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HomeMy WebLinkAboutR-99-0834J-99-908 10/25/99 � 0i RESOLUTION N09 9 — 834 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENTS, ACCEPTING AT&T'S PROPOSAL TO SPONSOR THE AMPHITHEATER LOCATED IN MILDRED AND CLAUDE PEPPER BAYFRONT PARK ("BAYFRONT PARK"), AT A PROPOSED AMOUNT OF $400,000, PAYABLE TO THE BAYFRONT PARK MANAGEMENT TRUST IN FOUR SEMIANNUAL PAYMENTS, PLUS ADDITIONAL IN -KIND SERVICES AND INCOME, INCLUDING BUT NOT LIMITED TO SHOWS AND ONGOING ADVERTISEMENTS TO PROMOTE THE AMPHITHEATER; FURTHER AUTHORIZING THE EXECUTIVE DIRECTOR OF THE BAYFRONT PARK MANAGEMENT TRUST TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, ON BEHALF OF THE CITY OF MIAMI AND THE BAYFRONT PARK MANAGEMENT TRUST WITH AT&T FOR ITS CORPORATE SPONSORSHIP OF THE AMPHITHEATER. WHEREAS, Section 38-102 of the Code of the City of Miami, Florida, as amended (the "Code"), provides that the Bayfront Park Management Trust (the "Trust"), an agency and instrumentality of the City of Miami, shall operate the Mildred and Claude Pepper Bayfront Park ("Bayfront Park") for the purpose of ensuring maximum community utilization and enjoyment; and WHEREAS, Section 38-107 of the Code provides that the Trust shall utilize and encourage' the fullest and most active participation and cooperation of private enterprise; and WHEREAS, Section 38-112 of the Code further provides that the Trust shall actively solicit financial support from private 'CHE6q,7 CIN!!'_%T IN CITE' COMMSSIQlf MEETING OF o r T a 6 1999 Resolution No. zi9 34 10 business and other governmental agencies; and WHEREAS, the Trust issued a Request for Proposals seeking a corporate sponsor to support programs for the Bayfront Park Amphitheater; and WHEREAS, AT&T submitted the sole proposal acceptable to the Trust; and WHEREAS, under the terms of the proposal, AT&T shall pay the Trust a total of $400,000, payable in four semiannual payments, plus additional in -kind services; and WHEREAS, pursuant to the terms of the proposal, AT&T shall not be responsible for the operation of Bayfront Park or the Amphitheater, but that the Amphitheater shall be named the "AT&T Amphitheater" and said name shall be used in all promotional material, radio and television advertisements; and WHEREAS, pursuant to the terms of the proposal, AT&T shall have the right to host up to five events per year at the Amphitheater, subject to AT&T providing all incremental costs, for, including but not limited to, park staff, electrician, cleaning contractor, police and fire services, insurance and all production costs associated with said events; and WHEREAS, pursuant to the terms of the proposal, AT&T shall not have control, influence, or other editorial authority as to the type, quantity and quality of shows, productions, concerts, festivals, or other gatherings at the Amphitheater or Bayfront Park approved by the City Commission, City Manager, the Trust, or Executive Director of the Trust; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section i. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The proposal of AT&T is hereby accepted to sponsor the Amphitheater located in the Mildred and Claude Pepper Bayfront Park ("Bayfront Park',), at a proposed amount of ro $400,000, payable to the Bayfront Park Management Trust in four semiannual payments, plus additional in -kind services and income, including but not limited to shows and ongoing advertisements to promote the Amphitheater. Section 3. The Executive Director of the Bayfront Park Management Trust is hereby authorized!' to execute an agreement, in substantially the attached form, on behalf of the City of Miami and the Bayfront Park Trust with AT&T for its corporate ii The herein authorization is further subject to compliance with all requirements that may be imposed b including but not limited to those prescribedtb City Attorney, Charter and Code provisions. Y applicable City 3 - ��� 8;14 VIWI r sponsorship of the Amphitheater. Section 4. This Resolution shall become effective immediately upon .its adoption and signature of the Mayoral PASSED AND ADOPTED this 26t_h day of October, , 1999. JOE CAROLLO, MAYOR to accordance with Miami Code Sec. 2-36, since the Mayor did not indicate approval of this legislation by signing it in the designated place providod, said leg;slatic becomes effective with the elapse of ten (10) day om the date of Ccmmis regarding same, without the Mgior r 'si v to. ATTEST: Waite J. F n, ity Cleric WALTER J. FOEMAN CITY CLERK APPR D A T F M CORRECTNESS:v EJ O VI LL CI TTORNEY 3880:BSS If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was gassed and adopted. If. the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. - 4 9- 83 SPONSORSHIP AGREEMENT THIS AGREEMENT is made and entered into this day of 1999 by and between the City of Miami, Florida, a municipal corporation of the State of Florida, having an office at 444 S.W. 2nd Avenue, 10" Floor , Miami, Florida 33130 (the "City"), Bayfront Park Management Trust, an agency and instrumentality of the City having an office at 301 N. Biscayne Boulevard, Miami, Florida 33132, (the "Trust") and AT&T Communications, Inc. ("AT&T"), having an office at 9100 South Dadeland Boulevard, Suite 1410, Miami, Florida 33156(the "Sponsor"). RECITALS WHEREAS, the City is the owner of the property known as Bayfront Park (the "Park") which includes an Amphitheater (the "Amphitheater"); WHEREAS, the Trust is the agency of the City entrusted with the operations and management of the Park; WHEREAS, the City Commission, by Resolution No. 98-608, adopted on June 9, 1998, authorized the Trust to issue a Request for Proposals ("RFP") for the procurement of a naming sponsor of the Amphitheater; and WHEREAS, the Proposal submitted by the Sponsor ("Proposal") has been selected by the Trust as the most favorable proposal and is by this reference incorporated into and made a part of this Agreement; and WHEREAS, the City Commission, by Resolution No. , adopted on 1999, approved the selection of the Sponsor and authorized the City and the Trust to execute a contract, under the terms and conditions set forth herein. NOW THEREFORE, in consideration of the premises and of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties, it is agreed as follows: ARTICLE I GENERAL PURPOSE The purposes of this Agreement is to set forth the terms and conditions pursuant to which Sponsor shall have the naming rights of the Amphitheater. ARTICLE II DEFINITIONS The terms referenced below shall have the following meanings ascribed to them: "Amphitheater Mark" means any Iogo, trademark, service mark, tradename or other 009(w�`� identifications of the Amphitheater, developed by Sponsor, that incorporate a Symbol and any portion of Sponsor's marks, business name and logos. "Contract Year" means any annual period commencing on the date of full execution of this Agreement and ending 12 months thereafter. The first contract year shall commence on the date of full execution of this Agreement. "Licensed Product" means the complete line of telecommunications services and products currently offered by Sponsor or its affiliates. "Licensed Territory" means the State of Florida such that Sponsor is licensed to use statewide the Symbols of Trust and City. "Symbols" means the various emblems, logos, trade names, insignia, service marks, mascots and other artistic works belonging to and used by the Trust and/or the City to denote or identify the Trust and the City which the Sponsor is authorized to use under this Agreement for the purposes of incorporating said Symbols in the development of Amphitheater Marks. "Premiums" mean merchandise, materials, supplies or services bearing (or otherwise associated with the display of) the Amphitheater Marks, that are used, sold, distributed or furnished by Sponsor for the exclusive purpose of advertising or promoting the Licensed Products, and that bear (or are otherwise associated with the display of) one or more of the trademarks or service marks of Sponsor. Premiums are not pure packaging or advertising material. Further, in order to assure that the exclusive purpose for which Sponsor uses the Symbols is to advertise or promote Licensed Products, Premiums must be distributed in close connection with Licensed Product and not in normal retail distribution unless approved by Trust and City. ARTICLE III TERM The term of this Agreement is 2 years, commencing upon full execution hereof. Sponsor acknowledges that the City and the Trust shall have the right to solicit proposals for sponsorship of the Amphitheater in anticipation of the expiration of this Agreement. In such event, Sponsor shall have the right to submit its proposal in accordance with the solicitation. Alternatively, the parties hereto may, by mutual agreement, extend the term hereof for a maximum of 2 additional years, on such terms and conditions as may be agreed upon. ARTICLE IV NAMING RIGHTS The City and the Trust grant to the Sponsor, subject to the terms and conditions hereof, the Naming rights described in this Article IV. (a) The Sponsor shall have the right to designate the name of the Amphitheater as the AT&T Amphitheater, which name shall be reflected in all advertising, promotional, tourist 09— 8'e/'4 . related and city generated materials. Nothing herein, however, shall affect the name of the Park, Which is and shall remain the Mildred and Claude Pepper Bayfront Park. (b) Sponsor shall have the nonexclusive right and is hereby licensed to use the Symbols in conjunction with the Amphitheater by incorporating them in the Amphitheater Marks and may use them in conjunction with the advertising and promotional activities for its products and services. In this connection Sponsor shall faithfully reproduce the design and appearance of the Symbols as shown on the then -current official graphics from Trust and/or City, which shall furnish such graphics to Sponsor promptly after its request therefor. No partial Symbols or fragments thereof may be used. (c) All specific uses of the Symbols, including uses in promotions, shall be subject to the prior written approval of the Trust and the City, which shall not be unreasonable withheld or delayed. All requests for approval of proposed uses of the Symbols shall be accompanied by a sample or rendering which, to the extent possible, shall be treated as confidential by the Trust and the City. The Trust and/or the City shall provide Sponsor with all necessary instructions regarding how the Symbols (with or without associated visual elements) are to appear and be used in order to be approved. (d) The Symbols shall of be used in juxtaposition or conjunction with any other marks, other than Amphitheater Marks, unless such use has been previously approved by the Trust and the City. Despite any use of manufacturer's marks or other marks as might be allowed by Trust and City in juxtaposition or conjunction with the Symbols, Sponsor shall have no proprietary or other rights to the Symbols, except for the license specifically anted by this Agreement. Similarly, the Trust and the City acknowledged that they do no have or shall they gain, any proprietary or other rights to any Sponsor identification including any logo, trademark, service mark, or tradename, except as specifically authorized under this Agreement. Any use by the Trust or the City of the AT&T name and/or logo or any other AT&T identification shall be only with the written consent of Sponsor. (e) Sponsor shall have the exclusive right to create a mark or logo for the Amphitheater (the "Amphitheater Logo") which may incorporate one or more elements ordinarily associated with Sponsor and one or more elements ordinarily associated with the park, the City and/or Trust. The design of the mark or logo shall be subject to the approval of the City and the Trust, which approval shall not be unreasonably withheld or delayed. Sponsor shall, at its sole cost and expense, take such steps as are necessary to obtain trademark or tradename registration or otherwise protect the Amphitheater Logo and the Amphitheater Marks for any use authorized under this Agreement. (f) Sponsor shall be entitled to receive four (4) minutes of advertising per hour on the Bayfront Park marquee during the term of this Agreement, at not additional cost. The City and the Trust agree not to accept marquee advertising from any other telecommunications company excluding affiliates not directly associated with the communications industry. Sponsor shall be responsible for the all design and digitizing costs associated with placing Sponsor's logo on the marquee. 9- OtA ;r'r L (9) The Trust shall create and erect permanent signage within the Amphitheater, including the placement of the AT&T logo on the concrete header over the stage (approximately 6' by 50') and two (2) signs painted on stage wings (approximately 4 b 4 P y also create four (4) wooden signs with the AT&T too (approximately I 4 b 4 to displayed on amphitheater fencing during gated events. g (pp y y ') (h) The Trust shall require that ushers and ticket takers wear uniforms incorporating the Amphitheater Logo. The design of the uniform is subject to the approval of the Sponsor and the Trust, and the cost thereof shall be paid for by Sponsor. (i) The Trust shall create, at Sponsor's sole cost and expense, separate stationery, Press release sheets, envelopes, press kits, folders, 3 fold brochures, and p.o.s. pieces for the Amphitheater, as well as prototype ad slicks and brochure shells incorporating the Amphitheater. All materials created pursuant to this section shall be subject to the written approval of Sponsor. (i) The Trust will require that the tickets to all events in the Amphitheater, and all Programs, brochures, advertisements and correspondence regarding events at the Amphitheater include the Amphitheater Logo. W The Trust shall encourage the press and media to use the Amphitheater Logo in all advertisement and any related stories. (1) The Trust shall make available to Sponsor, at no additional cost, reasonable booth space at all City and Trust promoted events held in the Amphitheater. (m)• The Trust shall use its best efforts to provide Sponsor VIP tickets for all events at the Park. The number of tickets shall be determined on an event by event basis and shall be agreed upon by the parties. (n) The Sponsor shall be notified of and invited to attend all Trust meetings. (o) The Trust shall provide Sponsor with a calendar of all planned events at the Park at least thirty (30) days prior to each planned event. Sponsor shall have three (3) business days to indicate whether it deems the event unacceptable and therefore cover its logo. retains the right to cover Sponsor's logos in the event it deems its display eat The st to g safety issue. public The Sponsor shall have the right to use the Amphitheater two (2) times per year .for private events. Such events shall be held on mutually agreed dates on which y not scheduled to occur in the Park. It is agreed and understood �abshoother events are responsible for all costs associated with its proposed use, such as the cost of staffing, although clean-up, and ticketing staff, shall not be charged a use or similar affing, security, Amphitheater on such dates. fee for the use of the 09 - 89/4 (q) The Sponsor shall have the right to develop a program for events at the AT&T Amphitheater and shall have the right to advertise its products and services in such program. Further, the Sponsor shall have the right to develop and mail a direct mail piece to its customers inviting them to the Amphitheater and/or marketing AT&T's products and services. (r) The Sponsor shall conduct a formal opening ceremony of the renamed AT&T Amphitheater. Such opening shall be associated with a charitable fund-raising event, the details of which shall be agreed upon by the parties. (s) Sponsor shall have the right to promote its association with the Amphitheater through advertising and marketing promotions throughout the tern of this Agreement, subject to the Trust's prior written approval of said promotions, which shall not be unreasonably withheld. The Trust shall have five (5) business days after receipt of Sponsor's promotional materials and plans in which to notify Sponsor of its disapproval, otherwise, the promotional materials shall be deemed approved. (t) The Trust acknowledges that Sponsor shall not be responsible for obtaining any permits, approvals, services, and equipment in connection with the presentation of any events at the Amphitheater or the Park under this Agreement. Further, the Trust shall take, or require the user of the Amphitheater and the Park to take, all steps reasonably necessary to insure the safety of the participants, spectators, volunteers, and other workers. This provision, however, is not applicable in cases where Sponsor may use the Amphitheater or the Park to conduct its own events, in which case such matters shall be determined by the specific terms of the use agreement. ARTICLE V =k LICENSE t :r 'iy.Gui U The Trust and the City y hereb Sponsor, to S onsor, for the term of this Agreement, and Sponsor hereby accepts from the Trust and the City, the non-exclusive right to use the Symbols in its advertising, public relations, merchandising, distribution, promotion and sale of the Licensed k;£ Products in the Licensed Territory and its advertising, public relations and promotions tf undertaken in connection with the Amphitheater and the sponsorship relation with the City and/or Trust. Sponsor is hereby granted the right to refer to itself as an "Official Sponsor" of the AT&T Amphitheater and the exclusive right to refer to itself as the "Official , 7 Telecommunications Company" of the Amphitheater during the term of this Agreement. Also ,c included in this grant is the right to use the Symbols on or in conjunction with Premiums as defined above. Sponsor acknowledges and agrees that the grant of this license, and Sponsor's rights with regard thereto, are subject to Sponsor's compliance with the provisions of Article IV above, specifically Sponsor's obligations regarding the use of Symbols. ARTICLE VI CONSIDERATION In consideration of the rights herein granted to Sponsor, Sponsor agrees to pay to the Trust a �._. {�7 Sponsorship Fee in the amount of $400,000, payable as follows: (a) Fees Year 1: 100,000 payable within ten (10) business days following the execution of this Agreement and $100,000 within one hundred and eighty days (180) days following execution of this Agreement. (b) Fees Year 2: $100,000 on October 1, 2000 and $100,000 on March 1, 2001. (c) Costs: The sum of $15,000 to be applied toward the cost of development of print related materials and other costs to be paid by Sponsor under this Agreement. This payment shall be due within ten (10) business days following full execution of this Agreement. Any payment that is not made within 10 days of its due date shall bear interest at the highest rate permitted by law from the date payment was due until payment is received by the Trust. It is agreed and understood that Sponsor shall make payment only to the Trust and that no payments shall be made to the City. Any and all payments that may be required to be made to the City shall be made by Trust. Upon written request from the City and the Trust, Sponsor shall provide evidence that payments required to be made pursuant to this Agreement have been made. The Sponsor shall be liable for all applicable federal, state or other taxes or charges, if any, levied, assessed or otherwise due with respect to the payments made by Sponsor hereunder. ARTICLE VII REPRESENTATIVES Sponsor hereby designates Mr. Barry Johnson as its Technical Representative and Mr. Kenneth McNeely as its Agreement Representative. The Trust and the City designate Ira Marc Katz as their Representative. Either party may change the designation of representatives from time to time by written notice given in the manner herein. ARTICLE VIII EXCLUSIVITY The rights granted to Sponsor hereunder are exclusive to the extent that neither the Trust nor the City shall grant similar rights to any other telecommunications company during the term of this Agreement. Nothing contained herein, however, shall prohibit the use of the Park or the Amphitheater by other communication companies. The Trust hereby discloses to the Sponsor that other communications companies do sponsor events in Bayfront Park. ARTICLE IX INDEMNIFICATIONANFRINGEMENT (a) To the extent permitted by law, and subject to the provisions of Section 768,28, QJ Florida Statutes, the Trust and the City agree to indemnify and save harmless the Sponsor, its subsidiaries, affiliates, and the officers, directors, empinvees, successors and assigns of any of them (all hereinafter referred to in this clause as "AT&T") from and against claims, losses, damages, expenses, liabilities, suits, demands, or liens that arise out of or result from (i) breach of any material provision of this Agreement to be performed or observed by the Trust or the City, (ii) any injuries or death or damage to property, caused by negligence in the operation of the Amphitheater or the Park by the Trust or the City; (iii) any failure on the part of the Trust or the City to satisfy a claim for labor, equipment, materials or other obligation relating to the performance of any work by the Trust or the City hereunder. (b) The Sponsor hereby agrees to indemnif from ,and their respective oy and hold harmless the Trust and the City fficers, directors, employees, agents, successors and assigns from and against claims, losses, damages, expenses, liabilities, suits, demands, or liens that arise out of or result from (i) breach of any material provision of this Agreement to be performed or observed by the Sponsor, (ii) any injuries or death or damage to property, caused by negligence of the Sponsor in its performance under this Agreement, (iii) any claims of infringement or unfair competition by. any third parties relating to the use of the Amphitheater name, Amphitheater Marks, or Amphitheater Logo in accordance with this Agreement. (c) Each party shall notify the other promptly of any claim for which the other is responsible hereunder, and shall cooperate with the other in every reasonable way to facilitate the defense of any such claim. Termination of this Agreement shall not affect the continuing obligations of the parties as indemnitors hereunder with respect to those acts falling within the purview of the foregoing indemnities and which occurred prior to the termination of this Agreement. ARTICLE X INSURANCE (a) The Trust shall maintain at all times during the term of this Agreement, and shall cause its contractors, subcontractors and promoters who seek to hold events at the Amphitheater or the Park, to obtain during the occupancy or use of the Park of the Amphitheater, comprehensive general liability insurance policies, with carriers of recognized standing, with limits of liability of at least $1,000,000 combined single limit for personal injury and property damage for each occurrence. The Trust shall require that Sponsor be named as additional insured in all such policies.. All such insurance must be primary and required to respond and pay prior to any other available coverage. (b) The Sponsor shall obtain and maintain in effect throughout the term of this Agreement, comprehensive general liability insurance policies, with carriers of recognized standing, with limits of liability of at least One Million Dollars ($1,000,000). ARTICLE XI BROKERAGE ��� 34 H. Except as herein stated, the Sponsor, the City and the Trust warrant to each other that they have not employed or retained any person to solicit or secure this Agreement and that they have not offered to pay, paid or agreed to pay any person employed by the other party' any fee, commission percentage, brokerage fee, or gill of any kind contingent upon or resulting from the award of this Agreement. ARTICLE XII NOTICES Any notice or demand which under the terms of this Agreement or under any statute must or may be given or made by the Trust, the City or the Sponsor shall be in writing and shall be deemed given if delivered personally or by messenger, or if sent by certified mail, postage fully prepaid, addressed to the parties as follows, or to such other person as may be designated by the parties in writing, by notice given as herein required.: If to Sponsor: Mr. Kenneth P. McNeely Vice President of Law and Government Affairs Suite 7000 101 North Monroe Street Tallahassee, Florida 32301 If to the Trust: Ira Marc Katz Bayfront Park Management Trust 301 N. Biscayne Blvd Miami, Florida 33132 If to the City: City Manager 444 S.W. 2°d Avenue, 10' Floor Miami, Florida 33130 If to Trust or City, copy to: City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, Florida 33130 ARTICLE XIII END Or TERM Upon the expiration or earlier termination of this Agreement, the licenses and rights granted hereunder shall immediately terminate, and the parties hereto shall cease to use the Symbols, Amphitheater Logo and Amphitheater Marks, as permitted hereunder. The parties shall have a reasonable time, not to exceed ninety(90) days, in which to make all necessary changes to comply with the provisions hereof, including the discontinuance of the use of stationary, advertising and promotional materials then on hand. Sponsor agrees to reimburse the Trust and the City for all costs and expenses incurred in compliance with this provision. tje�_ )c;Fy v�4 ARTICLE XIV DEFAULT - TERMINATION (a) In the event that the City or the Trust breach any material term of this Agreement, and such breach continues for a period of thirty (30) days after receipt of written notice thereof from the Sponsor, Sponsor may terminate this Agreement upon: (i) giving sixty (60) days written notice to City and Trust of its exercise of the right to terminate, which shall be effective no earlier than sixty (60) days from the date of the notice; (ii). payment of all sponsorship fees through the effective date of termination; provided, however, that if payment for the entire Contract Year has already been made, the Trust shall have a period of ninety (90) days in which to reimburse to Sponsor the amount of the overpayment based on a proration of days through the effective date of termination, and (iii) payment by Sponsor to the Trust of a termination fee in the amount of One Hundred Thousand Dollars ($100,000.00). The Sponsor understands and agrees that payment of the Termination Fee shall be required in all cases regardless of the party terminating the Agreement or the reasons for termination. b) In the event that the Sponsor breaches any material term of this Agreement, or fails to pay any sums due hereunder, and such breach continues for a period of thirty (30) days after receipt of written notice thereof from the Trust or the City, then the Trust and the City, in addition to all remedies available by law, including equitable remedies, may terminate this. Agreement by giving thirty (30) days written notice to Sponsor. In such event, the Sponsor shall immediately pay to the Trust (i) the Termination Fee described in subsection (a) above, and (ii) all costs, losses and expenses incurred by the Trust or the City in removing all signs and disposing of all displays and materials containing the Amphitheater Mark, Amphitheater Log, and the cost of replacing all materials that must be discarded as a result of the termination of the Agreement. ARTICLE XV NON -COMPETITION CLAUSE During the term of this Agreement, Sponsor shall not sponsor another amphitheater in Miami - Dade or Broward County, Florida. ARTICLE XVI ASSIGNMENT The parties shall not assign any right or interest under this Agreement without the prior written consent of the other parties, which may be withheld or conditioned in the sole discretion of the parties whose consent is being sought. For purposes of this Agreement, a transfer of five percent (S%) or more of the stock of Sponsor shall constitute an assignment. Any attempted assignment in contravention of this provision shall be void and ineffective and shall constitute an event of default. e03 9. a 4 9 ARTICLE XVII AWARD OF AGREEMENT Sponsor represents and warrants to the Trust and the City that it has not employed or retained any person or company employed by the City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. ARTICLE XVIII PUBLIC RECORDS Sponsor understands that the public shall have access, at all reasonable times, to all doctunents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the public to all documents subject tv disclosure under th the provisions of this section shall applicable law. Operator's failure or refusal to comply with result in the immediate cancellation of this Agreement by the Trust. ARTICLE XIX WAIVER The failure of either party at any time to enforce any right or remedy available to it under this Agreement or otherwise with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party. ARTICLE XX COMPLIANCE WIT)ri LAWS REGULATIONS AND DIRECTIVES Sponsor understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. The Trust and the Sponsor agree to comply with and observe all applicable laws, codes and ordinances as the may be amended from time to time. Sponsor will exercise its rights under this Agreement in strict compliance with all laws of the United States and the State of Florida, and with all applicable codes, rules and regulations. Sponsor understands that the City (and where applicable, the Trust) reserves the right in its sole discretion to cancel, interrupt, or terminate any performance, event, public or private gathering upon its premises, whether or not admission has been charged; and to dismiss the audience, or ,cause the same to be dismissed; and the Sponsor hereby agrees that it will not make or allow to be made against the City or the Trust, any claim for damages to the Sponsor or other party arising out of any acts of the City, the Trust, or their respective officers, agents, or employees, in the exercise of their discretion as herein provided of ��10 ;�j U ` 4 All areas which are open to the public shall be available for use and enjoyment by the public without regard to race, color, creed, sex, age, national origin, marital stahis or handicap. ARTICLE XXI CONFLICT OF INTEREST Sponsor is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Miami -Dade County, Florida (Miami -Dade County Code, Section 2-11.1 et. seg.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will ly comply ful in all respects with the terms of said laws. Sponsor, in the performance of this Agreement, shalt be subject to the more restrictive law and/or guidelines regarding conflict of interest promulgated by federal, state or local government. ARTICLE XXII NONDISCRIMINATION Sponsor represents and warrants that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Sponsor's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Sponsor further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. ARTICLE XXIII MISCELLANEOUS PROVISIONS A. This Agreement shall be construed and enforced according to the laws of the State of Florida. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, Paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order n, conform with such laws, or if not modifiable, then same shall be deemed severable, and in either to event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. tI � - 834 E. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by property authorized representatives of the parties hereto. ARTICLE XXIV SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. ARTICLE_ XXV RELATIONSHIP Sponsor has been procured and is being engaged to provide the Services as an independent contractor, and not as an agent or employee of the Trust or the City. Accordingly, Sponsor shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Sponsor further understands that Florida Workers' Compensation benefits available to employees of the Trust of the City are not available to Sponsor, and agrees to provide workers' compensation insurance for the employees or agents of Sponsor rendering Services under this Agreement. ARTICLE XXVI REAFFIRMATION OF REPRESENTATIONS Sponsor hereby reaffirms all of the representations contained in the Solicitation Documents. ARTICLE XXVII COUNTERPARTS This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. ARTICLE XXVIII SURVIVAL OF OBLIGATION The obligations of the parties under this Agreement that by their nature would continue beyond the termination, cancellation or expiration of this Agreement. ARTICLE XXIV APPROVAL BY THE OVERSIGHT BOARD The State of Florida has appointed an Emergency financial Oversight Board (the "Oversight Board") which is empowered to review and approve all pending City of Miami contracts. As a result, contracts shall not be binding on the city until such time as they have been approved by the Oversight Board. Execution of this Agreement by the City Manager shall constitute evidence of its approval by the Oversight Board. 12 (5 0 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. Witnesses: Printed Name: Printed Name: Printed Name: Attest: Walter J. Foeman, City Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Alejandro Vilarello, City Attorney SZJ/egq Bayfront Park Management Trust By: Ira Marc Katz, Executive Director & General Manager AT&T Communication, Inc., Attest: a New Jersey corporation By: Kenneth P. McNeely Vice President, Law & Government Affairs The City of Miami, a municipal corporation of the State of Florida By: Donald H. Warshaw, City Manager APPROVED AS TO INSURANCE REQUIREMENTS: By: Mario E. Soldevilla, Administrator, Risk Management 13