HomeMy WebLinkAboutR-01-0766• •
CJ -01-534
07/26,/01
01- 766
RESOLUTION NO.
A RESOLUTION OF THE MIAMI CITY COMMISSION
AUTHORIZING THE CI'T'Y MANAGER TO EXECUTE A
MANAGEMENT AGREEMENT ("AGREEMENT"), IN
SUBSTANTIALLY THE ATTACHED FORM, WITH FLORENE
LITTHCUT INNER-CITY CHILDREN'S TOURING DANCE
COMPANY, INC, (THE "PROVIDER"), FOR THE USE
OF APPROXIMATELY 8,693 SQUARE FEET OF SPACE
WITHIN THE; HADLEY PARK COMMUNITY CENTER,
WHICH IS UNDER CONSTRUCTION, LOCATED AT
APPROXIMATELY 1300 NORTH WEST.' 50TH STREET,
MIAMI, FLORIDA, FOR THE PURPOSE OF PROVIDING
CULTURAL AND EDUCAT.'IO.NAL OPPORTUNITIES TO
CITY OF MIAMI RESIDENTS, ORGANIZED COMMUNITY
GROUPS, ORGANIZED ARTS GROUPS, AND THE
GENERAL, PUBLIC, FOR A TERM OF SEVEN (7)
YH'ARS, WITH TWO (2) RENEWAL OPTIONS OF FIVE
(5) YEARS; PROVIDER TO PAY AN ANNUAL FEE OF
$1.00, AND TO USE ITS BEST EFFORTS TO SECURE
GRANT FUNDS TO CONTRIBUTE TOWARDS THE
OPERATING COSTS OF 'THE SPACE; IN THE AMOUNT OF
$.50 PER SQUARE FOOT, UNDER TERMS AND
CONDITTONS AS MORE PARTICULARLY DESCRIBED AND
SET FORTH IN SAID AGREEMENT; FURTIIER, FOR THE
DURATION Oh' THE AGREEMENT, PROVIDER SHALL USE
ITS BEST EFFORTS TO ENCOURAGE UTILIZATION Or."
THE SPACE BY OTHER. PARTIES.
WHEREAS, to implement and give effect- to the bond program,
Miami Dade County, Florida enacted Ordinance 96-115, adopted July
16, 1996, the Safe Neighborhood Parks Ordinance; and
�. Tit WE. ,1111 T (,:z)
v% c W t.•: u v .� �
CITY COMMISSION
MEEMU OF,
Krsolution No.
01-- 766
WHEREAS, it is necessary and desirable to improve the
quality of life, to benefit property values, to promote
prevention of juvenile crime by providing positive recreation
opportunities, and to improve the recreat!on facilities for
youth, adult, and senior citizens in this community through our
parks; and
WHEREAS, the City of Miami_ is the owner of certain real
property located at 1300 North West 50th Street, Miami, Florida,
and is constructing a new recreation building of approximately
21,000 square feet, a/k/a Hadley Park Community Center (the
"Facility"); and
WHEREAS, upon completion of the new Facility, the City's
budgetary/operational impact will be substantially diminished by
entering :onto partnerships with organizations, not-for-profit and
for-profit, to operate programs and share costs; and
WHEREAS, the City has determined that approximately 8,693
square feet within the Facility ("the Area") is available to
provide cultural and educational programs for City of Miami
residents; and
WHEREAS, in accordance with Section 18-80(5) of the Code of
the City of Miami., the City Commission adopted Resolution No. 00 -
Page 2 of 5
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305, waiving the requirements for competitive negotiations, and
authorized the City Manager to negotiate a management agreement
with the Provider for the management of a portion of the Facility
for the purpose of providing cultural and educational
opportunities to the City of Miami residents; and
WHEREAS, for the duration of the Agreement, Provider shall
use its best efforts to encourage utilization of the space by
other parties; and
WHEREAS, the City Commission hereby determines that it is in
the best interest of the City to enter into the attached
agreement.
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 hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Page 3 of 5
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Section 7.. The City Manager is hereby authorized'' to
execute a Management Agreement-, in substantially the attached
form, between the City of. Miami ("City") and Plorene Litthcut
Inner-Ci.ty Children's Touring Dance Company, Inca (the
"Provi.der"), for use of the Area, which is under construction,
located at approximately 1.300 North West 50th Street, Miami,
Florida, for the purpose of providing cultural and educational
opportunities to residents of the City of Miami, organized
community groups, organized arts groups, and the general public,
for a term of. seven (7) years with two (2) renewal options of
five (5) years, with Provider paying an annual fee of $1.00, and
Provider to use its best efforts to secure grant funds to
contribute towards the operating costs of the space in the amount
of $.50 per square foot, under the terms and conditions as more
particularly described and set forth in said Agreement.
Section 3. For the duration of the Agreement, Provider
shall use its best efforts to encourage utilization of the space
by other parties.
=� 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 4 of 5 01— 766
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Section 4. This Resolution shall become effective
immediately upon its adoption and signature of the Mayor.2
PASSED AND ADOP'T'ED this 2(,:th _ day of .7u1y 2001..
JOE CAROLLO, MAYOR
In accordance with Miami Code: Sec,. 2-08, oince the Mayor did not indicate: approval of
this legislation by sigriii iq in flin cic,signated ptacc pro tided, scid legisl fon r -;x
becomes effective With tau; of r, r; (10) Jays frum tali' d�,zt„ of carrinli::::ion ;aclion
It?(,J.ardinj Sanle, Wit.11GUi IN., iM1.iyur cx—rdi:u1 a vole.
Wal r J. Foeinan, City Clerk.
WALTER J. FORMAN
CITY CLERK
APPROVED AS TO FOOl AND CORF W,('!1'NESS
C:7 AT RNEY
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LB:BSS:ELP
If the Mayon does not sign this Resolution, it shall. become effective at the
end of ten calendar days from the date it was passed and adopted. If. the
Mayor vetoes this Resoltation, it shall become effective immediately upon
override of the veto by the- city Commission.
Page 5 of 5
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MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI
AND
FLORENE LITTHCUT INNER-CITY CHILDREN'S TOURING
DANCE COMPANY, INC.
FOR THE MANAGEMENT OF A PORTION OF
HADLEY PARK COMMUNITY ACTIVITY CENTER
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ARTICLE I
DESCRIPTION AN6 TERPA
1.1
Description Of Area
1.2
Term Of Management And Conditions Precedent
1.3
Option to Extend
ARTICLE I
USE AND OCGUPANCY
2.1
Provider's Use And Occupancy Of Area
2.2
Other Organizations Use of Area
2.3
Commercial Activities Within The Area
2.4
Operations
2.5
Special Events
2.6
Rules And Regulations
2.7
Charges for Services
2.8
Ticket Surcharge
2.8
Continuous Duty To Operate
2.10
Safe Neighborhood Park Bond
I►RTICLE III
CONSIDERATION
3.1
Fee
3.2
Returned Checks
3.3
Performance Deposit
3.4
Promotion of City
ARTICLE {!V
COMMUNITY SERVICES_
4.1
Community Services
j►RTICLQ V
PROVIDER'S COVENANTS
5.1
Personnel
5.2
Annual Pian
5.3
Performance Review
ARTICLE VI
RECORDS AND AUDITING
6.1
Records of Operations
6.2
Audited Financials
ARTICLE VII
LICENSES:_ COMPLIANCE 1MTH L&W3
7.1
Licenses And Permits
7.2
Compliance With Laws
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ARTIC_ LE VIII
8.1
HAZARDOUS MTE IALS
Hazardous Materials
AR ICLE Ili
ALTERATIONS AND IMPROYEi11IENTS
9.1
Initial Improvements And initial Equipment
9.2
Provider's Contribution To Initial Improvements
9.3
Provider's Alteration of Improvements
9.4
Payment, Performance Bonds. and Letter of Credit
9.5
Mechanic's Liens
9.6
Personal Property
9.7
Changes and Additions to the Area
ARTICLE X
CITY'S INSPECTION AND RIGHT OF ENTRY
10.1
Inspection By City
10.2
City's Right Of Entry
ART,ICE XI
CITY'S SERVICES
11.1
City's Services
11.2
City Maintenance and Repairs
11.3
City Not Liable For Failure Of Utilities
ARTICLE XII
PROVIDER'S SERVICES
12.1
Provider's Services
12.2
Provider's Maintenance and Repairs
ARTICLE XIII
NO REPRESENTATION BY CITY
13.1
Condition Of Area
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
14.1
Indemnification
14.2
insurance
14.3
Damage Or Loss To The Area
14.4
Destruction of the Area
14.5
City's Option to Terminate Due to Casualty
ART CLE XV
ASSIGNME�P SUBLETTING
15.1
Assignment And Subletting Of Area
15.2
Event Of Bankruptcy
ARTICLE XVI
OWNERSHIP OF IMP,BOVEIVIENTS
16.1
Ownership Of Improvements
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ARTIa CLE XVII
SIGNAG
17.1
Signs
A, TIQ„ CLE
SPECIAL A§ESS_MENTS, IMESES A, ND 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
21.5
Operating Losses
Successors And Assigns
21.6
Surrender Of Area
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 ,III
AEORMA VTj E ACTION
23.1
Affirmative Action
23.2
Nondiscrimination
ARTS XXIV
MI_ PROCUREMENT
24,1
Minority/Women Business Utilization
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ARTICLE XXV ENTIRE , , QREEMENT
25.1 Entire Agreement
ARTICLE XXVI APPROVAL BY OVERSIGHT BOARD
26.1 Approval By Oversight Board
EXHIBIT A THE AREA
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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 Florene Litthcut Inner -City
Children's Touring Dance Company, Inc., a non-profit corporation (hereinafter the "Provider'),
(hereinafter collectively referred to as the "Parties").
WITNESSETH
WHEREAS, the City and the Provider are mutually interested in and concerned with
providing and making available cultural and educational opportunities to benefit the people of
the City; and
WHEREAS, the City is the owner of certain real Property located at approximately 1300
NW 50 Street, Miami,. Florida (hereinafter the "Property') and is engaged in the construction of
an approximately 21,000 square foot new facility at the Property, a/k/a Hadley Parte Community
Activity Center (hereinafter the "Facility"), for the purpose of providing cultural, educational and
recreational opportunities for the residents of the City; and
WHEREAS, upon completion of the construction of the new Facility, the Provider is
desirous of using a portion of the Facility for their programs; and
WHEREAS, the City is desirous of allowing the Provider to continue to serve the
citizens of the City of Miami;
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:
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DESCRIPTION AND TERM
1.1 Description Of Area
The Provider is hereby permitted the management of approximately 8,693 square feet
of space in the Facility and the improvements therein, (hereinafter the " Area") as described in
Exhibit "A" which is attached hereto and made a part hereof. For the purpose of this
Agreement, any reference to the Area shall be deemed to include a dance studio, black box
theater, ticket booth, dressing rooms, restrooms, control booth, concession area, office/waiting
area, workroom storage, and storage. The Parties agree that Exhibit A hereof shall be
amended upon completion of the Facility to reflect the actual square footage of the rentable
area, as calculated by the City's architect. . For purposes of this Agreement, any reference to
the Property shall be deemed to include the park and the Facility inclusive of the Area.
1.2 Term Of Management and Conditions P1ec2dent
The term of this Agreement shall be for a seven (7) year period (hereinafter the "Term")
commencing on the Effective Date and expiring seven (7) years thereafter, unless sooner
terminated as provided herein. The Effective Date shall be the date on which all the following
conditions precedent (the "Conditions Precedent") have been met:
(a) Completion of construction of the Facility as evidenced by the issuance of a
Temporary Certificate of Occupancy (the "TCO") or a Certificate of Occupancy if no
TCO is required.
(b) Proof satisfactory to the Parks Director that funds are available to design and
construct the Initial Improvements and the theater equipment as defined In Section
9.1 herein.
(c) Proof satisfactory to the City that the construction and installation of the Initial
Improvements and Initial Equipment as defined in Section 9.9 herein are complete.
(d) The Parks Director shall have reviewed and approved the Fees as defined in
Section 2.7 herein.
(e) The Parks Director shall have .reviewed and approved the Required Operating
Hours as defined in Section 2.9 herein.
(f) The Parks Director shall have reviewed and approved all items required under
Section 5.2 hereof.
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In the event the Effective Date does not fall on the first day of -calendar month, the
Effective Date shall be adjusted'to be the first day of the following calendar month.
In the event any and all of the above conditions are not satisfied on or before October
31, 2001, this Agreement shall be deemed null and void. The Provider will hold the City
harmless from any and all costs and expenses related to this Agreement. The City Manager
shall have the option, at his sole discretion, to extend the deadline by six (6) months.
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 two (2) additional five (5) year periods 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 Terms'),
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 Terms, the Provider must deliver written notice of its
intent to the City Manager six (6) months in advance of expiration of the Term or of the first
Additional Term, but not earlier than nine (9) months prior to the expiration of the Tema or the
first Additional Term (the "Option Request'). Upon receipt of the Option Request, 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 any option to extend the original Term or any Additional Term of this
Agreement is exercised, the City will retain the Deposit provided for in the Section 3.3 hereof,
for the some purposes as described therein. The original Term and any Additional Term shall
be collectively referred to as the "Term'.
ARTICLE 11
USE AND OCCUPANCY
2.1 Prayidets Use And Ogo aacv Of Area
The purpose of this Agreement is to have the Provider utilize the Area to provide quality
artistic training to young people and develop the understanding and preservation of traditional
and classic dance forms to the City of Miami residents, organized youth groups, disadvantaged
sectors of the public, elderly sectors of the public, organized community groups, organized arts
groups, and the general public. The Provider shall -ensure that the Area and all activities
generated In the Area, or activities due to the Provider's management of the Area, will be
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available to all segments of the community including the physically disabled and financially
disadvantaged. Provider shall comply with the American with Disabilities Act.
TheProvider shall operate, manage, supervise and administer the Area for the purpose
of providing a comprehensive cultural and performing arts program. for youth, which shall
include concession sales to the public, and no other purpose whatsoever (hereinafter the
"Permitted Use"), subject to the limitations contained in this Agreement. The Provider may
request written consent from the City Manager to use the Area for any other use, but shall not
be authorized to use the Area for that use until the Provider has received 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 upon discontinuance of the stated use and operation of the Area, in
accordance with the provisions and requirements of Article XIX.
The Provider shall maintain the area entitled "Concession Area" on Exhibit "A", and shall
be allowed to sell and/or dispense, as applicable, promotional merchandise, food, and
beverages within the Concession Area during the Term or any Additional Term of this
Agreement. There shall be no sale and/or dispensing, as applicable, of merchandise, food
and/or beverages from any other portion of the Area. The Provider shall fumish, at its sole cost
and expense, all equipment not provided by the City for its use of the Concession Area. The
City shall be under no obligation to provide any equipment for the Concession Area.
Promotional merchandise shall include t -shirts and other dance material items. Utensils used in
the concession area shall be limited to paper or plastic cups, plates, or containers and only
plastic forks, knives and spoons. Use of glass containers or bottles, and sale, consumption
and/or distribution of alcoholic beverages, except for Special Events as defined in Section 2.5
herein, is strictly prohibited. Said use of alcoholic beverages must also comply with .
requirements of City Code Section 38-70, and be subject to all applicable state laws. The
Provider is prohibited from cooking in the Concession Area, except for special equipment used
in the preparation of hot dog and popcorn sales, but shall be allowed to bring prepared food in
the concession area that will be needed to carry out its programs. Prepared food shall be
defined as pre-packaged sandwiches. Concession food sales shall be limited to chips, candy,
beverages, hot dogs, popcorn and prepared food. The Provider shall limit concession sales to
the hours of operation of the Area defined in Section 2.5 and Section 2.9.
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2.2 Other Oraanizatlons Use Of Area
The Provider shall be solely responsible for the scheduling all activities. within the black
box theater and dance studio. Any organization that wishes to utilize the black box theater or
dance studio shall submit an application to the Provider and pay the Fees as approved by the
Parks Director in accordance with Section 2.7 herein. In the event the organization utilizing the
black box theater and/or dance studio charges admission, the use of the black box theater
and/or dance studio shall be subject to the provisions of Section 2.8 herein. The Parties agree
that the Provider shall not unreasonably withhold use of the Area for the City or City -sponsored
events. The City shall be permitted to utilize the Area for City or City -sponsored events at no
cost to the City.
2.3 Commercial ctivities Within The Area
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 Area. 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 ' Soecial Events
The. City shall have the sole responsibility for issuing permits, including collection of any
fees and provision of adequate liability Insurance (the "Park Permit'), .to utilize the Property for
Special Events. Any inquiries to the Provider for a Special Event shall be referred to the City's
Department of Parks and Recreation (the "Parks Director"). In the event the City issues a Park
Permit, the City shall have the sole responsibility to cause the Property to be cleaned and any
damages repaired as a result of issuing said Park Permit. If the Special Event is at night, the
City shall have the additional responsibility to ensure the Property is secure at the end of the
Special Event. For purposes of this Agreement, Special Events shall mean activities, including
ticketed events in the Area, which substantially exceed the scope of the regular program
activities, which are conducted In the Area, The Provider shall not be exempt from obtaining a
Park Permit for any Special Event. The Provider shall not be required to pay the permit fee
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associated with any Park Permit but shall be required to pay any and all costs associated with
the issuance of the Park Permit including, but not limited to, the provision of additional
Insurance, off-duty police, fire -rescue services or additional cleanup services. Provider shall not
receive preference to the scheduling of Special Events. 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 operating budget to the City in accordance with
Section 4.1 herein, thereby requesting the advance issuance of Park Permit(s) for the
respective Special Events. The Provider shall be required to pay any and all costs associated
with the issuance of a Park Permit as provided above.
2.6 Rules And R-eaulations
The Provider agrees to comply with all written rules and regulations that may be
promulgated by the Parks Director for the use and operation of the Area and the Property.
These rules and regulations may be amended from time to time in the Parks Director's sole
discretion. These rules shall be provided in writing to the Provider prior to the Effective Date.
As rule changes occur, they shall be provided to Provider, in writing, at least fifteen (15) days
before they take effect.
2.7 Charges For Services
Prior to the Effective Date, a schedule of the Provider's proposed fees (the "Fees") for
services shall be provided to the Parks Director for approval. Services to be offered shall
include, but not be limited to, classical ballet, tap, lindy-hop, hip hop, West African
folkdancelpercussion, Durham and Horton techniques, steel pan percussion, voice, drama,
theater, music lecture demonstrations, and film and video. presentations. The Fees shall also
include amounts to be charged to patrons, non-profit and for-profit organizations for the use of
the black box theater and dance studio. The Fees shall include separate charges for
organizations that are charging an admission or other fee compared to those providing free
events.
Such Fees shall be comparable to those of similar facilities for similar services. The
Provider shall provide scholarships and other assistance to individuals who would otherwise be
unable to pay the Fees for services due to financial limitations. Any proposed modification of
the Fees must be submitted to the Parks Director for prior written approval, which approval will
be deemed granted unless the Parks Director objects to such proposed Fees in writing no later
than thirty (30) days after receipt of the proposed Fee modification.
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2.8 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
2.9 Continuous Day To Operate
Except where the Area 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 Area on
the Effective; (ii) shall thereafter continuously conduct operations In the Area in accordance with
the terms of this Agreement; (iii) at ail times keep the Area fully stocked with materials, trade
fixtures and furnishings necessary and proper to operate the Area and (iv) keep the Area open
for operation during hours established from time to time and approved by the Parks Director
(the °Required Operating Hours").
2.10 Sft Neighborhood Park Bond
The Provider acknowledges that construction of the new Facility is being primarily
funded with Safe Neighborhood Park Bond Funds. The Provider agrees to perform, at its sole
cost and expense, any and all obligations required of the City as a result of the use of these
funds as said obligations apply to the Area.
ARTICLE 111
CONSIDERATION
3.1 En
In consideration for the grants secured by the Provider as provided in Section 9.2
herein, Provider shall pay to the City an annual fee of $1.00, which annual fee shall be paid in
advance and in full on the first day of each Agreement Year, without notice or demand
(hereinafter the "Annual 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 2"0 Avenue,
Floor, Miami, Florida 33130, or such other address as may be designated from time to time. For
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purposes of this Agreement, the term "Agreement Year" shall mean any period of time
consisting of twelve (12) consecutive calendar months commencing on the Effective Date and
each anniversary thereafter.
The parties agree that the Property is being operated for the purpose of providing
recreational and educational activities for the public. The Provider agrees that except as
otherwise provided herein, revenues generated at the Property shall be spent for the operation,
maintenance, and improvement of the Property or allocated and held in reserve for the future
operation, maintenance and improvement of the Property.
Provider shall use its best efforts to secure grant funds to contribute towards the Area
operating costs, including utilities and maintenance, at a rate of $.50 per square. foot. Provider
shall identify a minimum of two grants each year and make application for said funds for this
purpose.
3.2 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 Returned Check Fee
$00.01 - 50.00 $20.00
$50.01 - 300.00 $30.00
$300.01 - 800.00 $40.00
OVER $800 5% of the returned amount.
The Retumed .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 default with respect to such overdue amount .nor prevent the City from the
pursuit of any remedy to which the City may otherwise be entitled.
3.3 Performance Deposit
Provider shall be required to submit a deposit in the amount of five hundred dollars
($500.00) (the "Deposit") as 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 with the
City upon the execution of this Agreement. If the Provider has caused an Event of Default to
occur, as defined in the Article of 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
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is due from the Provider hereunder, (ii) any sum expended by the City on the Provider's behalf r
in accordance with the provisions of this Agreement, or (ill) any sum which the City may expend
or be required to expend as a result of the Providers default. 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 Area in the same condition or
better as existed on the Effective 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,
3.4 Promotion of City
The Provider acknowledges the benefits afforded to it by the City's providing the Area
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.
ARTfCLE IV
COMMUNITY SERVIIES
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To enhance the public purpose and benefit to the citizens of Miami afforded under this
Agreement, and to verify the commitment of the Provider to said public purpose, the Provider
shall donate its services in the aggregate of twenty thousand dollars ($20,000.00) on an annual
basis toward programs for artistic instruction, such as career days, certain performances,
scholarships fees, workshops, master classes, a'nd dance clinics to the Area for public purpose,
which shall be determined by the Parks Director and the Provider, at no charge, including the
use of the Area for participants In the City programs. The City shall submit a schedule of
programming needs to the Provider or shall otherwise obtain permission of the Provider In
advance for any use or training for the City participants. The City shall provide supervision for
its participants as may be requested by the Provider. Each class and/or program shall have
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City participants, depending on available resources and supervision. Such quantity may be
modified by written request of the Parks Director and the Provider, provided that such
modification• is based upon fluctuations in the programming needs of the City and/or resources
of the Provider.
ARTICLE V
PROVIDER'S COVENANTS
5.1 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 Area in
compliance with this Agreement.
The Provider shall require the designated manager or designee to remain on site and in
charge during scheduled activities. The designated manager or designee must be available to
take telephone calls during scheduled activities. 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 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.
5.2 Annual Plan
Prior to the Effective Date and on each June 1't during the Term and any Additional
Term hereof, the Provider shall prepare and present, in a form acceptable to the Parks Director,
the following items for the upcoming Fiscal Year for the Provider's operation at the Property, for
the review and approval of the Parks Director (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 budget of Provider's recommended repairs, renewals, revisions, replacements,
substitutions and improvements to the Area and the furnishings and equipment
which are of a capital nature, together with a Schedule of Sources and
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Application of Funds (in reasonable detail) relating thereto (the "Capital BudgeY),
which Schedule of Sources and Applications of Funds shall also be subject to `
the approval of the Parks Director prior to the commencement of any such work
in accordance with Section 9.3 of this Agreement. The Capital Budget shall
include and estimate for the cost of plans and specifications, material and labor,
d) a description of the general marketing strategy, including target population,
which Provider intends to follow or implement, as the case may be, to optimize
both short and long term profitability of the Area;
e) a description of at least two grants which the Provider will apply for in the
upcoming Fiscal Year, The Provider shall actively pursue the award of grants
including those that will permit the Provider to reimburse the City for expenses
the City is incurring as a result of Provider's use of the Area and the operation of
the Property.
f) a budget for the upcoming Fiscal Year ("Operating Budget") which budget shall
include a projected income and expense statement, a projected 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:
L Revenues by categories from all revenue sources associated with operations �.
in the Area and any in kind services;
ii. Operating expenses for Provider's services conducted in the Area;
iii. Administrative costs;
iv. Marketing, advertising and promotion expenses;
V. Utilities;
vi. Repairs and maintenance;
vil. General expenses;
viii. Reserves for replacement;
g) Provider shall be permitted to incur an expense(s) in excess of the amount set
forth in the approved Operating Budget if either.
i. Such expenditure is expressly authorized by this Agreement;
ii. The Provider notifies the City reasonably in advance of any change in that
portion of the Provider's approved budget to which the excess expense
relates;
iii. Such expenditure is expressly authorized by the Parks Director,
iv. Such expenditure Is warranted by increased levels of business;
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v. Such expenditure is required to most emergency conditions and the
Parks Director is promptly advised thereof,
vi. Additional costs that are incurred which were not reasonably foreseeable
by Provider,
vii. Such expenditure is not within the Provider's reasonable control.
5.3 Performance Review
The Provider shall transmit to the Parks Director, In writing, in a format acceptable to the
Parks Director, semi-annual reports regarding current activities, progress of the Provider's
activities, accomplishment of objectives, status of grant applications, and a budget summary
including revenues, disbursements, cash flow, debt, and contributions. The semi-annual report
shall further include a budget variance analysis that shall compare the approved Operating
Budget to actual revenues and expenses to -date with explanations as to variances in excess of
five percent (5%). The Provider shall submit such semi-annual reports to. the Director on or
before the dates set forth below for the respective periods.
Operating Period Report Due Date
Oct 1 — Mar 31 May 31
Apr 'I — Sep 30 Nov 30
The Provider shall submit to the Parks Director such additional reports as may be
requested by the Parks Director. The Provider shall prepare, in writing, in a form acceptable to
the Parks Director, 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 Parks Director.
The City may carry out monitoring and evaluation activities, including visits and
observations by the City staff or community surveys. The Provider shall ensure the cooperation
of its employees and board members in such efforts. Any inconsistent, Incomplete or
inadequate information either received by the City on a semi-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.
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ARTICLE VI
RECORDS AND AUDITLW
6.1 RecorAs Of Operations
During the Term and any Additional Term of this Agreement, the Provider shall maintain
and keep, or cause to be maintained and kept at the Area, 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 Area, including, but not limited to,
any grants, admissions, donations, tuition, fees, contract services, technical fees,
advertisement, foundation support, toumaments, Special Events and/or other contributions to
the Provider.
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
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 also retain copies of all sales and tax returns covering its operations at
the Area, and any other governmental tax or other returns which show the Provider's sales
therein, and shall, upon demand, deliver photographic copies thereof to the City at no cost.
The Provider will 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.
6.2 Auditgd„Financials
Within sixty (60) days after the and of each Fiscal Year, as hereinafter defined, the
Provider shall deliver or cause to be delivered to the City of Miami, Office of Asset
Management, 444 S.W. 2"d Avenue, 3n° 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 Provider's sole cost and expense. The Fiscal Year shall
i.
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mean each twelve-month interval commencing on October 1`1 and expiring September 30th. in
the event the Effective Date of this Agreement false between April 1st and September 3e, the
Provider shall be required to file a certified financial statement for its first Fiscal Year of
operation at the Area, within sixty (60) days after the end of the following Fiscal Year. 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, and/or other revenues, if any, and expenses of the Provider for the period indicated
therein.
Notwithstanding the above and !luring the sixty (60) month period described in the
Section 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 Provider's business affairs, records,
files, sales slips and sales tax records in connection with the Provider's sales on, from or
related to the Area for the period covered by any financial statement, report or record furnished
by the Provider to the City.
The Provider shall allow the City and/or its auditors to inspect all or any part of the
compilation procedures for the aforesaid monthly reports. Records shall be available at the
Area, or such other location in Miami approved by the Director, Monday through Friday,
between the hours of 8:00 AM and 5:00 PM.
ARTICLE VII
LICENSES: COMPLIANCE WITH LAWS
7.1 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 Area.
7.2 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. ,
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ARTICLE
HAZARDOUS MATERIALS
8.1 Hazardous Materials
The Provider shall not at any time during this Agreement handle, store, dispose or
transport of 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.
ARTI._._ CSX
ALTERATIONS AND IMPROVEMENTS
9.1 Initial ImoroveMents and Initial Eauioment
The City shall construct the Facility on the Property, which shall include the Area. The
Area shalt include construction of a black box theater, flooring, stage platforms, drapes,
dressing rooms, restrooms, dance studio and concession area, acoustical sound panels,. office,
and storage room (the "Initial improvements").
The City shall procure and/or Install in the Area a theatrical lighting system, a sound
system, an intercom system, a security system, a Fly system equipment, theater seating,
outside marquee signage, and a genie lift (hereinafter collectively referred to as the "initial
Equipment").
The Area and the provision of the Initial Equipment will be completed as set forth in the
plans approved by the Parks Director and the Provider. Except as specifically set forth in this
Agreement, the City shall not provide or pay for any interior improvement work, services or
equipment related to the improvement or operation of the Area. Within fifteen (15) days prior to
the Provider taking possession of the Area, the Parks Director and Provider shall conduct a
final inventory of the Initial Equipment installed, and a list -of such final inventory shall be
prepared and become a part of this Agreement.
9.2 Provider's CQor jributioo to the Initill imgfpyements
The Provider has been awarded capital development grants from the Miami -Dada
County Cultural Affairs Council In the amount of ninety seven thousand five hundred dollars
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($97,500), (the "Grant Funds") which funds shall be used towards initial Improvements and
' purchase and installation of Initial Equipment as follows:-
a) Equipment for Theater Box Office, and Concession Stand $33,500
b) Structural Steel Support for Fly System for theater $20,000
c) Draping for Perimeter Walls $14,000
d) Stage Platform $10,000
e) Stage Curtains $20,000
In accordance with the grant agreements between the Provider and the Miami -Dade
County Cultural Affairs Council, the City shall provide matching funds to said grants in the
amount of ninety seven thousand five hundred dollars ($97,500) which matching funds shall be
used towards the purchase and installation of the Initial Equipment as follows:
a) Fly System Equipment and Installation $50,000
b) Acoustical and Sound Panels $39,500
c) Harlequin Floors $ 8,000
The receipt and use of these Grant Funds shall be done in accordance with the procedures
stipulated in said grants.
9.3 Provider's Alteration of Imurovpments
In the event the Provider desires to make or cause to be made any repair, alteration,
addition, deletion, partition or change to the Area (hereinafter collectively called "Alterations"),
the Provider shall submit for prior approval by the Parks Director 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 Area,.
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 Area that require additional insurance.
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All Alterations must be in compliance with all statutes, laws, ordinances and regulations r
of the State of Florida, Miami -Dade County, the City of Miami and any other agency that may
have jurisdiction over the Area as they presently exist and as they may be amended hereafter.
All equipment and personal property used by the Provider at the Area shall be of good
quality and suitable for its purpose. The Parks Director 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.
The Provider agrees that the Parks Director, In his sole discretion, shall make the final
decision as to the age, condition, design and acceptability of Alterations and equipment,
furnished for installation and use.
9.4 Payment, PWSrmance Bonds and setters of Credit
No Alterations shall commence in or on the Area until the Provider has written approval
from the Parks Director. The Parks Director, 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 Parks Director. 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 Parks Director.
9.5 Mechanics' Liens
The Provider shall not suffer or permit any mechanics' liens to be fled 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 or the furnishing of any materials that would give rise to the filing of any mechanics
liens against the Property. If any mechanics' lien shall at anytime be filed against the Property,
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the Provider shall cause it to be discharged of record within fifteen (15) days after the date the
Provider acquires 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 available to the City, 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. Additionally, the
City may compel the prosecution of an action for the foreclosure of the mechanics' lien by the
lienor and 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.
9.6 Pefsonal Property
The Provider shall have the right to remove any movable personal property that the
Provider purchases at its sole cost and expense. 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. The Provider's failure to repair any damage caused to the Property within fifteen (15)
days after receipt of written notice from the City directing the required. repairs shall constitute an
Event of Default. The City may, however, elect to cause the Property to be repaired at the sole
cost and expense of the Provider. The Provider shall pay the City the full cost of such repairs
within fifteen (15) days of receipt of an invoice indicating the cost of such required repairs.
9.7 Chances and Additions to the Area.
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
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to make alterations thereof or additions thereto, and/or (iii) to change location, size, content and
design of any signage -for the Property.
ARTICLE X
CITY'S INSPECTIQN AND RIGHT OF ENTRY
10.1 Inspection By City
The City shall have the authority to make periodic inspections of the Area 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.
10.2 City's Right Of Entry
The Provider agrees to permit the City to enter upon the Area at all reasonable times,
for any purpose the City deems necessary to, incident to, or connected with the performance of
the City's duties and obligations hereunder or In the exercise of its municipal functions.
ARTICLE XI
CITY'S SERVICES
11.1 City's Services,
The City shall make available, at its sole cost and expense, the following services to the
Area:
(a) heating, ventilation and air conditioning required in City's judgment for the
comfortable use and occupation of the Area;
(b) water and sewage facilities;
(c) pest control;
(d) electric current for normal use and light during the Required Operating Hours;
(e) trash and garbage removal from the Property;
The City as may be required In the City's sole judgment may modify (he above level of
services. The Provider must abide by the laws, rules and regulations of the City with the
respect to the provision of these services.
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,n
The City shall, at its sole cost and expense, provide all maintenance, including
preventive maintenance, repairs and replacements, as necessary, to the Property and any
structural portions of any buildings, including, but not limited to, pavement, driveways, exterior
walls, under flooring, roof, exterior lighting, plumbing, heating, air conditioning, electrical and life
safety systems, installed or fumished by the City.
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,
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 Area, in which case 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 Annual 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 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.
11.3 City Not Liable for Failure of Utilities.
The City reserves the right to interrupt, curtail or suspend the provision of any utility
service, including but not limited to, heating, ventilating and air conditioning systems and
equipment serving the Area, to which Licensee may be entitled hereunder when necessary by
reason of accident or emergency, or for repairs, alterations or improvements in the judgment of
City desirable or necessary to be made or due to difficulty in obtaining supplies or labor or for
any other cause beyond the reasonable control of the City. The work of such repairs,
alterations or improvements shall be prosecuted with reasonable diligence.
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 Area or the Property. The Provider
shall not claim any damages by reason of the City's or other individual's interruption, curtailment
20 01- 766
or suspension of a utility service, nor shall this Agreement or any of Provider's obligations
hereunder be affected or reducer! thereby.
Alf jTtC XII
'§ .SERVICES
12.1 Provider's Services.
The Provider shall, at its sole cost and expense, provide the following services to the
Area:
(a) All utilities not provided by the City (including, but not limited to, telephone, gas and
cable television service, if available, and hook-up and connection charges) and other
services which Provider requires with respect to its use of the Area;
(b) Daily cleaning and janitorial services, including supplies, for the Area;
(c) Cleaning of Concession Area equipment;
(d) Interior window cleaning to be performed as needed .but not less than once every
ninety (90) days;
(e) Daily removal of trash and garbage from the Area to a dumpster provided by the
City;
(f) All standard incandescent and florescent bulb replacement, including ballast
replacement, in the Area;
(g) Security as may be required for its use of the Area.
(h) All services shall be performed to the satisfaction of the Parks Director.
12.2 Provider's Maintenance and Reppirs.
The Provider shall be required, at its sole cost and expense, to provide maintenance,
repairs and replacement at all times during the Term and any Additional Term, for the Area
including, without limitation, nonstructural, Interior portions, 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 11.2. Provider shall not commit, or
suffer to be committed, any waste in or upon the Area or do anything in or on the Area which, in
the City's sole opinion, detracts from the appearance of the Area. All maintenance, repairs and
replacements shall be performed to the satisfaction of the City.
k
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NO REPRESENTATION BY CITY
13.1 Condition Of Area I '
Upon• completion of construction of the new Facility, including improvements thereon,
the Provider shall take possession of the Area, without any representation by or on behalf of the
City, and agrees that the City shall, under no circumstances, be liable for any latent, patent or
other defects in the Area.
At the expiration or earlier termination of the term of this Agreement, the Provider shall
surrender the Area "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, 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
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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
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 Area with such limits as may be reasonably requested by the City from time to
time but not less than $1,000,000 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. 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.
C. Worker's Compensation in the form and amounts required by State law.
D. 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.
E. 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
Management, 444 S.W. 2 Avenue, Vh Floor, Miami, FL 33130 with copy to the City of Miami,
Office of Asset Management, 444 S.W. 2 Avenue, 3rd Floor, Miami, FL 33130.
F. 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 �.
23 ot- 766
i
•
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 shall 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 must
hold a valid Florida Certificate of Authority and be 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, shall 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, upon demand, be paid by the Provider to the City as an Additional Payment
on the first day of the first 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. The
Provider's failure to procure insurance .shall not release the Provider from its obligations and
responsibilities as provided herein.
Notwithstanding anything contained herein, in the event that the Area or any item of
personal property forming part of the Inventory is lost, stolen or damaged due to the negligence
of the Provider, the Provider shall replace or repair the Area or the content that is lost, stolen or
damaged at its sole cost and expense. The City shall not be liable for the loss of business of
the Provider due to the aforementioned.
14,3 Damage Or Loss To The Area
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
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upon the Property 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 Area
Except as provided in Section 14.5 hereof, if the Area shall be damaged by fire, the
elements, accident or other casualty (any of such causes being referred to herein as a
"Casualty"), but the Area 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 Annual Fee.
If, as a result of Casualty, the Area shalt be rendered partially untenantable, then,
subject to the provisions of the Section of this Agreement entitled "City's Option to Terminate
Due to Casualty the City shall cause such damage to be repaired, provided such damage is
not caused by the . negligence of the Provider, its employees, agents, contractors,
representatives, guests or invitees, and all Annual Fees and s (other than Additional Payments
due 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 Area rendered untenantable during the period
of such untenantability. In such event, 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 damage to or replacement or repair shall be promptly undertaken and completed by the
Provider. The City shall not be obligated to spend more for the cost of repair than net
insurance proceeds recovered with respect to such loss, In this regard, the City's repair of the
Property may not result in the same being restored to its condition prior to any such Casualty to
the extent funds are not so available to fully restore the Area to its pre -Casualty condition. In
the event the cost to repair the Area is less than the net insurance proceeds received by the
City, all excess insurance proceeds shall be remitted to the City.
'14.5 's Qntion to Terminate Due toQlagm
If the Area 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) Insurance prooeeds are insufficient to
restore the Area to a condition reasonably intended to cavy out the purposes described In this
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Oi- 766
f
Agreement, or (d) damaged or destroyed in whole or in part during the last three years of the
Term, or (e) if the City's Facility is damaged to the extent of fifty percent (50%) or more of the
City'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 Annual Fee and s (other than any Additional Payment due the
City by reason of the Provider's failure to perform any of its obligations hereunder) shall be
adjusted as of the date of such termination.
Upon any termination of this Agreement under any of the provisions of this Article, the
Provider and the City shall each be released thereby from any further obligations hereunder
accruing after such termination, except that such release shall not apply to any sums then
accrued or due, or to the Provider's obligations under the Article of this Agreement entitled
"Surrender of the Area" or to any obligation otherwise surviving the termination of this
Agreement, and at such time the remaining balance of the Performance Deposft, less any sums
the City is entitled to deduct, shall be returned to the Provider.
ARTICLE XV
ASSIGNMENTS AND SUBLCMN¢
15.1 As$Anment And Su&ttio Of Area
The Provider shall not, at any time during the term of this Agreement, assign, mortgage,
pledge or otherwise encumber this Agreement, the tern, or any interest hereunder; or lease or
offer or advertise for leasing the Area 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, as the some may be amended from time to time (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 the 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
N
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01- 766
•
•
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.
ARTICLri XIA
OWNERSHIP OF IMPROVEMENTS
16.1 Ownership Of Imcro ements
As of the Effective Date and throughout the Term and any Additional Tenn, title to the
Property, the Initial Improvements, Initial Equipment, and all improvements thereon shall be
vested in the City. Furthermore, title to the initial 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 become the
property of the City and shall remain and be surrendered with the Property.
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 removal 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
Area 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 the section entitled 'Personal
Property".
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 the Provider on the Area.
AR�LEXVII
SIGNAGE
17.1 Sians
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 Parks Director, which approval may be
withheld, for any or no reason whatsoever, in his sole discretion. The Provider must also obtain
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approval from all governmental authorities having jurisdiction, and must comply with all
applicable requirements set forth in the City of Miami Code and toning 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 Area.
.. ARTICLE Will
SPECIAL ASSESSMENTS AND TAXES
18.1 Sneciai Assessments Taxes and Fees
The Provider covenants and agrees to pay any and all charges, taxes, or assessments,
levied against the Area 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 any, lawfully assessed, on such dates as
they become due and payable.
18.2 AARaealino 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:
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01- '7 6 6
(a) The failure of the Provider to pay any Annual Fee, or Additional Payments, 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 SOiC(3) of the Internal
Revenue Code of 1986, as amended;
(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 tiled 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 N 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 bedeemed rejected
automatically and the City shall have the right immediately to possession of the Area and shall
be entitled to all remedies provided by the Bankruptcy Code for damages for breach or
termination of this Agreement.
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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 may, at its option, 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 Area, without 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 Area and surrender the Area 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%)
per annum from the date of such expenditure, shall be deemed an Additional Payment, 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, determines 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 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 nights 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.
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19.3 ftpeated De_ faults
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 some 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 Cly's Right ToCure 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 p l
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 posited or the date of actual
receipt, whichever is earlier.
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01- 766
NOTICE TO CITY:
City of Miami
City Manager
444 S.W. 2 Avenue, IOP Floor
Miami, Florida 33130
WITH COPY TO:
City of Miami
Office of Asset Management
444 S.W. 2"d Avenue, 3`d Floor
Miami, FL 33130
WITH COPY TO:
City of Miami
Parks Department
444 S.W. 2n0 Avenue, 81h Floor
Miami, FL 33130
NOTICE TO PROVID R:
Florene Litthcut Nichols Inner City
Touring Dance Company, Inc.
Attn.: Florene Litthcut Nichols
4120 N.W. 81' Avenue
Miami, Florida 33127
ARTICLE XXt
MISCELLANEOUS PROVISIONS
21.1 Ingress And Egress
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
The Provider acknowledges that the provider has been retained as a contract manager
only, and as such, the Provider shall have no Interest in the Area or Property as owner, lessee
or otherwise. All mineral rights and all land ownership rights are hereby reserved by the City. It
is expressly understood and agreed that no real or personal property is leased to the Provider,
that this Is a management agreement and not a lease, that the Provider's right to use the Area
shall continue only so tong 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.
The City shall retain legal possession of and control over the Area, and approve
Provider's use thereof and all programs and services conducted thereon.
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21.3 City Acoroval
Whenever the prior approvals must be given by the Parks Director or the City Manager,
as applicable, the Parks Director or 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 Ooeratino Losses
The Provider shall be responsible for any and all operational tosses incurred in the Area
or as a result of the Provider's operations thereof.
21.5 Successors And Assions
This Agreement shall be binding upon the Parties hereto, their heirs, executors, legal
representatives, successors and assigns.
21.6 Surrender Of Are
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
Area 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 Attomays' F"s
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
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i
•
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 bg 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
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 Severabilitv
If any provision of this 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 not 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 Annual Fee, 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
34
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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.
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.
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.
22.1 Holding Over
The Provider shall vacate the Area 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 Area. If the
Provider remains in possession of all or any part of the Area after the expiration of the Term or
any Additional Term hereof, as the can may be, with or without the exprsas 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 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 -
35
01- 766
hereof, except the month-to-month occupancy will be terminable upon fifteen (15) days notice
given at any time by either Party.
ART_ ICigAglll
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
Area 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
MIIJQRITY PROCUREMENT
24.1 Minorltv/Women Business Utilizatign
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 Minority/Women
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
ENTRE 62RENMENT
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 X�XVI
APPRO_ VAL BY OVERSIGHT BOARO
26.1 Aonrgval By Oversicht 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.
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 Vilarello
City Attorney
ATTEST:
By:
Walter J. Foernan
City Clerk
0
APPROVED AS TO INSURANCE
REQUIREMENTS
Mario Soldevilla
Risk Management
THE CITY OF MIAMI;
a municipal corporation
of the State of Florida
By:
Carlos A. Gimenez
City Manager
37 Ol- 766
C.
•
WITNESSES:
Witness Signature
Print Name
Witness Signature
Print Name
Florene Litthcut Inner City Children's Touring
Dance Company, Inc.
By:
Print Name & Title
STATE OF FLORIDA )
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of
, 2001 by of Florene Litthcut Nichols Inner
City Touring Dance Company, 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.
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01-- 766
TO: Honorable Mayor and
Members of the City Commission
FROM:
4
O
ity Manager
RECOMMENDATION:
CITY OF MIAMI, FLORIDA 23
INTER -OFFICE MEMORANDUM
DATE : JUN 2 13 :. wl. FILE :
SUBJECT: Management Agreement between
City of Miami and Florene Litthcut
Inner -City Children's Touring Dance
REFERENCES; Company, Inc.
ENCLOSURES:
The administration recommends that the City Commission approve the attachad Resolution authorizing
the City Manager to execute a Management Agreement ("Agreement"), in :substantially the attached
form, with Florene Litthcut Inner -City Children's Touring Dance Company, Inc., a non-profit corporation
(ICCTDC). This Agreement is for the use of approximately 8,693 square feet of space (the "Area"), in
the Hadley Park Community Center, located at 1300 N.W. 50'h Street, Miami, Florida, to provide cultural
and educational opportunities to the City of Miami residents. This Agreement is for an initial term of
seven (7) years, with two (2) additional five (5) year renewal options. It provides for an annual fee of
$1.00, and ICCTDC is to use its best efforts to secure grant funds in the amount of $.50 per square foot
to contribute towards the operating costs of the Area.
BACKGROUND:
The City of Miami through the Parks and Recreation Department made applications to Miami -Dade
County Office of Safe Neighborhood Parks for Challenge Grants, which included ICCTDC as a partner.
The City was awarded and received monies to begin construction of a new recreation building of
approximately 21,000 square feet a/k/a Hadley Park Community Activity Center as a community
recreation center for cultural, educational, and recreational programs.
In a accordance with the Section 15-80(5) of the City Code, the City Commission adopted Resolution No.
00-305, waiving the requirements for competitive negotiations, and authorised the City Manager to
negotiate a management agreement with ICCTDC for the management of a portion of Hadley Park for the
purpose of providing cultural and educational opportunities to the City of Miami residents, with an initial
tenor of seven (7) years.
ICCTDC has successfully operated as a non-profit organization, a variety of programs for twenty-seven
years serving over 20,000 children. The programs provide cultural activities to enrich the soul and
provide alternatives to the violence experienced in inner city neighborhoods. Programs include the
summer performance series, and helping participants increase self-esteem and discipline through the arts.
0j.. 766
Honorable Mayor and Members
of the City Commission
Page 2..
Since the City has limited means by which to support the continued operation and maintenance of a
highly technical and sophisticated space for cultural activities in the Hadley Park Community Center, and
it is in the best interest of the City to procure the services of an outside organization willing to operate
and maintain the cultural component of the new facility.
Highlights of the Agreement are as follows:
Initial Term: Seven (7) years
Option to Extend: Two 5 -year options
Fee: One Dollar ($1.00) annually.
Initial Improvements The City designed and shall construct a new a cultural, educational, and
recreational building, including a black box theater, and dance studio.
Initial Equipment: The City shall install all initial equipment in the Area.
City Services to Arda: The City shall provide HVAC, water and sewer, pest control, electric,
trash and garbage removal. The City maintenance and repairs shall
include exterior walls, under flooring, roof, plumbing, HVAC, and life
safety systems.
Provider Services to Area: Provider shall provide telephone, gas, cable television service, janitorial
service including supplies, Concession area equipment cleaning, trash
and garbage removal to dumpster, and security as may be required. The
Provider's maintenance and repairs shall include interior walls, floor
coverings, all system equipment, ceilings, and decorations, and fixtures
and equipment.
City Approvals: Prior to the commencement of each fiscal year, the Provider will submit
to the City, for its approval, its budget, fees and maintenance plan.
Security Deposit: Five Hundred Dollars ($500.00)
Conditions Precedent: This Agreement contains several conditions precedent. Of particular
note are the following:
Completion of construction of the Facility, evidenced by a Temporary
Certificate of Occupancy, or a Certificate of Occupancy.
Parks Director must have satisfactory proof that funds are available to
design and construct the initial improvements, theater equipment, and
that the installation of the initial equipment has been completed.
01- 766
Honorable Mayor and Members
of the City Commission
Page 3...
Parks Director must review and approve the Required Operating Hours
of Provider.
Parks Director must review and approve prior to the Effective Date of
this Agreement, an annual plan of the Provider.
Insurance: Licensee shall provide the required insurance, which includes
commercial general liability in the amount of $1,000,000, auto liability
insurance, Worker's Compensation in the form and amounts required by.
State law.
The principals of ICCDTC are as follows:
• Florene Litthcut Nichols — Executive Director/ Founder
• Michael Cole — Chairman
• Matthew Price, 11— Vice Chairman
• Sharon Kilpatrick — Secretary
• Kevin Adderly - Treasurer
CAGB �/pk/htayor CC —Mgmt. Agreement Florene Liltheutt.doc