Loading...
HomeMy WebLinkAboutR-88-0015J-88-39 12/30/87 RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE FOUR SEPARATE AGREEMENTS IN SUBSTANTIALLY THE FORM ATTACHED, BETWEEN THE CITY OF MIAMI AND MILLER BREWING COMPANY, INC., ANHEUSER-BUSCH, INC., KENTWOOD SPRINGS WATER, INC., AND SEA ESCAPE LIMITED, INC., RESPECTIVELY, FOR PLACING ADVERTISEMENTS IN THE ORANGE BOWL STADIUM; FURTHER AUTHORIZING THE CITY MANAGER TO MAKE PAYMENTS OF FIFTEEN PERCENT (15%) COMMISSION TO ADVERTISING AGENCIES AS REQUIRED IN SAID AGREEMENTS WITH KENTWOOD SPRINGS WATER, INC., AND SEA ESCAPE LIMITED, INC. WHEREAS, Resolution 87-13 authorized the City Manager to negotiate agreements with businesses desiring to place advertisements inside the Orange Bowl Stadium; and WHEREAS, said resolution required that each negotiated advertising agreement be subject to approval by the City Commission; and WHEREAS, the Department of Parks, Recreation and Public Facilities has negotiated separate agreements with Miller Brewing Company, Inc., Anheuser-Busch, Inc., Kentwood Spring Water, Inc., and Sea Escape Limited, Inc., for placing advertisements in the Orange Bowl Stadium; and WHEREAS, the agreements with Kentwood Springs Water, Inc., and Sea Escape Limited require the payment of a standard 15% agency commission to the advertising agencies which coordinated the negotiations for said advertisers; and WHEREAS, these four agreements will produce net operating revenues of $73,250 annually to the Orange Bowl Stadium Enterprise Fund; NOW THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is hereby authorized to execute four separate agreements, in substantially the form attached, between the City of Miami and Miller Brewing Company, Inc., CITY COMMISSION. MEETING OF, JAN 14 129185 )N No. — a Anheuser-Busch, Inc., Kentwood Spring Water, Inc., and Sea Escape Limited, Inc., respectively, for placing advertisements in the Orange Bowl Stadium. Section 2. The City Manager is hereby authorized to make payments of fifteen percent (15%) commission to advertising agencies as required in said agreements with Kentwood Spring Water, Inc., and Sea Escape Limited, Inc. PASSED AND ADOPTED this 14th day of anuary _ , 1988. VIER L. SUAR MAYOR ATTE MA HIRAI CITY CLERK PREPARED AND APPROVED BY: ROBERT F. CLARK CHIEF DEPUTY CITY ATTORNEY APPROVD/AS TO FORM AND CORRECTNESS: CIA A. DO HERTY CITY ATTORNEY -2- ADVERTISING AGREEMENT This Agreement, entered into this day of , 1987, by and between Sea Escape Limited, Inc. a for profit Florida corporation, located at 1080 Port Blvd., port of Miami, Miami, Florida 33132-2067 (305) 377-9000 (hereinafter referred to as "ADVLRTISER"), and the City of Miami, (hereinafter referred to as "CITY"), for advertising at the Miami Orange Bowl Stadium, a sports facility owned and operated by the City of Miami and located in Miami, Florida. R E C I T A L WHEREAS, the CITY hereby represents and warrants that it has the exclusive right to sell advertising space in the Orange Bowl Stadium, hereinafter referred to as the "Stadium" on the terms and conditions set forth in this Agreement; and WHLIcE;AG, this ADVLPTISH'R desires to plero certain advertising materials on advertising apace in the Stadium and the CITY desires to grant such rights to the ADVERTISER= NOW, THEREFOR:, in consideration of the mutual covenants and agreements hereinafter contained, the parties hereby agree as follows: 1. Grant of Advertising Rights CITY hereby grants ADVERTISER the right to display its advertising material during the term hereof on a four (41) foot by thirty-five (35') foot "Advertiser's Panel" located on the facia of the upper deck of the north side of the Orange Bowl Stadium directly left of center advertising panel. Also, a four (41) foot by sixteen (16') foot "Advertiser's Panel" on the facia of the upper deck of the south side of the Orange Bowl Stadium. It is understood that several advertising panels of this site, being the one provided for hereunder and that of different ,.:1 advertisers shall be located in this area. It is also under that the different advertiser's product shall not.; competitive product to the advertiser. For e�e,� cruise ship industry advertiser wil and south side upper de - I - different cruise ship industry advertiser will be permitted to advertise on the facia area of the west side upper deck areas. (b) ADVERTISER will obtain and maintain all necessary permits and approvals for the installation and display of Sea Escape Limited Panels. (c) CITY warrants that it does not now have, nor will it obtain during the term of this Agreement, any interest, direct or indirect, financial or otherwise, in any license to sell cruise ship industry sales. (d) CITY shall provide liaison personnel satisfactory to HDVLRTISER to consult with ADVERTISER in connection with the advertising rights granted herein throughout the Agreement term. (e) ADVeXTiSER shall pay any and all applicable sales tax that are incurred, or use and property taxes and special assessments relating to the sign, file all necessary returns and register, where required, with local tax authorities. 2. Representations of City (a) The CITY warrants that the University of Miami and the Orange Bowl Classic will play their regular season home games and exhibition games in the Stadium during each Contract Period Las defined in Paragraph 5 (a) hereini. (b) CITY warrants to ADVERTISER that Advertisers Panel will be displayed at all events conducted within the Stadium. 3. Advertising Copy, installation and Maintenance (a) The design, layout and content of all advertising copy provided for herein shall be subject to approval by the CITY which approvals shall not be unreasonably withheld. The use by ADVERTISER of similar copy in other sports facilities in -the United States shall be one standard establishing reasonableness. Such copy may be changed at any time, provided, however, the specifications for such changes (as well as any change 10 4he product to be advertised) shall have been approved in adv t. the CITY and all costs incident thereto borne by AdVaATI the event the CITY intends to withhold its approval of r submitted by ADVERTISER, it shall notify ADV1W;8= > intention within ten (10) days of the reC41pt of 1 (b) Fabrication and maintenance of ADVERTISER'S copy for all advertising covered by this Agreement, including changes, i shall be at the expense of the ADVERTISER. The CITY shall be responsible for installation of ADVERTISER'S Advertising Panels only. ADVERTISER shall be permitted reasonable access to the sign as necessary to accomplish the purposes expressed herein. (c) The City of Miami will guarantee to ADVERTISER that Advertiser Panel's will not be obstructed during any events in the Orange Bowl Stadium during the term of this Agreement. 4. Payment ADVERTISER shall pay the CITY for the advertising rights granted herein, the sum of twenty thousand dollars ($20,000) and applicable tax if any, which sum shall be payable as follows: Ten -thousand dollars ($10,000) upon signing and delivery of this agreement prior to December 30, 1987 and the balance of ten - thousand dollars ($10,000) due on or before April 1, 1988. Any payments in default thereof shall bear interest at the rate of eighteen (18%) percent per annum. 5. Term and Renewal of Agreement (a) The term of this Agreement shall commence as of December 30, 1987 and shall continue through December 290 1988 which shall include the entire football season and concert events. The ADVERTISER may have the option to extend the Advertising term for the years 1989 and 1990 at the same rate of compensation per this agreement. All option years to be paid in full upon signing and delivery of agreement prior to December 30th of each year. The term or extended term is herein called the "Contract Period". • (b) Delay, interruption, or diminution of the performance of this Agreement from any cause beyond the control •' ', �s of the CITY, including, without limitation, power blackout, �,r•r— state or national emergency, act of God, strike, work stOp�r picketing, damage or concerted action by any employee osl labor organization, or delays occasioned by Construetioner, not constitute a ground for cancellation. Provid ,r that, should such a delay result in ADVERTISER advertise its product at any Football Game.; Events;. �' any contract year, because the product is no longer manufactured or sold, or if any law, regulation, ordinance or ruling becomes effective which makes advertising of cruise ship industry sales unlawful as comtemplated by this Agreement, then the ADVERTISER shall be entitled to cancel this Agreement without penalty or interest for the ensuing contract year. No refund shall be applicable in any contract year as a result of ADVERTISER'S inability to display its advertising panels notwithstanding the cause of same. (c) The CITY may, within one hundred eighty (180) days from expiration of this Agreement, submit to ADVERTISER its proposal for an extension hereof. ADVERTISER shall notify CITY within thirty (30) days from receipt of said proposal whether or not it will accept same. ADVERTISER'S failure to notify CITY shall be deemed to be a rejection of said proposal, and CITY may thereafter sell said advertising to any other party or entity of its choosing without further obligation to ADVERTISER. 6. Advertising Flyer Panels Sea Escape limited will be granted the rights to provide the fixed advertising flyer panels at select locations prescribed by the City of Miami nearest the permanent concession stands. Sea escape Limited (cruise ship industry) to be granted product exclusivety in flyer panels assigned. Sea Escape Limited will also be granted the rights to provide and refill their advertising flyers for all events that ® take place in the Orange Bowl. Sea Escape will provide the materials necessary for ® installation of the Advertising flyer panels. The City of Miami will be responsible for the initial installation and normal maintenance to assure proper code requirements. 7. Termination and Default (a) In the event of a default by either `party performance of any of the terms or conditions of this A which default shall not have been remedied within..tin.1 - 4 - 1` after notice of the default has been given in writing to the defaulting party, the non -defaulting party may in addition to any other remedies which may under the circumstances be available to it, terminate this Agreement, effective immediately, upon notice of termination given in writing. Notwithstanding the above { notice and right to cure provision, no written notice of a monetary default by ADVERTISER need be given by CITY as prerequisite to declaring said default and exercising the rights ' ib) if the CITY no longer intends to use the Orange Bowl Stadium for football or concert events, for any reason including termination of University of Miami, or the Orange Bowl Committee (hereinafter "lessses"), then this Agreement may be terminated by the ADVERTISER as of the day after the season during which the last game was played at the Stadium. (c) In the event this Agreement is terminated because of the default of CITY or as a result of a lessees ceasing to - play its Football or Concert Events in the Orange Bowl Stadium on a regular basis, prior to the end of a period for which - ADVERTISER has paid the CITY, then the CITY shall make appropriate refund to ADVERTISER. The amount of any refund to ADVERTISER shall be calculated by (a) dividing the number of home games actually played in the Stadium by the Lessees during a season for which ADVERTISER has paid the CITY by the number of home games originally scheduled to be played in the Stadium by the Lessees during such season, (b) multiplying this quotient by the total payment made by ADVERTISER of such season, (c) subtracting the product so obtained from the total payment made by ADVERTISER for such season, and (d) refunding the difference to ADVERTISER. (d) Should either party default hereunder, the non - defaulting party may elect to cancel this Agreement and seek.411 applicable damages in connection therewith, or at its disci ' - the non -defaulting party may seek to specifically enfof obligations of the defaulting party for;=.tihe rermAiningE this Agreement. - 5 - (e) In the event of any dispute arising under this Agreement or should either party be required to specifically enforce this Agreement, then in all such events the prevailing party shall be entitled to collect from the other its attorney's fees and court costs incurred in connection therewith. e. Assignment Neither party may assign any of its rights under this Agreement without the consent of the other except the merger of the ADVERTISER into an entity substantially owned and controlled by its present parent corporation shall not constitute an assignment hereunder. 9. Indemnification (a) ADVERTISER shall defend, indemnify and save the City, harmless from any and all loss, liability, claims and demands including attorneys' fees and court costs arising out of the character, contents and subject matter of any copy displayed by ADVERTISER in the Stadium or any injuries sustained by any person or property as a result of improper maintenance or installation (following initial installation) of the Advertising Panels. (b) CITY shall indemnify the ADVERTISER and hold it harmless from and against any and all claims, damages, liabilities, costs and expenses, including reasonable legal fees, arising from or in connection with the City's negligent installation of the Advertising Panels as specified in Paragraph 3(b) of this Agreement, subject to the provisions of section 768.28, Florida Statutes. 10. Authority The parties represents and warrant that they have the full and exclusive right and authority to enter into this Agreement. ' S 11. Insolvency, Bankruptcy in the event that ADVERTISER becomes insolvent, makes an assignment for the benefit of creditors, becomes the subject of any bankruptcy, reorganization or arrangement proceeding or defaults in any obligation, which default would allow the party to whom the obligation is owed to attempt to foreclose ADVERTISER from exercising its rights to prevent ADVERTISER from paying its obligations hereunder, then this Agreement may be terminated by the CITY after ten (10) day written notice is given to the ADVERTISER. 12. Relationship of the Parties Nothing contained herein or done pursuant her4tr shall be construed to create any relationship of principal and agent or employer and employee between the ADVERTISER and the CITY or to make them joint venturers. 13. Headings Headings are supplied for convenience only and are not to be construed as an interpretation of any of the language of this Agreement. 14. Audits; Retention and Inspection of Records CITY shall maintain records of all contracts, papers, correspondence, proof of payment, affidavits of performance, ledgers, books, accounts and other information relating to the payments made by ADVERTISER to CITY for the services hereunder or performance hereunder. ADVERTISER or its designee may inspect, examine, and review such records (and make copies thereof) at any time during normal business hours, provided prior permission from CITY is received. 15. Laws to Govern This Agreement, and all matters of issue collateral thereto, shall be governed by the laws of the State of 71 -` applicable to agreements made and to be performed entirely* the State of Florida. - 7 - Ob 4 16. Entire Understanding This Agreement contains the entire understanding to the parties hereto relating to the subject matter herein contained and may not be changed except by consent of the parties hereto in i writing. 17. Notices Any notices required or permitted to be given under the terms of this Agreement shall be in writing and shall be deemed i to be given if sent by United States certified mail, return receipt requcated, postage fully prepaid, to the addresses set (' ' forth below, or to such other person or address as either party may designate 1y written notice to the other party as herein provided. ADVERTISER: CITY OF MIAMI Sea Escape Limited, Inc. Attn: C ty Manager 1080 Port Blvd. 3400 Pan American Drive Miami, Florida 33132-2067 Coconut Grove, Fla. 33133 18. Waiver r The failure of either party hereto to insist in any instance upon the strict performance of any provision of this Agreement or to exercise any election contained herein shall not be constured as a waiver or relinquishment for the future of such provision or election. No waiver by any party shall have been deemed to have been made unless expressed in writing by such party. 19. Time of Essence Time shall be of the essence with respect to all matters set forth herein. 20. Amendments No amendments to this Agrement shall be binding on either party unless in writing and signed by both parties. - 8 - v IN WITNESS THEREOF, the respective parties Agra .w hereunto caused these presents to be signed, sealed and deli on the date and year first above written. ATTEST: CITY OF MIAMI, a Municipal Corporation of the State of Florida BY: MATTY 11IRA1 CESAR H. ODIO City Clerk City Manager ADVERTISER, Sea Escape Limited, Inc. a for profit Florida corporation ATTEST: Corporate Secretary APPROVED AS TO INSURANCE Insurance Manager BY: APPROVED AS TO FORM AND CORRECTNESS: LUCLA A. DOUGHERTY City Attorney APPROVED:, .. WALTER E. G0Lk3Y, D1 TOR PARKS, RECREATION AN PUBLIC FACILITIES DEPARTMENT - 9 - Title (SEAL) i 0 0 CORPORATE RESOLUTION WHEREAS, Sea Escape Limited, Inc. desires to enter into an .agreement with the City of Miami for use of the north and south side upper deck area facia for Advertising Panels of the Orange Bowl Stadium; and WHEREAS, the Duard of Directors of Sea Escape Limited, Inc. has examined terms, conditions and obligations of the proposed contract with the City of Miami for use of the Orange Bowl Stadium; and WHEREAS* the Board of Directors at a duly held corporate meeting has considered the matter in accordance with the By -Laws of the corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS of Sea Escape Limited, Inc. that the President( ) or Vice-president( ) or Secretary( ) (please check one) is hereby authorized and instructed to enter into a contract in the name of and on behalf of this corporation with the City of Miami for the use of the Orange Bowl Stadium; in accordance with the contract documents furnished by the City of Miami, and for the price and upon the terms and payments contained in the proposed contract submitted by the City of Miami. IN WITNESS WHEREOF, this day of 198 Attests Corporate Secretary Signature Pr nt or Type Name CHAIRMAN, Board of Directors By (Signature) EXHIBIT I ,r Print or Type Name (SEAL) 88-15 ADVERTISING RIGHTS AGRZ8NZNT THIS AGREEMENT is entered into by and between Miller Brewing Company, a Wisconsin corporation with offices located at 3939 West Highland Boulevard, Milwaukee. Wisconsin 53201 ("ADVERTISER"), and the City of Miami ("CITY"), for advertising rights at the Miami Orange Bowl Stadium, a sports facility owned and operated by CITY and located in Miami, Florida (the "Stadium"). WITNESSETH: WHEREAS, CITY owns the Stadium and hereby represents and warrants that it has the exclusive right to sell and lease advertising space in the Stadium; and WHEREAS? CITY has represented that no later than five days after execution of this Agreement one 4' x 35' panel may be erected at the location on the fascia of the upper deck of the north side of the Stadium shown on Exhibit A attached hereto and that one 4' x 16' panel will be erected by it on the fascia of the south side of the upper deck of the Stadium at the location shown on Exhibit B attached hereto (collectively the "Panels"; and WHEREAS, ADVERTISER desires to display certain advertising materials on the Panels, and CITY desires to grant such rights to ADVERTISER; NOW THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein, the sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Grant of Advertising Rights. CITY warrants that it has the right to grant, and it hereby grants to ADVERTISER throughout this Agreement, the right to display advertising materials on the Panels, except as provided in Paragraph 8, CITY shall not permit itself (or others besides ADVERTISER) to use the Panels. 2. Additional Obligations of Both Parties. (a) CITY represents and warrants that during the Agreement term no other malt beverage advertising besides ADVERTISM 8 A6-1S 1 shall appear in or on the north (between goal lines) upper deck of the Stadium. This shall not, however, limit advertising on the west area, or preclude advertising by other than malt beverage entities in or on the north upper deck except as provided below, or limit the sale or display for sale of any products (including malt beverage products) at concession stands or by vendors at or around the Stadium (even in the north upper deck), or the advertising of other products (including malt beverage products) in printed materials distributed in and around the stadium (such as programs). (b) ADVERTISER will obtain and maintain all necessary permits and approvals for the installation and display of the Panels and ADVERTISER's signage thereon. (c) CITY warrants that it does not now have, nor will it obtain during the term of this agreement, any interest, direct or indirect, financial or otherwise, in any license to sell alcoholic beverages. (d) CITY shall provide liaison personnel satisfactory to ADVERTISER to consult with ADVERTISER in connection with the advertising rights granted herein throughout the Agreement term. (e) Except as provided in Paragraph 4(b), ADVERTISER shall pay any and all applicable taxes (e.g. property taxes) and special assessments relating to the Panels or ADVERTISER's advertising thereon, file all necessary returns, and register, where required, with local tax authorities. (f) CITY warrants that the University of Miami will play all of their men's varsity home football games in the Stadium each contract year of the Agreement, and that the Orange Bowl Classic men's NCAA Division I football bowl game will be held in the Stadium each contract year of this Agreement. 3. Advertising Coy, Installation and Maintenance. (a) The construction of the panels, the design, layout and content of all advertising copy for use on the Panels during the Agreement term shall be provided by ADVERTISER, subject to CITY's approval, which approval shall not be unreasonably withheld or 2 88�$. delayed. The use by ADVERTISER of similar copy in other sports facilities in the United States shall be one standard of establishing reasonableness. Such copy may, at ADVERTISER's option, be changed at any time (and from time to time); provided that the specifications for such changes shall have been approved in advance by CITY and all painting costs incident thereto are to be borne by ADVERTISER. In the event CITY intends to withhold its approval of any copy submitted by ADVERTISER, it shall notify ADVERTISER within ten days of its receipt of such copy, or said copy shall be deemed to have been irrevocably approved. (b) Construction of the supporting structures for the Panels and the installation of the Panels shall be at the expense of and shall be the sole responsibility of CITY. CITY shall insure that workers hired by ADVERTISER can (as many times as ADVERTISER requests) have access to the Panels to permit the painting and repainting of ADVERTISER's copy thereon upon ten days prior notice to CITY (or such shorter time as may be agreed to by the parties). (c) CITY warrants that the Panels will be installed at all events at the Stadium throughout the term of this Agreement. CITY also warrants that the supporting structure for the Panels shall be properly maintained (and if damaged, promptly rebuilt), to permit the proper display of ADVERTISER's copy on the Panels. CITY shall, at its expense, maintain and _ p protect ADVERTISER'S copy on the Panels (normal wear and tear excepted), and if it is damaged, destroyed, or removed, CITY shall promptly pay the cost of replacing or repairing it (subject to ADVERTISER's reasonable instruction). (d) ADVERTISER shall insure that its activities are in' compliance with all federal, state and local laws, ordinances, permits, rules and orders. (e) At CITY's expense, CITY shall cause ADVERTISER's copy on the Panels to be properly illuminated during' all events except religious, political or youth oriented special events at the Stadium throughout the term of this Agreement. Proper NS-15. 3 illumination shall not require separate lighting for the Panels, but shall require that the Panels not be lit less brightly than the upper deck during any such event. (f) CITY shall not interfere, nor shall it permit others to interfere, with ADVERTISER's use and enjoyment of the Panels during the term of this Agreement. In this regard, CITY covenants that the Panels shall not during the Agreement period be disturbed by any paramount claim or obstruction or directions from any televising authority, and the CITY will at its own expense do all things necessary and/or convenient to protect ADVERTISER from such matters. 4. Term of Agreement; Payment; Option to Renew. (a) This Agreement shall commence ten days after execution, or if earlier the date on which ADVERTISER's Panels have been fully installed (the "Commencement Date"). It shall terminate three years later unless terminated earlier as provided below. (b) For the rights granted to ADVERTISER hereunder during the initial term, ADVERTISER shall pay CITY Sixty Thousand Dollars ($60,000) (the "Contract Price"), which amount shall be payable as follows: Twenty Thousand Dollars ($20,000) within ten days after the Commencement Date; Twenty Thousand Dollars ($20,000) on or before January 1, 1989; and Twenty Thousand Dollars ($20,000) on or before January 1. 1990. Payment by ADVERTISER hereunder shall be deemed to include all applicable taxes, duties and other charges, except that ADVERTISER also agrees to pay any Florida sales tax applicable to its payments hereunder within ten days after CITY notifies ADVERTISER that such sum(s) are due. (c) ADVERTISER has the option, but no obligation, to renew this Agreement upon the same terms and conditions as provided herein, including the Contract Price, for one additional period of three years (with payments due by January 1 of 1991, 1992 and 1993) by giving CITY notice in writing of its intention to do so at least six months prior to the last day of the initial 4 14 "is Agreement term. No purported renewal shall bind ADVERTISER unless agreed to in writing by a corporate officer of ADVERTISER. If ADVERTISER does not exercise its option to renew, CITY may grant the advertising rights similar to that granted hereunder to any other party upon the expiration of this Agreement, but during the three year renewal period not upon terms more favorable than those offered to ADVERTISER without providing ADVERTISER a twenty day right of first refusal with respect to any such more favorable terms. 5. Default. A party shall be deemed to be in default hereunder if: (a) It fails to perform or observe any term of the Agreement and such failure has not been completely cured within thirty days I after the party received written notice thereof from the other party; —; (b) It is insolvent (either unable to pay its debts when due or has a negative net worth), or makes a general assignment for the benefit of creditors; is adjudicated bankrupt; files a voluntary petition in bankruptcy or for reorganization, or to effect a plan or other similar arrangement with creditors; files an answer to a creditor's petition or to another similar petition filed against it, admitting the material allegations thereof; applies for or permits the appointment of a receiver or trustee or custodian for any of its property or assets; or a receiver, i trustee or custodian is appointed for any of its property or assets and such receiver, trustee or custodian so appointed is not discharged within sixty days after the date of his appointment; or an order is entered and not dismissed or stayed within sixty days from its entry, approving any petition for reorganization of the party. 6. Termination. Upon a default as defined in Paragraph 5, the non -defaulting party may at its option elect to terminate this Agreement by serving written notice on the other part of its intention to do so. In the event of such a termination (without prejudice to any other remedies under law or equity) and also in 5 0 those cases specified in Paragraph 7, CITY shall immediately refund to ADVERTISER a prorated portion of the Contract Price. The proration shall be based on Four Thousand Dollars ($4,000) for each University of Miami men's NCAA Division I football game less than four played in the Stadium in that contract year and for each Orange Bowl men's NCAA Division I football game less than one played in the Stadium in that contract year and for each Orange Bowl men's NCAA Division I football bowl game less than one played in the Stadium during the contract year. Thus, if six University of Miami games are played and no Orange Bowl, the refund is $4,000. 7. Unforeseen Events, (a) if (i) any law, regulation, ordinance or ruling becomes effective which makes advertising of malt beverage products unlawful as contemplated by this Agreement, or requires a modification of the advertising copy that in the reasonable opinion of ADVERTISER materially reduces the value of this Agreement, or ( ii ) if CITY of the University of Miami no longer intends to use the Stadium for at least four University of Miami NCAA Division I men's intends to use the Stadium in any December 29 - January 3 period for an NCAA Division I Orange Bowl men's football game, then the Agreement may be terminated by ADVERTISER. Even though such a situation shall not be deemed a breach, such termination shall entitle ADVERTISER to a pro rate refund as provided in Paragraph 6 above. (b) The delay, interruption, or diminution of the performance of this Agreement from power blackout, war, state or national emergency, act of God, strike, work stoppage, picketing damage or concerted action by any employee or any labor organization, shall not constitute a ground for termination= provided, however, that should such a delay result in ADVERTISER being unable to advertise its product as specified herein at least four University of Miami NCAA Division I Men's home football games in any contract year or at any Orange Bowl in any r., December 29 - January 3 period, ADVERTISER shall be entitled to the pro rate refund provided in Paragraph 6. 8. Assignments. Neither party may assign any of its rights or obligations under this Agreement without the consent of the other; provided that ADVERTISER may make an assignment to any division or any subsidiary of its parent Philip Morris Companies, Inc. In the event such an assignment does occur, such assignment shall not relieve the assignor from its liabilities or obligations hereunder. Any assignment inconsistent with this provision shall be void. 9. Indemnification. (a) ADVERTISER shall defend, indemnify and save the CITY, harmless from any and all loss, liability, claims and demands including attorneys' fees and court costs arising out of the character, contents and subject matter of any copy displayed by ADVERTISER in the Stadium or any injuries sustained by any person or property as a result of proper maintenance or installation (following initial installation) of the Advertising Panels. (b) CITY shall indemnity the ADVERTISER and hold it harmless from and against all claims, damages, liabilities, costs and expenses, including reasonable legal fees, arising from or in connection with the CITY's negligent installation of the Advertising Panels as specified in Paragraph 3(b) of this A reement# subject to the g j provisions of Section 768.28, Florida Statutes. 10. Authority. Each undersigned person represents that they (and the entities they represent) have the authority and right to enter into this Agreement. It is insolvent (either unable to pay its debts when due or has a negative net worth), or makes a general assignment for the benefit of creditors; is adjudicated bankrupt; files a voluntary petition in bankruptcy or for reorganization, or to effect a plan or other similar arrangements with creditors; files an answer to a creditor's petition or to 0 L another similar petition filed against it, admitting the material d1legations thereof; applies for or permits the appointment of a receiver or trustee or custodian for any of its property or assets; or a receiver, trustee or custodian is appointed for any of its property or assets and such receiver, trustee or custodian so appointed is not discharged within sixty days after the date of his appointment; or an order is entered and not dismissed or stayed within sixty days from its entry, approving any petition for reorganization of the party. 11. Insurance. ADVERTISER shall (at its own expense) secure and maintain in full force and effect during the term of this Agreement: (a) a general comprehensive liability insurance policy (which policy shall be in a form and content acceptable to CITY and which names CITY as primary additional insured), with a limit of not less than One Million Dollars ($1,000,000) per person and One Million Dollars M,000,000) per occurrence, covering personal injury, death and property damage, and covering any incident that may occur involving the Panels, their supporting structures, ADVERTISER's advertising thereon, or the Stadium, directly or indirectly; and (b) worker's compensation and employers' liability insurance as required by state law; ADVERTISER shall provide CITY with certificates evidencing such insurance within ten days after execution of this Agreement, which provides that it shall be non -cancellable except upon at least thirty days prior written notice to CITY. 12. Relationship of the Parties. Nothing contained herein or done pursuant hereto shall be construed to create any relationship of principal and agent, or employer and employee, between ADVERTISER and CITY, or to make theca joint venturers. fl6-15 61 OW 4 13. Headings. Headings are supplied for convenience only and are not to be construed as an interpretation of any language •of this Agreement. 14. Audits; Retention and Inspection of Records. CITY shall maintain records of all contracts, papers, correspondence, proof of payment, affidavits of performance, ledgers, books, accounts and other information relating to the payments made by ADVERTISER or CITY for the services hereunder or performance hereunder. ADVERTISER or its designee may inspect, examine and review such records (and make copies thereof) at any time upon at least three days notice during normal business hours during the Agreement and for two years thereafter. 15. Governing Law. This Agreement, and all matters of issue collateral thereto, shall be governed by and construed under the internal laws of the State of Florida applicable to agreements made and to be performed entirely within the State of Florida. 16. Entire AgreementE Amendments. This Agreement sets forth the final and complete understanding of the parties with respect to this subject matter. It is understood and agreed that there are no other representations with respect to this Agreement and this Agreement supersedes all prior discussions, agreements and undertakings relating to the subject matter hereof. It is further agreed that the rights, interests, understandings, agreements and obligations of the respective parties pertaining to the subject matter of this Agreement may not be amended, modified or supplemented in any respect except by a subsequent written instrument evidencing the express written consent of each of the parties duly executed by the parties. Any terms inconsistent with or additional to the terms set forth in this Agreement which may be included with a purchase order, acknowledgment, invoice, etc., of either party shall not be binding on the other party hereto. OW 4 17. Notices. Any notice required or permitted to be given under the terms of this Agreement shall be in writing, and shall -be deemed to be given as of the date of delivery if hand delivered or as of the postmark if sent by United States certified or registered mail, return receipt requested, postage fully prepaid, to the applicable address set forth below, or to such other person or address as the receiving party may have designated by written notice to the other). An extra copy of all future notices to ADVERTISER must be sent to ADVERTISER's legal department in order for the notice to be binding on ADVERTISER. ADVERTISER CITY Director - Advertising Services City Manager Miller Brewing Company 3400 Pan American Drive 3939 W. Highland Boulevard Coconut Grove, PL 33133 - Milwaukee, WI 53201 i Legal Department Miller Brewing Company 3939 W. Highland Boulevard Milwaukee, WI 53201 18. Nature of ADVERTISER's Rights. (a) It is mutually agreed that the advertising rights described herein are special, unique, and extraordinary in nature and have a particular value to ADVERTISER. In the event of any breach of this Agreement, ADVERTISER shall be entitled, in addition to any other remedies available to it, to obtain equitable relief by way or temporary and permanent injunction. (b) 'The parties hereto understand and acknowledge that this Agreement is solely for the purchase of advertising -and promotional rights, and nothing contained herein or in the negotiations preceding the execution of this Agreement shall require the purchase of any alcoholic beverage by, or prevent, deter, hinder or restrict in any way the rights of the CITY, its affiliated companies, concessionaires, and/or any other persons, from purchasing or not purchasing any brand(s) of alcoholic beverages in their sole discretion. 10 !98715 4 19. Waiver. The failure of either party hereto to insist in any instance upon the strict performance of any provisions of this Agreement or to exercise any election contained herein shall not be construed as a waiver or relinquishment for the future of such provision or election. No waiver or modification by any party shall have been deemed to have been made unless expressed in writing by such party. 20. Time of the Essence. Time is of the essence in the performance of all matters hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement: Dated , 1987 Dated , 1987 Approved as to Insurance Insurance Manager Approved as to form and Correctness: Lucia A. Dougherty City Attorney MILLER BREWING COMPANY By: Attest: (SEAL) CITY OF MIAMI, a Municipal Corporation of the State of Florida By. CESAR H. ODIO, City Manager Attest: MATTY HIRAI, City Clerk Approved ,As to meeting Depart!Wptal Requirements Walter E. Golby, Dire � t i38-1S 014 4 CORPORATE RESOLUTION WHEREAS, Miller Brewing Company, desires to enter into an agreement with the City of Miami for use of the North and South side Upper Deck area Facia for Advertising Panels of the Orange Bowl Stadium; and WHEREAS, the Board of Directors of Miller Brewing Company, has examined terms, conditions and obligations of the proposed contract with the City of Miami for use of the Orange Bowl Stadium; and WHEREAS, the Board of Directors at a duly held corporate meeting has considered the matter in accordance with the By -Laws of the corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRRCTORS of Miller Brewing Company, that the President ( ) or Vice -President or ( ) Secretary ( ) (please check one) is hereby authorized and instructed to enter into a contract in the name of and on behalf of this corporation with the City of Miami for the use of the Orange Bowl Stadium in accordance with the contract documents furnished by the City of Miami, and for the price an the terms and payments contain in the proposed contract submitted by the City of Miami. IN WITNESS , 1987. ATTEST: THEREOF, this day of Corporate Secretary Signature PRESIDENT, Board of Directors MILLER BREWING COMPANY, a Wisconsin Corporation By S gnature Print or Type Name (SEAL) Print or Type Name 12 004 ADVERTISING RIGHTS AGREIR T THIS AGREEMENT is entered into by and between ANHSUSER- BUSCH, a for profit Missouri corporation, with offices located at l Busch Place St., St. Louis, Missouri, 63118, (314) 577-2000 ("ADVERTISER"), and the CITY of Miami ("CITY"), for advertising rights at the Miami Orange Bowl Stadium, a sports facility owned and operated by CITY and located in Miami, Florida (the "Stadium"). WITNESSETH: WHEREAS, CITY owns the Stadium and hereby represents and warrants that it has the exclusive right to sell and lease advertising space in the Stadiums and WHEREAS, CITY has represented that no later than five days after execution of this Agreement one 4' x 16' panel may be erected at the location on the fascia of the upper deck of the west side of the Stadium. ("Panel"); and WHEREAS, ADVERTISER, desires to display certain advertising materials on the Panel, and CITY desires to grant such rights to ADVERTISERI NOW THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein, the sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Grant of Advertising Rights. CITY warrants that it has the right to grant, and it hereby grants to ADVERTISER, throughout this Agreement, the right to display advertising materials on the Panel, except as provided in Paragraph 8, CITY shall not permit itself (or others besides ADVERTISER) to use the Panel. 2. Additional Obligations of Both Parties. (a) CITY represents and warrants that during the Agreement term no other malt beverage advertising besides ADVERTISER's shall appear in or on the west upper deck facia of the Stadium. t 014 This shall not, however, limit advertising in or on the north or south areas, or preclude advertising by other than malt beverage entities in or on the west upper deck except as provided below, or limit the sale or display for sale of any products (including malt beverage products) at concession stands or by vendors at or around the Stadium (even in the west upper deck), or the advertising of other products (including malt beverage products) in printed materials distributed in and around the stadium (such as programs). (b) ADVERTISER, will obtain and maintain all necessary permits and approvals for the installation and display of the Panel and ADVERTISER's signage thereon. (c) CITY warrants that it does not now have, nor will it obtain during the term of this agreement, any interest, direct or indirect, financial or otherwise, in any license to sell alcoholic beverages. (d) CITY shall provide liaison personnel satisfactory to ADVERTISER, to consult with ADVERTISER, in connection with the advertising rights granted herein throughout the Agreement term. (e) Except as provided in Paragraph 4(b), ADVERTISER, shall pay any and all applicable taxes (e.g. property taxes) and special assessments relating to the Panel or ADVERTISER's advertising thereon, file all necessary returns, and register, where required, with local tax authorities. (f) CITY warrants that the University of Miami will play all of their men's varsity home football games in the Stadium each contract year of the Agreement, and that the Orange Bowl Classic men's NCAA Division I football bowl game will be held in the Stadium each contract year of this Agreement. 3. Advertising Copy, Installation and Maintenance. (a) The construction of the panel, the design, layout and content of all advertising copy for use on the Panel during -the Agreement term shall be provided by ADVERTISER, subject to CITY's approval, which approval shall •not be unreasonably withheld or delayed. The use by ADVERTISER, of similar copy -in 4 a �.15 .._..�x other sports facilities in the United States shall be one 7 -standard of establishing reasonableness. Such copy may, at ADVERTISER's option, be changed at any time (and from time to time); provided that the specifications for such changes shall have been approved in advance by CITY and all painting costs incident thereto are to be borne by ADVERTISER. In the event CITY intends to withhold its approval of any copy submitted by ADVERTISER, it shall notify ADVERTISER, within ten days of its i receipt of such co p py, or said copy shall be deemed to have been irrevocably approved. (b) Construction of the supporting structures for the Panel and the installation of the Panel shall be at the expense of and shall be the sole responsibility of CITY. CITY shall insure that workers hired by ADVERTISER, can (as many times as ADVERTISER. requests) have access to the Panel to permit the painting and repainting of ADVERTISER's copy thereon upon ten days prior notice to CITY (or.such shorter time as may be agreed to by the parties). (c) CITY warrants that the Panel will be installed at all events at the Stadium throughout the term of this Agreement. CITY also warrants that the supporting structure for the Panel shall be properly maintained (and if damaged, promptly rebuilt)• to permit the proper display of ADVERTISER's copy on the Panel. CITY shall, at its expense, maintain and protect copy on the Panel (normal wear and tear excepted), and if it is damaged, destroyed, or removed, CITY shall promptly pay the cost of replacing or repairing it (subject to ADVERTISER's reasonable instruction). (d) ADVERTISER, shall insure that its,activities are in compliance with all federal, state and local laws, ordinances, permits, rules and orders. 'h (a) At CITY's expense, CITY shall cause ADVSRTISER's copy on the Panel to be properly illuminated during all events except religious, political or youth oriented. special events at -ihe ;x 3 Stadium throughout the term of this Agreement. Proper illumination shall not require separate lighting for the Panel, but shall require that the Panel not be lit less brightly than the upper deck during any such event. (f) CITY shall not interfere, nor shall it permit others to interfere, with ADVERTISER's use and enjoyment of the Panel during the term of this Agreement. In this regard, CITY covenants that the Panel shall not during the Agreement period be disturbed by any paramount claim or obstruction or directions { from any televising authority, and the CITY will at its own i expense do all things necessary and/or convenient to protect ADVERTISER, from such matters. 4. Term of Agreementi Payments Option to Renew. (a) This Agreement shall commence ten days after execution, or if earlier the date on which ADVERTISER's Panel have been fully installed (the "Commencement Date"). It shall terminate three years later unless terminated earlier as provided below. (b) For the rights granted to ADVERTISER, hereunder during the initial term, ADVERTISER, shall pay CITY Fourty Five Thousand Dollars ($45,000) (the "Contract Price"), which amount shall be payable as follows: Fifteen Thousand Dollars ($15,000) within ten days after the Commencement Date; Fifteen Thousand Dollars ($15,000) on or before January 1, 1989; and Fifteen Thousand Dollars ($15,000) on or before January 1,•1990. Payment by ADVERTISER, hereunder shall be deemed'to include all applicable taxes, duties and other charges, except that ADVERTISER, also agrees to pay any Florida sales tax applicable to its payments hereunder within ten days after CITY notifies ADVERTISER, that such sum(s) are due. (c) ADVERTISER, has the option, but no obligation, to renew this Agreement upon the same terms and conditions as'provided herein, including the Contract Price, for one additional period of three years (with.payments due by January 1 of 1991, 1992 and 1993) by giving CITY notice in writing of its intention to do so at least six months prior to the last day of the initial 4 1� Agreement term. No purported renewal shall bind ADVERTISRRg, unless agreed to in writing by a corporate officer of ADVERTISER. if ADVERTISER, does not exercise its option to renew, CITY may grant the advertising rights similar to that granted hereunder to any other party upon the expiration of this Agreement, but during the three year renewal period not upon terms more favorable than those offered to ADVERTISER, without providing ADVERTISER, a twenty day right of first refusal with respect to any such more favorable terms. 5. Default. A party shall be deemed to be in default hereunder if: (a) It fails to perform or observe any term of the Agreement and such failure has not been completely cured within thirty days after the party received written notice thereof from the other party= (b) It is insolvent (either unable to pay its debts when due or has a negative net worth), or makes a general assignment for the benefit of creditors; is adjudicated bankrupt; files a voluntary petition in bankruptcy or for reorganization, or to effect a plan or other similar arrangement with creditors; files an answer to a creditor's petition or to another similar petition filed against it, admitting the material allegations thereof; applies for or permits the appointment of a receiver or trustee or custodian for any of its property or assets; or a receiver* trustee or custodian is appointed for any of its property or assets and such receiver, trustee or custodian so appointed is not discharged within sixty days after the date of his appointment; or an order is entered and not dismissed or stayed within sixty days from its entry, approving any petition for reorganization of the party. 6. Termination. Upon a default as defined in Paragraph 56 the non -defaulting party may at its option elect to terminate this Agreement by serving written notice on the other part of its intention to do so. in the event of such a termination (without prejudice to any other remedies under law or equity) and also ie 5 �� .. , ;4 t L those cases specified in Paragraph 7, CITY shall immediately refund to ADVERTISER, a prorated portion of the Contract Price. The proration shall be based on Four Thousand Dollars ($4,000) for each University of Miami men's NCAA Division I football game less than four played in the Stadium in that contract year and for each Orange Bowl men's NCAA Division I football game less than one played in the Stadium in that contract year and for each Orange Bowl men's NCAA Division I football bowl game less than one played in the Stadium during the contract year. Thus, if six University of Miami games are played and no Orange Bowl, the refund is $4,000. 7. Unforeseen Events. (a) If (i) any law, regulation, ordinance or ruling becomes effective which makes advertising of malt beverage products unlawful as contemplated by this Agreement, or requires a modification of the advertising copy that in the reasonable opinion of ADVERTISER, materially reduces the value of this Agreement, or (ii) if CITY of the University of Miami no longer intends to use the Stadium for at least four University of Miami NCAA Division I men's intends to use the Stadium in any December 29 - January 3 period for an NCAA Division I Orange Bowl men's football game, then the Agreement may be terminated by ADVERTISER. Even though such a situation shall not be deemed a breach, such termination shall entitle ADVERTISER, to a pro rate refund as provided in Paragraph 6 above. (b) The delay, interruption# or diminution of the performance of this Agreement from power blackout, war, state or national emergency, act of God, strike, work stoppage, picketing damage or concerted action by any employee or any labor organization, shall not constitute a ground for termination= provided, however, that should such a delay result in ADVERTISER, being unable to advertise its product as specified herein at least four University of Miami NCAA Division I Men's home football games in any contract year or at any Orange Bowl in any December 29 - January 3 period, ADVERTISER, shall be entitled to -the pro rate refund provided in Paragraph 6. 8. Assignments. Neither party may assign any of its rights or obligations under this Agreement without the consent of the other; provided that ADVERTISER, may make an assignment to any division or any subsidiary of its parent Philip Morris Companies, Inc. In the event such an assignment does occur, such assignment shall not relieve the assignor from its liabilities or obligations hereunder. Any assignment inconsistent with this provision shall be void. r 9. Indemnification. (a) ADVERTISER shall defend, indemnify and save the CITY, harmless from any and all loss, liability, claims and demands including attorneys' fees and court costs arising out of the character, contents and subject matter of any copy displayed by ADVERTISER in the Stadium or any injuries sustained by any person or property as a result of proper maintenance' or installation (following initial installation) of the Advertising Panel. (b) CITY shall indemnity the ADVERTISER and hold it harmless from and against all claims, damages, liabilities, costs and expenses, including reasonable legal fees, arising from or in connection with the CITY's negligent installation of the Advertising Panel as specified in Paragraph 3(b) of this Agreement, subject to the provisions of Section 768.28, Florida Statutes. 10. Authority. Each undersigned person represents that they (and the entities they represent) have the authority and right to enter into this Agreement. It is insolvent (either unable to pay its debts when due or has a negative net worth), or sakes a general assignment for the benefit of creditors is adjudicated bankrupts files a voluntary petition in bankruptcy or "for reorganization, or to effect a plan or other similar arrangements with creditors; files an answer to a creditor's petition or' to another similar petition filed against it, admitting the material allegations thereof; applies for or permits the appointment of a receiver or trustee or custodian for any of its property or assets; or a receiver, trustee or custodian is appointed for any of its property or assets and such receiver, trustee or custodian so appointed is not discharged within sixty days after the date of his appointment; or an order is entered and not dismissed or stayed within sixty days from its entry, approving any petition for reorganization of the party. 11. Insurance. ADVERTISER, shall (at its own expense) secure and maintain in full force and effect during the term of this Agreement: (a) a general comprehensive liability insurance policy (which policy shall be in a form and content acceptable to CITY and which names CITY as primary additional insured), with a limit of not less than One Million Dollars ($1,000,000) per person and One Million Dollars ($1,000,000) per occurrence, covering personal injury, death and property damage, and covering any incident that may occur involving the Panel, their supporting structures, ADVERTISER's advertising thereon, or the Stadium, directly or indirectly; and (b) Worker's compensation and employers' liability insurance as required by state law; ADVERTISER, shall provide CITY with certificates evidencing such insurance within ten days after execution of this Agreement, which provides that it shall be non -cancellable except upon at least thirty days prior written notice to CITY. 12. Relationship of the Parties. Nothing contained herein or done pursuant hereto shall be construed to create any relationship of principal and agent, or employer and employee, between ADVERTISER, and CITY, or to make thew joint venturers. 13. Headings. Headings are supplied for convenience only and are not to be construed as an interpretation of any language of this Agreement. 14. Audits; Retention and Inspection of Records. CITY shall maintain records of all contracts, papers, correspondence, proof of payment, affidavits of performance, ledgers, books, accounts and other information relating to the payments made by ADVERTISER, or CITY for the services hereunder or performance hereunder. ADVERTISER, or its designee may inspect, examine and review such records (and make copies thereof) at any time upon at least three days notice during normal business hours during the Agreement and for two years thereafter. 15. Governing Law. This Agreement, and all matters of issue collateral thereto, shall be governed by and construed under the internal laws of the State of Florida applicable to agreements made and to be performed entirely within the State of Florida. 16. Entire Agreement; Amendments. This Agreement sets forth the final and complete understanding of the parties with respect to this subject matter. It is understood and agreed that there are no other representations with respect to this Agreement and this Agreement supersedes all prior discussions, agreements and undertakings relating to the subject matter hereof. It is further agreed that the rights, interests, understandings, agreements and obligations of the respective parties pertaining to the subject matter of this Agreement may not be amended, modified or supplemented in any respect except by a subsequent written instrument evidencing the express written consent of each of the parties duly executed by the parties. Any terms inconsistent with or additional to the terms set forth in this Agreement which may be included with a purchase order, acknowledgment, invoice, etc., of either party shall not be binding on the other party hereto. 17. Notices. Any notice required or permitted to be given under the terms of this Agreement shall be in writing, and shall be deemed to be given as of the date of delivery if hand delivered or as of the postmark if sent by United States certified or registered mail, return receipt requested, postage fully prepaid, to the applicable address set forth below, or to such other person or address as the receiving party may have designated by written notice to the other). An extra copy of all •:���' :..tip•+ � •� 9 future totices to ADVERTISER, must be sent to ADVERTISER's legal capartment in order for the notice to be binding on ADVERT I I ER. AT V :RTISER CITY D'.lector - Advertising Services City Manager A1'EUSER-BUSCH, INC., 3400 Pan American Drive .usch Place St., St. Coconut Grove, FL 33133 T : iis, Missouri 63118 .fgal Department t'HEUSER-BUSCH, INC., l Busch Place St., St. [)uis, Missouri 63118 S. Nature of ADVERTISER's Rights. a) It is mutually agreed that the advertising rights desccibed herein are special, unique, and extraordinary in nature and have a particular value to ADVERTISER. In the event of any breach of this Agreement, ADVERTISER, shall be entitled, in ae,eition to any other remedies available to it, to obtain e-1-Atable relief by way or temporary and permanent injunction. (b) The parties hereto understand and acknowledge that this •c,ceement is solely for the purchase of advertising and o omotional rights, and nothing contained herein or in the r:gotiations preceding the execution of this Agreement shall equire the purchase of any alcoholic beverage by, or prevent, .eter, hinder or restrict in any way the rights of the CITY, its affiliated companies, concessionaires, and/or any other persons, from purchasing or not purchasing any brand(s) of alcoholic beverages in their sole discretion. 19. Waiver. The failure of either party hereto to insist in any instance upon the strict performance of any provisions of this Agreement or to exercise any election contained herein shall not be construed as a waiver or relinquishment for the future of, such provision or election. No waiver or modification by any party shall have been deemed to have been made unless expressed in writing by such party. 20. Time of the Essence. Time is of the essence in the • performance of all matters hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement: Dated , 1987 Dated , 1987 Approved as to Insurance Insurance Manager Approved as to form and Correctness: Lucia A. Dougherty City Attorney ANHEUSER-BUSCH, INC. By: Attest: �SSAL� CITY OF MIAMI, a Municipal Corporation of the State of Florida Bys CESAR H. oDiO, City Manager Attests NATTY HIRAI, City Clerk Approved as to meeting Departmintal Requirements Walter E. Golby, 11 Ck opal.. CORPORATE RESOLUTION WHEREAS, Anheuser-Busch, Inc., desires to enter into an agreement with the City of Miami for use of the West side Upper Deck area Facia for Advertising Panels of the Orange Bowl Stadium; and WHEREAS, the Board of Directors of Anheuser-Busch, Inc., has examined terms, conditions and obligations of the proposed contract with the City of Miami for use of the Orange Bowl Stadium; and WHEREAS, the Board of Directors at a duly held corporate meeting has considered the matter in accordance with the By -Laws of the corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS of Anheuser-Busch, Inc., that the President ( ) or Vice -President or ( ) Secretary ( ) (please check one) is hereby authorised and instructed to enter into a contract in the name of and on behalf of this corporation with the City of Miami for the use of the Orange Bowl Stadium in accordance with the contract documents furnished by the City of Miami, and for the price an the terms and payments contain in the proposed contract submitted by the City of Miami. IN WITNESS THEREOF, this day of , 1987. PRESID=T, Board of Directors ANHEUSER-BUSCH, INC., a for profit Missouri Corporation By (Signature) Print or Type Name ATTEST: (SEAL); Corporate Secretary S gnature �t Print or Type Name 12 ADVERTISING AGREEMENT 1 This Agreement, entered into this day of 1987r by and between Kentwood Spring Water, Inc. a for profit Louisiana corporation, located at 3418 Howard Avenue, P.O. box I 52043 tiew trleans, L.A. 70152-2043, (504) 821-4505 (hereinafter referred to as "ADVLR'C:SVK"), and the City of Miami, (hereinafter referred to as "CITY"), for advertising at the Miami orange Bowl Stadium, a sports facility owned and operated by the City of Miami and located in Miami, Florida. R E C I T A L WHEREAS, the CITY hereby represents and warrants that it has the exclusive right to sell advertising space in the orange Bowl Stadium, hereinafter referred to as the "Stadium" on the terms and conditions set forth in this Agreements and WHEREAS, the ADVERTISER desires to place certain advertising materials on advertising space in the Stadium and the $_ATY desires to grant such rights to the ADVERTISERr tiuW, 'IHEREFURE, in consideration of the mutual covgnants and agreements hereinafter contained, the parties hereby agree as followst 1. Grant of Advertising Rights CITY hereby grants ADVERTISER the right to display its advertising material during the term hereof on a four (41) foot by thirty-five (35') foot "Advertiser's Panel" located on the facia of the upper deck of the north side of the Orange Bowl Stadium directly left of center advertising panel.. Also, a four (4') foot by sixteen (161) foot "Advertiser's Panel" on the facia of the upper deck of the west side of the Orange Bowl Stadium on the center -most space available. It is understood that several advertising panels of this sisee being the one provided for hereunder and that of different advertisers shall be located in this area. .t is also understood that the different.advertleor's product shall not be a competitive product to the advertiser. For examples only one thirst quencher advertiser will be permitted on the north and west side upper deck area; however, a - 1 - different thirst quencher advertiser will be permitted to advertise on the facia area of the south side upper deck areas. (b) ADVERTISER will obtain and maintain all necessary permits and approvals for the installation and display of 10-K Panels. (c) CITY warrants that it does not now have, nor will it obtain during the term of this Agreement, any interest, direct or indirect, financial or otherwise, in any license to sell thirst quencher beverages. (d) CITY shall provide liaison personnel satisfactory to ADVERTISER to consult with ADVERTISER in connection with the advertising rights granted herein throughout the Agreement term. (e) ADVERTISER shall pay any and all applicable sales tax that are incurred, or use and property taxes and special assessments relating to the sign, file all necessary returns and register, where required, with local tax authorities. 2. Representations of City (a) The CITY warrants that the University of Miami and the Orange Eowl Classic will play their regular season home games and exhibition games in the Stadium during each Contract Period Las defined in Paragraph 5 (a) hereinj. (b) CLTY warrants to ADVERTISER that Advertiser's Panel will be displayed at all events conducted within the Stadium. 3. Advertising Copy, Installation and Maintenance (a) The design, layout and content of all advertising copy provided for herein shall be subject to approval by the CITY which approvals shall not be unreasonably withheld. The use by ADVERTISER of similar copy in other sports facilities in the United States shall be one standard establishing reasonableness. Such copy may be changed at any time, provided, however, the specifications for such changes (as well as any change in the product to be advertised) shall have been approved in advance by the CITY and all costs incident thereto borne by ADVERTISER In the event the CITY intends to withhold its approval of any copy submitted by ADVERTISER, it shall notify ADVERTISER of such t: ( intention within ten (10) days of the receipt of such copy. r - 2 - t (b) Fabrication and maintenance of ADVERTISER's copy for all advertising covered by this Agreement, including changes, shall be at the expense of the ADVERTISER. The CITY shall be responsible for installation of ADVERTISER'S Advertising Panels only. ADVERTISER shall be permitted reasonable access to the sign as necessary to accomplish the purposes expressed herein. (c) The City of Miami will guarantee to ADVERTISER that Advertiser Panel's will not be obstructed during any events in the Orange Bowl Stadium during the term of this Agreement. a i 4. Payment i ADVERTISER shall pay the CITY for the advertising rights j granted herein, the sum of twenty-five thousand ($25,000) and applicable tax if any, which sum shall be payable as follows: Twelve -thousand five hundred dollars ($12,500) upon signing and delivery of this agreement prior to Deveober 15, 1987 and the balance of twelve -thousand five hundred dollars ($12,500) due on or before April 1, 1988. Any payments in default thereof shalt bear interest at the rate of eighteen (181) percent per annum. 5. Term and Renewal of Agreement (a) The term of this Agreement shall commence as of December 15, 1987 and shall continue through December 14, 1988 which shall include the entire football season and concert events. The ADVERTISER may have the option to extend the Advertising term for the years 1989 and 1990 at the same rate of compensation per this agreement. Ali option years to be paid in full upon signing and delivery of agreement prior to December 15th of each year. The term or extended term is herein called the "Contract Period". (b) Delay, interruption, or diminution of the performance of this Agreement from any cause beyond the control of the CITY, including, without limitation, power blackout, war, state or national emergency, act of God, strike, work stoppageg picketing, damage or concerted action by any employee or any labor organization, or delays occasioned by Construction, shall i# -;° not constitute a ground for cancellation. Provided, however, t that, should such a delay result in ADVERTISER being unable to �j advertise its product at any Football Game or Concert Events, of - 3 - � g-i.S 4 any contract year, because the product is no longer manufactured or sold, or if any law, regulation, ordinance or ruling becomes effective which makes advertising of thirst quincher products unlawful as comtemplated by this Agreement, then the ADVERTISER shall be entitled to cancel this Agreement without penalty or interest for the ensuing contract year. No refund shall be applicable in any contract year as a result of ADVERTISER'S inability to display its advertising panels notwithstanding the cause of same. (c) The CITY may, within one hundred eighty (180) days from expiration of this Agreement# submit to ADVERTISER its proposal for an extension hereof. ADVERTISER shall notify CITY within thirty (30) days from receipt of said proposal whether or not it will accept same. ADVERTISER'S failure to notify CITY shall be deemed to be a rejection of said proposal, and CITY may thereafter sell said advertising to any other party or entity of its choosing without further obligation to ADVERTISER. 6. Termination and Default (a) In the event of a default by either party in the performance of any of the terms or conditions of this Agreements which default shall not have been remedied within ten (10) days after notice of the default has been given in writing to the defaulting party, the non -defaulting party may in addition to any other remedies which may under the circumstances be available to it, terminate this Agreement, effective iwediately, upon notice of termination given in writing. Notwithstanding the above notice and right to cure provision, no written notice of a monetary default by ADVERTISER need be given by CITY as prerequisite to declaring said default and exercising the rights (b) If the CITY no longer intends to use the orange Bowl Stadium for football or concert events, for any reason including termination of University of Miami, or the orange Bowl Committee (hereinafter "leasses"), then this Agreement may be terminated by the ADVERTISER as of the day after the season during which the last game was played at the Stadium. (c) In the event this Agreement is terminated because of the default of CITY or as a result of a lessees ceasing to play its Football or Concert Events in the orange Howl Stadium on a.. regular basis, prior to the end of a period for which ADVERTISER has paid the CITY, then the CITY shall make appropriate refund to ADVERTISER. The amount of any refund to ADVERTISER shall be calculated by (a) dividing the number of home games actually played in the Stadium by the Lessees during a season for which ADVERTISER has paid the CITY by the number of home games originally scheduled to be played in the Stadium by the Lessees during such season, (b) multiplying this quotient by the total payment made by ADVERTISER of such season, (c) subtracting the product so obtained from the total payment made by ADVLRTISL'R for such season, and (d) refunding the difference to ADVERTISER. (d) Should either party default hereunder, the non - defaulting party may elect to cancel this Agreement and seek all applicab.Le damages in connection therewith, at at its discretion the non -defaulting party may seek to specifically enforce the obligations of the defaulting party for the remaining term of this Agreement. (e) In the event of any dispute arising under this Agreement or should either party be required to specifically enforce this Agreement, then in all such events the prevailing party shall be entitled to collect from the other its attorney's fees and court costs incurred in connection therewith. 7. Assignment Neither party may assign any of its rights under this Agreement without the consent of the other except the merger of the ADVERTISER into an entity substantially owned and controlled by its present parent corporation shall not constitute an assignment hereunder. S. Indemnification (a) ADVERTISER shall defend, indemnify and save the City, harmless from any and all loss, liability, claims and demands including attorneys' fees and court costs arising out of - 5 - 88-15 the character, contents and subject matter of any copy displayed by ADVERTISER in the Stadium or any injuries sustained by any person or property as a result of improper maintenance or •installation (following initial installation) of the Advertising .• Panels. (b) CITY shall indemnify the ADVERTISER and hold it i harmless from and against any and all claims, damages, ! liabilities, costs and expenses, including reasonable legal fees, arising from or in connection with the City's negligent installation of the Advertising Panels as specified in Paragraph 3(b) of this Agreement, subject to the provisions of section 768.28, Florida Statutes. 9. Authority The parties represents and warrant that they have the full and exclusive right and authority to enter into this Agreement. 10. Insolvency, Bankruptcy In the event that ADVERTISER becomes insolvent, makes an assignment for the benefit of creditors, becomes the subject of any bankruptcy, reorganization or arrangement proceeding or defaults in any obligation, which default would allow the party to whom the obligation is owed to attempt to foreclose ADVERTISER from exercising its rights to prevent ADVERTISER .from paying,its obligations hereunder, then this Agreement may be terminated by the CITY after ten (10) day written notice is given to the ADVLRTISER. 11. Relationship of the Parties Nothing contained herein or done pursuant hereto shall be construed to create any relationship of principal and agent or employer and employee between the ADVERTISER and the CITY or to make them joint venturers. 12. Headings Headings are supplied for convenience only and are not to be construed as an interpretation of any of the language of rl this Agreement. f;. 6 i98"is i i 13. Audits; Retention and Inspection of Records CaTY shall maintain records of all contracts# papers, correspondence, proof of payment, affidavits of performance, 1'edgers, books, accounts and other information relating to the payments made by ADVERTISER to CITY for the services hereunder or performance hereunder. ADVERTISER or its designee may inspect, examine, and review such records (and make copies thereof) at any time during normal business hours, provided prior permission from CITY is received. 14. Laws to Govern This Agreement, and all matters of issue collateral thereto, shall be governed by the laws of the State of Florida applicable to agreements made and to be performed entirely within the State of Florida. 15. Entire Understanding This Agreement contains the entire understanding to the parties hereto relating to the subject matter herein contained and may not be changed except by consent of the parties hereto in writing. 16. Notices Any notices required or permitted to be given under the terms of this Agreement shall be in writing and shall be deemed to be given if sent by United States certified mail, return receipt requested, postage fully prepaid, to the addresses eet forth below, or to such other person or address as either party may designate by written notice to the other party as herein provided. ADVE RTI SER s Kentwoo Spring Water, Inc. 3418 Howard Avenue P.O. Box 52043 itew Orleans, La. 70152-2043 CITY OF MIAMI Attns C ty Manager 3400 Pan American Drive Coconut Grove, Florida 33133 17. Waiver The failure of either party hereto to insist in any instance upon the strict performance of any provision of this Agreement or to exercise any election contained herein shall not be constured as a waiver or relinquishment for the future of such provision or - 7 - l98-1S r*► election. No waiver by any party shall have been deemed to have been made unless expressed in writing by such party. 18. Time of Essence Time shall be of the essence with respect to all matters set forth herein. 19. Amendments No amendments Lo this Agrement shall be binding on either party unless in writing and signed by both parties. IN WITNESS THEREOF, the respective parties hereto have l hereunto caused these presents to be signed, sealed and delivered i on the date and year first above written. v s ATTESTt MATTY H1RA1 City Clerk ATTEST s Corporate secretary APPROVED AS TO INSURANCE Insurance Manager APPROVED AS TO FORM AND CORRECTNESSs LUCIA A. DOUGHERTY City Attorney APPROVED BY THE DIRECTOR OF PAR58t R6CAEATION AND PUhLbFkACiLITIEW DEPARTMENT CITY OF MIAMI, a Municipal Corporation of the State of Florida BYt CESAR H. 0510 City Manager ADVERTISER, Kentwood Spring Water, Inc. a for profit Louisiana corporation BY$ ee (SEAL) -e- 018111 000` CORPORATE RESOLUTION WHEREAS, Kentwood Spring Water, Inc. desires to enter into an agreement with the City of Miami for use of the north and west side upper deck area facia for Advertising Panels of the Orange Bowl Stadium; and WHEREAS, the board of Directors of Kentwood Spring Water, .nc. has examined terms, conditions and obligations of the proposed contract with the city of Miami for use of the Orange ' Bowl Stadium; and WHEREAS, the Board of Directors at a duly held corporate meeting has considered the matter in accordance with the By -Laws of the corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS of Kentwood Spring Water, Inc. that the President( ) or Vice- president( ) or Secretary( ) (please check one) is hereby authorized and instructed to enter into a contract in the name of and on behalf of this corporation with the City,of Miami for the use of the Orange Bowl Stadium; in accordance with the contract documents furnished by the City of Miami, and for the price and upon the terms and payments contained in the proposed contract submitted by the City of Miami. IN WITNESS WHEREOF', this day of _ 198 . CHAIRMAN. Board of Directors By gnature Attests -�: Corporate Secretary S gnature -�' Print or Type Name EXHIBIT 1 Print or Type Name (SEAL)