreement with the owner! operator or promoter of the "i;;i- an eventconducted on a. netional or regional muiti-marret dasis; and/or "; ;;;;i where acornpetitive product. is the naming, presenting, tifle,,urought to you by, or other prrmary'sponsor of the Eveht. Temporary signage tor Compeiitive Frooucts at drtv nppiovgd MajorSponsorship pubric Everts mrv b9 lisprayed i. ,n-Event ;nami[g'sfiisor,, .Event'presented by' sp.onsor, Event .brought to you Uy, sponsoi or as a sponsor represented asa "Gord" or "plarinum' (or such otner eiuivalinti "pon.o. of the Event; pRovlDED,' HoWEVER, thah (i) sponsor's Beverag.e availability, mi*etng, aorerti's-ing, piomotional,' and other rights under this Agreement will not otheniritse"be affe&ad ouring a-;v,;ucrr Event;(ii) no blockage of any signage ol other trademaruservicJmarr display sponsbr may have. at the Facilitv will occur during the Event, excgRt roi incioent;f bilG; oue to theconstruction and/or plaeement bf a person, stagE or other structure neclssary to andactually used during the Event; or, in the case 6f NcM cnamplonsnip "r",iti, religiousevents. or political conventions wherb no advertising ls allowed and all advertisers aretreated equal with_all^signage covered in the "e"t;a-aiea of the Facllity; and (iii) alltemporary signage for Competitive Products.willbe prornpity removed frgm the Facility uponthe conclusion of the Event. At no time witt the corirpetiiir,j pr"ouct" ;;k;';il liatementsor use any temporary signage that uses the trademarks/service ,lir.. "i'ir.," 6iir or naiamiBeach, "south Beach," or the Facilities, cjr jn any way riro"i"te these bompelit-ivJ proouctswith the citv of Miami Beach Facilities. writwittrsrariding the auove, CJ.["]iti* products.may be distributed, sampled or made available during ," City npproveo-rvlSjor'6[onsorsnipPublic Special Event for whlch there is a speciar Fromoiion'.i erent" Exc#on. sucn' distribution, sampling or availability shall occui oNLy wiurin tne .JprorEu *it.lLn tor theevent' However, should concession service {sales) for any non-alcoholic beverage otherthan Products be required or necessary.for_the eveni, anainere are no existing concesslonsat the location of the city Approved Mijor.sponsorship puoii" Special Event foi which thereis a Special Proinotional Events Exciptioh, the cW ttt"nag"r shall subntit a tetter to' sponsor requesting that sponsor grant.a waiver to peimii sr;[;"1g ;i'tt " irl"i ouginingthe detalls of the exception and the business r"rson, rot iire request ano su"r' i"qlest shallrequire sponsor's prior written approval. ..sponsor ,"s."s trie righrio noii'aJprove tnelimited waiver for this purpose. Sponsor wj!.!1o!fV ne CitV f,Aanagerif wnetnellfiL requestfor waiver wiil be approved within twenty (20) buiin"*" obvs ot 3;;;il;;iring tn" cityManager's letter. - 18 282 . ., proved Major Spon.oi.n,o. publicSpecial Event must occur over a period or no m6re--ti,rn .ur"r,ty-two (72) hoqrs, Theseventy-two hours does not indude set up or tear- oown tirne ,"qrir#, or 1lcMChampionship evenis or political conventions which may exceed the aforestated timelimitation' The seventy'two hours may b.e.used il the aggregate tn each Agreernentyearduring the Term' Aggregate, as usedin this.parajraprr-Jri"rr'r".n me iotaiiiseventy-two' hours multiplied bv the total number of specilt p,-i,mbiibnaL Evenft d;$tiin-r, ". provided'for herein. As such, the four special prorirotlonatgr"ni. *rv occur on publlc property for alotar of 288 hours in an Agreement year (72 hours x 4 events'= esr, nourtlveai: c' other permitted,.Exceptions- Exhibitors at-convention-s or trade shows, or third party exhibitorset ups at Facilities shall have the right to serve Competitive products within thelr boothproVided that same is rimited to the duritiol olqe ffifidi^s;r;;;;:;.rio"a further,- thatlhe Competitive Products are not on"rr"tea,-"or.rti5ea or-promoiJ ln ls-sqciation wirnthe Clty of Miami Beach'and/or the Facilities, "ni it'"ir respearve tradernarrs.--ior example' p.urposes only, a Cadillac booth at the Auto Show in the Convention Center would beallowed to'sive away bottled watei with the cauiffac i;;". -i't;il;;ffi;d:ffi sponsor,sProducts would continue to be the only products affi*"d t Ue sold, OistriOuiet or samptedat the Facility's concession operations: .-- d' competitive Beverages may also be permifted.to be distribulgd, gt no cost, at third party .events that are not affiliated with the city, but whlre tne citv nas permihil the eventthroush the issuance of a city of Miami Beich spe"i"iev:nts permit,';r[Hii, the city,s ,notification to sponsor prior to the event; ano, droviaeJ'frrth"r, tnai'tnejnird'party eventoperator is not a rnanufacturer, distributor or seiler "r " cori,"iitil p#;ri; that thecornpetitive Products are not marketed, advertised or. piornot"a in association*itn p,. cityof Miami Beach or the. Facilities, and their respectiie-irademarks;-lh.t;; iompetilve' Products will be sold during su{h event; and that inJaiririurtion oi inl -Corpiitir. product.is limited to special Event Pern\it Area. (as sucn term is-Jeflneo in t " citv,I-siecial Event' Permit Guidelines, as same may be aniended form time to time throughiiliffi';"fii]Agreement). F.gt.example purposes..olly,. .a ttriro partv event conteiipraieo under this' paragraph might include, but not be limitdd to, a walkathon o, marathon whera one of theevent sponsors.mtght request to be permitted to dlstribute free bpttted water to ths eventparticipants' Notwithstanding the above,. sportsor snrn naue first right of refusal to provide' donated Beverages through a sponsorstrlp ilreement io tne. non-profit_events,lpermitted bythe,city-through the issuance oi a city 9t_nlliimi aeach Epeciar erLnt. p"r*iil tio*n as thewhlte Party, {int9r- Party and Miahi Beagh priJe foJ*ed on the tevet of non-alcoholic -gSylages provided for the White Party, winter pirtv "na Mil;-g"il -pjo"e events in2012.) for the sare of these Beverases-by tnese tnie6 1a1 even6 ;ffi';;#Hdicharity fundraisers- lf sponsor electito ni.r11.1i,rta io"riJor.wrtt notify the organizer six (6)qonl.hs prlor to start date of white Party, winter nirty ana Miaml Beach pride events, lf at' any time durlng the Terrn the $ponsor cannot or does not provlde aonateo non-alcoholicBeverages through a.sponsorship agreement to these tnred 1e1 non-proriilr"nts for thispurpose, these three (3) events shall be permitted to secure comdtitil prooi"t. for use' and sale consistent with the use and saie of non-atcohoii" e"r*g""in'tnJi6i, ffii,!Party, Winter party and Miami Beach pride events. - -- . ' Fer section 9 of Term.sheet, No.compelitive. fro{u.cts lay ue sold, dispensed, sampled or servedanplhere at the Facilities, or on the City's public rights-or-ways, untess irtnenaris" "-[r"*r, spelledout in the Agreement. v -'-t-' - . 1e 283 @@x. Ehirnrifffi{0wllrrrorny f*U e{* ffi gtra,Br.ry tmm"*' 6fiF. Ct!G}Pqmaanbffim,tqAl$pomdt i:a,ci*ffi***ggt.ar PET lt{, Gh$; phrtph i2riisitratt&r lfi u,l6E 13 L lil lilic tllcro ffiffiMllqC CorLrlIfad. eilthry loOt CndD.rr! 6nr. leol. ft*?Frd66rr{0li t{Oi durUnirr} Parllorrrdt lrat&rl Elt{d a{ryll.ad ffipf&Hrer.?1qf&E$hrr -{[Sch&td. LIIII ak nr.ny l*a 1W' 6s!eugtasl{. ',Vritlrliss 2014 Product List rIffi*fiffieffiffiffiwC6aoL Cll'&C.frrr$ lr.idlh Cot CbflrCrlr ciar{ColrLe Olt C!*! c,ltaiot Fn. Oh* Crlr obteoh r{Uos frrfiarrhl@ll.LYrL aktqa iaot B.*IL!Ih tarpnffr elnr.r ile Fr}*rOan$f.t,.On!$&E FraL Bapt ftna 3t rabrr,Irb& Lr&d lrmrd. l,ih$t tal*P$*lffis{l thc& lbLFilnhftnFe 35atlu fgra Lao$ la FB.oltIll Frul[a$iLEr?u @ll.!.r l{t &r.l&,d(t tdrilrtt* 3ofr.tall arr lL 1;l ,Nrcrn F0l{ flnBhLrmlln Onnqr 8*r*barrir kenrd. 6?prl*iln&o.: fdtt {trb (R.dt On'eip{rh} ilrrrC Enry{Et!., aaaa. TH.TE' P..ch lbnl!farttrlFs.b Crrab.n, iarpb.ny Elu. R.rpbrrt Ar.thryPrmgnnC|l arnrn. C{ltd, ffiff885ffi,!1 ,n flrtld;ldb,]tl;u BEcllorltloru 3 B6li.adrs,r',tr$rii*ills arC B.,ry ffieffi#Hn#ffi@ Origi ul (Orn$ *rf,folgfla. i'i6fi triri-is{i.iii8t;-:3 Cb.{id Cttr tg![*itu Loldr{ clpn, SrSt C{Orfl.8rl.rfy|R!| loan .lrrtiir aiiylr. iiih .rr,. tf,I tXXIroPMC. a{rdt6RlviE i'h. t.o Wffiffilll$sffis**'#ffi,'" ffiffi_" ffiCrfir O.f.n& {,trrrb.rr, AlFb I Celo Zre CrtLl$ Fc et.rlcgloillr Ool. Ctran, C.tt Ch.,ry Coh Z..a OLtColt Ohl Cgtt *l SFlrn&grlfqp!.Fn dt rc.trr Dbtcrt. ul t&rf.b Sprt 3p.tE 2.6(Dhrt Fnoct Filta: r{t ttrch Ftre f,, gb* Cll.sry Bar{t qrlt gt., Dht[.n!r Ror{ 8.r.Plbblta P&bl}f! Ilhull tlrtd L.mmdr Mlnqr ,rrL plnt Lrrnamdo $lnub !ld, Fott PuNh ll Ullrl Llrr Lani.o& FraB Onagi Frntr staxit ny P.(!h 6nt! F.nl. Onn$2rF lhrgaE'}6h9$4hglrM6'. Ohtdho.r ri& idiaa.cdrgtr dt n|4r& 'q66 fa f,.ft.! - 4.i. ird f0 toat tru VrnIL L&htteflx l(noa Ntod l&&gknd ffiHffiffiffiffi l.s! fit tMtttr.)Pl* Lrmmdr Rruh!.dy (nrrb..ry|lmrb*ry (vrhln tonyt Crsob PaachCruntd SffiLils gdtdFr$ETbri{tr,fdit if,ftirtifr4affi 5ldtiliflru t nt{ia,ffiffi An$amL Ofro}| Snr. nr.g.fi, V.ry 8a[y 8#jftr#rEqtl{0l &gs 5il::r#H*'"' rxH :r1.1...:1:, ': ' i t"*i' :'l'rai Ona{r I-C. 'ffi-al$'iEifini.:i llccr.l6 lrtt FrdrPwh Oc!t0r ifrfr"?r..' resI,ar{h$futf.r liotl3mrrfiafolblrrtr turr!.(y WPcolnda&a8a.ry OniE! trrntolrlrrrut trnrlt.''ttrlt*a*illnItlnirhn Fo6 1. { t:., :iilJ:i.i.ill : ,1 ii,{.;;ilji.:.*i,:t:i;: xxf l8lutb..ry Pominil!.1g. Oo {tr[nC gtryl Alrolub &o.olerproh ffifi#If"s€tr 284 MIAAAIffiMAChN MIAMI BEACH RUN.OFF ELECTION NOVEMBER 17, 2015 MIAMI BEACH PRECINCTS LIST PCT Place Name Location ffifi %ffi ::i :;:. g-) :i;.:'xt4 ;_.:' !,;) s;N# itY.giwi PCT Place Name Location 011 Biscayne Elementary School 800 77 Street 030 MiamiBeach Botanical Garden 2000 Convention Center Drive 013 North Shore Branch Librarv 7501 Collins Avenue 031 MiamiCity Ballet 2200 Liberty Avenue 014 North Shore Park Youth Center 501 72 Street 032 Miami Beach Regional Librarv 227 22 Slreet 015 Normandy Shores Golf Club 2401 BiarritzDrive 033 MiamiBeach Senior Hiqh School 2231Prairie Avenue 018 lrtdian Creek Fire Station #4 6860 lndian Creek Drive 036 MiamiBeach Police Athletic Leaoue 999 11 Street 019 Normandy Park & Pool 7030 Trouville WliEsolanade W 037 Miami Beach City Hall 1700 Convention Center Drive 020 Ronald W. Shane Center 6500 Drive lndian Creek 038 Veterans Foreign War Post #3559 650 West Avenue 023 MiamiBeach Fire Station #3 5303 Collins Avenue !**i+Jl ;#i;::,1WM 040 South Pointe Elementarv School 1050 4 Street 024 Nautilus Middle School 4301 N. Michigan Avenue Wia;.W 041 South Shore Communitv Center 8336Street #2 025 r Nautilus Middle School 430'1 N. Michigan Avenue 042 Feinberg Fisher K-8 Center School 601 14 Place 028 Temple Beth Sholom 4144 Chase Avenue W#* 043 MiamiBeach Police Department 1100 Washington Avenue 029 North Beach Elementarv School 4100 Prairie ffiAvenue Hffi 048 Rebecca Towers 200 Alton Road T = Temporary Polling Place Ghange Please note that the above list is subject to change, if needed. The voting precincts for the November 17,2015 City of Miami Beach Run-Off Election shall be as established by the Miami- Dade County election officials. On Election Day, all electors shall vote at the voting locations and the voting precincts in which the official registration books show that the electors reside. All questions concerning voting locations and voting precincts should be directed to the Miami-Dade County Elections Department,2T0O NW 87 Avenue, Doral, Florida33172; ielephone: 305.499.VOTE (8683) or TTY: 305.499.8480. Rafael E. Granado City Clerk AD 1067 Publish in The Miami Herald on November 8,12 and 15, 2015. I EXHIBIT 3- 285 286 City of Miomi Beoch, I200 Convention Center Drive, Miomi Beoch, Florido 33139, www.miomibeochfl.gov COMMISSION MEMORANDUM TO:Mayor Philip Levine and Members of City Com FROM: Jimmy L. Morales, City Manager DATE: December 9,2015 SUBJECT: A RESOLUTION OF THE MAYoR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDh, APPROVTNG AND AUTHORIZING THE CITY MANAGER TO EXECUTE CHANGE ORDER NO. 3 TO THE CONSTRUCTION CONTRACT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA, AND LANZO CONSTRUCTION CO., FLORIDA, FOR THE CONSTRUCTION OF THE GITY OF MIAMI BEACH RIGHT. OF.WAY INFRASTRUCTURE IMPROVEMENT PROGRAM, VENETIAN ISLANDS BrD PACKAGE 13C (PROJECT), DATED MARCH 13,2013 (THE CONTRACT); THE CHANGE ORDER INCLUDES: 1) CONSTRUCTION WORK ASSOCIATED WITH SIX (6) NEW STORMWATER PUMP STATIONS THAT MEET THE ENHANCED STORMWATER CRITERIA !N THE NOT.TO.EXCEED AMOUNT OF $12,257,864 PLUS TIME EXTENSION OF 365 CALENDAR DAYS REQUIRED TO COMPLETE THIS WORK WITHIN SAN MARINO, DILIDO AND RIVO ALTO ISLANDS; AND 2l INCREASING THE OWNER'S CONTINGENCY IN THE AMOUNT OF $1,225,787; THE RESULTING AMOUNT OF $13,483,651 WILL BE ADDED TO THE CONSTRUCTION CONTRACT. ADMINISTRATION RECOMMEN DATION The Administration recommends adopting the Resolution. KEY INTENDED OUTCOME Build and maintain priority infrastructure with full accountability. FUNDING $ 1,950,366 Stormwater Bonds Reso No.2015-28988 $ 11.533.285 Stormwater Master Plan Program $la483*651 Total Agenda ttem R1 Z-o^t"W287 Change Order No. 3 to Lanzo Construction Co., for Venetian lslands project - Memorandum December 9,2015 Page 2 Of 5 BACKGROUND On March 13th,2013, pursuant to lnvitation to Bid (lTB) No. 49-11112, for the Right-of- Way lnfrastructure lmprovement Program -Venetian lslands Bid Package 13C, the City Commission approved Resolution No. 2013-28163, recommending the award of a construction contract to Lanzo Construction Co. Florida, (Lanzo) in the amount of $1 1,373,491 including contingency. On February 12, 2014, the City Commission approved Resolution 2014-28491, recommending Change Order No. 1 to the construction contract with Lanzo, for a total of $21 5,085 including contingency. On February 12,2014, as recommended bythe Mayor's Blue Ribbon Panel on Flooding and Sea Level Rise and the Flooding Mitigation Committee, the City Commission approved Resolution 2014-28499 to amend the City's Storm Water Management Master Plan. The Public Works Department (PWD) requested that staff implement the enhanced stormwater system criteria. The new criteria required the Engineer of Record, Schwebke-Shiskin & Associates (SS&A) to revise the design. SS&A completed their redesign and negotiations began taking place with Lanzo. The City retained AECOM to assist in the implementation of a citywide comprehensive flood management plan and to review stormwater improvement plans prepared by the City's Consultants. Based on the comments issued by the City Engineer and AECOM, SS&A was directed to again revise the stormwater drainage plans to meet the new criteria implemented by the City Engineer. On February 18, 2015, SS&A responded to additional comments issued by AECOM and finalized the enhanced stormwater drainage design modifications and on February 23, 2015, they submitted the 100o/o documents to PWD for final review. Once the redesign was completed, the Office of Capital lmprovement Projects (ClP) contacted the twelve property owners that reside adjacent to the six easements where the stormwater pump stations are proposed to be located. The meetings with residents took place from February through March 2015. The residents expressed great concern on the visual impacts from the proposed structures and equipment components associated with the pump station installations. As a result, on April 1, 2015, a meeting was held with the concerned residents, their legal counsel, and staff from ClP, PWD, the City Attorney's Office and the City Manager's Office. lt was determined that the City administration would explore alternatives attempting to minimize the visual impact of the stormwater pump stations and related components. On May 6, 2015, the City Commission adopted Resolution No. 2015-29022 approving Change Order No. 2 to the construction contract with Lanzo, for the drainage conveyance construction work associated with the enhanced stormwater criteria in the not-to-exceed amount of $4,499,103 including contingency and a time extension of 422 calendar days. ANALYSIS ln order to enable the project to achieve full completion and to minimize potential cost impacts on the project, this change order will capture all the necessary infrastructure components to fully complete the stormwater drainage system on the Venetian lslands T:\AGENDA\201S\DecembeAClPVenetian lslands\lTB 49-11-12 - Venetian lslands ROW - Memo - C O 3 memo rev12041S.docx288 Change Order No. 3 to Lanzo Construction Co., for Venetian lslands project - Memorandum December 9, 2015 Page 3 Of 5 Neighborhood. The scope of work, for this change order includes; six pump stations with all associated pipes, structures and electrical control panels to each pump station. On September 16, 2015, the City met with residents and their representatives that reside adjacent to the proposed pump stations to demonstrate the key improvements to the design in order to address the noted concerns brought to the City on April 1 , 2015. SS&A enumerated each item where improvements were made to the current design showing reduction of overall panel height, removal of all raised platforms and separation of electrical panels from adjoining property, to allow a buffer for landscape screening. The residents in attendance requested that the City of Miami Beach attempt to relocate the proposed pump stations to the Venetian Causeway Right-Of-Way. The Causeway is under the jurisdiction of the Miami-Dade Public Works Department. On October 8, 2015, the City and members of the Venetian Neighborhood met with Miami-Dade County Public Works staff to determine if installing the stormwater pumps along the Venetian Causeway would be a viable solution. The City and Miami-Dade Public Works staff discussed various options and concluded that the placement of several pump stations and related appurtenances and piping on the Venetian Causeway would require extensive due diligence, relocation of a multitude of utilities and could have significant structural impact on the bridge abutments. At the City's direction, SS&A analyzed four alternative solutions for the placement of the pump systems along with equipment and components to discharge the stormwater to the bay and a fifth alternative to maintain the stormwater drainage system as a gravity discharge (if none of the four alternatives were chosen). Description of each alternative is as follows: Alternative No.1 lnstall six Pump Stations at the existing street end easements, as per plans submitted to PWD on August 2015; at a cost of $12,257,864, plus 10% contingency $1,225,787, for a total price of $13,483,651, including a construction time extension of twelve months beyond the current project completion date of March 1, 2016. Alternative No.2 lnstall six Pump Stations within the ROW at the Terraces nearest the street-ends and discharge the stormwater runoff to the Bay at the current outfall locations, i.e. at the street-ends. The width of the ROW for both San Marino and Dilido Drives (Terraces) is 55', with roadway widths of 22' and 26' respectively. The width of the ROW for Rivo Alto Drive (Terrace) is 75'. The roadway consists oI a 13' center median strip and two 15' roadways. SS&A has estimated an Order of Magnitude Cost of $14,959,000, plus 10% contingency $1,496,000, for a total price of $16,455,000. The estimate includes construction, re-design and construction administration (6 months for design and permitting and 2 additional months of construction time). The overall impact on the contract schedule will be extended by twenty months beyond March 1, 2016. Alternative No. 3 lnstall six Pump Stations within the ROW at the Terraces nearest the street-ends and discharge the stormwater runoff to the Bay at the Venetian Causeway and maintain the gravity overflow at the street-ends, although we do not believe there is currently a viable alignment for the proposed improvements on the Venetian Causeway. SS&A has estimated an Order of Magnitude Cost of $18,047,000, plus 10% contingency T:\AGENDA\201S\DecembeAClPVenetian lslands\lTB 49-1 1-12 - Venetian lslands ROW - Memo - C O 3 memo rev12041S.docx289 Change Order No. 3 to Lanzo Construction Co., for Venetian lslands project - Memorandum December 9, 2015 Page 4 Of 5 $1,805,000, for a total price of $19,852,000. The estimate includes construction, re- design and construction administration (8 months for design and permitting and 3 additional months of construction time). The overall impact on the contract schedule will be twentythree (23) months beyond March 1,2016. Alternative No. 4 lnstall three large pump stations (one per island) on the Venetian Causeway ROW and discharge to the bay, although we do not believe there is currently a viable alignment for the proposed improvements on the Venetian Causeway. SS&A has estimated an Order of Magnitude Cost of $19,469,000, plus 10% contingency $1,947,000, for a total price of $21,416,000. The estimate includes construction, re- design and construction administration (6 months for design and permitting and 8 additional months of construction time). The overall impact on the contract schedule will be twenty- six months beyond March 1,2016. Alternative No. 5 lf none of the alternatives above are plausible in the immediate future, and in order to complete the project with the current contractor, this would require eliminating the Pump Stations' scope from the current project, and modifying the current stormwater conveyance system to a gravity discharge through new outfalls located on the street- ends. This will avoid potential cost impacts for demobilizing and remobilizing due to delays on the approval of the pump stations. However, this conversion will not meet the City's enhanced storm water management criteria. The gravity discharge system will allow the pump stations to be interconnected to the system in the future once a resolution on their location is achieved. SS&A has estimated an Order of Magnitude Cost of $1,443,000, plus 10o/o contingency $144,300, for a total price of $1,587,300. Price includes construction, re-design and construction administration (3 months for design and permitting and 6 additional months of construction time). The project time extension for this alternative is nine months beyond March 1,2016. ln light of the presented analyses, Alternative No. 1 (current design) remains the most viable, because it is the most cost effective, it is the current design, it would take the shortest time for completion, it is best engineering practice to locate the pump station as close to the discharge point as possible, and it meets the enhanced stormwater criteria. As such, Lanzo has presented a proposal for change order No.3, (Attachment A) that addresses the following : Additional scope relating to six new storm water pump station installations to comply with the City's enhanced storm water criteria. This includes allowances to provide adequate pre-treatment to each pump station. The selected pump manufacturer will be Flygt, which is the preferred supplier of PWD-Operations. Exercising the provision of Article 38.1.1 of their contract with the City of Miami Beach that allows for the adjustment of unit prices from the original contract wherever the unit quantities are adjusted in excess ol 20% of the original amount. T:\AGENDA\201S\December\ClPVenetian lslands\lTB 49-11-12 -Yenetian lslands ROW - Memo - C O 3 memo rev12041S.docx290 Change Order No. 3 to Lanzo Construction Co., for Venetian lslands project - Memorandum December 9,2015 Page 5 Of 5 o Effects of recently imposed weight restrictions on the Venetian Causeway bridges.. Time extension of 365 days. The resulting costs are as follows: o Pump Stations. Bridge Weight Restriction Cost lmpact. Unit quantities greater than 2Oo/o Sub-Total . Contingency at 10% Grand Total $ 12,125,260 $ 82,977 $ 49.627 $a2w&4 $ 1.225.787 $13*483*651_ Based on the numerous cost reviews and negotiation sessions throughout the development of the design of these revised storm water improvements, over the last several months and the examination of supporting documentation presented by Lanzo, SS&A and the administration has found the proposal acceptable and recommends approval of the change order (Attachment B). Currently the project is scheduled for final completion on March 1, 2016. Adding the necessary time for pump manufacturing and installation of the remaining related appurtenances, the revised final project completion will be March 2017. During the adoption of the FY 2015/16 Capital Budget, a new programmatic approach for managing bond proceeds for capital projects in the Stormwater and Water & Sewer funds was instituted. The new approach creates a system-wide master program for each fund. The overall budget control for these funds will be in the master programs. Whenever a contract is awarded for a project during the fiscal year, an administrative budget amendment will be processed to move the necessary amount of funding from the master program to the individual project budget. The necessary budget amendments will not need to be approved by Commission, but will reflect any contracts awarded by Commission for these funds. This approach will maintain maximum flexibility while facilitating the timely spending of bond funds. This $13,483,651 change order is being funded by $1,950,366 from previously appropriated funding and $11,533,285 from the Stormwater Master Plan Program. The acceptance of this $11,533,285 for the Venetian lsland project reduces the available stormwater bond funds from $60,266,296 to $48,733,011. The total amount of the contract with Lanzo, should this change order No.3 be approved, would be $29,571,330. CONCLUSION The Administration recommends approval of the Resolution. ATTACHMENTS: Attachment A - Lanzo Construction change order proposal Attachmplt B - SS&A - Redesign proposal analysis letter JLM\MNK T:\AGENDAVO1S\December\ClPVenetian lslands\lTB 49-11-12 - Venetian lslands ROW - Memo - C O 3 memo rev12041s.docx291 THIS PAGE INTENTIONALLY LEFT BLANK 292 COMMISSION ITEM SUMMARY Condensed Title: A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Accepting The Written Recommendation Of The City Manager Regarding The Existence Of A Public Emergency And, Accordingly, Waiving, By 5/7'n Vote, The Competitive Bidding Requirement, Finding Further That The Best lnterest Of The City Would Be Served By Such Waiver; Authorizing The City Manager Or His Designee To Negotiate Amendment No. 4 To The Design-Build Agreement Between The City And Lanzo Construction Co., Approved Pursuant To Resolution No. 2014-28765, For The Sunset Harbour Pump Station Retrofit And Drainage lmprovements Project; Said Amendment, ln The Not To Exceed Amount Ol $2,721,607, To Bring Sunset Drive To A 3.7 Feet NAVD Elevation, lncluding Associated Water, Sewer, Stormwater lmprovements, Landscaping, Lighting And lrrigation; Further Authorizing The Mavor And Citv Clerk To Execute The Amendment, Upon Completion Of Successful Neqotiations. lntended Outcome Ensure value and timelv deliverv of quality Capital Proiects. Supportinq Data (Survevs. Environmental Scan. etc.): N/A Item Summ mendation: Lanzo has submitted the costs to complete Sunset Drive, Landscape and lrrigation. The construction work includes raising the roadway elevation, harmonizing the sidewalk and driveways with abutting properties, landscape, irrigation, water/sewer improvements and street lighting. The proposals provided for the Sunset Drive lmprovements include roadway design and construction, converting Sunset Drive to a one-way street and adding diagonal parking on both sides of the road, also the replacement of the existing cast iron 2O-inch water main (constructed 19621-1973) along Sunset Drive and a segment of the existing cast iron 12-inch water main (constructed 1964-1973) along 20 Street. The proposal for this work is $2,001,832 (Attachment A). The proposal provided for additional Landscape includes irrigation, medjool/sylvester palms, and Silver and Green Buttonwood trees. The proposal for this work is $472,356 (Attachment B). Therefore, the total cost to complete the pending construction work in the Sunset Harbour Neighborhood is in the amount of $2,474,188. The amount of the work for the recommended proposals (Attachment A & B) is $2,474,188 and the Public Works Department is recommending a ten percent (10%) construction contingency of $247,419. The grand total for the project is in the amount of $2,721,607. THE ADMINISTRATION RECOMMENDS ADOPTING THE RESOLUTION Source of /f-*unds: ,// - Amount Account 1 $2.645.023 Stormwater Bond Series 2015 0 t.Y)> /2 $ 76,584 420-2300-069357 OBPI I Total I $2,72'1,607 Financial lmpact Summary: tive Trackinq: Eric T. Carpenter, ext. 6012 T:\AGENDA\20 1 S\SeptembeASeptember 30 OrderNo4.Summary.docx Asenda rtem RTAA oate /J- ?-/f(D MIAMIBEACH 293 g MIAMIBEACH City of Miomi Beoch, I200 Convention Center Drive, Miomi Beoch, Florido 33139, www.miomibeochfl.gov COMMISSI To; Mayor Philip Levine and Members FROM: Jimmy L. Morales, City Manager DATE: December 09, 2015 the City SUBJECT: A RESOLUTION OF THE MA AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACC NG THE WRITTEN RECOMMENDATION OF THE CITY MANAGER REGARDING THE EXISTENCE OF A PUBLIC EMERGENCY AND, ACCORDINGLY, WAIVING, BY 5/7TH VOTE, THE GOMPETITTVE BIDDING REQUIREMENT, FINDING FURTHER THAT THE BEST INTEREST OF THE CITY WOULD BE SERVED BY SUCH WAIVER; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO NEGOTIATE AMENDMENT NO. 4 TO THE DESIGN-BUILD AGREEMENT BETWEEN THE CITY AND LANZO CONSTRUCTION CO., APPROVED PURSUANT TO RESOLUTION NO. 2014.28765, FOR THE SUNSET HARBOUR PUMP STATION RETROFIT AND DRAINAGE IMPROVEMENTS PROJECT; SAID AMENDMENT, !N THE NOT TO EXCEED AMOUNT OF $2,721,607, TO BRING SUNSET DRIVE TO A 3.7 FEET NAVD ELEVATION, INCLUDING ASSOCIATED WATER, SEWER, STORMWATER IMPROVEMENTS, LANDSCAPING, LIGHTING AND IRRIGATION; FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE AMENDMENT, UPON COMPLETION OF SUCCESSFUL NEGOTIATIONS. ADMINISTRATION RECOMMENDATION The Administration recommends adopting the Resolution FUNDING MEMORANDUM Amount $2,645,023$ 76,584 $2,721,607 BACKGROUND Account Number Stormwater Bond Series 2015 420-2300-069357 The City has a Design/Build contract agreement with Lanzo Construction Co. (Lanzo) for work associated with the neighborhood improvements to be completed within the Sunset Harbour Neighborhood including landscaping, lighting, water, sewer, drainage and paving, and the retrofit of the three pump stations. As part of the Design/Build contract, Lanzo is currently performing roadway work within Purdy Avenue and West Avenue, as well as 18th Street. 294 Commission Memorandum - Sunsef Harbour Pump Stations lmprovements Page 2 of 3 At the Commission meeting held on September 2nd, Commissioner Grieco requested a discussion item on what it would cost to complete all of the construction in Sunset Harbour. A cost proposal had been received from Lanzo in May 2015 which was the basis of the discussion of needing an additional $7.5 million inclusive of a contingency to complete the remaining work in Sunset Harbour. At that meeting, lanzo was requested to provide a value engineered detailed cost proposal. Public Works received from Lanzo the revised cost proposal in the amount of $6,437,131.04 to raise the roads to 3.70 feet NAVD for the remaining street improvement. After extensive negotiations with Lanzo, Public Works has reviewed and deemed the revised cost proposal acceptable for the work included, and has recommended adding a ten percent (10%) for construction contingency. On September 30th the City Commission approved the revised cost proposals totaling $7,080,844. They also directed the contractor to perform the necessary engineering to develop accurate costs for the remainder of Sunset Drive. Also, as part of the whole Sunset Harbour Neighborhood Renovation, the Residents have requested to provide additional landscaping that will encompass what has already been planted in the area. These additional trees will also require an irrigation system to support them. The above recommended change in scope would significantly shorten the delivery of the remaining work, keep the Contractor mobilized on-site; and only extend the construction schedule four (4) months bringing the new anticipated Project completion date to November 2016. COST ANALYSIS Lanzo has submitted the costs to complete Sunset Drive, Parking Lot P46, as well as Landscape and lrrigation enhancements. The construction work includes raising the roadway elevation, harmonizing the sidewalk and driveways with abutting properties, landscape, irrigation, water/sewer main improvements and street lighting. The proposals provided for the Sunset Drive lmprovements include roadway design and construction, converting Sunset Drive to a one-way street and adding diagonal parking on both sides of the road, also the replacement of the existing cast iron 20-inch water main (constructed 1964-1973) along Sunset Drive and a segment of the existing cast iron 12-inch water main (constructed 1964-1973) along 20 Street. The proposal for this work is $2,001,832 (Attachment A). The proposal provided for additional Landscape includes irrigation, medjool/sylvester palms, and Silver and Green Buttonwood trees. The proposal for this work is $472,356 (Attachment B). The Public Works Department recommends proceeding with work proposed to complete the remaining improvements associated with Sunset Drive, additional landscaping and irrigation, in the amount of $2,47 4,188. After negotiations with Lanzo, it is the opinion of Public Works that going out to bid for this construction would not necessarily yield a much lower price. The field of typical bidders to past solicitations is small. The procurement process will also take several months and possibly delay the overall neighborhood completion beyond the next King Tide cycle. 295 Commission Memorandum - Sunset Harbour Pump Staflons lmprovements Page 3 of 3 The amount of the work for the recommended proposals (Attachment A & B) is $2,474,188 and the Public Works Department is recommending a ten percent (10%) construction contingency of $247,419. The grand total for the project is in the amount oI $2,721,607 . CONCLUSION The cost proposals were requested and received at the request of the Commission due to the demand of the neighborhood to complete all of the pending construction. The most expeditious method to complete all of the pending construction would be to add it to the existing contract with Lanzo. The Administration recommends adopting the resolution following the recommendation of the Public Works Department. Attachment A - Lanzo cost proposals Sunset Drive lmprovements. Attachment B - Lanzo cost proposals Landscape and lrrigation. .r, frlP JtM t trWJJ F/ gA MA/v R B/J J R T_Drive\AGENDA\201s\December\PUBLIC WORKs\Sunset Harbour Pump Stations lmprovements Amendment 3. Memo.doc 296 Attachment - ALANZO c0NsTRt cTror{ coMPAt{Y Det,,',t g tus'rtts,& i/,rr,6,.lfr,a J.ilulorls Ittuffirots comilni&B November 24,2015 BruceMowry, Ph. D, P.E. City Engineer Public Works Department - Engineering Division 1700 Convention Center Drive Miami Beactr" FL 33139 Reference:Sunset Harbour Pump Station Retrofit - ITB No. 60-20l3TC Sunset Harbour Elevation 3 .7 Design and Build Proposal Design and Construction of Sunset Drive The following with attachments summaxize Lanzo's proposal to construct Sunset Drive & 20h Street. The limits of construction are as presented in the attached WTrim Plans of November 20n and the watermain noted sheet. This presentation is a Lump Sum Cost Proposal. For water rnain improvements along this area" there is an additive proposal below and justified in the attached documents. Scope of work is as reflected in the attached drawing and unit breakdown sheet. All work per City Standard Detaits and as summarized below. Note: Private Property Concrete Harmonization is defined as harmonization up to the City ROW and limerock to existing grade transition for harmonizing driveways into private property. o Sunset Drive & 206 Street, Roadways (Detail Attached) o ADDITIVE: Sunset Drive & 20m Street, Water (Detail Attached) $r,638,si2.13 $ 363,320.00 Sunset Dr. & 20th, to Alton $2.001.932 Total Cost Proposal (Road & Water Mains) $2001Jljl Please note that Viton Gaskets (contaminated soils) are not included in this cost proposal. Proposal assrmes cut in connections (City can isolate existing for connection). The e4pected Design and Construction duration is 12 weeks after City approval and obtaining any iequired permits. Sincerely, -D Daniel Mesquit4 PM Lanzo Construction Company Aitachmen(s) CC: LCCffile 125 SE 5ffi Court Deerfield Beach FL 33441-4749 Phone (954) g7g-OBOz www.lanzo.net Fax (95a) 979-9897 297 1112412015 1:41 PM F429 Raise Road Along Sunset Dr PAGE 1 OF 1 Proposed Proposed ITEM DESCRIPTION OTY UNIT UNITS TOTAL ROAD BUILDING PAVING AND HARD SCAPI] ALL RIIT 'OTH ST I General Conditions 1.00 LS l4 I ,000.0c 141.000.0( 2 Ensineerins / Desisn 1.00 LS r 40,000.0c 140.000.0( J Asohalt 2" Thick S-III 3,s94 SY 20.0c 7t.880.0( 4 Lime Rock Base 8"3.594 SY 18.0c 64,692.0C 5 Stabilize Subbase 12" No Geofabric Stablization 4.073 SY t 4.0c 57.022.0( 6 lmoort and Grade Fill Material In Place 4,1 85 CY 2l .0c 87.888.89 7 8 Parking Stopes Private Prooertv Concrete Harmonization 20 318 EA l3qQ0 16.00 2,600.0c SF 5.088.0( 9 Drive Wav Aorons 255 SF 14.0c 3.570.0( 0 Curb any Type, Valley Gutter - Gray Concrete 1,077 LF 25.0C 26.925.0C I Sidewalk - Grav Concrete 6,880 SF 10.0c 68,800.0( 2 ADA Cross Walk Ramos t2 EA 2.000.0c 24,000.0( .,Thermo Strioins 6"2.133 LF 2.50 5,332.5C 4 Thermo Strioins 18"r89 LF 8.00 r,5 r 2.0( 5 Thermo Stripins 12"705 LF 5.00 3,525.0( 6 MOT / Detour and Barrier Wall I LS 130,000.00 130.000.0c 7 Demo Exisitns Hard Scapes I LS 80,000.00 80,000.0( 8 Sod Landscape Areas (No Irrieation. Bahia Sod)5.786 SF 1.00 5.786.0C 9 Remove Existing Trees in Conflict with Improvements I LS 8,000.0c 8,000.0( DRAINAGE MODIFICATIONS 20 Install New Catch Basins 8 EA 4.500.0c 36,000.0( 21 Install New Manholes 2 EA 4.500.00 9.000.0( 22 Drainase Pioe 18" 42000 Pioe 605 LF 400.00 242.000.0c 23 Adjust Rim, Valve Box, Service Box & FH Elevations to Match Prooosed I LS 43.000.00 43,000.0c 24 De-Muck Pioe Line 784 CY 26.00 20,390.74 25 Install Yard Drains in Landscaoe Areas 4 EA 4,000.00 16.000.0( 26 Tie Into Existing Structure with New Pipe I EA 5,000.00 5.000.0c TOTAL 1.299.012.13 1.299.012.13 ALTERNATELTNE ITEMS DESCRIPTiONITEM OTY Proposed Proposed UNIT UNITS TOTAL Lighting for Sunset, Allowance 850 LF 370.00 314.500.0c Landscaping Allowance LS 25.000.00 25.000.0c TOTAL 339.s00.00 339.500.00 I,63 8,5 12. l3 ffiiLANZO F429 Sunset Drive 3.7 Elv 24-Nov DM FlNAL.xlsx 298 xLxJ z LL =ot(\l oz = =o o ooc o =O)N$L! LLo I,JJo tu xa xJ ztr osNI oz =o o oo L) U) = O)N$ LL oNZ rl H (L O): 1o oNsN r N \o ci or) a.l oao o -] F F a-.J \o oa N oo\o <l \ot-\o F-\o F- oo ON ho O F- O \o oo oo 6.1 o \o oo F-a.l N \o Elz -] FF m r.l LJ 6)oo Or 0F zD aa OO O l--.J o N oO \oN Oq \o F-F*\o o F- qqoo lrl+ F- co (\ o t oo+o\ \o e.t o o a.l o Nco ao\o F Z aJ a.]a.l trr "l tJ.J HJ r!E]r!t!E] II.]El gl E.J {LJ r!trl aJ F ONN Nc.) Oc.l ooa a.l 6 c.t 6l c..l ctc.)s j riF 2 z FAi ilUa rI] H Ti Ft.IazDa z -] z 2 riF B =l-lz (-) Cd C) c) al 0)o ol (.) c) dt t! (l) D 6I Xt! e o o o o (€oX(! ao 6 o oX GJ OI H o{ o (,) (oL () & z o N bI OI o 0) (€ C) r', 0. a N OI rL ol o () (d C)& o. o oo q) -] c)o o. luo zIon a cl o !: N OI x rr.l (.) a o c.l o{ x El o Ao hI x El o c) ! oa aol OI q ,<r! o cao ;!oc.tN+ \, =@ L() o A €x Q (.)o oa Lo c..l N DI xo(ro (.)o cB o o d! z c.l ol a Xo(i o c)o cB o d! o Oio (Ba ! o frr € H E 0) o o 0) t-.i F J F F q) F C) F (.) F (.) F q.lF cn ca $\o r--oo o\o Nca \o F-oo o\a.l 299 ni5h9 'ErE E. f;EEE g fl r:Li n ;i llr {il' \\S - - 1 : lry d'i " tl rr d ,r " Tt' flf,([dks S{*a-{ - ! nr o d o {S\ts{:€t aq.1 ii*'r rr d hla=rt li\ ---- t-l= * -,, rr lt ,1 r. P!-"* *-$ d.{ {.I--r-3 - - -tt_t\:tt,s .a't-a ! r.-, .l s -?, o. I { r, \\ s\ rr rr ,r \= : :.n{oo -1i)s F a II fr E f; .E Be C!' '/ .ost-.!/ ^+ .:.1 q';J, i' lv'/ .^ ',! lt,, t EI 1E EItr :c E.E f*: il:(', , |.f iif , .n;,, ;. :-' li i ... - ii" .," ":., i j ..li'i;:i{:_ *..-j" .:* , '.,t,' ;it 300 Attachment - B LANZO GO+STRI firoil CoirpAflY Eh.rt r*!*af StSlrOfi rfrf.' t*rulcil*rrlb November 23.&,2015 Jose Rivas Public Works Department City of Miami Beach 1700 Convention Center Drive, 4ft Floor Miami Beach, FL 33139 Reference: Sunset Harbour Pump Stations Retrofit - ITB No. 60-2013TC Landscaping Allowance Estimate for Phase II Sunset Harbour Jose, Per City request, we have devised an estimate for Landscaping Allowance for the remaining Sunset Harbour Neighbourhood. This estimate was based on discussions with the City and Residents on what type of plants are being requested. The prices are based on what we have typically seen, although, please understand, this is purely used as a rough idea for building an Allowance budget since there is no landscaping or irrigation design. The Landscape Allowance would be for a total of S 472,355.88, backup for obtaining this number is attached. Please feel free to call me should you have any questions. Sincerely, .>- .-; t-' *r.it.l; .-.-'*' /,* x, --!..- Daniel Mesquita Project Manager Lanzo Construction Co., FL 407 Lincoln Road Miami Beach FL 33139 Phone (954) 979-0802 Fax (786) 476-0368 www.lanzo.net 301 LANZrf c0r{sTntETror co[PAxY City of Miami Beach Sunset Harbour lmprovements Page 1 of 1 Landscaping Sunset Harbour A!lowance Estimate Description Quantity t nits Unit Price Extended Price rrisation Sleeves 1 S 4o-ooo.oo S 4o.ooo.oo rriEation 1 LS s 3s,000.00 s 35,000.00 rvater Service lnstallation for lrrisation L LS s 25.000.00 s 25.000.00 )ower to lrrisation Controler 1 LS s 40-000.00 s 40-000.00 :&l Green Buttonwood 20 EA S 914.2s S 18,28s.00 &l Mediool Palm 25 EA s 9.200.00 s 230.000.00 :&l Piseon Plums 20 EA s 1-063.7s s 21.275.00 &l Silver Buttonwood 20 EA s 1,053.75 5 2L,27,.OO loo Soil 1 LS s 10.000.00 s 10.000.00 :r^' '^.1 a^w.r rCranita R^.L.1 LS s 20.000.00 s 20.ooo.00 Sround Cover (Shrubs)1 LS s 10.000.00 S 1o.ooo.oo Sub-Total S 470,83s.00 Landscape Allowance Curently RemaininE in ContinSency (Approx.)S 1o,ooo.oo Allowance Amount s 450,835.00 Bonds & lnsurance (2.5%l s 11,520.88 Total s 472,355.88 ttl23l207s 302 Condensed Title: The Mayor And City Commission Of The City Of Miami Beach, Florida, Accepting The Recommendation Of The City Manager To Enter lnto Further Negotiations With Lanzo Construction Co., Florida, For Phase 2 Construction Services, And Further Authorizing The Mayor and City Clerk to Execute A GMP Amendment No. 3 ln The Not-To-Exceed Amount Of $35 Million, To The Design-Build AgreementWith Lanzo For Neighborhood No. 13: Palm And Hibiscus Islands Right-Of-Way lnfrastructure lmprovements, Dated September 18,2014, Upon Conclusion Of Successful Negotiations, Plus Ten Percent Owner's Contingency For A Grand Total of $38,500,000, With Previously Appropriated Funding And Additional Funding Request Subiect To The 1't Amendment To The FY 15/1 6 Caoital Budoet. tended Outcome Build and maintain prioritv infrastructure with full accountabilitv. Supporting Data (Surveys, Environmental Scan, etc.): The 2014 CustomerSatisfaction Survey indicated thaloverTTo/o of residents rated recently completed capital improvement proiects as "excellent" or "qood". Item Su On July 17,2013, the City Commission approved the negotiations with Lanzo Construction Co., Florida (Lanzo) pursuant to Request for Qualifications (RFQ) No. 251-2013TC, for Design-Build Services for Neighborhood No. 13: Palm and Hibiscus I slands Rig ht-of-Way I nfrastructu re I m provement Project. On February 12,2014, the City Commission approved the recommendation bythe Mayor's Blue Ribbon Panel on Flooding and Sea Rise and the Flooding Mitigation Committee to amend the City's Stormwater Management Master Plan by modifying the design criteria for the tailwater elevation and adopted an elevation of 2.7 ft-NAVD for all tidal boundary conditions. On November 19,2014, the City Commission adopted Resolution No. 2015-28852 approving Amendment No.1 in the amount of $25'l ,016, which included additional design services associated with the adopted enhanced storm water criteria, which brought the total contract amount to $850,480. On October 14, 2015, Amendment No.2 was adopted, per Resolution 2015-29178, in the amount of $73,240, incorporating additional design services required to meet the revised City Landscape Ordinance, comments from Home Owners Association, the Fire Department and the Public Works Department (PWD) change in criteria relating to the placement of Florida Power and Light (FPL) transformers within City's Right-of-Way. Lanzo has submitted draft of the GMP proposal at 60% and 90% plan stages for review by the City and Stantec with a GMP Proposal submitted on November 9,2015. Following several negotiation meetings, Lanzo submitted their GMP Propsoal in the amount of $43,719,01 1. The final GMP Proposal has been reviewed by Stantec and in their opinion, the GMP for this project shall not exceed $34.5 million. ln order to obtain further assurance that the best value for this project has been negotiated, the City also contracted US Cost lnc. to perform an independent construction cost estimate. US Cost's estimated construction cost plus design- builder's fee and the additional cost associated to raising the road and other miscellaneous fees is approximately $34,907,238. The Administration's recommendation is to enter into further negotiations with Lanzo for Phase 2 Construction Services in the not-to-exceed amount of $35 million within 30 days, and if this negotiation fails, to exercise the "off-ramp" contract provision. The Administration recommends aporoval of the resolution. Financial tnformation: Amount Account Funds:1 9,381 384-2338 (Above Ground) 2 3,288,290 304-2338 (Above Ground) 3 937,329 350-2338 (Undergrounding) Encumbrance Line of Credit subject to reimbursement from MDC 4 2,322,132 420-2338 (Water) 5 2,738,389 423-2338 (Water) 6 131,470 424-2338 (Water) 7 70,000 425-2338 (Water) 8 3,963,009 419-2338 (Water) Encumbrance Line of Credit I 25,040,000 432-2338 (Stormwater) OBPI Total $38,500,000 Financial lmpact Summary: N/A City Clerk's Office Legislative Tracking: n-ofis: Departmfftrfiirector Assistant Gity$nager City Ma rqir DM hY Erc z'l ' I JLM / T:I.,AGENDA\20 1S\t$ctober\ClP\Palm and Hibiscus - Lanzo Amendment 2 - SUtu'lMARY.docx \ AGENOA IT K7 BB COMMISSION ITEM SUMMARY &AIAMISTACH oArE l2'?- l{303 ri .1 r#f" il,*,'l -.1''"',iil.. *, City of Miomi Beoch, ,l700 Convention Center Drive, Miomi Beoch, Florido 33.l39, www.miomibeochfl.gov CO the City ISSION MEMORANDUM TO: FROM FUND!NG Stormwater DATE: December 9,2015 Sublect: A RESOLUTION OF THE MIAMI BEACH, FLORIDA, MANAGER TO ENTER Mayor Philip Levine and Members Jimmy L. Morales, City Manager $25,040,000 AND C!ry COMMISSION OF THE GITY OF PTING THE RECOMMENDATION OF THE GITY FURTHER NEGOTIATIONS WITH LANZO MA AC, CONSTRUCTION CO., FLORIDA, FOR PHASE 2 CONSTRUCTION SERVICES AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A GMP AMENDMENT NO. 3, IN THE NOT.TO.EXCEED AMOUNT OF $35 MILLION, TO THE DESIGN.BUILD AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND LANZO CONSTRUGTION CO., FLORIDA, FOR DESIGN.BUILD SERVICES FOR NEIGHBORHOOD NO. 13: PALM AND HIBISCUS ISLANDS RIGHT-OF-WAY INFRASTRUCTURE IMPROVEMENTS (THE PROJECT), DATED SEPTEMBER 18, 2014 (THE CONTRACT), UPON CONCLUSTON OF SUCCESSFUL NEGOTIATIONS, PLUS A TEN PERCENT OWNER'S PROJECT CONTINGENCY FOR A GRAND TOTAL OF $38,5OO,OOO, WITH PREVIOUSLY APPROPRIATED FUNDING AND ADDTTIONAL FUNDING REQUEST SUBJECT TO THE 1ST AMENDMENT TO THE FY 15/16 CAPITAL BUDGET. ADMINISTRATION RECOMMENDATION The Administration recommends adopting the Resolution. KEY INTENDED OUTCOME Build and maintain priority infrastructure with full accountability. Water and Sewer $ 9,225,000 Above Ground $ 4.235.000 Total $38,500,000 BACKGROUND On February 8, 2012, the Mayor and City Commission adopted Resolution No. 2012- 27832 approving an agreement with Stantec Consulting Services lnc. (Stantec) (formerly Corzo Castella Carballo Thompson Salman, PA) for Design Criteria Professional Services for Palm and Hibiscus lslands Neighborhood lmprovement Project. On July 17, 2013, the City Commission approved the negotiations for design and pre- construction services (Phase 1) with Lanzo Construction Co., Florida (Lanzo) pursuant to Request for Qualifications (RFO) No. 251-2013TC, for Design-Build Services for 304 Commission Memorandum - Lanzo Construction Palm and Hibiscus - Guaranteed Maximum price (GMp) Neighborhood 13 project December 9, 201 5 Page 2 Neighborhood No. 13: Palm and Hibiscus lslands Right-of-Way lnfrastructure lmprovement Project. On February 12,2O14, the City Commission approved the recommendation by the Mayor's Blue Ribbon Panel on Flooding and Sea Rise and the Flooding Mitigation Committee to amend the City's Stormwater Management Master Plan by modifying the design criteria forthe tailwater elevation and adopted an elevation of 2.7 ft-NAVD for all tidal boundary conditions. The City's Public Works Department (PWD) has requested that staff implemeni the enhanced stormwater design criteria. The Design Criteria Package (DCP) that was originally included in the RFe was revised to incorporate the new enhanced stormwater criteria, which required additional negotiations with the Design-Build Firm. On September 18, 2014, the City negotiated Design and Pre-Construction Services(Phase 1) with Lanzo Construction Co., in the lump sum amount of $599,464, based on the DCP included in the original solicitation. On November 19, 2014, the City Commission adopted Resolution No. 2O1S-2BBS2 approving Amendment No.1 in the amount of $251,016, which included additional design services associated with the adopted enhanced storm water criteria, which brought t[e total contract amount to $8S0,480. On October 14,2015, the City Commission adopted Resolution No. 201 5-29178 approving Amendment No. 2 in the amount of $73,240, incorporating additional design'servicei required to meet the revised City Landscape Ordinance, comments from the Home Owners' Association, the Fire Department and the Public Works Department (pWD) change in criteria relating to the placement of Florida Power and Light (FpL) transformers within City's Right-of-Way. ANALYSIS This project uses a Progressive Design-Build procurement model to ensure City'sparticipation during design and the ability to control the final price. ln addition, this contract contains an "off-ramp" provision which allows the City to terminate the Design- Builder's services at the end of the Phase 1 (Pre-Construction and Design Services) if iheparties are unable to reach an agreement on Design-Builder's Guaranteed Maximum Price (GMP) for Phase 2 Services (Construction Services). The City may exercise other options to finalize the design and construction with parties other than the Design- Builder. Further, this agreement allows for the City to contract directly with the Design- Builder's lead design professional and/or any other design sub-consultants for design- related services on this Project, and Design-Builder shall promptly take such any and all steps as are reasonably necessary to enable City to implement such relationship(s). Once the Design-Builder has advanced the design to a sufficient level of detail toproduce a reliable estimate with well-understood risks and contingencies, a cost of construction and other fees (GMP Proposal, as defined herein) is submitted by Design- Builder to the City for its approval The scope of work for the Project includes streetscape improvements, sanitary sewer lining, water main, storm water system upgrades and undergrounding of overhead utilities within Hibiscus lsland. This pro.lect implements the enhanced stormwater criteria, which warrants a total of three pump stations in lieu of one, redundant pumping systems, 305 Commission Memorandum - Lanzo Construction Palm and Hibiscus - Guaranteed Maximum Price (GMP) Neighborhood 13 Project December 9, 201 5 Page 3 extensive stormwater pre-treatment and flow control, backflow prevention devices and manatee grates. Also, in light of the recent King Tide flooding events on Octobet 12, 2015, the City Engineer re-evaluated the proposed roadway elevation and directed further adjustments of roadway elevation to be at least 2.7' NAVD, which will require significant raising of the road and related harmonization. This directive required redesign of North and South Coconut Lane, and the western portions of Palm Ave and Hibiscus Drive. Lanzo has submitted draft proposals at the 60% and 90% plan stages for review by the City and Stantec with a GMP submitted on November 9,2015 in the amount of $43,719,011. Following several negotiation meetings and in-depth reviews, Lanzo submitted their final GMP Proposal on November20,2015 in the amountof $37,325,583 with a construction duration of 18 months to substantial completion (Exhibit A). The final GMP Proposal submitted by Lanzo has been reviewed by Stantec and documented in the attached letter dated November 25, 2015 (Exhibit B). ln Stantec's opinion and considering the construction marketplace, the GMP for this project shall not exceed $34,5 million. ln order to obtain further assurance that the best value for this project has been negotiated, the City also contracted US Cost lnc., a nationally recognized firm providing professional construction cost estimating for over 3O-years, to perform an independent construction cost estimate. US Cost's opinion of construction cost indicates an estimated cost of $31,008,940 (Exhibit C) based on the 90% Design Plans. This estimate only includes the cost of the work and excludes design-builder's fee, design-builder's project management fees, professional services during construction and the additional cost associated to raising of the road and other miscellaneous fees (Exhibit D). The estimated cost for these additional activities is approximately $3,898,298, bringing the total construction estimate to $34,907,238. Staff and Stantec do not agree with the final GMP Proposal presented by Lanzo, Some of the reasons include pricing that appears higher than local industry standards, discrepancies with respect to calculations of overhead and application of design builder's fee as prescribed by the agreement. ln light of Stantec's, US Cost's, and City's staff reviews of the final submitted GMP, the administration cannot support at this time a GMP greater than $35 million. lt is therefore, the administration's recommendation to enter into further negotiations with Lanzo lor Phase 2 Construction Services and further authorizing the Mayor and City Clerk to execute GMP Amendment No. 3 to Lanzo upon successful negotiations of a GMP in the not-to-exceed amount of $35 million plus a ten percent owner's prolect contingency, within 3O-days, and if this negotiation fails, to exercise the "off-ramp" contract provision. CONCLUSION: The Administration recommends approval of the Resolution. ATTACHMENTS: Exhibit A - Lanzo Construction Co., Florida Proposal Exhibit B - Stantec Letter Referencing GMP Proposal Review Exhibit C - US Cost 90% Construction Cost Estimate - Executive Cost Summary Exhibit D - US Cost Letter - Clarification of 90% Cost Estimate A JLM\86\DM f :\COefrbaAiZO1S\December'\CiP\Palm and Hibiscus\Palm and HibiscLrs - Lanzo Amendment 3 - MEtui0.docx 306 Exhibit A LANZO COI,ISTRUCTION COMPANY Ihfi vering srs&,inaile tnlnstucfurc solutiws lw tomonow's comnunities November 20,2015 City of Miami Beach, Office of Capital Improvement 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Mark E. Tomczyk, P.E. Senior Capital Projects Coordinator Ref: NeighborhoodNo. 13, Palm and Hibiscus Islands F-430, Final Guaranteed Maximum Price Proposal Task2.4.l,90% Completion Stage - Final GMP Revised to reflect our meeting of November 19, Revised The attached provides Lanzo's Final Guaranteed Maximum Price (GMP) Proposal as defined by Contract Task 2.4.1. This Lump Sum GMP proposal consists of; 1. Article 4 Compensation for Design-Builder's Services and Work. a. Confirmation of Compliance. b. Discussion of Supporting Documents. c. Attachment "A" i. Detailed in accordance with Article 4 l. Utilizes Item Numbers with cost elaboration within the Direct Cost Report (attached). a. Subcontractors in Direct Contract with Lanzo without handling costs. b. Materials purchased directly by Lanzo without handling costs. c. Lanzo Labor & Equipment to perform work includes 20%o margin on Labor & Equipment to equate self-performance with that of a Subcontractor. d. Attachment "B". i. Provides list of Assumptions, Exceptions, and Clarifications 125 SE 5rH Court Deerfield Beach FL 33441-4749 Phone (954) 919-0802 Fax (954) g7g-9897 www.lanzo.net 307 November 20,2015,Lanzo / CIPP, Page2 @2 This submittal revises Lanzo's submittal of November 1Sft as follows: l. Article 4 Presentation has been added to reorganize GMP Presentation a. Complimented by Attachment "A". 2. Equipment Costs have been reduced to 8 hours daily (80% of 10 hour rate). a. Pick-up FOG reduced to 5 hours daily (50% of l0 hour rate). b. Support Equipment FOG reduced to 5 hours daily (50% of 10 hour rate). c. Excavators & Loaders FOG maintained at l0 hours daily. 3. Supervisory Labor (Project Manager, Engineer, & Superintendent) reduced to 8 hour days. 4. Item 1012, 92050 (Full Time Site Safety Officer) deleted. Work definition has been reallocated to Site Superintendent. 5. Pettycash cfi50o/o. We look forward to successful price negotiations and the start of construction in early 2016. Sincerely, Bob Beaty, PE, Project Manager Lanzo Construction Co., FL. Cc: Olga Sanchez,Capital Project Coordinator Daniel Garcia, PE-WadeTrim 125 SE 5rH Court Deerfield Beach FL 33441-4'149 Phone (954) 979-0802 www.lanzo.net Fax (954) 979-9897 308 4.7 Article 4 COMPENSATION FOR DESIGN.BUILDER'S SERVICES AND WORK City will pay Design-Builder a Fee on the Cost of the Work of 7.5 %, inclusive of all profit and overhead, to be to the Cost of the Work, as stated in the GMP Proposal. 4.3.1, GMP Proposal. Design-Builder shall submit a GMP Proposal to the City, which shall, at a minimum, include the followine to establish the GMP 4.3.7.7 A proposed GMP, which shall be the sum of: 1, 2 3 4 Design Builder's Fee The estimated Cost of the Work, inclusive of any General Allowance, if applicable; Specific Allowances, if anv; General Conditions Lump Sum Cost: 5 37,325,582.44 S 2,482,23s.83 $ 33,096,477.74 s S 1,746,868.87 4.3.7.2 A list of the drawings and specifications (including all addendums) used as the basis for the GMt Proposal; 7 2 3 4 90% Drawings as submitted on October 26, 2015. This submittal is "Final" with the understanding that Lanzo's 100% submittal will includt confirmation of Lanzo's Final GMP Volumes I - 3 of the Design Criteria Package dated Novemb er 4, 2014, including Hibiscur undergrounding plans for ABB, ATT, & FPL. City Directive of October 12, 2015 (2.7'NAVD-Minimum) including work definitior referenced in RFI-034 (Private Property Harmonization) & RFI-035 (Private Drainagr Accommodation). 4.3.1.3 4.3.7.4 Schedule attached details a 24 month Construction Duration 4.3.1.5 4.3.1.6 4.3.7.7 4.3.1.8 \\FL-SERVER3\ActiveJobs\Engineering\F430 Miami Bch Palm & Hibiscus Design Build\GMP Estimate\Proposal Files\Final gO% Presentation, 4- Nov\20-Nov Presentation\Attachment A, 90-%-GMP-2015, Nov-20.xlsx Page 1 @ 3 list of the assumptions, exceptions, and clarifications made by DesignBuilder in the preparation the GMP Proposal, which list is intended to supplement the information contained in the drawi ion, Exception, Clarification List attached (attachment B A detailed Primavera (latest version) CPM Project Schedule, in a format as specified by the Contr Administrator, showing the scheduled Substantial Completion and Final Completion dates upo Negotiations resulted in additional Work Zones (Assumption # 20) and reduction Construction Duration to l9 Month. lf applicable, a list of allowance items, allowance values, and a statement of their basis; lf applicable, a schedule of alternate prices; lf applicable, a schedule of unit GMP Proposal is Lump Sum. Unit Price Cost presentation has been utilized to facili icable, a statement of Additional Services; 309 Article 4 COMPENSATION FOR DESIGN-BUILDER'S SERVICES AND WORK 4.3.1.9 4.3.7.70 Submission of a detailed construction estimate providing sufficient detail to assess labor rates, equipment rental, and subcontracts as provided under the definition of Cost of Work. Back-up shal be provided to verify that competitive market quotes were received for all equipment an subcontracted work Material & Subcontractor quotations were included in Lanzo's November 4th Submittal. Updates associated with specific discussions (Task 4, Construction Management Services were included in GMP Revisions. Lanzo's November 4th submittal included typical Labor rates (Miami Dade 2015) and ipment Rates (Blue Book). time limit for acceptance of the GMP Proposal; provided, however, that in no event shall such time limit be less than 180 days from DesignBuilder's submission ofthe GMP Proposal to the City. The time limit for acceptance of the GMP Proposal is 180 davs from date of submittal. Payments properly made by Design-Builder to subcontractors, suppliers, and design consultants for performance of portions of the Work and Services, including any insurance and bond premiums incurred by subcontractors, s "Attachment A" & the associated Direct Cost includes this cost detail. 4.4 The Cost of the Work shall mean costs reasonably and actually incurred by Design-Builder in the proper performance of the Work and Services. The Cost of the Work shall include only the following : 4.4.2 4.4.4 4.4.5 4.4.6 \\FL-SERVER3\ActiveJobs\Engineering\F430 Miami Bch Palm & Hibiscus Design Build\GMP Estimate\Proposal Files\Final 90% Presentation, 4- Nov\20-Nov Presentation\Attachment A, 90-%-GMP-2015, Nov-2O.xlsx Page 2 @ 3 Costs, including transportation, inspection, testing, storage and handling of materials, equipment and supplies incorporated or reasonably used in completing the Work. "Attachment A" & the associated Direct Cost includes this cost detail. Costs (less salvage value) of materials, supplies, temporary facilities, machinery, equipment a hand tools not customarily owned by the workers that are not fully consumed in the performa of the Work and which remain the property of Design-Builder, including the costs of transporting inspecting, testing, handling, installing, maintaining, dismantling, and removing such items. "Attachment A" & the associated Direct Cost includes this cost detail. Costs of removal of debris and waste from the Site. "Attachment A" & the associated Direct Cost R includes this cost detail. Rental charges and the costs of transportation, installation, minor repairs and replac dismantling and removal of temporary facilities, machinery, equipment and hand tools customarily owned by the workers, which are provided by Design-Builder at the Site, rented from Design- Builder or others, and incurred in the performance of the Work. A list of all equipment to be used must be approved by the Contract Administrator, in writing , prior commencement of a Work Order or Change Order. "Attachment A" & the associated Direct Cost Reoort includes this cost detail. Premiums for insurance and bonds required by this Agreement or the performance of the Work. fee mark-up shall be allowed on bonds or insurance. "Attachment A" & the associated Direct Cost includes this cost detail. 310 All fuel and utility costs incurred in the performance of the Work. Attachment A" & the associated Direct Cost includes this cost detail. Article 4 COMPENSATION FOR DESIGN-BUILDER'S SERVICES AND WORK 4.4.7 4.4.8 4.4.9 \\FL-SERVER3\ActiveJobs\Engineering\F430 Miami Bch Palm & Hibiscus Design Build\GMP Estimate\Proposal Files\Final 90% Presentation, 4- Nov\2O-Nov Presentation\Attachment A, 90-%-GMP-2015, Nov-20.xlsx Page 3 @ 3 Sales, use or similar taxes, tariffs or duties incurred in the performance of the Work. "Attachment A" & the associated Direct Cost includes this cost detail. Costs for permits, royalties, licenses, requirement of the Contract Documents. tests and inspections incurred Costs for permits may be included by DesignBuilder as a as a Specific Allowance. "Attachment A" & the associated Direct Cost includes this cost detail. Testing & Permit Costs defined by Contract as Owner costs are not included. costs reasonably and properly incurred in the performance of the Work to the extent proved in writing by the Contract Administrator, except General Condition labor costs reoccurring consumables and operating costs, which shall be included in the General Conditi "Attachment A" & the associated Direct Cost includes this cost detail. 20 Percent Cost on Labor & Equipment has been included in the Cost of Work. This cost i consistent with the attached Independent Auditors' Report of March 23, 2015 (Benitez Company, CPA) and CIP's E-Mail ('Percentage of work completed as depicted on negotiated GMP') of September 3,2014 (attached). eneral Conditions shall include the necessary management labor and site based construction supervision labor, site services, and office materials/consumables to manage and control all construction work for the period of tim execution of the GMP Amendment (if accepted and approved by the City Commission), through Final pletion and demobilization. This lump sum amount shall be included as a line item under the GMP Proposal. General Conditions Lump Sum Cost is inclusive of all fees and no fee shall be earned on the lump sum price. "Attachment A" & the associated Direct Cost R includes this cost detail. 311 "Attachment A" City of Miami Beach Palm and Hibiscus lslands Final Guaranteed Maximum Price (GMP) (Phase 2 Services) Neighborhood 13, Palm lsland & Hibiscus lsland Lanro Constructlon Co, lnc., Florida General Conditions (Art. 4.6) & Bond Costs Cost of work (Art. 4. Reduction on Overtlme l-abor 527,Q9,361 Total Cost ofWork (Art.4.4) 7.5 % Desitn-Builde6 Fee on Cost of Work (Art 4.1) Total Guaranteed Maximum Price 1 - General Conditions & Bond Costs Management Services P.I. / ST / TEMPORARY ASP, 1' S.III P.l. / ST / TYPE B STABILIZATIoN(LBR40:12" P.I. /ST/ LIMEROCK BASE (8IN COURSE P.I. /ST/ R & D UNSUITABLE MATERIAL P.I. / ST/ F & I SUITAELE BACKFIL[ MATERIAL REMOVE EXISTING ORAINAGE STRUCTURE IN PLACE, EXISTING ORAINAGE PIPE 312 Cost Proposal Detail Ptinted 11/20/2075 2o.xlsx Pagez@7 Item No.Description QUANTITY UNIT UNIT PRICE Extension SUBTOTAt )rainage Structures 1130 ,.r. /sT/ rNLET(TYPE "P" 48" 0rA), USF4105-622 EA 3,795.01 12s,268.33 1133 ,.t. / 5T/ TNLET(TYPE P48' DtAl, USFs100-6147 EA 3,989.81 87,775.82 1136 ,.r./ sT/ rNLET(TYPE P48" DrA), USF5129-6176 EA 4,225.92 54,935.95 1140 ,.r./ sT/ rNrET(TYPET 60" DrA), USF5100-6147 EA 8,598.27 42,997.35 1143 ,.r./ sT/ rNLET(TYPET 60' DrA), USF5129-5176 EA 9,075.74 27,OsO.22 1270 ,,I./ ST/ MANHOLE (TYPE'P" 48" DIA), USF-385 EA 4,O80.78 36,721.02 1220 ,.I./ ST/ MANHOLE (TYPE !' 60" DIA), USF-385 EA 8,757.O5 105,084.60 1230 ).I./ST/ MANHOLE (TYPE !" 60" SQR), USF.385 EA 10,070.59 20,141.38 r250 ,.I./ST/ MANHOLE (TYPE T' 72" SQR), USF.385 EA L8,O17.77 152,105.93 1252 ).1. /ST/ 6' x4' MH. Seated Lid EA tt,M,74 11,400.74 1256 ).1. / ST / 9'x 6' MH- USF-38S EA 20,327,95 20,321.96 1258 ,,1. /sT/ 5' x 4' MH, UsF-38s EA 10,158.52 20,377.24 1260 ,.I, / STl MANHOLE (84X84" SQ MH)EA 19,552.30 39,104.60 1262 ,.r. / sT / MANHOLE (84" DtA), USF-385 EA 19,081.19 19,081.19 L26r',.I. / ST / CONFL. MH (TYPE "P" 48" DIA), USF-385 EA 4,427.69 25,283.O7 1270 ).1. / ST/ Confl. MH (TYPE'P'60" DIA), UsF-38s EA 8,808.38 8108.38 1280 ,.1. / ST/ Confl. MH (TYPE'P'72' DIA), UsF-38s EA 15,749.74 15,749.74 1290 ,.I, / ST / I\,IH REHABII.ITATION EA 1,800.00 9,mo.m 1300 ).1. / ST/ PVCTees (36" x 18")1 EA 8,557.iro 95,231.40 1305 ).1. / ST/ PVc Tees (30" x 18")1:EA 4,557,&129.861.m 1310 ).1. /ST/ PVCTees(24" x 18")14:EA t,9t3,32 273,W.16 L320 ).1. / ST / PVCTees (18" x 18")10i EA 962.02 98,126.(M 1330 ).1. /sT/ 18" PVcYard Drain 28(EA 2,318.83 6/.9,272.n 1340 ,.I. / 5T/ 24'TIDEFLEX EA 8,558.57 8.568.67 ,ump Station !458 ,.1. / ST/ WEST PUMP STATION, STRUCTURES, & onsite Electrical. 'lote that Offsite Electrical is to be provided by Others to within 50' o' he Control Panel..A 2.1:r4.806.m 2,134,806.00 !460 ,.1. / ST/ EAST PUMP STATION, STRUCrURES, & onsite Electrical. {ote that Offsite Electrical is to be provided by Others to within 50' he Control Panel.EA 1.648,873.00 1,6/4,873.00 )ralnaae Outfalls 1461 ).I. / ST / 16-IN FORCEMAIN PIPE WITH FITTINGS LF 305.45 7130.80 1480 ).I. / ST / CORE DRILL EXISTING SEA WALL EA 3.677.83 73ss.65 1490 ).1. / ST/ INSTAIL MANATEE GRATES, 42" &4'x4'EA 3.702.16 7N4.32 )Iainase Pipnc 1520 ,.I. / ST/ 18.IN A2OOO PIPE CULVERT WITH FITTING 7,79/LF tod.l2 816,187.58 !530 .r. / sr 24.IN A2OOO PIPE CULVERTWITH FITTING 3,30(LF 128.54 424,182.00 1540 .t./n 3OiN A2OOO PIPE CULVERT WITH FITTING 1,18(LF 150.77 177,W.il !550 ,,I./ ST/ 36.IN A2OOO PIPECULVERTWITH FITTING 1,34(LF 17S.98 235,813.20 1555 ,.1. /sT/ 23" x 14'LlN RCP PIPE CULVERT 13!LF 127-57 45532.23 1560 ,.r. / sT / 42rN RCP PrPE CULVERT WITH FTTTTNGS 5(LF 327.57 19,554.20 1570 ,.t. / sT / 48-tN RCP PtPE CUTVERT WITH F|TTINGS 1,88(LF 346.06 650,s92.80 !575 ,.r. / sT / 54-rN RCP PrPE CU|-VERT W|TH FTTTTNG 77t LF 431.37 73,332.90 1580 ,.r./ sr/ 72-rN RcP PrPE CU|-VERTWTTH F|TTTNG LF 479.5t 3,836.08 1590 '.1./ST/ 4' x 4' 8ox CULVERT LF r278.4 10,227,20 1600 '.1. /sT/ 14' x4' BOx CUIVERT LF 3,027.t4 24,2t7.12 L620 ,.I, / ST/ 15-IN CIPP REHAB EXISTING 22!LF 75.92 17,082.00 1630 ,.I, / ST/ SS LATERALCONFLICTOR REPAIR q 1(EA 1,399.50 13,995.00 190 ,.r. / sT/ ss vrArN REpAtRs (aLLL stzEs) q 10(LF 158.82 1sr82.00 Subtotal stormwater 10,055,585.46 313 Cost Proposal Detail Printed 71/20/2O!5 2o.xlsx Paee3@7 Item No.Descriotion QUANTITY UNIT UNIT PRICE Extenslon SUBTOTAI. Jtilitv Work - Water and Sewer Pavement Associated with Utilities 1650 .I, / W / TEMPORARY ASP. 1' S-III a.s4a 5Y 10.55 90,139.20 1650 .1. /W/ TYPE B STABILIZAIION(LBR40:12" THICK 4.544 SY 4.75 40,584.00 1670 .I, / W / LIMEROCK BASE (8-IN COURSE PRIMED 4.544 SY 13.16 7L2,439.04 1580 ,.I, /W/ R & D UNSUITABLE MATERIAL CY t7.72 105,552.16 1590 ,.I. /W/ F & I SUITABLE BACKFII.L 9.49:CY 10.iO 98,727.20 Arater I 1700 I. / W / 6.IN (DIP CL 53) W/ FITTINGS 40(LF 7L2.76 45,104.00 l7l0 t. / w / 8-rN (DrP cL s3) w FrrrNGs 6.84(LF 103.75 709,550.00 1720 l. / w / 12-rN (DrP CL s3) W/ FTTTTNGS L0(LF 199.90 19,990.00 7725 I. / W / 5iN VALVES INCLUDING NO, 2 COVER, FH 2)EA 1,402.93 35,O73,25 7728 ,.I. / W / 8-IN VALVES INCLUDING NO. 2 COVER EA 1,720.2O 32,683.80 1730 I. / W / 12.IN VALVES INCLUDING NO. 2 COVER EA 2,674.68 2,574,68 7732 ).I. / W / 12X8-IN TAPPING SLV & VALVE NO.2. BOX EA 4,291.80 8,583.50 7733 ).I. / W / INSTALT 2" POTLY FOR SERVICE 7.00r LF 8.41 58"870.m ).t. / w / lNsTALt 5/8" SERVTCE 4 EA 1,855.25 80.205.75 .t.W / INSTALT 1' SERVICE 10r EA 1,855.25 197,716.50 1138 ).t. /w / tNsTALt- 1-112" SERVTCE 4.EA 2,330.04 97,861.68 7740 ).I. /W / INSTALL 2' SERVICE 3l EA 2,7t6.3O 89.637.90 1750 .t.W / REMOVE EXISTING FIRE HYDRANT 2 EA 722.84 15,179.64 7760 .I W / F & I FIRE HYDRANTASSEMELY 2l EA 3,2@.96 81,524.m 1780 .I. / W / CONNECTTO EXISTING WATER MAIN EA 5,409.52 10.819.04 1785 .I. / W/ F&I CONCRETE SLAB FOR COVER 1 CY 176.08 20425.28 7790 W / BACTERIOLOGICAL SAMPLE POINTS 2t EA 818.82 t5,376,40 179t S / PRECLEAN & CCTV INSPECTION 3,231 LF 5.43 17"538.90 1-792 S / CIPP 8' 5MM LINING 3,231 LF 40.49 130,142,70 1793 S / LATERAL REINSTATEMENT (WITH GROUT)7l EA 551.65 43J81.14 1794 .t s / HEAVY |-ATER CLEANTNG (ROOTS/ 0ESCALTNG)tF 30.83 1082'14.13 7795 .t S / LATERAL LINING {INC LIGHT CLEANINGI 7t EA 5,250.00 614,250.00 \796 S / SS MH REHAB 3r EA 2,400.00 91,200.00 779-7 ).I. / S / LATERAL LINING {BEYOND 30'ESTIMATED)701 LF 150.00 105,m0.00 Subtotal Water & sewer 3,080,423.99 iitework lStreetscaDe lmorovementsl Demolition 1800 .I, / AG / EROSION AND SEDIMENTATION CONTROT LS ,9A74.93 39,414.93 1810 .I, / AG / CLEAR AND GRADE RIGHT OF WAY AREA 10,77 SY 5.7L 58,110,57 1820 .I, /AG / R & DASP PAVEMENT 50(SY 6.13 3,055.00 1830 .t. / AG / MTLLTNG OF EX|STTNG PAVET\4ENT (1" AVG)26,L7',,SY 5.m 130,860.00 1840 .1. / AG / TYPE S-lll AsP PAVEMENT 1st LIFT (1")26,77"SY 11.66 305,165.52 loadwav 1870 ,.I. / AG / REMOVE CONCRETE CURB & GUTTER 22,O5,LT 4.93 t0€,726,22 1880 ,.I, / AG / REWORK EXISTING LIIVIEROCK BASE. COMPACT 26.17.SY 9.15 239,473.80 1890 ,.I. / AG / SIII AsP CONCRETE PAVEMENT 2'" 2 LFT 22.O5,SY 15.m 330,810.00 1900 ,.I. / AG / ADOITIONAL TYPE B STABILIZATION 16.30 4.15 77,429,75 1910 ,,I. / AG / ADDITIONAL 8' BASE RELATED TO REWORKED 16.30t 13.16 214,521,16 7920 ,.I. / AG / REINSTALT CONCRETE DRIVEWAY 65 SY 59.64 38,825.54 7925 ).I. / AG / 4-INCH CONCRETE SIDEWALK I 791 SY 41.73 75,072.21 1930 ,.I. / AG / DRIVEWAY REMOVE BRICK/PAVERS AND PAVE 68 SY 15,42 52,194.86 1950 I. / AG / DRIVEWAY AND RECONSTRUCT 3/4'ASPHALT 47,SY 24.99 10,295.88 1960 I. / AG / ADD FiLL TO CHANGE ELEVATIONS !7.50(CY 19.90 3/l8,250.m :urb and Gutter 1980 ,.I. / AG / GRAVITY WALL r.01 LF 245,/l8 241,934,40 2010 .t.AG / CONCRETE VALLEY GUTTER AND CURB 7.751 LF 26.98 193,068.88 20t2 .t.AG / CONCRETE "D'CURB 7.74 LF 25.91 20059s.22 2014 .1.AG / CONCRETE'F'CURS 7.L51 LF 28.23 202,013.88 2020 .t.AG / SPEED TABLE WITH PAVERS EA 12,000.00 72,(m.m 314 Cost Proposal Detail Ptinted 77/20/2015 .I. / AG / FURNISH ANO I NSTALL NEW STREfi SIGN .I. / AG / REMOVE & OISPOSE EXISIING SIGN .r. / Ac / F & I 6', DOUBTE THERTvtO (SOUD) q .I./AG/F&I18'THERMO .I. /AG /F & I 24' THERMO ISTOP ,I./AG/F&IRPM ,I. / AG / IRRIGATION SYSTEM REPAIRS P,I. / AG / R &D ROCKS > THEN 1OO LBS OR 12" DIA ,I. / AG / REMOVE EXISTING TREES ,I. / AG / REMOVE EXISTING PATMS .I. / AG / PROTECT PRESERVED TREES 96,172.53 P.I. / AG / REMOVE EXISTING HEDGES P.I. / AG / REI\,IOVE EXISTING SHRUBS q .I. / AG / ST. AUGUSTINE 'FLORATAM' PALI.ETTES ,1. / AG / SOrL TO BACKFTLL TREE REMOVAT- VOrDS P.I. / AG / LARGE TREES P.r. / AG / SMAr-t TREES P.t. / AG / CERTtFtED ARBORTST FOR JOBSTTE ,I. / AG / STREET LIGHTING .I. / MAINTENANCE OF TRAFFIC 2o.xlsx Page4@7 315 Item No.Oescription qUANTITY UNIT UNIT PRICE Extenslon SUBTOTAT )ivision 2 - Sitework itormwater 2230 H,I. / ST / TEMPORARY ASP SY t0.77 2240 H.l. / ST / TYPE I STABILIZATIONILBR40:12" THICK)19,38(SY 4.75 92,055.00 2250 H.I, / ST / LIMEROCK 8A5E {8.IN COURSE PRIMED)19,38(SY 13.16 255,040.80 2260 H.I, / ST / R & D UNSUITABLE MATERIAL 25,83t CY L7.72 287,329.68 2270 H.I. / ST / F & I SUITAELE BACKFILL MATERIAT 25,431 CY 10.1t()258,725.60 22AO H.I. /ST/ DEWATERING I ts ,57,342.88 1s7,342.88 LJtilities 2300 H.I. / ST / REMOVE EXISTING DRAINAGE STRUCTURE 5!EA 552.10 44,994.90 2310 H.I. / ST / REMOVE EXISTING DRAINAGE PIPE 5,81(LF 15.99 92,997.84 2320 I.I. / ST / GROUT IN PLACE EXISI DRAINAGE PIPE 50(tF 19,56 9,780.00 )ralnaEe Structures I.I. / ST / PVC DRAIN BASIN WGRATE (36" DIA)5 EA 3.227.26 77L,O44.7a 2335 Lt. / sT / PVC TEES 24',X18',5:EA L,9L2.tA 101,345.54 2340 I,I. / ST / INLET (TYPE P 48' RND C8)6I EA 3,989.83 259,338.95 2350 I.I. / ST / INLET (TYPE J 60' RND C8)EA 8,598.27 25,794,87 2360 t.t. / sT / rNLET {60' SOUARE)EA I,076.74 18,033.48 2380 I,I. / ST / IVANHOLE (TYPE P 48' RND MH)3;EA 4,080.78 1$,988.86 2390 r.r. / sT / MANHOTE (TYPE r 60', RND MH)EA 4,757,O5 78313.45 2393 I.I. / ST / MH (60' SQUARE)EA 10,070.68 &,282,12 2395 {.r. / sT / MH (TYPE !' 72' DrA)EA 15"892.08 95,352.48 {.1. / sT / MH (72' SQUARE)1 EA 11559.23 11,569,23 2400 .r.r. / sT / MANHOLE (TYPE r 84X84" SQ MH)EA 19,528.28 19,s28.28 2405 {.r. / sT / MH (84' DrA)EA 12,674.57 37,843.1t 2470 i.r. / sT / coNFL. MH (TypE 'p' 48' DtA), USF-385 EA 8,403.63 50A2t.1A 2420 {.r. / sT / coNFL. MH (TYPE 'P', 72', DtA}, USF-385 1(EA 1,572.57 15,725.1O ,ump Station 2670 '{.1. / Sf / PUMP STAIION, STRUCTURES, & onsite Electrical. Note rhat Offsite Electrical is to be provided by Others to within 50' of the :ontrol Panel.EA 2,189,722.N 2,7A9,722,@ )rainase Outfalls 2672 1,I. / ST / 15IN FORCEMAIN PIPE WITH FITTINGS 2t LF 305.57 7333.@ 2700 I. / ST / CORE DRILL EXISTING SEA WALI.EA 3,6?7.47 3,677.87 2770 I. / ST / INSTALL MANATEE GRATES EA 2,113.19 2,113.19 )ralnaee Piolnr 2740 I. / ST / 18-IN A2OOO PIPE CULVERT WITH FITTINGS L.02(LF [M.72 106"814.40 2150 I. / ST / 24IN A2OOO PIPE CULVERT WITH FITTINGS 4,471 tF 124.45 557,038.20 2160 ],I. / ST / 3O.IN A2OOO PIPE CULVERT WITH FITTINGS L.78(LF 145.39 258,794.20 2770 ].I. / ST / 35-IN A2OOO PIPE CULVERT WITH FITTINGS 43 LF r66.86 71,916.66 2772 ].I. / ST / 42-IN RCP PIPE CUTVERT WITH FITTINGS 14(LF 325,57 45"579.80 2775 I,I. / ST / 48.IN RCP PIPE CULVERT WITH FITTING LF 4@.27 1rl8,900.'r4 27AO ],I. / ST / 54]N RCP PIPE CUTVERT WITH FITTINGS 8!LF 424,73 36,442.05 2745 ],I./ST/ 72.IN RCP PIPE CULVERTWITH FITTING LF 476,54 3,8t2.32 2790 l.l./ST/ 15' x 5' BOX CULVERT LF ,,194.,16 2s,s58.08 2850 l.l. / ST / SS LATERAL CONFLICT OR REPAIR q 1(EA 1,399.50 13,99s.00 2850 H.I. / ST / SS IVAIN REPAIRS (ALLL SIZES)10(LF 166.60 15,650.00 Subtotal Stormwater 5,972,708.36 Jtilitv work - water and sewei Pavement Assciated with Utilities 2870 H.I. /WTEMPORARYASP a,a7t SY 10.58 93,865.76 2880 H.l. / W TYPE B STABILIZATIoN(LBR40:12" THIcK)8,871 SY 4,75 42,742.N 2890 H.I. / W LIMEROCK BASE (81N COURSE PRIMED)a.a7t SY 13.15 115,755.52 2900 H,I. / W R & D UNSUITABLE MATERIAL t7.a2l CY Lt.l2 131,538.,l8 2910 H,I./W F & I SUITAELE EACKFILL 11.82!CY 10.40 123,021.50 Cost Proposal Detail P(inted Ll/20/2075 20.xlsx Page5@7 316 Cost Proposal Detail Ptinted 77/20/2015 Item No.DescriDtion QUANTITY UNIT UNIT PRICE €xtension SUBTOTAT ly'ater I 2922 r. / w 6-rN (0rP cL s3) w/ FTTTTNGS 32(LF t12.76 36,083.20 2940 / W 8.IN (DIP CL 53) W/ FITTINGS 6.56(LF 103.75 680,500.00 2942 I. / W 6.IN VALVES INCLUDING NO. 2 VALVE COVER u EA 1,402.93 19,541.02 2950 I. / W 8.IN VALVES INCLUDING NO. 2 VALVE COVER LI 7,720.20 24,082.80 2952 I. / W 12X8.IN TAPPING SLEEVE & VALVE NO, 2 BOX EA 4,504.31 18,0t7.24 2960 I, / W INSTALL 2" POLY 7.00(LF 8.41 58,870.00 2962 I. / W / INSTALL 5/8" SERVICE 4 EA 1,855,25 80,20s.7s 296/,I. / W / INSTALT 1' SERVICE L5t EA 1,865.25 287,248,50 2966 r. / w / rNsTAtL 1-1l2', SERVICE 5!EA 2,330.04 L28,t52.20 2964 r. / w / rNsTAi-L 2' SERVTCE EA 2,7t6.30 40,744,50 2970 I,/WHDDBACKYARD 5 EA 1,200.00 61,200.00 2980 l, /W REIVIOVE EXISTING FIRE HYDMNT EA 722.85 5,059.95 2990 I, / W F & I FIRE HYDRANT ASSEMBLY EA 3,260.96 45,553,44 3020 / W CONNECTTO EXISTING WATER MAIN EA 5,397.52 16,192,55 3022 / W F&I CONCRETE SLAB FOR COVER 10,175.08 t4372,32 3030 l.l. / W BACTERIOLOGICAT SAMPLE POINTS q 1l EA 818.81 8,188.10 3032 1.I. / S SS MH REHAB 3r EA 2,400,00 86.i100.00 3039 S LATERAL LINING (BEYOND 3O', ESTIMATEO)30r LF 150.00 45,000.00 3040 I.I. /S PRECLEANING & CCTV INSPECTION 6.75t LF 5.43 36,6s2.s0 3041 1.I, /S CIPP 8" 5MM LINING 6.75t LF 40.49 273301,5O 3042 1.I. / S LATERAL REINSTATEMENT (w/ GROUT)6.EA 551.66 14,202,92 3043 I. / S HEAVY LATERAL CLEANING (ROOT / DESCALING)2.75 LF t0.83 85,059.97 3044 ].I. / S LATERAL LINING (INC LIGHT CLEANING)9l EA s,2s0.00 483,m0.00 subtotal water & sewer 3,079,197.83 iitework lStreetscape lmorovementsl Demolltlon 3050 I.I. / AG / EROSION AND SEDIMENTATION CONTROL LS 39,414,93 39,414.93 3060 I.I. / AG / CLEAR ANO GMDE RIGHT OF WAY AREA 35,64 SY 5.72 203,900.84 3070 I.I, /AG / R & D ASP PAVEMENI s0r SY 5.98 2,990.00 3080 I.I. / AG / MILLING OF EXIST!NG PAVEMENT (1' AVG)77.261 SY 5.00 86,345.00 3090 I.I, /AG /TYPE S.III ASP PAVEMENT 1St LIFT {1")77.261 SY Lr,67 201,529.23 3120 I.I. / AG / REMOVE CONCRETE CURB & GUTTER 18.18 LF 5.39 98,005.37 3130 1.I, /AG / REWORK EXISTING LIMEROCK BASE, COMPACT t7.26 SY 9.16 ,.58,184.04 3140 r.r. / A6 / s-ilr AsP coNcRETE PAVEMENT 2", lnd LFT (1"1 t7.261 SY 15.00 259,035.00 3150 I.I. / AG / ADDITIONAL TYPE 8 STABILIZATION SY 3160 I.I. / AG / ADDITIONAL 8' BASE RELATED TO REWOR(ED SY 3170 t.I. / AG / REINSTALL CONCRETE DRIVEWAY 95r SY 59.64 57,015.84 3180 I. / AG / DRIVEWAY REMOVE BRICK/PAVERS AND PAVE 3.55 SY 76,42 279A67.94 3190 I. / AG / DRIVEWAY AND RECONSTRUCT 3/4" ASPHALT 7 7ll SY 24.80 92,752.@ 3210 I. / AG / ADD FILL TO CHANGE ELEVATIONS 2.40\CY t7,so 42,0m,fl) :urb and Gutter 326r I. /AG / CONCRETE VATLEY GUTTER 18.181 LF 25,88 i188,759.04 3270 I. / AG / SPEED TABLE PAVER WITH CONCRETE EA 12,000.00 72,000.m Ui<. - Sion,a.nd 9rv.m.ht M,rli.'. lliami,a hv Tv6al 3290 I. / AG / FURNISH AND INSTALL NEW STREET SIGN 5i EA ,00.00 17,400.00 3300 / AG / REMOVE & DISPOSE EXISTING SIGN 5i EA 50.00 2,900.00 3310 / AG / F & I 6" DOUBLE THERMo (SoLlD) q L9.62'LF 1.80 35,323.20 3320 l. / AG / F &t 12" THERMo {sollD) o 2l LF 1.60 32.m 3330 ,1. /AG / F & I 18" THERIVIO {SOtlD) o 221 LF 2.70 s94.00 3340 ,t. /AG / F & I 24' THERTMO {SOL|D) o 221 LF 3.60 792.00 3350 /AG/F&lRPMq 15(EA 5.00 750.00 3350 l. / AG / IRRIGATION SYSTEM REPAIRS (PER LOT) q 9i FA 400.00 36100.00 3370 I. / AG / R &D ROCKS > THEN 1OO LBS OR 12" DIA A 1(EA 25.00 2s0.00 subtotal streetscape 2,176,24L.43 Divlslon 2 - Hlblscus, SlteworkTotal 31122a.147.67 20.xlsx Page6@7 317 Cost Proposal Detail Printed 77/2O/2075 Item No.Description QUANTITY UNIT UNIT PRICE Extenslon SUBTOTAI. Division 3. - Der 3380 / AG / REMOVE EXISTING TREES 19:2s0.00 48,750.00 3390 ,I, /AG / REMOVE EXISTING PALMS EA 250.00 12,000.00 3400 ,I. / AG / REMOVE EXISTING HEDGES 1,00(LF 72.O4 12,040.00 3410 ,I. / AG / REMOVE EXISTING SHRUBS 5(EA 25.67 1,280.50 3415 ,.I. / AG / PROTECT PRESERVED TREES 1 LS 85,157.56 85,157.66 3420 I. / AG / TREE TRI MMING/PRUNING 7 LS 9,000.00 9,000.00 3430 H,I. / AG / ST, AUGUSTINE 'FI.ORATAM' PALLETTES t29,96(SF 0.43 55,882.80 3440 H.I, / AG / SOIL TO BACKFILI. TREE REMOVAT VOIDS 7 LS 5,000.00 s,000.00 3450 H.I. / AG / LARGE TREES 8t EA 495.00 41,580.00 3460 H.I, / AG / SMALL TREES 18(EA 325.00 58,500.00 3455 H.I, / AG / CERTIFIED ARBORIST FOR JOESITE 271 HR 250.00 54,000.00 Olvlslon 3 - Hibiscus, Landscaplng Total 383,190.96 )ivision 15 - Lishtins / Electrlcal 3470 H,I. / AG / STREET LIGHTING LS t,269,779.N 1,269,719.00 FPI. 3480 H.r. / uG / REWORK EXTST|NG LTMEROCK 8ASE, COMPACT 5,96t SY 6.79 40,522.72 3490 H.I. /UG /ADDITIONALTYPE BSTABILIzATION 5,96t SY 4.75 28,348.m 3500 H.I. / UG / ADDITIONAL 8' BASE RELATED TO REWORKED 5,96t 5Y 13.16 78,538.88 3510 H.l. / UG / REINSTALI CONCRETE DRIVEWAY q 1,00(SY 66.16 66,150.00 3520 H.I. / UG / DRIVEWAY REIVlOVE BRIC(/PAVERS AND PAVE L0(SY 76.72 7,612.m 3540 H.t. / uG / 0R|VEWAY AND RECONSTRUCT 3/4" Asp q 1,00(SY 24,41 24,810.00 3560 H.t. I uG I 24" AH L2(EA 7&,61 9s,836.85 3570 H.t. / uG / 30" HH 2,EA 2.72 22,525.28 3580 H.t. / uG / 48" HH EA 2,o33.42 6,100.26 3590 H.I. / UG / TRANSFORMER PADS EA 280.81 r.3,198.07 3600 H-I./UG/MANHOLE EA 13,148.31 [3.1'r8.31 3610 H.l. / uG / PVC CONDUTT TRENCH t 3,25 LF 7,44 99,t24.96 ATTSE 3640 H,I. / UG / ATTSE 2.4'' CONDIUIT ,,40 LF L2.57 42,546.s1 3650 H.I. / UG / ATTSE 1.2'' CONDUIT LF 8.45 4,917.O5 3652 H.I. / UG I Al-|. 42"X@" HANDHOLE 1 EA 9,777.67 100188.37 3658 H.I. / UG / ATT 3O'X48" HANDHOLE 1 EA 8,929.17 98,220.87 ABB 3680 .t.UG / ABB 1.2" CONDUIT 2,021 LF 9.72 78,422.@ 3690 .t.UG / ABB 1.3" PVC 72,65:LF 9.97 126,150.41 3700 .t.UG / ABB 1.4" PVC 7Ll LF 10.70 7,971.50 3770 .t,UG / ABB 2-4" CONDIUIT 3,40 LF 10.70 36,390.70 3740 .t.UG / A8B VAUL]EA 5,735,54 5,736.54 Division 15 - Hlblscus, Llghtins / Electrlca s2,207,018.5! 3758 I.I. / MAINTENANCE OF TRAFFIC LS 'r4310.00 /t4,310.00 Dlvlrlon - Maintenance ofTrafflr s44,310.0( 2o.xlsx PageT @ 7 318 lanzo Consruction Co., Florida F43OGMPOTBR 1112012015 1l:59 Page: 1Palm & Hibiscus 90% Rev 19 Month Eq Adj Bld Summary Totals Report Standard lvfarlup Instrtrctions CortBaric Merkup % Previous Rur Snmmary: 1112012015 ll:35 AM Sprcad; ILDAI2AI5 11:35 AM Summan, run on TakeoffOuan andAdiustedto Bid Ouan. Strndrrd Sprerdr Indircct Sprcad: Total Ma*up Sprcad:. Total less Sub AddonlBondSprcad: Total Labon Burden: Pcmltatl: Const lvlatl: Sub: Bq.Op.Exp: Co. Equip: RcntedEq.: Mscl: Misc2: Msc3: Overridcs: Tohl: 4,gao,M3 1960,177 s326ges 137,881 16,149,660 1,179346 2,8l,8,834 0 0 0 0 0 32,503,326 Marlup 980,089 392,015 0 0 0 235,869 569,767 0 0 0 0 0 \r'17,1ffi Marlup: 2,1?7,760' 0 0 2,177,760 2,177,760 Total: 34,681,086 0 0 20g,gg6 34,889,972 0 34,889,972 20.c0 20.00 0.00 0.00 0.00 20.00 20.00 0.00 0.00 0.00 0.00 6.t0 Totab rs oflrrt Sprced CostDircc* 32,5A3326 Indircct: 0Addoos: 0 Bond: 208,886 SubTotal: 32,?72,212 Pass Th,rough: 0Total: 3\?12,212 Selected Bond Tablc; 02 Kev trndicators Balanccd Markup 2,177,760.12 Indirect Cost 0.00 I I t Total Labor 6,860,520.07 Dircct Cost 32,503,326.13 Balancod Markup/f otal Labor 31.74% IDdircct Cost/Direct Co st 0.AU/o ,4* ,?u.u,, d^t Ove e r',nc h&* s { ?'o, ,'/, rr, = ,hgo"I#q y'ry',az x il,c, ,&re z g,6s 2 {3 668 , ?{ /1* lrZ ?,733'7? !4rratt e, /ur*, ,4oo'"' y'4'/"'7/ 319 Lanzo GonsEuqdon Go Fl Burden Flab8Z0lg 2013 Sbb Un*nflrymcot F.d€rel lfiempffiant HealthlDentrUljh lnrurance DlvHc byJob h/ftfl l;.l2012 I{.dft lngrrencc Worftu:r 9omp WCR.E tsldgplhU 2013 AsRrbllrfr.d ArtuHEh.d As Pub[8hod f,fiy. 5.#h 0.8Fi $ $ 414,760.00 5,016.000.m 289,756,00 5.0t6,660.00 8.nyo 3.00% 3.85'6 2,31?r ta" ro Nruas eal A/.f Vrcetlotillolldrylslch Pav 2 Weeks Vaca[on/52 weeks@Eo.rn[- B Pald Holldry{48 hrc) Dlvldc by Job Payro[ Ft fr12 Gemrrl Urbllltyttfrnbnthtlnhld Htln Grrnd To0rI &b Oyerhcrd ratc 6.38?6 - /tS.g396 - 11t13t2016 K\Docr.gnenblEurden RfiE 1 S.rdsJoa lawrrncc 320 "Attachment B" City of Miami Beach Palm and Hibiscus lslands Draft Guaranteed Maximum Price (GMP) (Phase 2) Assumptions, Exceptions, and Clarifications PROJECT:Neighborhood 13, Palm lsland & Hibiscus lsland COMPANY NAME:Lanzo Construction Co. lnc., Florida 1 200-LF Work Zone will be waived to enable "Train Construction" 2 Bypass Maintenance of Traffic (MOT), RFI-15. 3 Pump Station Sites & Round-a-Bout areas to be utilized for Staging. 4 Material Testing (Soil Densities, Concrete Compressive Strength, etc.) by Owner. 5 PIO Services by the City 6 Existing Outfalls abandoned by "Plug & Grout" 7 Existing Seawalls can be breached by "Core & Seal". No money is in this GMP for rebuilding the Seawall if necessary. lncludes work necessary to comply with DCP. 8 Onsite Pump Station Electrical Service will be provided by others. Any interim electrical service necessary for Start- up, Testing, and Temporary Service will be provided by Public Works Generators. No FPL Service costs to Pump Station Sites is included in this GMP. Note that Silfredo Trujillo of FPL has provided typical Service Drawings (attached) and noted Ballpark pricing at 5338,430 (Palm) and S Minimal (Hibiscus). These costs are not included in Lanzo's GMP. 9 No fabric is necessary under Limerock Roadbase. Removal & Replacement of Unsuitables will enable establishment of Stabilized Subgrade of LBR-40, thereby making the PSI recommendation for fabric unnecessary 10 Landscape Planting within swale areas consists of Sod & Trees only. 1L Arborist Definition is sufficient for City needs at 4 hours per week. 72 Existing Landscape will be removed as necessary to accommodate construction of Swales. 13 Utility Undergrounding complete upon As-Built Submittal to the Owner Utilities. Service turnover & Pole removal by the Utility Owner, Cost & Time associated with service transitions are not included in Lanzo's Cost Presentation. Lanzo has been told that 3 utilities (FPL, ATI, & ABB) are on the poles. Pole removal will be by the last utility on the pole. Resident agreements do not exist (could take a couple of years). L4 Boxes & Pedestals by ABB (not in GMP Cost presentation). Manufacturer will only sell to end User. ATT will install Pedestals as part of service transfer (Andres Hernandez, 305.222-0932). FPL pricing is Labor & Equipment only to install FPL supplied Materials. 15 Driveway transition harmonization extending onto private property will be at a7:7 grade transition and constructed in accordance with the Miami Beach Restoration Policy. The limit of construction will be determined by the 7:1 grade transition. !6 Work is in City Right-of-Way only with the exception of Driveway Transitions and "Back-to-Front" water service installations. All Private Property access agreements will be negotiated through the City. 77 With the lowest grate elevation at2.7 NAVD, no Black Base is expected or included in GMP. 18 The Work Definition associated with CIP's October L2,2075 directive is complete with concepts presented in Lanzo's RFI-034 (Private Property Harmonization), RFI-035 (Private Drainage Accommodation), & Savino-Miller's November 3 E-Mail (Remove / Replace 225 Trees). 19 Restoration approach between Stormwater lnstallation Phase and Roadway Construction from "Temporary Asphalt" to "Limerock Base" only (Maximum 60 Days). Temporary access on Roadbase. West Palm lsland is the exception. 321 "Attachment B" City of Miami Beach Palm and Hibiscus lslands Draft Guaranteed Maximum Price (GMP) (Phase 2) Assumptions, Exceptions, and Clarifications PROJECT:Neighborhood 13, Palm lsland & Hibiscus lsland COMPANY NAME:Lanzo Construction Co. lnc., Florida 20 Modified Work Zone Phasing to enable work concurrently on both sides of each island (opposite sides of Fountain Street). Allows 4 work zones in each work definition (i.e., Water installation on Palm lsland - Zones 1 & 3, Hibiscus lsland-Zonesl&3). 2L L9 Month Work Schedule. 18 month work to Substantial, 30-Days to Final 322 a $licheel Bone Frctu Sont To: Cc sublect Tome1& Ma* <MarkTomczyk@miunibeachfl.gov> Wedrrcdry Septernber0S,2Al4 5:47 PM Michael Bone Ccma Mrrh Srnchea Olga RE Palm and Hlblscus Contract Rerriew Mlke, See our responses in red.. 1. Artlcle 4 Compensauon, paragraph r1.1. 'DeSn Bullders Fee" 5r5 of cost of the wo*. Where was this fee amount derfued from? The RKI documents had thls space blank ard it was reasoneble b expect the fte to be negotlated . lt ls aur posltlon this fee ls aot adequaP compensadon lor a prolect wtth tlu rls* lmolved ond ft would not b prudent to negodote thls undl o&er parc of the Confroct hme been clorlfied. See rcsponxs belw lor equetted clarlflcodotr 2. Article 5, Payment. tt ls undear as to whether payment will be made from an appnovd schedule of values, that reflect the apprwed GMP or by submltted backup for reimbursement plus a fee. 5.3.3, uses the term 'actual GMP" and GMP ln the same paratraph. 53.5, states, '3) back'up documentatlon fur each pay item bllled". 5.6.2, states, na flnal accounthq for the GMP". tf.4 Con of the Wott states nThe Cost of the wort shall mean cosB reasonabfu and actually lncuned by the Deslgn Bullder ln the proper perfurmance of the Work and Serukes.' 4.1O Refers to audlt of actual costs. PIease clarlfy the procedure for paymem. PoymenBwlllfu procesedfmm *hedule $whtr*,, $ presented ln the negotld&dGMPas determlnedfrwt octual sua. contactor oN suppller Mdlng. 3.5A.2, Does notallor payment tor sbr€d material. 4.5.3, Does not relmburce us for cost of capital used in thc pcrformrnce of the work. ls lt th€ antent of thls contEct fur the cost of capital used to be part ofthe Contracto/s fee? The Clty wlll not Wy lo? starcd motedob or equlpment 4, 6.L, For Design SeMces Contemphted ln Phuse l, 150 cahndar days are in iine wlth the orlgXnal DCP, but doer not r€flect dranges for addltlonal rcvlewtmes forthe cfty as rcquested forthe orlglnalbase DCP. We hwe dcurmined thc W does not need oddldonal r*iwt dme therefore the 750 alendar don wlll be owptable. 5.7.5,16.7,"0es19n Builder PartlcipaUon", requlr$ the Design Builderto perform not lessthan 2596 of the wort wlth tts own organlzatlon. How b the cost determtned fior this work? Does the Ccntractor perficrm this uork at arrent unE prlces as establlshed by recent work ln the area, negotlated labor, materlal and equipmem plts a fte, or cost of the work, as ldentfieci 323 alseiuhere in the contract? How ls the fee detemtned fur this work? Percentage of workcompleted as deplcted on the negotlotcd GMp 6.4,7, nout of Scope Serulces, l.Z!,1'il,.Notlce of potenuat Claim,,7.5.l, uUnforesecn Condttlonf, and 7 .19, Changed or Addhtonal Wo*,. contemptate the possibility of addtgona! worlc Thls contrect doesn't have a sectlon that oudlnes how to aost addltlcna! work and the definltlons for what ls allowed and the determlnatton of the Contractors Fee, and what amount is appllcable to dlffurent sttratlons. ts the Contracto/s Fee, as ldenrified elsewhere in dlls Contract, meam b be thc same for Additional Work? We thlnl that a seEuon shoutd be added to coverthls sltuation. The Clty doEs not ontldoote any dnnge orderc u additlonat work. tf odditlonal wa,* ts rquested by tte Cyfl a separoteqmendment thot spedfically towts the scqe wtll fu negottoted. Frcm: Mich ael Bone [ma llto:MldraelB @ La nro.o rgl Sent Tuesday, Septembe r 02, ZOL4 g:55 AM To:Tomczylq Mark Sublecu Palm ard HlblsansContract ReyleYr, Mark, Here are my cornments Mike 324 Benitez E -.clFrfrEDpue.c^Ecotrtmffil^rrDAilt8qs BOOr CoieiWey . 16il1r1,ffiJJl31isIndcpendentAuditors'Rryort aos.zer.s-sae . :nnrfjl::X To ahe Board of Dirrston Lanzo Otoup Deerfi cld Bcaclf Florirta Rqor, on the Conblncd Flwnclol Stoircmanfr Wc havo audlbd rhe acoompanlng combined linanciat $atcmGnts of Lanzo $rorrp (itre ,'Gmupr), whiah comprise ttr combincd bElansc shact as of Dcccmbcr 3l,ml4,rrd thc neldcd comblncd statsmffts of income, cquity, and castr flows frr the yoar ftcm cnde4 and thc rclaEd notes to tho combirrcd finsrcial staterncnts. Monat wnti Rapondltltty Jar the Comilned Flnarrdol Srd'lelrllelrifr Mmagerncnt is responsiblo for thc prcparation arrd falr prcscrtEtion of theso sombincd financial st3trmcn6 in accordance with acooundng prinoipler goneratly acccptcd ln the United Starcs of AmericE thls tnctudcs the dcsigr, irnplcmenution, and maintcnancc of intsrral cqrfol rclevant tro the praparation and hir prerentation of combined ftnanciat s16tffnsnts ftat arc free from mUcrial rnisstaenaer4 whcthsr duc to fnud or Gmrr. Audlun'Rapowlbllly Our rcrpoosibility is m expEss an opinioo on lhcso combincd financial suemcnts based on our audil. We cglrducEd our audit in accordasoc wittr auditing standordr generally aacoptod in the Unitod Sules of America. Thosc crarda& rcqulrc *rat wu plan and pcrfurm 6e audit to obtain rcasonablc alsurancc about whethcr dre comblnod ftnanclal rtatsmonE are frec from mEtcrlel mlsctatemefl. An audit involves porfiormlng pmcedults to obtain audit evldcnce about the smoutl! and dlsclosurcs in the comblnod finansial stattmeds.'Iho procedurcs sclocted depemd on the ar.ditors'Judgmont, inctuding tho asscssmqnt of trc risb ofm66glal misstaEmcol of the cornbincd financial stEElrqnBt wlrther due io fraud or oror. ln maldng those risk asscssmcnts, pre udltor conEldsrl intarnal contol rtlevant to &c cltdtyi praparation and fair preuonEtion of thc comblacd ffoanclat r6bmang in order to dqiSB audit poccdrrcs tlu arc approprialc in the ctrcum.*anccs, but not for fic purposc of exprtssing an opinio,n on the oftstivcness of tho cntlty& intemal sontrol. Aocrdingly, we apmss no sudl opinion. An audit also inolrrdes "rAu"ting tto appmprlatcnar of accouodng poliCies rscd ard tfie rcasooablcacca of significrrt accounf ng estimarr msdo by managcnrcng as null as waluating the overall ptscntation of ttre comblned Erunsial Jtatcmcn8, Wc believo that the audit evldence we havc obtaincd is sufficlent ard appmpdrtc to pmvldc a basis fu ogr audlt opinion. @tnlon ln ou opinlon, thc smtbilrcd finoncirl statcmcntr rcfcrrcd m abovc prmEnt fahly, in att matcrial Gpcctc, tlre oombincd finmci8l Pochion of Lsnzo Group ar of Decembcr 31, 2014, !d itc rssults of iE mrnbined opcratioru srd lE comblned msh florv: ftr thc ),ear tficn sndsd ln mordanse wlth mcouriting principlcs gunaalty acccptod in the Unihd SEtcc ofAnsdas. Misrxl, Florlde March 23.20t5 I Am.rlo.|r ln titub ot OPA! Floddr lnltltutcd cPAr Consttucuon Flnrndel ltamgrmcnt Asodetlon 325 r-A?.rzoc8otrP COMBINED STATEME}.IT OF INCOME Yesr En&d Dec€urbEr3l, 2014 (Expressed h Utritd Starcs Do[ars) Rcrrcnucs: ComactreyEnues mnred Sal$ aDdttatat incme Total rarcous: Cost ofrevenue: Coat ofrevenues €alned Co$ofgmds sold Toht ooct ofrcvemps: Gocs pmllt bcforc idircct cosu hdfueotcGts Eof sllocared boontacB C.rocs pmfrt fusd ard Edndrdstratiw e.rp€Dsel Irmme &om operations O&cr (epeosu) iucoar: Otherircomc Inter€st and dividod incoue Provisiqr for bad deh (Noc - 3) Imercst Gxpcnse Toul o&crelpcnses Lncono bcfrre inconrc taxes Plovisioo fur incolne tares Nots - 16) Nctimmre lar: Nct ircome anributable to nonoonnrllling inrrur (Nolc - 24) Nstimesttibutablc o the Gmup Ceo comprchcnsivs i,-rcorr:E: Cash iiorv ircQes: (hia oo lurup conlrok Ohcr conprheruive furcour: Comprebercive imrno 42"659,1180 633.78L/ 432e3,261 {njf 13,012,939 861,933 / 12,1sr,006 /ar, -- 7,40g,lgg- 4,741,A7 15,123 t09,673 (1,792,650) , , Pzl,lx4) e.58t-898)# \tsz,!R9 .-. 604,838) -g,_r&u!L (86,e18) . f 1,76t*53_ s 55,3I4,%6 9gl,x34 56,306J00 - t 8.t1o / lg,Eg4 19.884 $ 1.781337 -TDc acconpaaying notat arl ul irtegrsl prrt of ftoso oombined fiDancinl s66etrts. tafrtuE Benitez S Company crs, 326 j z Eo o o 26- :oE= p Pc Y o; E a EI € o Eb d { =,E E EPo= I: + ;3ooBE 5E <e It Ut 6u PiEJ Eg tr< lt <-! N L o zz z a + ++i9+i+{*PP i--i__-__z_'z,9xxt :ii5E z-z-----z-xxl;i :r3i ".EI:: a ! l ! ? rEEie + 6 + 6 { q $ 6 i fi 6 fi 6:: + r + ? ?: r ? r r q r s 6 6 6 6 6 $ E s + e €HHH t f * i i a E i3i: : i : : i i i d $ t : i = : i = i i i : : i E E t a a 68H66 6 i 6 6;6 6 6 6 6 6 fi 6 6 6 6 6 6 6 6 $ 6 6 6 6 6 6 fi 6 6 6 6 6:6 6 * =!EEl$ ! s s s ! i i s g "r 5 i i ! g g s s s ! -: .E -: -5 -: i i -: s i s s a e : " ; : : EEEIII i i i I E E E H; e::.8 i i i i ";3:;;::3 3 i 3: r e: E 3 E EEEHI*I 9'FFFFFSEEEFSEP SEe oooooooo s@@oooo@o@6 E EA il ugirpggggigarBEBg*igggtaiiigigssiggEis gG" E B : s B ! : e E E : e x N R s E I ; ; E : E E g 3 E g E o u = . e o i e r e EffiIn E E E E E E E E E E E E E E E E E n n n E E E E E E E E n n E E n n E n n n ooooooooaoo6telrooo*@@ iI a ),: I Z z 3. l I 327 J z q E ! o a Eo o! o 4; :o dI gr oi6'AEs s,:,* ii Id I Bo .: ? a 2 i € o II u .E E EY €To= l: + 1B =:EE <c II Ut tu 8d'EJ E3 E< il II N E llEEi .J, -l- -!- :it 5ot$jsti [l,I o:::: D..E--&-t-.813333I; ;;; iI--E-'-i'-I'-'rg S 4 4 ild--d-,6--d. -ts ira su i 99r6-'ei-6'-t--E:::!! ooo60 3llss ig"s--'s'Ur6 6 d 6 3 to o o o o i9_.9.e..9.9 irrrgr 6 d aa442<?, ;;a; E .r_G +di-8 t,!...!. ]:: ?x -*i**9 :6d I r EIZ E= :d - d..... --.-- - -:-------g-----dr-6--d..f..-....., + oio o oooo io o o o oio o o o o'o o o o oio r d. d. d- -d - -d:d--d --d- -d--d:d--a--d--d -dr d I ?E l5 a ?E)E e a :t ) BI zzzzzoo rro+o{i ooooooozzzzzoo,4,,56d,46d oooo606 oooo606 :g tSE 6 i:.s .g: ^98 E-pap: ;8: 4E d 6 t58" r!3E6*x5*E3i:6e.E 3:*EEEaE . c C o o_.i.q,EEtrtrq:EESA.AHEooaooLL ddddddoUUUUUUUooooooo A 2 a o I 99P99::e@6 L t o 3 r 9 3 r:4 ++44++4+iI RSeN&:83P r:t:::::; T 22 O O O O O; 6::dddd+6 6NN O O O O N N O 66 0 0 oooo o oooo E - _g E;a !d = -o* 6 :9E ;g+^ F#i:EC:fi EE! ! 9 9; = '-i $3ddEE bbea 9 E E a 6,oo!;:.g-sd'E9'g'gFC;i<*H!EE34.9::.=oaaq=::--;o7:+r-d:d6dd=,r,riiE E3------8 -qEEdEndnntt=i:zzzzzzzzzzi ,o o o o o o o o o o g- 96 o 6 AA o 3 6 r r r:6 6 6 o r r i.1,!,1;,!il333 3 s S S S3333q q 3 3 3 3E 8.16 d,4,6 d d d d d d d d 6.6 d <A 6 6 d d p6 o.T';: ; ;: : : : : T : : : : : : : : : : DO O O O O O O O 6 6 6 0 0 6 0 6clo o o o o o o o o o o o o o o o o o o o,td a d d d d d d 6 d d d d d d d 6 d 6 d@ooooooo oo60 PN.NN@NN RRRR RR"* . EpE - iE E, .; g Ed As *.-i F&eE IEpu E#ps:s"pEE.;tBE e€ .16-9EbF6-5btr=.x= r= [jFz3 6:u656rE c e= F Y ts C::-qd E * E E: E E= -s -gi E ."EEdJlIiiiCEFEEHEEF:HgEefieioooua<aL600{[@oocoEs aaaBaaaaaaaaaSSaaaaa 'ii $E H H e e E E a E E E E E E E E E E E E)l@ a a a @ a a a a @ a a a a a a a a a a 328 I J z6 j o o o 9E,Jf z- 3E cI .q c ,: :Q a EIo YI 9 xd E. ,q_-5_ c rt--a--t-'.5-is4-E-1A--d-il :fr6[t-i e- e 6 -q-'T-6-.i' :AA:O E$[Eg ;-';-;--;-; t:s tE; $:[[j rdrtodrt o_ _d- 6_ o_ _d alaaa -o'- - ri- -o- - o_- -ri o_-o_o_o-'o -a-_!:--!---1,-!!aa!ta o__o-E_o__o -4. -!:-.t_-l_-t-!ttlr! i6 " .t .,r .\ i-{-..--r..9-.r ;I F_.!..!_.9--9 i3NN..' -- ,-E-. -: : i: h h c u 9r9 9I9 gre !, 2 : c_ :8 t5 DOI :.9 )d p a :i l : o66@iE!las!iiijalAdiddad"!dd-NN-ooo ooooooooooolooooooooooSdddd6ddddc5 NO6@N@*NooF oooo6006006 oooo .q I =,e !=.EE+ Ei IE iESE;; ;o5t-EEoEEg Z2EdlE99Hsts$.E q E ; E ii d x "o :'^E#i*gi!Eg;:Eic*3dtr#9d33,: ,5n3nn- aa@@@aa@aaa oooooooooooaa@aaa@@@46 !9999o@@ @ooo6@@6 6,i i l a i l a i a a:::; r;:;;:;;i::::;:33333333333333338ss15SsssisSsPl a !, !6.i d d A ci o o o c5 d, d d c6 .i,6,i,i.i $.f .f ai J ai i N 6 3 PQAA99A@ @@@oo@66FF-:===:l6 6,i 6,i 3 6 6 6 66 0 6 6 6 6 6 o *. ii r i E i i i an.613 3 E 3 3 3 3 3 8 3 3 3 8 8 3 3 3 3 S S s q q s { s s S s X Xld d d d,4,6 d d d dd d d 66 d d d d d d 6 d d,3 d d 6 d 4.doooNNoo to606*60@,N - d N N - @ N o o O o t o o 'ili rf , E* $i a ii Ei Ar * eI EE *"\ !Ee E^ ii-c$gn ErEE +€ss:=ifE"*E ,t#; f E"pSti E$eE E E >96 btr>.! E E r s i: ; : :gE =F* r$l i * E; E ;}E,E$$i $sg!EsE!!Eir!!gEsrsgEEEBgEgg gg!!!E q o qo oooo ooo o ooooo ooo dd oT E E E G d E E E g E T T E E d d E T d E E d E E E E E E T'i ao o o o o o o o o o o {E E E E E 3 E 3 3 E 3 E E E E E E E E E 3 3 3 3 E E E E E E E *E E V E E E E E E E E t G t E d E d e E E e E E E G E G G G E o*? !! I =: E d 3 E E &s EO o= I:{ sBoo}E EE <E II Uts iu J6 8',d,E]9q E< II 329 330 I z tod ! o 9E 9ii a.E;o OE -Ei ii N liH N ti3 A.c ilo N I it:9":"U!N N N I lri PsI::itr N _ --- _i_li:Y:I::;rl N dl @-9-qN '^r-5E tit J JT;:!-oo EI L 3 Y 9 ! o !! =: E I..I _t ;'i E 1a:i!': sso.4'r'i; iI>>g<":::11 6@@@9 .<-:-t_t--t iIi;;: $$+ i!rs; j'.-6*.s E ll,l r r $$"ig ia+isi friEi 1li,i,ir ---- -------9 +*:E lI i; g'P'-.''----'-It =--S---'-----'-6d igPui,d,d-,4 :...-.._.-.. d t E :E! &s €!o= l: { 13or=:EE <d It Uts 6udE 8e EE6;E< il oo9 I <g NNN ii f, 6 -qf- I :!l;:i iEs$ ==ss+ *d6o5dO =PeiS E{E )d , P 9 9 9 9E: I I e 9 9 e''Nee9 9 9 P g oe I 9 @ 9P I 9 Ij j s s E st s * s i + E $F + i i p $ $ i i g 5 i I $ $ ! sJ 6 + d, ci, 60 - : d + Fl di6 d d d d o ts dd + d d "L"l d J 6oF{oo *oooFoN-NFN .: t:,.1I 9e e I 8PP P 9 9 9 s 9e ee e e e999 e e 9 pP e P 9I I I I I ll r i i i i I I I I r I I I {ar I li *a A ^.s E s s s Is s s s s s outo-€8"43€E f, E Es : Ix i x Id d6d +6ob6 o5d6d J*il. t Nr:*d.AAdaaa3an6=-NNN ONNft O60OF'F;;d; oo6ioooro6NN 'r'l i N o o ts NN o o oF-@NNNNP 'I NOOhdNOOo --ONNNN6 t) .! o::?+ir'oo u; !; ::l ; ;, @ a c.9E r :!E. ,E E ,PSE o o o ;/i c.e .e .! E.- it+I t -: E;E? t6db i{o a a s-9o itrrE E ! gitgd tE€, 989 -, 9H9 ". 9lg €s€e *i€E = E s E c E E-6 5 e = E 6 6;6: g g I fieF$E sifisi$r e€*sF!i €r{{ es8gi-ekt* @l te:t* 6.t ie:t4 :E:E 6gg,Ei!3EE #S!e3!E 8,8!€3tE p8p,3 #frfr8 3 ? 3 3 R ie R 3 3 3I R se R 3 3 3 8 R Eo O 6 6 o do 6 6 d 6 6 6 do d 6 6 d - b Eo o - 6 = = B B =',= = B B B i B il i B = = r ='iF E E ts €i i = =6 !* r < i6 6 6 Ea a a 6 :a 6 6 6N N N N N fi N N N N N N N fi N N N N N N N tll F F ts ts t@ a a a --N lttl ONN{' e999998-oo99Fi I 1.5 o o A.:: I 6, A. Aejjjaifi::;e33:.i6-qiddi.ri-6odo o Ne 999999o.ooPPP. I I q q {q=: - L l 'oEoaoa9ggliiiggg6d6{o5d!5d6606d4 ONN. oosN@@ooo ll,it ooN6sL(6P o6W ooNorNNo@668 ooesg, goo.a_ o d>d P -E Pt gEo; ; .g;oiE.ETE{ E ETEd,qAbFEr: .qAb-H>:a9P5E :l9p6s.q.;v==xa;g==c9,g8EEE EETEEEUOJ:JF U@J::F So o o o o o Silg E E E E E EE E g g g E,:EEEETG..dEEEEElo o o o o o Io o o o o osnnnnrlsilNNNftN tlt',1 331 9 z od og o if,z: EP9c N6 oo *--I+3 : i >! <d5!i# @-*=ER:: !:';* =S9.sgg N. N. *=.i.:ii:lii s! -5 l* r;;iiir *.eI *!Ert I $3E E J-J;-;'{&-l'r-r-:**rri t ;l$Eio<!ds.lr !eES I illtE !It*; ;z il ii,rIlr._-_-_ __ _ _r _': *f;t6r --6_J- :i Aol ;l*ri I xNf{{:I I'OAdi6 a e X33 iai. e e q .&..t cu&s6a{9?3.' E c Ir o .zt E .E! a =E .E d 3 ,E F EP o= I: t ;BOF =EEE <tr lI Uts 6ud: PB !g tr< il s a J : 1 o g x s /,-r.:lgI Er r llllqlo= = = = > > > > ON N o o O O - N HN N O O O O O OEN 'i,, aN N o o 6 0 0 0!N ! o -E . P8i";FiE0> >: EEl=dE>36aiE;i; H* BE'-,al;?.-E8.E.! E C r! C o 6 0ado6>&di .:E E E E E e E El@ a a a a a @ @ 9N N N N N N N N l.t.fa's e i3 i"s i i$ f !8 t i s $ i s ! $ sE $$$$! ! : ! i I+.6 05+o + +dF.:.i :@d:o :dc4o ++ o @ +i o&dd.l dai +io - - e o o -N - N 6 6 - N 6 + .t 0@@@@@@6ooeo6@ENii F Fi"i"; I s I I ; ! ; i I t i i i i ! ! I i i F E E E E ! i ! ! ir| 6 d rl d F 06 + + o 6 + : cd a d 3 6 d .l d d .! d d N + * .l d d n A d * +Oo o o N N N q _ _ _ O o _ N 6 6N @ 6 o o o oN @ o o o oooelE999-- 9999e9e:9 N66@@oos Noo@@sbo ,t/ u " 8=!E .B , g {i$ ! +a-p, {s.i: s,p";i+ u =EE EE$e E .!E$E E E EE$iIITEt- "It! € :,:53 i f g,:'E-3 i 9€ *on€ f,i.E-3 A553iE_FEEg'*6f EiE 36f itE 636E436;ir[rrrrrEr=iT.i#3!!E,g#!e!,E #"i#8;S#!E!,EE EEEE&te8g ffe e e s a s IR e e B a s &3 B S B E R p e B a s E 3 E E E g I B E Ett t I 3 3 3=88 8 I 8 sfEE&E & I 3 3 3 33 E E& E E EE ;EE'iE E 5 5 5 5 i5 E E E E E rP ? ? ? ? E 5 E 5 5 E e ? ? e I I ? ? ? IIReRft eesNiN NNNjRRRR RRKsRRRR RR R R&n R p& ..,',| eoN66oo@ NNO-a o ots h 6l t,l r)i,,t)) 6 00N .-: 332 I z6 L o o .E o pf J] :.s ;o CE N o No N N cd A.d.6. iI ;I AA:Ij-!j\d6* E-.-':"F"S 6'o 9:6 ! N_€_<__q_a _-' t'tr-r-'3--s i\-obo@ri E.:; f-'u".i { ,,,' .r+9Nn:;;"- ;sJg S!S:i-E--E--i e-5 iiiIi t\ d d a x iissrr ,iil$[ii in trl !!\L!! lrSi$ !:c5.5 r;';-rilE n,6i,i,qq'3'dd 2 -4,..1..---:..jpR A. .l IIIII --- iol EENN:?t ;=: = ii A=>==ii c L o E -gI I i T .E d { i ,Pg *s EEO= t: ;B i,9E9 <tr II UE OEEU 8A,-J ET6nE< II i T 1!l ;E io a :a g I l I EFNNEtsts; -;; ts E N; -N N F ; F; +I M { ! I I * * e a i i I ; I : I + &; i * + + 9 g S + * $. e" e & & 4 4 4 d + + 6 6 d : : N .i N d d d + 4 d6 d d d a,6 i d "t .t fl .: N d d { : .j o : d F J J + I d J J ; : {o6OO66o6o;;6ROO;;;Nd6o-ti r::NNN :: Ei i: i ! i i:::::: !: ! E: N N r Fts N F :: r EE E E E::: tr >:i i Si b i'i'i -b -b i s i C g g i i i s i : : * S: ; ; : : i * s I s $ i + + + + + + * * ii : !5 6 d d 5 6 6 N d 6 06 d 6 4 4 l d 4 * + d \ 6 da a 6 6 i j .l <l .d ^: : : : d d d 6 d 6 d 6ooooooo--6oiEoooao;;NNNd NNN__d o i lo o o o o + {* o o @ o n *r 6 < o 6 i i o i n < @ rv{l NN!+ 6oit 66+i i++++ llt oNENN\!\:\N+N0NN ilNNqqqooo6NtsP - o NNNNN a E!EEEEE'Eo o .. O d,8PP9za E. E. E.*i# ci$ si# c3#tEo ;Ea ;80 *ia=.€ _igi -Agi -Eg€:E?j.ic E E€?=,fE s cE!i&c s EE35,gq E isiEg;Fs$p is:89sss$F i;:gE;ss$r isgEs$FgtF !dt5 E g T E E E E E E E E g = U,E E E E E E E E g g $ E E E E E g E g g E $ E E g E g g E g E g fi 6 26 6 6 6 6 6 6 E % 6'n 6 6 6 6 6 6 8 6 5 E t 6 B E E E 6 E A A d, ;E * ". 6 ". 6 E 6 E 6r n trN N N N N N N N N N $e e R ft ft ft ft fr R R trN N r i & [ & fi n N 5R R R R R R R R R & . i ..,,,,,,,,,, .,",,,,.,, ", ,', ,''.I -5d 333 e z 99 Eo o o 96 4;P6:o6r dL ii{ ! .D-r-lilIilIItr a E Ets lD N d d N '':-f N d !'d_6-_s_6 r l? *!. * r l? p I 1 3o .: !! =: E E A-"i -g-;9- g-=--=-sgA*>il.> > > > olf, i i d -i I o = ,E E trE 65 I: + s3OQB: EE <E II Ut OE6udE 8d,EJ 9o E< il t---'------- t--e--e--g ?* R R I"'_"___-__r'__I --: i >s': $'x '$ 5..3.=..r.>.dR"rJ ,e--g'9--p"g :t_t__o_t-t_ ;';'e;.;-E---:--9-+--i-EE>ss s 's"l 5'8trr::iEin 99999 ---E - E_--.:i--hEi:I'--9"E"e'E llll ir i jr; Nd+ ::'::l -d-6--6--6-'@ i I { { I li = = = > >l d d d d Ni t.[.; > o- -o. o..9 ?--? -?--l ::_t__o ==>=>=+= i, I : s: ig io :a ,d I a ) l ) fiEEE $EHE'-ff t-ll-'ff IgEE )ii:l orrFN Nr - F oN IE E E E E E E !E E E E E EE iE E E E E E EIE E E E i E E IE E E E ; ; E EE *ioNF-N t:r|i iroN.-N NNN ,i,h: 9 9 9&p 9 9 9 9 99"9 I 9 9 9 @ o g@ o o @ 9 9 p9p 9 9 9 9 9 9.95$$rf $f f f !!i!!icliE$iiiiEg$is$$$gi!i!d :.i +d N 6 N ; o +.rri E 6 + 6 N oa+ 6 d o : d *6r: i N ts d d 6 6I P9PP99999ePgP999 99e9999see eggP P e99 9pp ! $ $ f n $ $ $ $ f $ *s s E s j j i iE Ei.i.i.lF$$$$$$$g$s: d ,]l + : : : I + ci,'A 6 d c\ d cl o + N .i .! cl cl ci N .5 + 6 d d d 6 6 - A .l -FFec o6o-;;;;-;Fi;;===;=6oPP9E3= PPPPPSE 9PP PP9399= PPP 3T9= S 3SE S83 ::tt ' ,'i;'.' '.': ,,, i,,,, , f" 6 E s i ot B E E3 9",/,1, 9 3 I EEE.E,I,BPE ." ! ! r E ,tti EP e s ='iitE ;EflEiiF ;;s;i*E a;EEiEE iiE{EIiF iEEi 1,....Ii;EEEl!+"""" I I1.....t:; !:: lFo - f - I I l#NNo- I I t- I 334 z e od o 9E i.e ;o dL No N ::> N *iil I ::t rl :lll I .U ''E it::"r5 5'II I cxl: Nd Id itHB::[t]3 ;d'-r N !ll iI----atr il: It n-;rl ;; ';FII e"ssH 6000 -*--E--E--".9. iEd s d iE"r"3--€',] isSBl l:?.i ]o -e- e-i--I ;;lnI H:-rft;""iil jjidE ll'd I N 'E'a ilf*a rtiil RR€-. u-a---i6--6 99IE :'LBd66 c I YE 9 3o E Eg I 5I: .E c d t E ,e! &P EEo= l: t ;Boa}EEE <tr ll t €gE EU Pi'EJ 9( E< II RT ill--r-l -i:r-'i rJ T:6 >r 1N It rrr+++a 9.r Ir;0 Ai >>:f6d6Q 1- -;:+€q{ 2 ! 1 !_}E l! nOI :a )d P i a ( l r @@@@ i ! i ti ! ! E ob d 06 dN:; d oo60 I l! aa ^..rssiIIxsE:.t d 66 6:6 ir r n r oood NNN! oooN - r,r'/L' ttr'ti': 6ca ! clq !Ee ti;e-9o itr!tSi tri I 3*3 :::;sr ggg866 d"333 !o! oFo6666 3 5 3 09 R B 3a e a a o o o o F F F -d d d da@a-:6aaaF F F 16 A a A eP P I 9..P9 9 9o 6 I 9Fg I 99 I P :tr9 I I ! \ N ts!9 9 9 * *lsgg$! ilJ i J i I $s"$8ss}^s-t !iE I I ! s i'i1E E E ! !+d6a 6ci +Nsb sb dd,Ad.idr6; dddo&6o6 :dd+6d6dc5 6oNoT9iNN-; ;66O; -NOO666= =- 6- '.,,i9999 e99e999oo..P99999 9999PP!!\\99Pe e^ $g$$$$i$i i r i i i ! tsss$$$sn8 I E E E i i8E E I I !i ts * d d 4 !r *.+ + { + ; d 6 ,( N .l + .i ..5 6 d (t.i .l + .! .5 ,A d d d d 6 6 d-NNr{ F_NN __Fo -_N6O Q66oo@op=Ea66ooO @6@O o66oNNoooFFFooi666 !//./l tltl' NN N ' ! 6 O F **., 33n-'..| ? E E iit.t Ei o.= ".Eg gc g; g;3 s- 83s- AEa- EEc_ ,:Eegs ,:€tfl*'= 'i?t!'=,€tg.g5. n;;;*EeE ;;?*i*E igEE{*8 €=**,** i?eo* #"EE!EE #E!r{r,E s#!e{r,E s$!EiE.t" $3gE# oqaaae oooaoao ooooooo E g E E g E ilE E g E E E Egg E g g E E EEHE E E E E E8E HP E EEET EE E EE E EE T CtrCtr GEEEtr E EEEdEE ETLd ddi N8EE EE8 .,8 8 88 8 88 .iEEEF F RF iFE EE E E F IF EFFFn & n r r r sN N N N N N N trfr & ft ft ft ft ft in N fi N N N N iR R R R R oo@dooo6-o@EeepN o@ooNr 335 I z 4 o6 o o e-69i 4; :od! dI tri N 'o__bzz iD Nd ll ftil:,4?t (+il i.::r:;-::-[= AA il iil ii a-'d;'a-'E-E i;; t:-i+ E t i>1t EE[!; = E 6 6J> =->-=-=--:dc5-:o iEIII ii i,!il .;ri t f*:i!L:--------a ! l^i--------s-N ,i::;? ;B;{ E t 'r"t -o--*--E **€*i EE5E"EEs*:5 .E.J-.<-d--:- +i!N [pr { cE'it E;:'.'-[*]: ::::q; .ati=:r: :;-';';"#'p 5E-s 5 8SN5d,r4iiH6 c I I o z !! I i: E d i = ,Pq #e €Eo= t: t aii9E9 <E il Ut tu!:Pd,EJ EEduE< II I) ) :Il :_e iE Do: iE )3 s t ) :!:5::f !EEEf n6@@@LLN ! !E! !! Eii i F$EEEEili i i s !I II i ! ! ! ! iN e e. + i { d d d + : ; d 6.idd 6.i 6 d x ci 6 i + o F :.5 do- F N r - N o o N d - 606660 tsLLELE N& -: - !; ! N Nt L t t A r:: r: i l_!5 f 5 f f !gf +iddddda56xd,*el,; ,tl'l ! ! ! r i r I i-5s5=5i5-,++_6it?- - -i{{060606*cl;;d*.5Oo o o o O - O o o o 6o 066@O@6ONr@O@ li, fl it frN N 6 O @ N bN oNN6O@N6fr ,itt, .E oo I . ?s ;Ei,a ii E.g=f J€ E >36;EE; oE;;!tFcEc$E ;#S.r;SJ&!5,i # oooooo B8I I8 8 8 8 8 8 E N8LE E E T G T T d G E LEla a a @ @ @ @ A A @ .:@td d d c c c c o I o t[ &e I r n n n n r n r xN $ i ! ! i E s "iEtt"r"r!$98i s t t a ! s $ n $ $ i s i !+ 6 6 l t + + 6 d N A +:6 d d.rAd,.i d.l d 6 *.i 6 A +.6 {,! d,n1.- - - N o 6 N o ; ; d o o N d @N--Oooo - e O t gN o O 6 O 6 6 6 6 6 6 d d 6 6 E =r " E*rf, if g. s € E*E ; EE i_3 5_.&,E _E Fi8 E _5go8,xkoid aoia oH.hi =Aa sE*;saEEEtE FsEI sE,,-s3iEs s*E€ EgggEEEEEEE;EE}e H3}8fi EEEEE;EEii s E E E E E E E s E E E E E E e EE E s H E g E E E g E E g g 3 HEFH HtrFHHFFHH H H tr}HHFf HHFHf FH H H FF&@ o @ @ o @ @N N N N N N N N N N N N N N N N dlN N N N N N N N N N N N N N N NOo66F Nooo6r E ,,,'.4 336 337 Exhibii B 6 Stant*c 21301 Powerline Road, Suite 311 Boca Raton, FL 33433 Tel: (56'l) 487-3379 Fax: (561) 487-3466 November 25,2015 Olga Sanchez, E.1., LEED AP Capital Projects Coordinator CAPITAL IMPROVEMENT PROJECTS OFFICE 1700 Convention Center Drive Miami Beach, FL 33139 Re:Palm and Hibiscus Neighborhood lmprovements City of Miami Beach, Florida 90% GMP Proposal Dear Ms. Sanchez: Please note that Stantec Consulting has worked closely with staff to review and negotiate the GMP Proposal documentation from Lanzo Construction in our capacity as the Design Criteria Professional. The most recent proposal is dated November 2}th, 2015 with a gross bottom line price of $37,325,582.44. Please accept this letter as an evaluation of the GMP and recommendation to the City for further action. ln evaluating the cost proposal, our primary focus of attention is on the unit rates applied to the elements being constructed. ln our experience, the unit rates developed on this project are generally higher than typical in the South Florida market. We understand that the sensitive nature of working in the island neighborhoods and the tight confines of the right-of-way will result in a cost premium above and beyond the unit rates applied to projects in a more typical environment. Even so, the unit prices seem higher than warranted. The Contractor has provided a substantial amount of backup to substantiate these unit rates. The backup provides a complex combination of personnel salary, burden, overtime and crew configurations combined with equipment and operating expenses. All of this cost is applied at production rates developed for each bid item. While this information provides the reasoning behind the unit rates, it ultimately is based on what the Contractor inputs into the program. Whether the items can be performed in less time or with smaller crews or less equipment is ultimately an arbitrary determination of the Contractor. At the end of it all, this information is helpful in understanding the Contractor's approach but it is actually immaterial to the City. The unit rates are the ultimate determination of whether the pricing is reasonable. ln an open and competitive environment, we feel that the City could get a more cost effective project. However, the City of Miami Beach is in a challenging market for bidding projects. ln recent history, projects of this nature have not attracted a substantial number of bidders with the most recent projects only receiving two bids. Since Lanzo Construction has been one of the bidders in some of those cases, the concern is that the City may not get enough bids to ensure a competitive outcome. Design with comrnunity in mind 338 Stantec November 25,2015 Page 2 of 2 It is our opinion that the City should continue to negotiate with Lanzo Construction in order to lower the currently tendered GMP. Considering the construction marketplace that the City is facing, we recommend that the negotiation should proceed with a target goal GMP of $34.5 million dollars. lf you have any questions, please feel free to contact me at any time. Sincerely, STANTEC CONSULTING SERVICES INC. Jeffrey Crews, P.E., LEED AP Senior Associate V121 56\active\21 56122s8\correspondence\GMP Recomend Draft .docx 339 OWNER: PALM ISLAND & HIBISCUS ISLAND NEIGHBORHOOD IMPROVEMENT PROJECTS MIAMI BEACH, FLORIDA PREPARED FOR: Capital Projects Coordinator to the City Manager 777 LTrh Street, Suite 300 Miami Beach, Florida 33139 PREPARED BY: RIBU.S,f,SffiT RrB U.S.COST 11900 Biscayne Boulevard Suite 620 North Miami, Florida 33181 a 340 II ilr IV City of N,{iafti Seaih I Palnt & Hibiscu: isiands Neighborhood -":ll.cvement Projeal * fu11*r:ri 3each, Fiorloa TABLE OF CCIiITINTS Ixec utive Su n": :'r: a ry S*sis of Estimate Palx & Hibiscus l*lands Sumrnary & Markup Report Estimate Detail Repcrt 341 RIB U,5, C*sa was tasked with providinga9Oo/o construction cost estimate, utilizing the 90% plans and specifications, provided by the City Of Miami Beach. This project includes the construction of new water distribution and storm drainage systems, roadway paving and curbs, driveway restoration and demolition of the existing. Florida Power & Light, Atlantic Broadband s, AT&T systems will be modified on Hibiscus lsland. The street lighting systems will be modified on both Palm and Hibiscus lslands. Work is assumed to be performed in 8 hour shifts, during normal business hours, Monday thru Friday. The estimate also assumes that special care will have to be given for maintaining the residents access to their properties at all times. The estimate assumes the project will be constructed under a single general contract, with concurrent construction occurring on both islands. The cost estimate has been priced for construction by a site work contractor utilizing su bcontractors. City of Miami Beach I Paln & Hibisc,js l:ia:':ds FJ*ig:rclrhood irnprovement Prolect- lvliami 3aach, Filrica RIBLJ.S.ffiffiffiK Executive Cost Summary Base Bid: Polm & Hibiscus lslonds Neighborhood lmprovement Project GenerolConditions ----------------S 2,048,652 Polm lslond --------------- S L4,943,692 Hibiscus lslond ------- S 14,016,596 Totol ------ S 31,008,940 342 *sr:**s:r PROJECT INFORMATION Designer Estimator Owner Project Location Date of Report Estimate Class/Methodology Processing Software Work Breakdown Structure (WBS) Project Number Basis of Pricing Method of Measurement Currency PROJECT SCOPE Design Mission Building Type Roof Type Building Utilization Number of Buildings Demolition Hazardous Materials Site Work DATA INCLUSIONS Drawings Design Analysis Site Visits Attended Meetings Attended Discussions Previous Estimating Comments Trench shoring Traffic controls 90%Plan N/A No No No N/A Temporary dewatering The design build contracto/s quantities were utilized for water service connections, unsuitable soil removal and replacement, fill quantities and landscaping quantities, as these items were not RlBU"S.ffiffiffi.W TBD RIB U.S. Cost City of Miami Beach Palm & Hibiscus !slands, Miami Beach, Florida November 25,zOLs CIass 3/Concept Success Estimator@ CSI Uniformat 4999.001 Local material and installed quotes, RIB US COST, Historical Data and Estimator Judgment lmperial (US Standard) United States Dollar lmprove existing paving and utility systems within the public right of way. N/A N/A N/A N/A Pavement, curbs, storm drainage system, !andscape plants. No Not Applicable City of Miami Beach j Palm & Hlhi:cu:1:iar*s irreighS+;'hood lmprovement Project- Miami Beach, llr:rida 343 **::=Es:lt,;:,9:r EXCLUSIONS Land/Real Estate Costs Design Fees Legal and Accounting Fees Project Management Activities Owners Contingency Additiona! storm drainage requirements not defined on the drawings ESTIMATING TEAM Estimating Team Lead/Project Manager Architectu ral Estimator StructuralEstimator Civil Estimator Mechanical Estimator Electrical Estimator clearly idenfified. Permanent Utility Consumption Charges Permits and Testing Hazardous Waste Removal and Disposal Change Order Contingency 7.5%design-build fee Howard Campbell Not Applicable Not Applicable Howard Campbell Not Applicable Dennis Longarzo ESTIMATE BASIS General Conditions/Onsite Field Personnel Security and Access General Contractor Home Office Overhead Bonds and lnsurance General Contractors Risk/Profit General Contractor Quality Control Subcontractor Markup Estimate Date Construction Start Date Estimated Construction Midpoint Estimated Construction Du ration Escalation for Current Market Conditions Design /Estimating Contingency Labor Premium Sales Tax Labor Rates Labor Burdens Contracting Methodology 6.OO% o.oo% 2.so% 2.OO% 6.OO% lncluded in General Conditions Varies from L5.7 6Yo to 20.2O% November 25,2013 January 2015 July 2015 14 Months O.OOo/o o.o0% Not Applicable 7.OO% Local prevailing wage rate, Miami Beach, Florida lncluded in Labor Rates Design / Build Crtyof Mramr Feach lPalnr&Hibiscu:::landsNeighborhoodir:lro,;ementProjer:-lr,{iami Beach,Fiorida 344 RIBU"$.ffiffiffi-$. The basis of the 90% Cost Estimate was established as follows: A quantity survey was performed as detailed as possible relative to the levels of design and documentation available. Where quantities are not available, assumptions have been made based on the historical information from similar type or other projects recently estimated by RIB U.S. Cost. The basis of the pricing used reflects the probable construction costs which can be obtained in the Miami Beach, Florida area forthe schedule time period of the Project. This estimate assumes a competitive bid situation, and is an opinion of probable costs based on fair market value, and is not a prediction of the anticipated low bid. RIB U.S. Cost has no control over the cost of labor and materials, the General Contractor's or any subcontractor's method of determining price or competitive bidding and market conditions. This opinion of probable costs of construction is made on the basis of the experience, qualifications and best judgment of the Cost Estimator. RIB U.S. Cost cannot and does not guarantee that proposals, bid or actual construction costs will not vary from this or subsequent estimates RIB U.S. Cost has prepared this estimate in accordance with generally accepted cost estimating and practices and standards. City of Miami Beach I Palnr & Hli:iscrrs !:!ar-:d; i\tiglboihood lmpro,rament Project* Miami Bear!":, Fior:da 345 RIB $*j"S.ffit)ffi"fl' III. PALII': & I'IBISCUS NSLANDS SUMMARY MAXKUP REPOR? City of Miarr! Beach I Palnr & Hibiscr,: :si:nds Neighborhccd tr:':provemenl Project* &liami Beach, Florirla 346 90% Estim?1. FOR City of Miar*i **xth Palm & Hibiscus ls:3**: Na:ghborhood 1fip..!i.r.sni Project $\ nleh;.ffi.ffiffisry suMtulA3Y *==**? Total Cosl PALM ISL,AI{} ..EVIL DESCRIPTION U5 15LAN DS N I'G I-I BORIIOO D I M PROV:M INT PROJ ECT . GENERALCONDITIONS & BOND COSTS 1OOO GENERAL CONDI]IONS 1010 MOBTLTZATTON 1011 SrTr SERVTCES 101? CONSTRUCTION ADM:NISTRATION 1OT3 CPM SCHEDULING 1014 COIISTRUCTTON QUA;-ITY CO'ITROL 1015 FIrLD oFilCE ].016 IND'MNI':CATION IO17 BONDS . PALM ISLAND NEIGHBORHOOD IMPROVEMENT - DtvrsroN2-sr?=woRK - DIVISION 3. TANSSCAPING - DtvrsroN 16- LrGriTlNG I ELECTRTCAL - MAINTENANCE OT TSAFFIC . HIBISCUS ISLAND NEIGHBORHOOD IMPROVEMENT - DlvlstoN2-srTEWoRr . D]V:SION 3- LANDSCAPI'!6 - DrvrsroN 16 - LTGHTTNC / EtItTRtCAL . MAINTTINANCE OF TRAFFIC TOTAL s31,008,940 s2,048,6s2 S102,660 s90,001 S33,s28 S509,4G6 s24,s08 S4s1,6s4 $38,8e0 s204,115 S493,828 5L4,943,692 s11,938,134 s802,611 s2,107,801 S9s,145 s14,016,s96 S9,041,382 S62s,234 54,2s4,834 S9s,145 QUANTITY UNIT 1LS 1LS 1LS 1Ls 1LS 1L5 1LS 1LS 1LS 1LS 1LS 1LS 1Ls 1Ls 1Ls 1LS 1LS 1LS 1LS 1LS 1LS UNIT COST s31,008,939.74 s2,048,652.21 s102,660.15 s90,001.01 s33,s28.38 s609,45s.84 s24,508.28 s451,554.07 s38,890.44 $2@,LL5.7L s493,828.34 s14,943,691.70 s11,938,134.17 s802,611.35 s2,107,800.54 s95,14s.63 s14,016,595.84 s9,041,382.20 552s,2r4.29 94,254,833.73 s9s,14s.63 Report Daae: Wednesday, November 25, 2015 Professional Sevices Group PaBe No. 1 of 1 347 3C1: €.::*a:e rr:1 fig *Jn3i*;=i S**r* Pa!.n & H:b!scrs l.lr:,)*; l.l.;glborhood lmprovement Project {r\ nteLl.s"#ffis1" PRSJI'T MARK-UP REPORT -ALM ISLAND Mark-ups For Estimate Cost To Prime 528,540,2t1 Mark-up % s713,s0S 5L,7ss,223 Tctal Project Cost 531,008,939 {rnciuding ar r\iarr up:: 4. Home Office Overhead 6. Contractor Profit 2.Se/" 6.Otr/" Report Date: Wednesday, November 25,2A11 Pro{essional Services Group Page No. 1 of 1 348 9C,i-li :!:i:i:1ata ac3 City ef {vliss9].i *ea*; Palm & Hlbis.*r l:l*i-:d: li*ighlcrhood lmprovement Project 4{ nleH"s"ffiffisr SUMMARY RTPORT - LEVEL 1 Cost To Prime Only PALM ISLAND LEVET DESCRIPTION US ISLANDS N EIG 3 30fi I{OO} IM PROVI M I NT PROJ ECT - GENERALCONDITIONS & BOND COSTS TOOO GENERAL CONDITIONS 1O1O MOBILIZAT'ON ].0I1 SITE SERVICES 1012 CONSTRUCTION ADMINTSTRATION 1,013 CPM SCHEDULING 1O].4 CONSTRUCTION QUALITY CONTROL ].015 FIELD OFFICE 1016 INDEMNIFICATION 1017 BONDS - PALM ISLAND NEIGHBORHOOD IMPROVEMENT - DtvtsloN2-stTlwoi( . STORMWATER . UTILITYWORK. WATER & SEWER . SITEWORK (STREESCAPE IMPROVEMENTS) . DIVISION 3. LANDSCAPING . LANDSCAPE DEMOLITION . NEW LANDSCAPING - DrvrsroN 16 - LTGHTTNG / ELECTRTCAL 2220 P.t. I AG / STREET LTGHTTNG . MA:NTE'\ANCE OF TRAFFIC 2227 P.t, I MATNTENANCE OF TRAFFTC - HIBISCUS ISLAND NEIGHBORHOOD IMPROVEMENT - DrvrsroN ?.SiTtwoRr( . STORMWATER . UTILITYWORK- WATER & SEWER . SITEWORK (STREESCAPE IMPROVEMENTS} . DIVISION 3- LANDSCAPING - LANOSCAPE DEMOLITION TOTAL $28,s4o,2L1, s1,88s,ss2 594,487 S82,836 s3o,8s9 Ss60,944 s22,SS7 s41s,696 S3s,794 s187,85s s4s4,513 s13,7s3,973 S10,987,698 S6,ss7,281 S1,996,963 s2,433,4s4 s738,7L3 s132,430 s606,283 S1,939,991 S1,939,991 s87,S7L 587,s71 S12,900,686 58,32L,s61 S4,7Gs,798 S1,802,G6G S1,7s3,102 ss7s,4s7 s102,153 QUANTITY UNIT 1LS 1LS 1LS 1Ls 1Ls 1LS 1LS 1LS 1LS 1Ls 1LS 1LS 1LS 1LS 1LS 1LS 1LS 1LS 1LS 1LS 242 Ea 1LS 1LS 1LS 1LS 1LS 1LS 1LS 1LS 1LS UNIT COST 52A,s4O,ztt.4s s1,885,551.96 s94,487.02 582,8?s.72 s30,8s9.07 s560,944.17 522,s57.o9 s41s,696.34 its,794.24 sr87,865.36 5454,5L2.97 s13,753,973.03 sr0,987,698.27 s6,ss7,280.81 s1,996,963.06 s2,433,454.39 57t8,7t2.7O s132,430.16 s605,282.s4 s1,939,991.30 58,016.49 5a7,57O.76 587,57O.76 s12,900,586.46 s8,321,565.59 s4,765,798.L7 5L,802,666.26 sL,75t,102.26 s575,451.24 s102,152.86 Report Date: Wednesday, November 25. 2015 Paotessional Services Group Page No. I of 2 349 90% Estimati FOR City of Miomi Sesrh Palm & Hibisc:rs l!a3nds Neighborhood lmprov*m*nl Pro;ect 4r ntekj"s.ffiffisr SUMMARY R'3O3T. LEVEL 1 Cost To Prim* O*ly PALM ISLAND LE1/EL DESCRIPTION - NEW LANDSCAPING - DrvlsloN 16 - LTGHTTNG / ETECTRTCAL 3470 H.r. / AG / STREET LTGHTTNG . FPL . ATTSE . ABB . MAINTINANCE OF TRAFFIC 3758 P.l. / MATNTENANCE OF TRAFFTC TOTAT 5473,294 s3,916,092 52,L78,L40 S1,04s,8s7 S174,51s 5sL7,479 587,571, Sez,szr QUANTITY UNIT 1LS 1LS 260 Ea 1LS 1Ls 1LS 1L5 1LS UNIT COST s47t,294.38 s3,916,091.79 s8,?77.45 s1,045,857.41 Sr24,615.30 5sL7,479.t8 587,s70.76 587,57O.76 ReportDate: lvednesday, Novembe.25.2015 Professionai Services Group Page No. 2 of 2 350 Exhibit D ARF RIB U.S.COST T +1 786 9537817 'l 1900 Biscayne Boulevard, Ste. 620 F +1 786 9537824 Miami, FL 33181 www.uscost.com November 30, 201 5 Mark Tomczyk, P.E. Sr. Gapital Projects Coordinator CAPITAL IMPROVEMENT PROJECTS OFFICE Gity of Miami Beach 777 17 Street Suite 300, Miami Beach, FL 33139 Re: Palm & Hibiscus lslands Right-Of-Way lmprovements 90% Estimate Mark Tomczyk, RIB US Cost Estimated Construction Cost is $ 31,008,940. The 90% Cost estimate was produced utilizing in-progress drawings received on November 9, 2015. A quantity survey was performed as detailed as possible on these documents however some scope was not clearly defined. Based on a preliminary review of the documents, contractor's bid tabulation sheet and discussion with you and your staff, the design build contractor's quantities were utilized for water service connections, unsuitable soil removal and replacement, fill quantities and landscaping quantities. For example the sanitary sewer system rehabilitation were not identified on the drawings, however we have included cost in our estimate using the quantities provided on the contractor's bid tabulation sheet. We have included a market conditions adjustment in the burdened labor cost for Miami Beach, local material prices were obtained where possible. This estimate does not include land or real estate costs; relocation/moving Costs; Design Fees; 7.5% design-build fee; design permits; after hours work; legal and accounting fees; owner's contingencies of owner cost; escalation. Also excluded are any additional storm drainage requirements not defined on the drawings. As an example, per the Palm lsland Documents, we measured 11 ,064 LF of storm drain piping and 1 58 EA storm structures verses the contractor's 16,112 LF of storm drain piping and 405 EA storm structures. Howard Campbell Sr. Estimator (770)481-1618 CC: Glenn Wilcox, Patrick Pedigo, Russell McElreath, File Sincerely, 6ry"-4' 351 352