HomeMy WebLinkAboutR-02-0040J-01-961
1/10/02
RESOLUTION NO. Gr 12� —
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH
ATTACHMENT(S), BY A FOUR-FIFTHS (4/5 THS)
AFFIRMATIVE VOTE, AFTER A DULY ADVERTISED PUBLIC
HEARING, RATIFYING, APPROVING AND CONFIRMING THE
CITY MANAGER'S FINDING THAT COMPETITIVE
NEGOTIATION PROCEDURES ARE NOT PRACTICAL OR
ADVANTAGEOUS FOR THE ACQUISITION OF PROFESSIONAL
SERVICES FOR THE MANAGEMENT OF APPROXIMATELY
1.14 ACRES OF CITY -OWNED PROPERTY ON VIRGINIA
KEY LOCATED AT 3601 RICKENBACKER CAUSEWAY,
MIAMI, FLORIDA, FROM BARRY UNIVERSITY, INC.;
AUTHORIXING THE CITY MANAGER TO EXECUTE A
MANAGEMENT AGREEMENT ("AGREEMENT"), IN
SUBSTANTIALLY THE ATTACHED FORM, WITH BARRY
UNIVERSITY, INC. (THE "PROVIDER") TO PROVIDE FOR
(1) A TERM THAT COMMENCES ON JULY 1, 2001 AND
EXPIRES ON DECEMBER 31, 2003, WITH AN OPTION TO
EXTEND FOR ONE ADDITIONAL THREE-YEAR TERM,
SUBJECT TO THE MUTUAL CONSENT OF THE PARTIES;
(2) THE PROVIDER TO PAY A FEE OF $500 PER MONTH,
PLUS STATE USE TAX, IF APPLICABLE; (3) THE
PROVIDER MAY ENTER INTO PROGRAM SERVICE
AGREEMENTS WITH SERVICE PROVIDERS FOR THE
PURPOSE OF OPERATING AND MAINTAINING WATER
RECREATIONAL AND EDUCATIONAL OPPORTUNITIES; AND
(4) THE PROVIDER TO REQUIRE EACH SERVICE
PROVIDER TO PAY TO PROVIDER 12% OF ITS GROSS
REVENUES ("MONTHLY PERCENTAGE FEF."), WHICH
PERCENTAGE FEE SHALL BE SPLIT 50/50 BETWEEN THE
CITY AND THE PROVIDER, WITH TERMS AND CONDITIONS
AS MORE PARTICULARLY SET FORTH IN THE AGREEMENT.
WHEREAS, the City of Miami (the "City") is owner of certain
real property and improvements located at 3601 Rickenbacker
Causeway, Miami, Florida, (the "Property"); and
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WHEREAS, Resolution No. 00-1110, adopted December 14, 2000,
authorized the City Manager to negotiate and execute a Temporary
Use Agreement and Revocable License Agreement with Barry
University, Inc., and to present the negotiated agreement to the
City Commission for approval; and
WHEREAS, the Temporary Use Agreement between the City of
Miami and the Provider expired on June 30, 2001; and
WHEREAS, the Provider has requested to negotiate a
Management Agreement in lieu of a Revocable License Agreement in
order to provide adequate time to accomplish its goals of a
viable water recreational and educational program; and
WHEREAS, the Provider wishes to continue its rowing program
to provide water recreational and educational opportunities at
the Property; and
WHEREAS, the City and the Provider find it to be in the best
interest of the parties, and the general public, to allow the
Provider to continue its water recreational and educational
opportunities at the Property;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are adopted by reference and
incorporated as if fully set forth in this Section.
Page 2 of 4
Section 2. By a four-fifths (4/5ths) affirmative vote of
the Commission, after a duly advertised public hearing,
ratifying, approving and confirming the City Manager's finding
that competitive negotiation procedures are not practical or
advantageous for the acquisition of professional services for the
management of approximately 1.14 acres of City -owned property on
Virginia Key located at 3601 Rickenbacker Causeway, Miami,
Florida, from Barry University, Inc. is ratified, approved and
confirmed.
Section 3. The City Manager is authorized!/ to execute a
Management Agreement, in substantially the attached form, with
Barry University, Inc. (the "provider") to provide for (1) a term
that commences on July 1, 2001 and expires on December 31, 2003,
with an option to extend for one additional three-year term,
subject to the mutual consent of the parties; (2) the payment of
a fee of $500 per month, plus state use tax, if applicable;
(3) the provider may enter into program service agreements with
service providers for the purpose of operating and maintaining
water recreational and educational opportunities; and (4) the
provider to require each service provider to pay to provider 120
of its gross revenues ("monthly percentage fee"), which
percentage fee shall be split 50/50 between the city and the
i� The herein authorization is further subject to compliance with all
requirements that may be imposed by the City Attorney, including but not
limited to those prescribed by applicable City Charter and Code
provisions.
Page 3 of 4
provider, with terms and conditions as more particularly set
forth in the agreement.
Section 4. This Resolution shall become effective
immediately upon its adoption and signature of the Mayor.?
PASSED AND ADOPTED this 10th day of January ___, 2002.
CITY CLERK
AND CORRECTNESS &
I ATTORNEY
5782:LB
ANUEL A. DIAZ, MA
21 If the Mayor does not sign this Resolution, it shall become effective at
the end of ten calendar days from the date it was adopted and passed.
If the Mayor vetoes this Resolution, it shall not become effective
unless the City Commission overrides the veto.
Page 4 of 4 ;,
MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI
AND
BARRY UNIVERSITY, INC.
FOR THE USE OF PROPERTY LOCATED AT
3601 RICKENBACKER CAUSEWAY
MIAMI, FLORIDA
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TABLE OF CONTENTS
ARTICLE I
DESCRIPTION AND TERM
1.1
Description of Property
1.2
Term
1.3
Option to Extend
ARTICLE II
PURPOSE
2.1
Purpose
2.2
Other Organizations Use of Property
2.3
Commercial Activities Within The Property
2.4
Operations
2.5
Special Events
2.6
Rules And Regulations
2.7
Ticket Surcharge
2.8
Continuous Duty To Operate
ARTICLE III
CONSIDERATION
3.1
Fee
3.2
Additional Percentage Fee
3.3
Additional Payments
3.4
Late Payments
3.5
Returned Checks
3.6
Performance Deposit
3.7
Adjustment to Monthly Fee, and Performance Deposit
3.8
Promotion of City
ARTICLE IV
PROVIDER'S COVENANTS
4.1
Personnel
4.2
Annual Plan
4.3
Performance Review
ARTICLE V RECORDS AND AUDITING
5.1 Records of Operations
5.2 Audited Financials
ARTICLE VI
LICENSES: COMPLIANCE WITH LAWS
6.1
Licenses And Permits
6.2
Compliance With Laws
ARTICLE VII
HAZARDOUS MATERIALS
7.1
Hazardous Materials
0.2- �
ARTICLE VIII
ALTERATIONS AND IMPROVEMENTS
8.1
Provider's Alteration of Improvements
8.2
Payment, Performance Bonds and Letter of Credit
8.3
Mechanic's Liens
8.4
Changes and Additions to the Property
ARTICLE VIX CITY'S INSPECTION AND RIGHT OF ENTRY
9.1
Inspection By City
9.2
City's Right Of Entry
ARTICLE X
UTILITIES
10.1
Utilities
10.2
City Not Liable For Failure Of Utilities
ARTICLE X1 CITY REPAIRS
11.1 City Repairs
ARTICLE X11
MAINTENANCE AND REPAIRS
12.1
Maintenance and Repairs of Property
12.2
Preventive Maintenance and Services
ARTICLE XIII
NO REPRESENTATION BY CITY
13.1
Condition of Property
ARTICLE XIV INDEMNIFICATION AND. INSURANCE
14.1
Indemnification
14.2
Insurance
14.3
Damage Or Loss To The Property
14.4
Destruction of the Property
14.5
City's Option to Terminate Due to Casualty
ARTICLE XV
ASSIGNMENTS AND SUBLETTING
15.1
Assignment And Subletting Of Property
15.2
Event Of Bankruptcy
ARTICLE XVI
OWNERSHIP OF IMPROVEMENTS
16.1
Ownership of Improvements
ARTICLE XVII
SIGNAGE
17.1
Signs
•
•
ARTICLE XVIII SPECIAL ASSESSMENTS TAXES AND FEES
18.1 Special Assessments, Taxes And Fees
18.2 Appealing Ad Valorem Taxes
ARTICLE XIX DEFAULT
19.1
Events of Default
19.2
Remedies in Event of Default
19.3
Repeated Defaults
19.4
City's Right To Cure Default
ARTICLE XX
NOTICES
20.1
Notice
ARTICLE XXI MISCELLANEOUS PROVISIONS
21.1
Ingress And Egress
21.2
Use Rights
21.3
City Approval
21.4
Operating Losses
21.5
Successors And Assigns
21.6
Surrender Of Property
21.7
Amendments
21.8
Construction Of Agreement
21.9
Court Costs And Attorneys' Fees
21.10
Waiver Of Jury Trial
21.11
Severability
21.12
Waiver
21.13
Captions
21.14
Radon
21.15
No Recordation
21.16
Agreement Preparation
ARTICLE XXII
HOLDING OVER
22.1
Holding Over
ARTICLE XXIII
AFFIRMATIVE ACTION
23.1
Affirmative Action
23.2
Nondiscrimination
ARTICLE XXIV
MINORITY PROCUREMENT
24.1
Minority/Women Business Utilization
ARTICLE XXV
ENTIRE AGREEMENT
25.1
Entire Agreement
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ARTICLE XXVI APPROVAL BY OVERSIGHT BOARD
26.1 Approval By Oversight Board
EXHIBIT A THE PROPERTY
MANAGEMENT AGREEMENT
This Management Agreement (hereinafter the "Agreement"), is made and entered into
this day of , 2001, by and between the City of Miami, a municipal
corporation of the State of Florida (hereinafter the "City") and Barry University, Inc., a non-profit
corporation (hereinafter the "Provider"), (hereinafter collectively referred to as the "Parties").
WITNESSETH
WHEREAS, the Provider has been operating and maintaining City -owned real property
located at 3601 Rickenbacker Causeway, Miami, Florida, for the purpose of providing water
recreational and educational services; and
WHEREAS, the City is desirous of having the Provider continue to serve the citizens of
the City of Miami, and the general public; and
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
after contained to be observed and performed, the Parties hereto do hereby covenant and
agree as follows:
ARTICLE I
DESCRIPTION AND TERM
1.1 Description Of Pro ert
The City owns and/or has under its jurisdiction and control certain lands and facilities of
approximately 1.14 acres located at 3601 Rickenbacker Causeway, Miami, Florida, as more
particularly described in Exhibit "A" attached hereto and made a part hereof (the "Property").
The Provider is hereby permitted the use of the Property, including the improvements
constructed thereon for the specific purposes hereinafter described and, subject to all of the
terms and conditions contained herein.
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1.2 Term
The term of this Agreement shall commence on July 1, 2001 and expire on December
31, 2003, (hereinafter the "Term"), unless sooner terminated as provided herein.
1.3 Option to Extend
In the event the City and the Provider mutually wish to extend this Agreement, this
Agreement may be extended for one (1) additional three (3) year period upon such terms and
conditions as may be agreed to by the Parties which may include, but not be limited to,
renegotiation of the financial terms of this Agreement (hereinafter the "Additional Term"),
provided that no event of default, as defined in Default, exists at the time of notice. If the
Parties elect to extend into the Additional Term, the Provider must deliver written notice of its
intent to the City Manager six (6) months in advance of expiration of the Term, but not earlier
than nine (9) months prior to the expiration of the Term (the "Option Request"),
Upon receipt of the Option Request, the City Manager shall conduct a review of the
Provider's compliance with the provisions of this Agreement, which may include, but not be
limited to, a review of the following:
a) The Provider's adherence to and performance of all covenants, agreements and
other obligations on its part hereunder.
b) The Provider's substantial accomplishment of its goals and objectives as outlined in
its Annual Plan approved by the City in accordance with Section 5.2 herein.
The City Manager, in his sole discretion, shall either extend the Agreement or reject the
Option Request within 60 days of receipt of the Option Request. No action on the part of the
City Manager shall be deemed a rejection of the Option Request.
In the event an option to extend the original Term of this Agreement is exercised, the
City will retain the Deposit provided for in the Section 3.5 hereof, for the same purposes as
described therein. The original Term and Additional Term shall be collectively referred to as the
"Term".
ARTICLE II
PURPOSE
2.1 Purpose and Use.
The purpose of this Agreement is to allow the Provider to utilize the Property primarily
for water recreational and educational opportunities, which shall include storage of boats and
other equipment, instruction, clinics, classes and special events regarding rowing, sailing,
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kayaking, water safety, swimming, scuba/snorkeling, banquets, and tournaments (the
"Permitted Use"). The Provider shall ensure that the Property and all the Provider's activities
generated thereon, or activities resulting from or relating to the Provider's use of the Property,
shall be available to all segments of the community including the physically disabled and
financially disadvantaged. The Provider shall comply with the American with Disabilities Act.
The Provider shall operate, manage, supervise and administer the Property as an
independent contractor and not as an employee of the City, for the purpose of providing, on a
non-exclusive basis, public water recreational and educational activities which may include from
time to time: group and private instruction, lectures, clinics, classes and special events
regarding sailing including regattas, kayaking, water safety, and scuba/snorkeling, and no other
purpose whatsoever, subject to the limitations contained in this Agreement. The Provider may
request written consent from the City Manager to use the Property for any other use, but shall
not be authorized to use the Property for that use until the Provider has received the written
consent of the City Manager, which consent may be conditioned or withheld in the City
Manager's sole discretion.
This Agreement and all rights of the Provider hereunder shall, at the option of the City,
cease and terminate, in accordance with the provisions and requirements of Article XX, in the
event that the Provider ceases to use and operate the Property for the purposes provided
herein.
Nothing herein shall restrict the Provider from using vending machines for the sale of
food and beverage items. The sale, distribution and/or consumption of alcoholic beverages at
the Property is prohibited unless expressly authorized by the City Manager in connection with a
Special Event. The use of jet skis and other similar watercraft is hereby prohibited.
2.2 Other Organizations Use Of Property
The Provider shall be solely responsible for all activities at the Property. The Provider
shall be allowed to enter into professional services agreements with other organizations in order
to provide the services set forth in Section 2.1 herein, subject to payment of the Additional
Percentage Fees in accordance with Section 3.2 (herein "Service Providers"). The Parties
agree that the Provider shall not unreasonably withhold use of the Property for the City or City -
sponsored events. The City shall be permitted to utilize the Property for City or City -sponsored
events at no cost to the City. The Provider shall require that each Service Provider obtain and
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maintain in full force and effect insurance during the term of their agreement as outlined in
Section 14.2 hereafter.
2.3 Commercial Activities Within The Propertx
The Provider shall be required to receive the City Manager's prior written approval to
provide commercial activities that are ancillary to the Provider's use of the Property. Such
approval may be conditioned or withheld for any or no reason whatsoever inclusive of
compensation to the City.
2.4 Operations
The Provider shall conduct its operations in an orderly manner reasonably intended not
to disturb or be offensive to customers, patrons or others in the immediate vicinity of such
operations.
2.5 Special Events
The City shall have the sole responsibility for issuing permits, including collection of any
fees and provision of adequate liability insurance (the "Permit"), to utilize the Property for
Special Events. Any inquiries to the Provider for a Special Event shall be referred to the City's
Director of the Office of Asset Management (the "Director"). In the event the City issues a
Permit, the Provider shall have the sole responsibility to cause the Property to be cleaned and
any damages repaired as a result of issuing said Permit. If the Special Event is at night, the
Provider shall have the additional responsibility to ensure that the Property is secure at the end
of the Special Event. For purposes of this Agreement, Special Events shall mean activities at
the Property including, but not limited to regattas, which substantially exceed the scope of the
regular program activities, which are conducted at the Property. The City shall have the
absolute right to deny the Provider a Permit for any Special Event. With respect to regatta
events, the Provider shall be required to submit detailed sketches of the entire area in which the
event shall take place. The Provider shall not be exempt from obtaining a Permit for any
Special Event. The Provider shall not be required to pay the permit fee associated with any
Permit but shall be required to pay any and all costs associated with the issuance of the Permit
including, but not limited to, the provision of additional insurance, off-duty police, fire -rescue
services and/or additional cleanup services. For the purpose of facilitating the planning of
Special Events, the Provider may submit a list of all planned Special Events for a one-year
period at the same time it submits its Annual Plan to the City in accordance with Section 4.2
herein, thereby requesting the advance issuance of Permit(s) for the respective Special Events.
2.8 Rules And Regulations
The Provider agrees to comply with all rules and regulations that may be promulgated
by the City Manager for the use and operation of the Property. These rules and regulations
may be amended from time to time in the City Manager's sole discretion. As rule changes
occur, they shall be provided to Provider, in writing, at least fifteen (15) days before they take
effect.
2.7 Ticket Surcharge
The Provider shall pay all applicable ticket surcharges as stated in section 53-2 of the
Code of the City of Miami and Ordinance 10509 of the City of Miami, as amended and as the
same may be amended from time to time. As of the date of execution of this Agreement, the
ticket surcharge is as follows:
Ticket Price Amount of Surcharge
$1.00 to $5.00 $0.50
$5.01 to $15.00 $0.75
$15.01 and over $1.00
2.8 Continuous Duty To Operate
Except where the Property is rendered untenantable by reason of fire or other casualty,
the Provider shall at all times during the Term or any Additional Term hereof (i) occupy the
Property on the Commencement Date; (ii) shall thereafter continuously conduct operations at
the Property in accordance with the terms of this Agreement; (iii) at all times keep the Property
fully stocked with materials, trade fixtures and furnishings necessary and proper to operate the
Property and (iv) keep the Property open for operation during hours established from time to
time as approved by the City Manager (the "Required Operating Hours").
ARTICLE III
CONSIDERATION
3.1 Fee
The Provider shall pay to the City a monthly fee in the amount of five hundred dollars
($500.00), plus State of Florida Sales and Use Tax, if applicable. Said monthly fee shall be
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paid in advance and in full on the first day of each month during the term of each Agreement
Year, without notice or demand (hereinafter the "Monthly Fee"). Payments shall be made
payable to "City of Miami" and shall be mailed to City of Miami, Department of Finance, Rental
Collections, 444 SW 2nd Avenue, 6th Floor, Miami, Florida 33130, or such other address as may
be designated from time to time. For purposes of this Agreement, the term "Agreement Year"
shall mean any period of time consisting of twelve (12) consecutive calendar months
commencing on the Commencement Date and each anniversary thereafter.
3.2 Additional Percentage Fee
In addition to the payment of the Monthly Fee as provided for in Section 3.1, each
Service Provider shall be required to pay to the Provider a monthly fee for the sum of twelve
percent (12%) of the gross revenues plus State Sales and Use Tax, if applicable, derived from
the Permitted Use of the Property (hereinafter "Additional Percentage Fee"). In consideration of
Provider's management services, the Provider shall retain fifty percent (50%) of the Additional
Percentage Fee, and shall pay to the City the remaining fifty percent (50%) of the Additional
Percentage Fee on or before the thirtieth (30th) day of each and every month of the term
collected from its Service Providers. Said monthly fees shall be paid without notice or demand
to the Provider.
For purposes of this Agreement, the term "Gross Revenues" shall include the following
revenue received by the Service Providers:
a) all revenue from se(vices, program fees and membership dues;
b) all revenue derived from advertising and sponsorships conducted on the Property;
c) all revenue from concession sales;
d) all other receipts whatsoever of all business conducted in or from the Property;
e) all revenue from sales, and services including, but not limited to, pay telephones,
vending machines, and entertainment devices both for cash and on credit, rendered
in or upon the Property;
f) all revenue received by Service Provider in connection with the use of the Property,
any facility thereon, or any portion thereof for any period of time, including without
limitation, special events, regattas, banquets, tournaments, receptions and parties
held on or initiated from the Property;
g) all grants, subsidies, rebates, credits or similar benefits received from any federal,
state, regional or local body, agency, authority, department or organization which
revenues are unrestricted or are to be used for general operating expenses;
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h) All donations and contributions received which revenues are unrestricted or are to be
used for general operating expenses.
Gross Revenues shall not include the following:
a) any amount of any sales, use or gross sales tax imposed by any federal, state or
governmental authority directly on sales and collected from customers, provided that
the amount is added to the selling price therein and paid by the Service Providers to
such governmental authority; collection of insurance proceeds; monies collected for
events that are done for charities wherein the total amounts collected are paid to the
charitable sponsor or not-for-profit organizations;
b) any grants, subsidies, credits or similar benefits received from any federal, state,
regional or local body, agency, authority, department or organization which revenues
are restricted or for capital expenditures to the Property;
c) any donations or contributions which revenues are restricted or for capital
expenditures to the Property;
Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized
in the period the service was provided or sale took place. Payments received in advance are
deferred and are recognized as revenue in the period the service is rendered or sale takes
place. Grants shall be recorded as income during the period designated by the grants or when
the Provider has incurred expenditures in compliance with the restrictions of the grantor. If a
sale is by credit card no deduction shall be allowed for any commission associated with such
sale.
Gross Revenues shall be reduced by the amount of any refund made upon any sale in
or from the Property, provided said amounts had been previously included in "Gross Revenue,"
not to exceed the sum so previously included, where the merchandise sold is thereafter
returned by the purchaser and accepted by the Provider, and if such refund is in the form of a
credit to customer, such credit shall be included in Gross Revenues when used.
For purposes of this Agreement, the term "Fiscal Year' shall mean each consecutive
twelve-month period commencing on January 1s' and expiring December 31st. If a Service
Provider has a different Fiscal Year than defined in this Agreement, said Service Provider shall
be allowed to utilize its Fiscal Year in accordance with generally acceptable accounting
principles.
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3.3 Additional Payments
In addition to the Monthly Fee, and Additional Percentage Fee, all other payments or
charges payable by the Provider, however denoted, are called "Additional Payments".
3.4 Late Payments
Any payment made by the Provider for any fee, or charge required to be paid under the
provisions of this Agreement, which is not received by the City within ten (10) days after same
shall become due, shall be subject to late fee of ten percent (10%) of the amount due (the "Late
Fee"). Acceptance of such Late Fee by the City shall not constitute a waiver of the Provider's
violations with respect to such overdue amount nor prevent the City from the pursuit of any
remedy to which the City may otherwise be entitled.
3.5 Returned Check Fee
In the event any check is returned to the City as uncollectible, the Provider shall pay to
the City a returned check fee (the "Returned Check Fee") based on the following schedule or
the maximum amount permitted by law, whichever is greater:
Returned Amount
$00.01 - 50.00
$50.01 - 300.00
$300.01 - 800.00
OVER $800
Returned Check Fee
$20.00
$30.00
$40.00
5% of the returned amount.
The Returned Check Fee shall constitute Additional Payments due and payable to the
City by the Provider. Acceptance of Returned Check Fee by the City shall not constitute a
waiver of Provider's violations with respect to such overdue amount nor prevent the City from
the pursuit of any remedy to which the City may otherwise be entitled.
3.6 Performance Deposit
The Provider has deposited with the City sum of five hundred dollars ($500.00).
Simultaneously with the execution of this Agreement, the Provider shall deposit an additional
one thousand dollars ($1,000.00) with the City for a sum total of one thousand five hundred
dollars ($1,500.00) (the "Deposit") in guarantee of the full and faithful performance by the
Provider of all obligations of the Provider under this Agreement or in connection with this
Agreement. If the Provider has caused an Event of Default to occur, as defined in the Article of
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this Agreement entitled "Default", the City may use, apply or retain all or any part of the Deposit
for the payment of (i) any fee or other sum of money which is due from the Provider hereunder,
(ii) any sum expended by the City on the Provider's behalf in accordance with the provisions of
this Agreement, or (iii) any sum which the City may expend or be required to expend as a result
of the Provider's violation. The use, application or retention of the Deposit or any portion
thereof by the City shall not prevent the City from exercising any other right or remedy provided
for under this Agreement or at law or in equity and shall not limit any recovery to which the City
may be otherwise entitled. At any time or times when the City has used or applied all or any
part of the Deposit as provided above, the Provider shall deposit with the City, to replenish the
Deposit, the sum or sums equal to the amounts so applied by the City within ten (10) days of
written notice by the City.
Provided the Provider is not in default of this Agreement, the Deposit or balance thereof,
as the case may be, shall be returned to the Provider upon the termination of this Agreement or
upon any later date after which the Provider has vacated the Property in the same condition or
better as existed on the Term date, ordinary wear and tear excepted. Upon the return of the
Deposit (or balance thereof) to the Provider, City shall be completely relieved of liability with
respect to the Deposit. The Provider shall not be entitled to receive any interest on the Deposit.
3.7 Adjustment to Monthly Fee, and Performance Deposit
Commencing twelve months from the Commencement Date and every twelve months
thereafter (the "Anniversary Date(s)"), the Provider agrees that the Monthly Fee, and
Performance Deposit shall each be increased by five percent (5%) of the Monthly Fee, and
Performance Deposit respectively, in effect for the immediately preceding Agreement Year. On
each Anniversary Date the Provider shall remit payment to the City for the increased amount in
Performance Deposit. Nothing in this paragraph shall be construed to grant the Provider the
right to use the Property or maintain the Property for a term greater than the Term of this
Agreement.
3.8 Promotion of City
The Provider acknowledges the benefits afforded to it by the City's providing the
Property for the Provider's operations, and shall provide recognition of the City of Miami, in a
manner reasonably satisfactory to the City, in all its marketing, advertising and promotional
materials.
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ARTICLE IV
PROVIDER'S COVENANTS
4.1 Personnel
The Provider shall be required to furnish one full-time designated manager experienced
in the operation and control of the type of operations to be performed hereunder, delegated with
sufficient authority and responsibility to insure proper use and operation of the Property in
compliance with this Agreement.
The Provider shall require the designated manager to remain on site and in charge
during scheduled activities. The designated manager must be available to take telephone calls
during scheduled activities. The designated manager shall be easily identified by uniform.
The Provider shall employ, train, pay, supervise and discharge all employees necessary
for the operation of the Property. All such persons shall be the employees of the Provider or its
Service Providers, and every person performing services in connection with this Agreement,
including a subcontractor or employee of Provider, or any agent or employee of the Provider
hired by the Provider, shall be acting solely on behalf of the Provider. The City shall not be
liable for their compensation or for the consequences of any act or omission on the part of any
of them.
4.2 Annual Plan
On or before each October 1S1 during the Term of this Agreement, and any Additional
Term hereof, the Provider shall prepare and present, in a form acceptable to the City Manager,
the following items for the upcoming Fiscal Year as defined in Section 3.2 of this agreement, a
consolidated plan of the Provider's operation, which shall include the Service Providers at the
Property, for the review and approval of the City Manager (hereinafter collectively referred to as
the "Annual Plan"):
a) a description of programs and activities along with related policies, rules and
procedures and the objectives of the respective programs and activities;
b) a description of staffing and supervision and responsibilities of each;
c) a consolidated budget of recommended repairs, renewals, revisions, replacements,
substitutions or improvements to the Property and the furnishings and equipment
which are of a capital nature. The Capital Budget shall include an estimate for the
cost of plans and specifications, material and labor;
d) a consolidated budget for the upcoming Fiscal Year ("Operating Budget") which
budget shall include a projected income and expense statement, a projected
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balance sheet and projected source and application of funds. More specifically, the
proposed budget shall include, but not be limited to, the following detailed
projections:
i. revenues by categories from all revenue sources associated with
operations at the Property and any inkind services;
ii. operating expenses for services conducted at the Property;
iii. administrative costs;
iv. marketing, advertising and promotion expenses;
V. utilities;
vi. repairs and maintenance;
vii. general expenses;
viii. reserves for replacement;
4.3 Performance Review
The Provider shall transmit to the City Manager, in writing, in a format acceptable to the
City Manager, bi-annual reports regarding all activities, and accomplishment of objectives of its
Service Providers. The Provider shall submit these annual reports to the City Manager on or
before the date set forth below for the respective period.
Operating Period Report Due Date
Jan. 1 — .tun. 30 Aug. 1
Jul. 1 — Dec. 31 Feb. 1
The Provider shall submit to the City Manager such additional reports as may be
requested by the City Manager. The Provider shall prepare, in writing, in a form acceptable to
the City Manager, any reports or documentation that may be required by Federal, State or local
directives. The Provider shall use its best efforts to make such changes to its programs and
operations, in a timely manner, as may be requested by the City Manager.
The City may carry out monitoring and evaluation activities, including site visits and
observations by the City staff or community surveys; the Provider shall ensure the cooperation
of its employees in such efforts. Any inconsistent, incomplete or inadequate information either
received by the City on an bi-annual basis or obtained through monitoring and evaluation by the
City, which is not remedied by the Provider within ten (10) days of the City's notice to the
Provider of such inconsistent, incomplete or inadequate information, shall constitute and Event
of Default hereunder.
ARTICLE V
RECORDS AND AUDITING
5.1 Records Of Operations
During the Term and any Additional Term of this Agreement, the Provider shall require
its Service Providers to maintain and keep, or cause to be maintained and kept at their office of
operations, a full, complete and accurate daily record and account of all Gross Revenues, other
revenues, if any, and expenses arising or accruing by virtue of its operations conducted at or
from the Property, including, but not limited to, any grants, donations, foundation support,
tournaments, Special Events including regattas, and/or other contributions to the Service
Providers.
All records and accounts including invoices, sales slips (which will be serially
numbered), bank statements or duplicate deposit slips, and all other supporting records, shall
be available for inspection and audit by the City and its duly authorized agents or
representatives during the hours of 8:00 AM to 5:00 PM, Monday through Friday, and shall be
maintained in accordance with generally accepted accounting principles. The Provider shall
require its Service Providers to keep and preserve, or cause to be kept and preserved, said
records for not less than sixty (60) months after the expiration or earlier termination of this
Agreement. For the same period of time, the Provider shall require its Service Providers to also
retain copies of all sales and tax returns covering its operations at the Property, and any other
governmental tax or other returns, which show the Service Provider's revenues therein, and
shall, upon demand, deliver photographic copies thereof to the City at no cost. The Provider
and Service Providers shall cooperate with the City's internal auditors (or such other auditors
designated by the City) in order to facilitate the City's examination of records and accounts.
The Provider agrees that all documents, records and reports maintained and generated
pursuant to this Agreement shall be subject to the provisions of the Public Records Law,
Chapter 119, and Florida Statutes.
5.2 Audited Financials
Commencing within sixty (60) days after the end of each Fiscal Year, as defined in
Section 3.2, each Service Provider of the Property shall deliver to or cause to be delivered to
the Provider, and the City of Miami, Office of Asset Management, 444 S.W. 2nd Avenue, Td
Floor, Miami, FL 33130, a financial statement for every Fiscal Year of this Agreement, prepared
and certified by an independent Certified Public Accountant ("CPA") employed at the Service
Provider's sole cost and expense. Said CPA shall certify that he made a complete examination
of the books, state sales tax returns, and federal income tax returns of Provider and that such
statement is prepared in accordance with generally accepted accounting principles and
practices and represents the Gross Revenues, other revenues, if any, and expenses of the
Service Provider for the period indicated therein.
Notwithstanding the above and during the sixty (60) month period described in the
Section 5.1 of this Agreement entitled "Records of Sales, at its option, the City may cause, at its
sole cost and expense, a complete audit to be made of the Service Providers business affairs,
records, files, sales slips and sales tax records in connection with the Service Provider's sales
on, from or related to the Property for the period covered by any financial statement, report or
record furnished by the Provider to the City.
The Provider shall allow the City or the auditors of the City to inspect all or any part of
the compilation procedures for the aforesaid monthly reports. Said inspection shall be
reasonable and is at the sole discretion of the City. Records shall be available Monday through
Friday, inclusive, between the hours of 8:00 AM and 5:00 PM at the Property.
ARTICLE VI
LICENSES' COMPLIANCE WITH LAWS
6.1 Licenses And Permits
The Provider shall, at the Provider's sole cost and expense, obtain any and all licenses
and permits necessary and in connection with the Provider's use and occupancy of the
Property.
6.2 Compliance With Laws
The Provider hereby acknowledges that the Provider's compliance with all applicable
laws, ordinances and codes of federal, state and local governments, as they may apply to this
Agreement, including but not limited to building codes and zoning restrictions, is a condition of
this Agreement. The Provider shall comply therewith as the same presently exist and as they
may be amended hereafter.
ARTICLE VII
HAZARDOUS MATERIALS
7.1 Hazardous Materials
The Provider shall not at any time during this Agreement handle, store, dispose or
transport any fuel, oils, flammable explosives, asbestos, urea formaldehyde, radioactive
materials or waste, infectious waste, or other hazardous, toxic, contaminated or polluting
materials, substances or wastes, including, without limitation, any "Hazardous Substances",
"Hazardous Wastes", "Hazardous Materials" or "Toxic Substances", (collectively referred to as
"Hazardous Materials"). This provision shall survive the expiration or termination of this
Agreement.
ARTICLE Vlll
ALTERATIONS AND IMPROVEMENTS
8.1 Provider's Alteration of Improvements
In the event the Provider desires to make or cause to be made any repair, alteration,
addition, deletion, partition or change to the Property (hereinafter collectively called
"Alterations"), the Provider shall submit for prior approval by the City Manager detailed plans
and specifications of proposed Alterations, and proof of funding and/or its financing plans,
which approval may be withheld or conditioned in his sole discretion. The Provider shall be
solely responsible for applying and acquiring all necessary building and zoning permits. The
Provider shall be responsible for any and all costs associated with any Alterations including but
not limited to design, construction, installation and permitting costs. All Alterations to the
Property, whether or not by or at the expense of the Provider, shall, unless otherwise provided
by written agreement of the Parties hereto, immediately upon their completion become the
property of the City and shall remain and be surrendered with the Property. The Department of
Risk Management shall approve all Alterations to the Property that require additional insurance.
All Alterations must be in compliance with all statutes, laws, ordinances and regulations
of the State of Florida, Miami -Dade County, the City of Miami and any other agency that may
have jurisdiction over the Property as they presently exist and as they may be amended
hereafter.
All equipment and personal property used by the Provider at the Property shall be of
good quality and suitable for its purpose. The City Manager shall have the right to require
substitute equipment or personal property or additional equipment or personal property when
such action is deemed necessary or desirable in his sole discretion.
14 ,,
The Provider agrees that the City Manager shall make the final decision as to the age,
condition, design and acceptability of Alterations and equipment, furnished for installation and
use, in his sole discretion.
8.2 Payment, Performance Bonds and Letters of Credit
No Alterations shall commence in or on the Property until the Provider has written
approval from the City Manager. The City Manager, in his sole discretion, may mandate that
the requested construction be secured by means of a performance bond or letter of credit
(hereinafter "L.C.") in the amount of one hundred twenty-five percent (125%) of the total
construction cost, or in such other amounts as may be designated by the City Manager. The
Provider shall be responsible for maintaining said bonds or L.C. in full force and effect
throughout the construction. Any bond or LC provided to the City hereunder shall be issued by
insurance and surety companies or banks acceptable to the City and duly qualified to transact
such business in the State of Florida and shall be subject to form and substance approval by
the City Manager.
8.3 Mechanics' Liens
The Provider shall not suffer or permit any mechanics' liens to be filed against the title to
the Property, nor against the Provider's interest in the Property, nor against any Alteration by
reason of work, labor, services or materials supplied to the Provider or anyone having a right to
possession of the Property. Nothing in this Agreement shall be construed as constituting the
consent or request of the City, expressed or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or material man for the performance of any labor or the
furnishing of any materials for any specific Alteration, or repair of or to the Property nor as
giving the Provider the right, power or authority to contract for or permit the rendering of any
services of the furnishing of any materials that would give rise to the filing of any mechanics
liens against the City's interest in the Property. If any mechanics' Hen shall at any time be filed
against the Property, the Provider shall cause it to be discharged of record within fifteen (15)
days after the date the Provider has knowledge of its filing. If the Provider shall fail to discharge
a mechanics' lien within that period, then in addition to any other right or remedy, the City may,
but shall not be obligated to, discharge the lien either by paying the amount claimed to be due
or by procuring the discharge of the lien by deposit in court of bonding, or in the event the City
15
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shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the
mechanics' lien by the lien or and to pay the amount of the judgment, if any, in favor of the
lienor with interest, costs and allowances with the understanding that all amounts paid by the
City shall constitute Additional Payments due and payable under this Agreement and shall be
repaid to the City by the Provider immediately upon rendition of any invoice or bill by the City.
The Provider shall not be required to pay or discharge any mechanics' lien so long as (i) the
Provider shall in good faith proceed to contest the lien by appropriate proceedings, (ii) the
Provider shall have given notice in writing to the City of its intention to contest the validity of the
lien, and (iii) the Provider shall furnish and keep in effect a surety bond of a responsible and
substantial surety company reasonably acceptable to the City or other security reasonably
satisfactory to the City in an amount sufficient to pay one hundred ten percent of the amount of
the contested lien claim with all interest on it and costs and expenses, including reasonable
attorneys' fees, to be incurred in connection therewith.
8.4 Chances and Additions to the Property.
The City reserves the right at any time and from time to time (i) to make or permit
changes or revisions in its plan for the Property, including additions to, subtractions from,
rearrangements of, alterations of, modifications of or supplements to the building areas,
walkways, parking areas, or driveways, (ii) to construct other improvements on the Property and
to make alterations thereof or additions thereto, and (iii) to change location, size, content and
design of any signage for the Property.
ARTICLE IX
CITY'S INSPECTION AND RIGHT OF ENTRY
9.1 Inspection By City
The City shall have the authority to make periodic inspections of the Property and
improvements thereof, during normal working hours. The Provider, at its sole cost and
expense, shall be required to make any modifications in cleaning or maintenance methods
reasonably required by the City.
9.2 City's RI - ht Of Entry
The Provider agrees to permit the City to enter upon the Property at all reasonable
times, for any purpose the City deems necessary to, incident to, or connected with the
16
performance of the City's duties and obligations hereunder or in the exercise of its municipal
functions.
ARTICLE X
UTILITY CHARGES
10.1 Utilities.
The Provider, at its sole cost and expense, shall be responsible for all utilities rendered
or supplied upon or in connection with the Property, including but not limited to, electricity,
telephone, water, gas, sewage disposal, stormwater fees, trash and garbage removal, as well
as all costs for installation of any lines and equipment necessary.
10.2 City Not Liable For Failure of Utilities.
The City shall in no respect be liable for any failure of the utility companies or
governmental authorities to supply utility service to the Provider, or for any limitation of supply
resulting from governmental orders or directives, or for any injury or damage to any person or
property caused by or resulting from any water, sewer, gas, or electricity which may leak or flow
from the water, sewer or gas mains on to any part of the Property. The Provider shall not claim
any damages by reason of the City's or other individual's interruption, curtailment or suspension
of a utility service, nor shall this Agreement or any of Provider's obligations hereunder be
affected or reduced thereby.
ARTICLE XI
CITY REPAIRS
11.1 City Repairs.
The City shall, at its sole cost and expense, provide initial repairs to the railings on the
second floor balcony of the two-story building, and shall replace entrance ramps in accordance
with regulations of the Americans with Disabilities Act. After initial repairs to the railings, and
replacement of the entrance ramps have been completed by the City, and for the remainder of
the Term and Additional Term of this Agreement, the Provider shall, at its sole cost and
expense, maintain and repair said railings and entrance ramps in accordance with the
Americans with Disabilities Act. The City shall be responsible for roof repairs, and the structural
portions of the building.
In the event such maintenance and repair becomes necessary in whole or in part due to:
{i} the misuse, act, neglect, fault or omission of the Provider, or its employees, agents,
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representatives, contractors, guests or invitees, in or about the Property; (ii) any damage
occasioned by the failure of the Provider to perform or comply with any terms, conditions, or
covenants of this Agreement; (iii) any structural alterations or improvements required by
Provider's use and occupancy of the Property, the Provider shall pay to the City the entire cost
of such maintenance, repair or alteration within fifteen (15) days after receipt of written notice.
The Monthly Fee, Additional Percentage Fee, and any Additional Payment shall not be reduced,
and the City shall not be liable under any circumstances for a loss of, or injury to, property, loss
of profits, or for injury to or interference with Provider's business or its Service Providers arising
from or in connection with the making of or City's failure to make any repairs, maintenance,
alterations or improvements in or to any portion of the Property or in or to fixtures,
appurtenances and equipment therein. The Provider hereby waives and releases its right to
perform repairs at City's expense under any law, statute, or ordinance now or hereafter in effect
in the State in which the Property is located.
ARTICLE XII
MAINTENANCE AND REPAIR
12.1 Maintenance and Repairs of Property.
The Provider shall be required, at its sole cost and expense, to provide all maintenance,
repairs and replacement at all times during the Term and any Additional Term, for the Property
including, without limitation, the swimming pool, any structural portions of the exterior walls,
nonstructural, interior portions of the walls, plumbing, electrical, heating, air conditioning, all
systems and equipment, floor coverings, interior walls, ceilings, decoration (e.g., carpeting,
painting, wall coverings, drapes and other window treatments, refinishing, etc.), fixtures and
equipment therein, excluding only those repair obligations assumed by the City in Section 11.1.
Provider shall not commit, or suffer to be committed, any waste in or upon the Property or do
anything in or on the Property which, in the City's sole opinion, detracts from the appearance of
the Property. All maintenance, repairs and replacements shall be performed to the satisfaction
of the City.
12.2 Preventive Maintenance And Services.
The Provider shall, at its sole cost and expense, provide all preventive maintenance,
maintenance and services required for use of the Property including, but not limited to, the
following:
a) Cleaning and janitorial services for the Property seven (7) days a week;
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b) Heating, ventilation, and air conditioning as required for the comfortable use and
occupation of the Property;
c) Water and sewer facilities;
d) Electric current for normal use and light;
e) Grounds services including lawn, shrub, and tree maintenance and removal of any
rubbish or obstructions from the Property;
f) Interior and exterior window cleaning for the Property to be performed as needed but
no less than once every one hundred and eighty (180) days;
g) Vermin and pest control, as necessary, but no less than once every sixty (60) days;
h) Garbage and trash disposal as required;
i) Painting of interior and exterior of building, including caulking of all window and door
frames;
j) Reseal all wood docks and decks as necessary, but no less than once every two
years;
k) Maintenance as required of the boat ramps and floating docks including removal of
algae;
1) Maintenance and repair of the swimming pool.
Upon the expiration or earlier termination of this Agreement as provided herein, all
Revenues held in reserve for the purpose of repairing, replacing or modifying those items
specified in the Capital Budget provided for above, which items are the property of the City,
shall be deposited with the City within sixty (60) days following the expiration or earlier
termination of this Agreement. In the event reserve funds are less than the planned set-aside
amount as provided in the Capital Budget, the reserve funds shall be divided among the City
and the Provider in a manner proportionate with the cost of the items identified in the Capital
Budget. Nothing herein shall imply that maintenance, repair and inspections should be
performed by the Provider only as required hereunder. The Provider shall, at all times, be
responsible for the condition of the Property, and shall perform repairs required in a timely
manner so as to prevent injury to persons and waste to the Property.
ARTICLE XIII
NO REPRESENTATION BY CITY
13.1 Condition Of Property
The Provider shall take possession of the Property "as is" except as specifically
mentioned in Section 11. 1, without any representation by or on behalf of the City, and agrees
19
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that the City shall, under no circumstances, be liable for any latent, patent or other defects in
the Property.
At the expiration or earlier termination of the term of this Agreement, the Provider shall
surrender the building "broom clean" and in the same order and condition, or better, which it
was upon execution of the Agreement, ordinary wear and tear excepted.
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
14.1 Indemnification
The Provider shall indemnify, protect, defend and hold harmless the City, its officials and
employees, but only to the extent of its own negligence, from and against any and all claims,
suits, actions, damages or causes of action of whatever nature arising out of the use or
operation of the Property or the surrounding areas, whether such claim shall be made by the
Provider, or an employee, agent, contractor, invitee or guest of the Provider, an employee,
agent or official of the City or by any third party, and whether it relates to injury to persons
(including death) or damage to property and whether it is alleged that the City or its employees
or officials were negligent. The Provider shall, at its own cost and expense, pay and satisfy all
costs related to any orders, judgments or decrees which may be entered thereon, and all costs,
attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims
and the investigation thereof. The Provider shall also indemnify, defend, protect and hold the
City harmless from and against any and all claims arising from any breach or default in
performance of any obligation of the Provider's part to be performed under the terms of this
Agreement, or arising from any act, neglect, fault or omission of the Provider, its employees,
agents, contractors, invitees and guests, and from and against all costs, attorneys' fees,
expenses and liability incurred in connection with any such claim or any action or proceeding
brought thereon. In case any action or proceeding shall be brought against the City by reason
of any claim, upon notice from the City, the Provider shall defend the same at the Provider's
expense by counsel approved in writing by the City. The City reserves the right to defend
itself. Provider reserves the right to retain counsel of its choice.
The Provider shall immediately notify the City, in writing, of any claim or action filed, of
whatever nature, arising out of the use or operation of the Property by the Provider, its
employees, agents, contractors, invitees and guests. The Provider shall also immediately notify
the City if the Provider knows or has reason to believe a claim or action will be filed, of whatever
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9 !
nature, arising out of the use or operation of the Property by the Provider, its members, agents,
contractors, employees or servants.
14.2 Insurance
The Provider, at its sole cost and expense, shall obtain and maintain in full force and
effect at all times throughout the Term and any Additional Term of this Agreement and through
any periods of extensions, the following insurance:
A. Commercial General Liability insurance on a comprehensive general liability
coverage form, or its equivalent, including contractual liability, products and completed
operations, personal injury and premises and operations coverage's against all claims including
child abuse, demands or actions, bodily injury, personal injury, death or property damage
occurring in the Property with such limits as may be reasonably requested by the City from time
to time but not less than $5,000,000 per occurrence combined single limit for bodily injury and
property damage. The City shall be named as Additional Insured on the policy or policies of
insurance.
B. "All Risk" property insurance against loss or damage by fire, windstorm, with such
endorsements for extended coverage, vandalism, malicious mischief, flood and special
coverage, insuring 100% of the replacement cost of Provider's fixtures, equipment, furniture
and all other personal property in and about the Property. This requirement may be waived if
the Provider executes a full release holding the City harmless for any damages incurred by the
Provider due to the above-mentioned cause as defined in a standard All Risk policy.
C. Automobile liability insurance covering all owned, non -owned and hired vehicles
used in conjunction with operations covered by this agreement. The policy or policies of
insurance shall contain such limits as may be reasonably requested by the City from time to
time but not less than $500,000 for bodily injury and property damage. The requirements of
this provision may be waived upon submission of a written statement that no automobiles are
used to conduct business.
D. Worker's Compensation in the form and amounts required by State law.
E. The City reserves the right to amend the insurance requirements by the issuance of
a notice in writing to the Provider. The Provider shall provide any other insurance or security
reasonably required by the City.
F. The policy or policies of insurance required shall be so written that the policy or
policies may not be canceled or materially changed without thirty (30) days advance written
notice to the City. Said notice should be delivered to the City of Miami, Department of Risk
21 40
Management, 444 S.W. 2 Avenue, 9th Floor, Miami, FL 33130 with copy to the City of Miami,
Office of Asset Management, 444 S.W. 2 Avenue, 3 d Floor, Miami, FL 33130,
G. A current Evidence of Insurance and Policy of Insurance evidencing the aforesaid
required insurance coverage shall be supplied to the Office of Asset Management of the City at
the commencement of the term of this Agreement and a new Evidence and Policy shall be
supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies
required above shall be issued by companies authorized to do business under the laws of the
State of Florida, with the following qualifications as to management and financial strength: the
company should be rated "A" as to management, and no less than class "X" as to financial
strength, in accordance with the latest edition of Best's Key Rating Guide, or the company holds
a valid Florida Certificate of Authority and is a member of the Florida Guarantee Fund. Receipt
of any documentation of insurance by the City or by any of its representatives, which indicates
less coverage than required, does not constitute a waiver of the Provider's obligation to fulfill
the insurance requirements herein.
In the event the Provider shall fail to procure and place such insurance, the City may,
but shall not be obligated to, procure and place same, in which event the amount of the
premium paid shall be paid by the Provider to the City as Additional Payments upon demand
and shall in each instance be collectible on the first day of the month or any subsequent month
following the date of payment by the City. Failure to pay such amount within the time frame
provided shall constitute a default of this Agreement as provided in Default below. The
Provider's failure to procure insurance shall in no way release the Provider from its obligations
and responsibilities as provided herein.
14.3 Damage Or Loss of the Propert
The City shall not be liable for injury or damage which may be sustained to the Property
or sustained by a person, goods, wares, merchandise or other property of the Provider, or the
Provider's employees, agents, representatives, invitees, guests or of any other person in or
about the Property caused by or resulting from any peril whatsoever which may affect the
Property, including, without limitation, fire, steam, electricity, gas, water, rain or theft which may
leak or flow from or into any part of the Property, or from the breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures of the Property, or from hurricane or any act of God or any act of negligence of any
user of the facility or occupants of the Property or any person whomsoever, including the City,
its officers, employees or agents, whether such damage or injury results from conditions arising
22
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upon the Property or upon other portions of the Facility or from other sources. The City shall
not be liable for any damages arising from any act or neglect of: (a) any other provider at the
Property; or (b) any officer, employee, agent, representative, customer, visitor or invitee of any
such provider.
14.4 Destruction Of The Property
If the Property shall be damaged by fire, the elements, accident or other casualty (any
of such causes being referred to herein as a "Casualty"), but the Property shall not be rendered
wholly or partially untenantable, the City shall promptly cause such damage to be repaired,
subject to collection of sufficient insurance proceeds, and there shall be no abatement of the
Monthly Fee or Additional Percentage Fee.
If, as a result of Casualty, the Property shall be rendered partially untenantable, then,
subject to the provisions of Section 14.5, the City shall cause such damage to be repaired, and,
provided such damage is not caused by the negligence of the Provider, its employees, agents,
contractors, representatives, guests or invitees, all Monthly Fees and Additional Percentage
Fees (other than those Fees that are due to the City by reason of the Provider's failure to
perform any of its obligations hereunder), shall be abated proportionately as to the portion of
the Property rendered untenantable during the period of such untenantability. All such repairs
shall be made at the expense of the City, subject to the Provider's responsibilities set forth
herein: The City shall not be liable for interruption to the Provider's business or for damage to
or replacement or repair of Provider's personal property (including, without limitation, inventory,
trade fixtures, floor coverings, furniture and other property removable by the Provider under the
provisions of this Agreement) or to any improvements installed in the Property, all of which
damage, replacement or repair shall be promptly undertaken and completed by the Provider.
14.5 City's Option to Terminate Due to Casualty
If the Property is (a) rendered wholly untenantable, or (b) damaged as a result of any
cause which is not covered by the City's insurance or (c) damaged or destroyed in whole or in
part during the Term, or (d) if the City's building is damaged to the extent of fifty percent (50%)
or more of the Provider's floor area, then, in any of such events, the City may elect to terminate
this Agreement by giving to the Provider notice of such election within ninety (90) days after the
occurrence of such event. If such notice is given, the rights and obligations of the Parties shall
cease as of the date of such notice, and the Monthly Fees, Additional Percentage Fees, and
Additional Payments (other than those that are due to the City by reason of the Provider's
23
012
failure to perform any of its obligations hereunder} shall be adjusted as of the date of such
termination.
ARTICLE XV
ASSIGNMENTS AND SUBLETTING
15.1 Assignment And Subletting Of Property
Except as specifically provided in Section 2.2 of this Agreement, the Provider shall not,
at any time during the term of this Agreement, assign, mortgage, pledge or otherwise encumber
this Agreement, the term, or any interest hereunder, or lease, offer or advertise for leasing the
Property or any portion thereof.
15.2 Event Of Bankruptcy
If this Agreement is assigned to any person or entity pursuant to the provision of the
United States Bankruptcy Code, 11 U.S.C. SS 101 et seq, (hereinafter the "Bankruptcy Code"),
any and all monies or other consideration payable or otherwise to be delivered in connection
with such assignment shall be paid or delivered to they City, shall be and remain the exclusive
property of the City, and shall not constitute the property of the Provider or of the estate of the
Provider within the meaning of the Bankruptcy Code. Any and all monies or other
considerations constituting the City's property under this Section not paid or delivered to the
City shall be held in trust for the benefit of the City and shall be promptly paid or delivered to
the City. Any person or entity to which this Agreement is assigned pursuant to the provision of
the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the
obligations arising under this Agreement on and after the date of such assignment.
ARTICLE XVI
OWNERSHIP OF IMPROVEMENTS
16.1 Ownership Of Improvements
As of the Commencement Date and throughout the Term and any Additional Term, title
to the Property, equipment, and all improvements thereon shall be vested in the City.
Furthermore, title to the any improvements, and all Alterations made in or to the Property during
the Term and any Additional Term, whether or not by or at the expense of the Provider, shall,
unless otherwise provided by written agreement, immediately upon their completion become the
property of the City and shall remain and be surrendered with the Property.
10 0
At any time during the Term or any Additional Term, the Provider shall have the right to
remove any movable personal property owned by the Provider, so long as the Provider is not in
default of any of its obligations under this Agreement and the same have not become a fixture
or trade fixture, and so long as such does not materially affect the Provider's ability to use the
premises and conduct its operations as provided herein. However, if any part of the Property is
damaged by the removal of such items, said damage shall be repaired by the Provider at its
sole cost and expense, in accordance with the provisions of Section 12.1 hereof.
Any property belonging to the Provider and not removed by the Provider at the
expiration or earlier termination of the Agreement, shall be deemed to be abandoned by the
Provider, and the City may keep or dispose of such property at the Provider's sole cost and
expense. The Provider will reimburse the City for any costs associated with such abandoned
property within ten (10) days of after receipt of written notice. At the expiration of the Term or
any Additional Term hereof, the Provider shall deliver to the City the keys and combination to all
safes, cabinets, vaults, doors and other locks left by this Provider on the Property.
ARTICLE XVIII
SIGNAGE
17.1 Signs
The Provider shall not permit any signs or use any advertising media on any portion of
the Property except with prior written approval of the! City Manager, which approval may be
withheld, for any or no reason whatsoever, in his sole discretion. The Provider must also obtain
approval from all governmental authorities having jurisdiction, and must comply with all
applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the
expiration or earlier termination of this Agreement, for any reason, the Provider shall, at its sole
cost and expense, remove and dispose of all signs located on the Property.
ARTICLE XVIII
SPECIAL ASSESSMENTS AND TAXES
18.1 Special Assessments, Taxes and Fees
Commencing January 1, 2001, the Provider covenants and agrees to pay any and all
charges, taxes, or assessments, levied against the Property and improvements, personal
property or operations thereon, including, but not limited to, ad valorem taxes, fire fees and
parking surcharges. Payment thereof shall commence with and shall include taxes assessed
for the current year, if any. The Provider shall pay all of said charges, taxes, or assessments, if
25� 40
any, lawfully assessed, on such dates as they become due and payable, The Parties agree
that if the Provider is assessed charges, taxes, or assessments, levied against the Property and
improvements, personal property or operations thereon for any year prior to the date stipulated
in this Section of the Agreement, then the Provider shall have the right to terminate this
Agreement upon thirty (30) days written notice to the City.
18.2 Appealing Ad Valorem Taxes
In the event the Provider appeals an ad valorem tax or the assessment value, the
Provider shall immediately notify the City of its intention to appeal said tax and shall furnish and
keep in effect a surety bond of a responsible and substantial surety company reasonably
acceptable to the City or other security reasonably satisfactory to the City in an amount
sufficient to pay one hundred percent of the contested tax with all interest on it and costs and
expenses, including reasonable attorneys' fees, to be incurred in connection therewith. The
Provider shall provide such surety bond or other form of security as may be satisfactory to the
City in the event the Provider appeals any such tax for the purpose of obtaining exempt status.
ARTICLE XIX
DEFAULT
19.1 Events of Default
Each of following events is defined as an Event of Default:
(a) The failure of the Provider to pay any Monthly Fee, Additional Payments, or
Additional Percentage Fee when due and the continuance of the failure for a
period of fifteen (15) days after notice in writing from the City to the Provider;
(b) The failure of the Provider to perform any of the other covenants, conditions and
agreements of this Agreement on the part of the Provider to be performed and
the continuance of the failure for a period of fifteen (15) days after notice in
writing (which notice shall specify the nature of the default) from the City to the
Provider, unless with respect to any default which cannot be cured within fifteen
(15) days, the Provider, in good faith, promptly after receipt of written notice,
shall have commenced and continued diligently to reasonably prosecute all
action necessary to cure the default and shall have so notified the City in writing;
(c) The failure to maintain tax-exempt status under Section 501(c) (3) of the Internal
Revenue Code of 1986, as amended;
26
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(d) The filing of an application by the Provider:
(i) for a consent to the appointment of a receiver, trustee or liquidator of
itself or all its assets;
(ii) of a voluntary petition in bankruptcy or the filing of a pleading in any court
of record admitting in writing its inability to pay its debts as they come
due;
(iii) of a general assignment for the benefit of creditors;
(iv) of an answer admitting the material allegations of, or its consenting to, or
defaulting in answering, a petition filed against it in any bankruptcy
proceeding; or
(e) The entry of an order, judgment or decree by any court of competent jurisdiction,
adjudicating the Provider as bankrupt, or appointing a receiver, trustee or liquidator of it or of its
assets, and this order, judgment or decree continuing unstayed and in effect for any period of
sixty (60) consecutive days, or if this Agreement is taken under a writ of execution; or
(f) The failure of Provider to remit any information, to the City's satisfaction,
requested in the Section of this Agreement entitled "Provider's Covenants".
In the event this Agreement is assumed by or assigned to a trustee pursuant to the
provisions of the Bankruptcy Code, and the trustee shall cure any default under this Agreement
and shall provide adequate assurances of future performance of this Agreement as are
required by the Bankruptcy Code (including, but not limited to, the requirement of Section
365(b)(1) (referred to as Adequate Assurances), and if the trustee does not cure such default
and provide such Adequate Assurances under the Bankruptcy Code within the applicable time
periods provided by the Bankruptcy Code, then this Agreement shall be deemed rejected
automatically and the City shall have the right immediately to possession of the Property and
shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or
termination of this Agreement.
19.2 Remedies in Event of Default
The City may treat any one or more of the Event(s) of Default as a breach of this
Agreement, and thereupon at its option, without further notice or demand of any kind to the
Provider or any other person, the City shall have, in addition to every other right or remedy
existing at law or equity, do any one or more of the following:
(a) Elect to cancel and terminate this Agreement and dispossess the Provider by
giving a three (3) day notice of such election to the Provider, and reenter the Property, without
27
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the necessity of legal proceedings. In the event of such termination, the City shall have the
right to seek any damages sustained by it by reason of the Provider's actions or inactions and
the resulting termination of this Agreement. Upon termination of this Agreement, the Provider
shall immediately cease all operations at the Property and surrender the Property in accordance
with the provisions contained herein.
(b) Perform, on behalf of and at the expense of the Provider, any obligation of the
Provider under this Agreement which the Provider has failed to perform the cost of which
performance by the City, together with interest thereon at the rate of eighteen percent (18%)
from the date of such expenditure, shall be deemed Additional Payments and shall be payable
by the Provider to the City upon demand. The Provider agrees that the City shall not be liable
to the Provider for any damage resulting to the Provider as a result of such action.
(c) Exercise any other legal or equitable right or remedy, which it may have under
this Agreement, at law or in equity.
Notwithstanding the provisions of clause (b) above and regardless of whether an Event
of Default shall have occurred, the City may exercise the remedy described in clause (b) without
any notice to the Provider if the City, in the exercise of its good faith judgment, believes it would
be injured by failure to take rapid action or if the unperformed obligation of the Provider
constitutes an emergency.
All of the remedies of the City shall be cumulative and enforcing one or more of the
remedies herein provided upon an Event of Default shall not be deemed or construed to
constitute a waiver of such default, or an election of remedies.
Any costs and expenses incurred by the City in enforcing any of its rights or remedies
under this Agreement shall be deemed to be an Additional Payment and shall be repaid to the
City by the Provider upon demand.
19.3 Recreated Defaults
If more than twice during any twelve (12) month period during the Term or any
Additional Term hereof, the Provider fails to satisfy or comply with the same or substantially the
same requirements or provisions under this Agreement (except where such repeated default
arises from acts of God or results from causes or conditions not attributable, directly or
indirectly, to the Provider, its guests, employees, agents or others within the Provider's control),
then at the City's election, the Provider shall not have any right to cure such repeated default.
In the event of the City's election not to allow a cure of a repeated failure to satisfy or comply,
the City shall have all of the rights and remedies provided in this Agreement relative to an
uncured Event of Default.
19.4 City's Right To Cure Default
If the Provider fails to make any payment to any third party or do any act required to be
made or done by the Provider, then the City may, but shall not be required to, make payment to
such third party or perform such act at the sole cost and expense of the Provider. The Provider
shall pay the City, as Additional Payment due hereunder, upon receipt of a written invoice of
costs from the City, the City's expenses in making such payment or in performing such
obligations together with interest thereon at a rate of ten percent (10%) per annum from the
date the City incurs such expenses until the Provider makes such payment to the City. The
making of such payment or the doing of such act by the City shall not operate to cure the
Provider's Default, nor shall it prevent the City from the pursuit of any remedy to which the City
would otherwise be entitled.
ARTICLE XX
NOTICES
20.1 Notice
All notices or other communications which shall or may be given pursuant to this
Agreement shall be in writing and shall be delivered by personal service or by certified mail
addressed to the parties at their respective addresses indicated below or as the same may be
changed in writing from time to time. Such notice shall be deemed given on the day on which
personally served, or if by certified mail, on the fifth day after being posted or the date of actual
receipt, whichever is earlier.
NOTICE TO CITY:
City of Miami
City Manager
444 S.W. 2 Avenue, 101h Floor
Miami, Florida 33130
WITH COPY TO:
City of Miami
Office of Asset Management
444 S.W. 2nd Avenue, 3rd Floor
Miami, FL 33130
NOTICE TO PROVIDER:
Barry University, Inc.
Attn: Timothy H. Czerniec
11300 N.E. 2"d Avenue
Miami Shores, Florida 33161-6695
29
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F.il
WITH COPY TO:
City of Miami
City Attorney
444 S.W. 2nd Avenue, 9" Floor
Miami, FL 33130
ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 Ingress -And Eqress
Subject to rules and regulations, statutes and ordinances and terms of this Agreement
governing the use of the Property, the Provider, his agents, representatives, guests, and
invitees shall have ingress and egress to and from the Property.
21.2 Use Rights
It is expressly understood and agreed that no real or personal property is leased to the
Provider, that this is a use agreement and not a lease, that the Provider's right to use the
Property, and operate the use hereby granted shall continue only so long as the Provider shall
comply strictly and promptly with each and all of the undertakings, provisions, covenants,
agreements, stipulations and conditions contained herein. The Provider agrees not to
represent itself as an agent or associate of the City or any unit thereof.
It is the intent of the Parties hereto that the City shall retain legal possession of and
control over the Property, the Property and the Provider's use thereof and all programs and
services conducted thereon. Notwithstanding any other provision of this Agreement regarding
the Term or any Additional Term hereof, the City retains the right to terminate this Management
Agreement at any time by providing the Provider not less than one hundred eighty (180) days
advance written notice.
21.3 City Approval
Whenever the prior approvals must be given by the City Manager, as applicable, the
City Manager, respectively, shall be the sole judge of the worthiness and benefit of change and
shall approve or disapprove change at its sole discretion.
21.4 Operating Losses
The Provider shall be responsible for any and all operational losses incurred in the
Property or as a result of the Provider's operations thereof.
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21.5 Successors And Assigns
This Agreement shall be binding upon the Parties hereto, their heirs, executors, legal
representatives, successors and assigns.
21.6 Surrender Of Property
Upon the expiration or earlier termination of this Agreement by lapse of time or
otherwise, the Provider shall promptly and peacefully surrender and deliver possession of the
Property to the City in accordance with the covenants herein contained.
21.7 Amendments
The City Manager and the Provider by mutual agreement, shall have the right but not
the obligation to amend this Agreement. Such amendments shall be effective only when signed
by the City Manager and the Provider and shall be incorporated as a part of this Agreement.
The City Manager is authorized to amend or modify this Agreement as needed.
21.8 Construction Of Agreement
This Agreement shall be construed and enforced according to the laws of the State of
Florida.
21.9 Court Costs And Attorneys' Fees
In the event it becomes necessary for the City to institute legal proceedings to enforce
or interpret the provisions of this Agreement, the Provider shall pay the City's court costs and
attorney's fees through all trial and appellate levels. The Provider acknowledges that Florida
law provides for mutuality of attorney's fees as a remedy in contract cases and specifically and
irrevocable waives its right to collect attorney's fees from the City under applicable laws,
including specifically, but not limited to Section 57.105, Florida Statutes. It is the express intent
of the parties hereto that in no event will the City be required to pay the Provider's attorney's
fees and court costs for any action arising out of this Agreement. In the event the Provider's
waiver under this section is found to be invalid then the Provider agrees that the City's liability
for the Provider's attorney's fees and court costs shall not exceed the sum of One Hundred
Dollars ($100.00). In the event that the waiver and limitations contained herein are found to be
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invalid, or are otherwise not upheld, then the provisions of this Section shall become null and
void and each Party shall be responsible for its own attorney's fees and costs.
21.10 Waiver Of Jury Trial
The Parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right
either may have to a trial by jury in respect of any action, proceeding, claim, or counterclaim
based on this Agreement, or arising out of, under or in connection with this Agreement or any
amendment or modification of this Agreement, or any other agreement executed by and
between the Parties in connection with this Agreement, or any course of conduct, course of
dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of
jury trial provision is a material inducement for the City and the Provider entering into the
subject transaction.
21.11 Severability
If any provision of the Agreement, or any paragraph, sentence, clause, phrase, or word,
or the application thereof, is held invalid, the remainder of the Agreement shall be construed as
if such invalid part were never included herein and the Agreement shall be and remain valid and
enforceable to the fullest extent permitted by law.
21.12 Waiver
The acceptance of the Monthly Fee, Additional Percentage Pee or Additional Payments
by the City, with knowledge of any breach of this Agreement by the Provider or of any default
on the part of the Provider in the observance or performance of any of the conditions,
agreements or covenants of this Agreement, shall not be deemed to be a waiver of any
provision of this Agreement. No waiver of any provision hereof shall be deemed to have been
made unless such waiver is in writing and signed by the City Manager or the Provider. The
failure of either Party to insist upon the strict performance of any of the provisions or conditions
of this Agreement shall not be construed as waiving or relinquishing in the future any such
covenants or conditions but the same shall continue and remain in full force and effect.
21.13 Captions
The captions contained in this Agreement are inserted only as a matter of convenience
and for reference and do not define, limit or prescribe the scope of this Agreement or the intent
of any provisions thereof.
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21.14 Radon
Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it over
time. Levels of Radon that exceed Federal and State guidelines have been found in buildings
in Florida. Additional information regarding Radon and Radon testing may be obtained from
your county public health unit.
21.15 No Recordation
The Provider shall not record this Agreement without the prior written consent of the
City. However, the City may require that this Agreement be recorded or a "Short Form"
memorandum of this Agreement be executed by both Parties and recorded.
21.16 Agreement Preparation
This Agreement is the result of negotiations between the Parties and has been
typed/printed by one Party for the convenience of both Parties, and the Parties agree that this
Agreement shall not be construed in favor of or against either of the Parties.
ARTICLE XXII
HOLDING OVER
22.1 Holding Over
The Provider shall vacate the Property upon the expiration or earlier termination of this
Agreement. The Provider shall reimburse the City for and indemnify the City against all
damages incurred by the City from any delay by the Provider in vacating the Property. If the
Provider remains in possession of all or any part of the Property after the expiration of the Term
or any Additional Term hereof, as the case may be, with or without the express or implied
consent of the City, such occupancy shall be from month-to-month only and not a renewal
hereof or an extension for any further term, and in such case, the fees then in effect as
increased pursuant to Section 3.8 shall be payable in the amount and the time specified in the
Agreement, and such month-to-month occupancy shall be subject to all conditions, provisions
and obligations of this Agreement in effect on the last day of the last term hereof, except the
month-to-month occupancy will be terminable upon fifteen (15) days notice given at any time by
either Party.
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ARTICLE XXIII
AFFIRMATIVE ACTION
23.1 Affirmative Action
The Provider shall have in place an Affirmative Action/Equal Employment Opportunity
Policy and shall institute a plan for its achievement, which will require that action be taken to
provide equal opportunity in hiring and promoting for women, minorities, individuals with
disabilities and veterans. Such plan will include a set of positive measures which will be taken
to insure nondiscrimination in the workplace as it relates to hiring, firing, training and promotion.
In lieu of such a policy, plan, the Provider shall submit a State of Assurance indicating that their
business is in compliance with all relevant Civil Rights laws and regulations.
23.2 Nondiscrimination
The Provider agrees that it will not discriminate against any person based upon race,
religion, color, sex, ancestry, age, national origin, mental or physical handicap, in the use of the
Property and improvements thereof. It is expressly understood that upon a determination by a
court of competent jurisdiction that discrimination has occurred, the City shall have the right to
terminate this Agreement.
ARTICLE XXIV
MINORITY PROCUREMENT
24.1 MinorityNVomen Business Utilization
The Provider shall use its best efforts to purchase/contract fifty one percent (51%) of its
annual goods and services requirements from Hispanic, Black and Women
businesses/professionals registered/certified with the City of Miami's Office of MinorityMomen
Business Affairs. Such lists will be made available to the Provider at the time of the signing of
the Agreement, and updates will be routinely provided by the City's Office of Minority/Women
Business Affairs.
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•
ARTICLE XXV
ENTIRE AGREEMENT
•
25.1 Entire Agreement
This Agreement represents the total agreement between the Parties. All other prior
agreements between the Parties, either verbal or written, are superseded by this Agreement
and are therefore no longer valid.
ARTICLE XXVI
APPROVAL BY OVERSIGHT BOARD
26.1 Approval By Oversight Board
The State of Florida has appointed an Emergency Financial Oversight Board
(hereinafter the "Oversight Board"), which is empowered to review and approve all pending the
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. Attestation of this Agreement by the City
Clerk shall constitute evidence of approval by the Oversight Board.
35 t:) 6
l
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•
IN WITNESS WHEREOF, the Parties hereto have individually, through their proper
officials, executed this Use the day and year first herein above written.
APPROVED AS TO FORM
AND CORRECTNESS
By:
Alejandro Villanelle
City Attorney
THE CITY OF MIAMI,
a municipal corporation
ATTEST:
By:
Walter J. Foeman
City Clerk
STATE OF FLORIDA
APPROVED AS TO INSURANCE
REQUIREMENTS
Mario Soldevilla
Risk Management
of the State of Florida
By:
Carlos A. Gimenez
City Manager
COUNTY OF DADE }
The foregoing instrument was acknowledged before me this day of
2001, by of the City of Miami, a
municipal corporation of the State of Florida, on behalf of the corporation. He/she is personally
known to me or has produced as identification and who did
(did not) take an oath.
Notary Public Signature
Print Name of Notary
Commission No.
36
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—
ATTEST
By:
Print Name & Title
WITNESSES:
Witness Signature
Print Name
Witness Signature
Print Name
STATE OF FLORIDA }
}
COUNTY OF DADS )
Barry University, Inc.
0
Print Name & Title
The foregoing instrument was acknowledged before me this I day of
2001 by of Barry University, Inc., a non-
profit corporation of the State of Florida, on behalf of the corporation. He/she is personally
known to me or has produced as identification and who did
(did not) take an oath.
Notary Public Signature
Print Name of Notary
Commission No.
37, ,40
0 0
CITY OF MIAMI, FLORIDA 6
INTER -OFFICE MEMORANDUM
TO:
The Honorable Mayor and Members
of the City Commission
N
r CarlPsA.;Gimenez����
FROM: City Manager
RECOMMENDATION:
DATE : DEC 27 2001 FILE:
SUBJECT: Management Agreement between the
City of Miami & Barry University, Inc.
REFERENCES:
ENCLOSURES:
The administration recommends that the Miami City Commission approve the attached
Resolution waiving competitive negotiation procedures for the procurement of professional
services for the management of approximately 1.14 acres of City -owned property on Virginia
Key located at 3601 Rickenbacker Causeway, Miami, Florida, (the "Property"). This Resolution
further authorizes the City Manager to execute a Management Agreement (the "Agreement"), in
substantially the attached form, with Barry University, Inc. (the "Provider"), a nonprofit
corporation, to provide for the following: 1) the term shall commence July 1, 2001 and expire
December 31, 2003, with an option to extend for two (2) additional two (2) year periods subject
to the mutual consent of the parties; 2) Provider shall pay a fee of $500.00 per month plus State
Use Tax, if applicable; 3) Provider may enter into professional services agreements with service
providers to operate, supervise, and maintain water recreational and educational opportunities;
and 4) Provider shall require each service provider to remit to Provider 12% of its gross revenues
("Percentage Fee") which Percentage Fee shall be split 50150 between the City and Provider.
BACKGROUND:
The City of Miami (the "City") is the owner of the real property and improvements on Virginia
Key located at 3601 Rickenbacker Causeway, Miami, Florida. Following the expiration of the
lease between the City and the Miami Rowing Club, on December 14, 2000, the City
Commission adopted a resolution authorizing the City Manager to execute a Temporary Use
Agreement with Barry University, Inc. for the use of the property to operate programs for water
recreational and educational opportunities. The resolution further directed the City Manager to
negotiate a Revocable License Agreement with Barry University and to bring back said
negotiated agreement to the City Commission for final review and approval. The Temporary Use
Agreement expired June 30, 2001. During negotiations, Barry University requested to negotiate
a Management Agreement in lieu of a Revocable License Agreement in order to provide their
organization adequate time to accomplish its goals and objectives in operating a viable water
recreational and educational program at the facility.
It is recommended that the City Commission approve this Management Agreement in order to
provide for the continued operation of the site for water recreational and educational purposes.
L;1.0
0 r
The Honorable Mayor and Members
of the City Commission
Page 2...
Highlights of the Agreement are as follows:
Property: Approximately 1. 14 acres located at: 3601 Rickenbacker Causeway
Purpose: Provider shall manage the Property for the purpose of operating,
supervising and maintaining water recreational and educational
opportunities, which shall include private instruction, clinics,
classes and special events regarding rowing, sailing, kayaking,
water safety, swimming, and scuba/snorkeling.
Initial Term: 2 years, 6 months, which shall expire on December 31, 2003.
Option to Renew: Two (2) additional 2 -year terms, subject to the mutual consent of
the parties.
Fees: $500.00 per month plus use tax, if applicable.
Adjustment to Fees: Monthly -Fees, Performance Deposit„ increased by 10% after end of
the term or additional term.
Service Providers: Provider is authorized to enter into professional service agreements
with service providers for the provision of water -oriented
recreational and educational activities.
Percentage Fees: Each service provider shall be required to pay to Provider 12% of
its monthly gross revenues. Provider shall retain 50% of this
amount in consideration of its management services and shall remit
the remaining 50% to the City.
Insurance: Provider shall be required to maintain general liability, all risk for
its improvements, automobile acid worker's compensation
insurance in amounts requested by Risk Management. Service
Providers shall also be required to maintain the same type of
coverage as the Provider. The City shall be named additional
insured. The City shall provide property coverage.
Utilities:
Provider shall pay all utilities.
Gq~
• 0
The Honorable Mayor and Members
of the City Commission
Page 3...
Improvements: City to initially replace railings on building, install fencing around
additional paved area of the property, and replace handicap railing
up to a maximum cost of $50,000.
Maintenance: Provider shall provide all maintenance and repairs at the Property
except roof and structural portions of building.
Taxes: Provider to pay all ad valorem taxes commencing January 1, 2001.
In the event the property is deemed taxable, either party has a right
to terminate the agreement upon thirty (30) days written notice to
the non -canceling party.
Right toTerminate: Ei3.'- cr party may terminate this Agreement with 180 days notice.
CAG/&/LB7pk Mayor CC — Management Agreement with Barry University.doc
2- 40
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO : DATE: FILE:
Walter J. Foeman December 21, 2001
City Clerk SUBJECT:
Request to Publish Notice
For Public Hearing
FROM: ���� 6i-cgement
REFERENCES:a Q11te r Barry University
Office of Asset ENCLOSURES: Management Agreement
Please make arrangements to publish the attached Notice of Public Hearing for the purpose of
waiving the requirements of obtaining competitive bids for a management agreement between the
City and Barry University for management of the city -owned property located at 3601
Rickenbacker Causeway, Miami, Florida.
The date and time of this public hearing will be . D�? G' , .5F., �' U a.m.
App ed:
Alonso
Agenda Coordinator
LB/pk / Management Agreement with Barry University 12-17-Ol.doc
40
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CITY OF MIAMI, FLORIDA
NOTICE OF PUBLIC HEARING
A public hearing will b!�eld by the City Commission of the City of Miami, Florida on
January 10, 2002 at GAM in the City of Miami Commission Chambers at City Hall,
3500 Fan American Drive, Miami, Florida, for the purpose of waiving competitive
negotiation procedures for the procurement of professional services for the management
of approximately 1.14 acres of City -owned property on Virginia Key, located at 3601
Rickenbacker Causeway, Miami, Florida (the "Property"); and authorizing the City
Manager to execute a management agreement ("Agreement"), with Barry University,
Inc., a non-profit corporation, for the management of a portion of the Property for the
purpose of providing water recreational and educational opportunities to all segments of
the community, with an initial term of two (2) years, six (6) months.
All interested persons are invited to appear and may be heard concerning such proposed
award. Should any person desire to appeal any decision of the City Commission with
respect to any matter considered at this hearing, that person shall ensure that a verbatim
record of the proceedings is made, including all testimony and evidence upon which any
appeal may be based.
(City Seal)
Ad #
Walter Foeman
City Clerk