HomeMy WebLinkAboutR-01-09139/13/01
RESOLUTION NiO. .. y
A RESOLUTION OF THE MIAMI CITY COMMISSION,
W_TH ATTACHMENT(S), RATIFYING, APPROVING AND
CONFIRMING THE ACTION OF THF' CITY MANAGER IN
EXECUTING A USE AGREEMENT, IN SUBSTANTIALLY
THE ATTACHED FORM, WITH 21ST CENTURY CINFMAS,
I:NC., FOR THE USE OF THE TOWER THEATER
LOCATED AT 1508 SOUTHWEST 8`" STREET, MIAMI,
FLORIDA, ON AN INTERIM BASIS, WHILE THE CITY
CONDUCTS COMPETITIVE NEGOTIATIONS FOR THE
MANAGEMENT OF THE :'HEATER ON A LONG TERM
BASIS.
BE 12' RESOLVED BY THE COMMISSION OE' THE CITY OF MIAMI,
FLORIDA:
Section 1.
The action of
the
City Manager in
executing
a Use Agrcement,
in substaritially
the
attached form,
with 21st
Century Cinemas, Inc., for the use of the Tower Theater located
at 1.508 Southwest: 8th
Si.reet,
Miami, Florida, on an
interim
basis, while the City
conducts
competitive negotiations
for the
,rianagemert of the thear.er on a long term basis is ratified,
approved and confirmed.
CITY CON1'D?3i'SlO�i
D�lE�`8'II!vt;
3 2001
liov.:Au.rtan �
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Section 2. This Resolution shall. become effective
immediately upon its adoption and signature of the Mayor./
PASSED AND ADOPTED this 13th— day of September , 2001.
JOE CAROLLO, MAYOR
In rrordenco v�ith ^"i.�r;i r_.Od('. Sec. 2.1c, ^ins^ the D,A;:eyor did not lnd,calle arprcva-1 of
tIlls i7; i�1lLiirlrl t)!f ^I{:'t fl!3 it in ti:•... C@ +ift:.. ;il r.l�tt;r? ;tri.: , ctd �iit;'j :i.;',iftili !'=jw
•i.. e , _ �� nt' � tJ le of
hocom,ma vilii+
regardir:r,� same, wiUZo!tt iI r�iiaYcr v(4
ATTEST:
i
&1ter J. Foenian, City Clark
WALTER J. FORMAN
CITY CLERK
APPR
rk%PO VILA-RE,LLO
Y TI'ORNEY
69:L,B:LN:BSS
CORRECTNESS :e./
If the Mayor 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 Resolution, it shall
become effective immediately upon override of the veto by the
City Commission.
Page 2 of 2
01- 90
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USE AGREEMENT
ISSUED BY THE
CITY OF MIAMI
TO
21 ST CENTURY CINEMAS, INC.
FOR T14E OCCUPANCY OF THE PROPERTY LOCATED
1508 S.W. 8"' STREET
MIAMI, FLORIDA
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1. Recitals.
1
2. Purpose.
1
3. Operations.
1
4, City Programming
2
5. Use Period.
2
6. Interest Conferred by this Agreement.
3
7. Use Fee.
3
8. Damage Deposit.
3
9. Ticket Surcharge
4
10. Complementary Tickets.
5
11. Utilities and Other Services.
5
12. Condition of the Property.
5
13. Permits.
G
14. Equipment.
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15. City Services
7
16. User's Services
7
17, Promotion of City.
8
18. Signs.
8
19. City Access to Facility.
8
20. City's Right to Perform Work.
8
21. Indemnification and Hold Harmless.
8
22. Insurance.
9
23. No Liability.
11
24. Default Provision.
11
25. Cancellation by Request of Either of the Parties Without Cause.
12
26. Notices.
12
27. Per Diem Fee.
12
28. Severability.
13
29. No Assignment Or Transfer.
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30. Nondiscrimination.
31. Waiver of Jury Trial.
32. Waiver.
33. Amendments and Modifications.
34. Court Costs and Atlorney(s)' Fees.
35. Compliance with All Daws Applicable.
36. Entire Agreement.
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USE: AGREEMENT
'Phis to Use Agreement (the "Agreement") is made this day of , 2001,
between the City of Miami '(the "City") a municipal corporation of the State: of Florida and 21"
Century Cinemas, Inc., a Florida for profit corporation (the "User"),
WHEREAS, the; City and the User find it to be in the best interest of the parties to allow
the 'Power Theater to remain open on in interim basis while the City takes the necessary steps to
procure an operator on a long; terns Basis;
NOW, THEREI'ORE, in consideration of mutual covenants hereinafter contained to be
observed and performed, the Parties hereto do hereby covenant and agree as follows:
I. Recitils
The recitals and findings set forth above are hereby adopted by reference thereto and
incorporated herein as if fully set forth in this Agreement.
2. Purpose.
'['lie City is the owner of real property located at 1508 S.W. 8`i' Street, Miami, Florida,
a.k.a. Tower Theater (the "Property"), The City through (his Agreement will allow the User the
right to manage the Property, in cooperation with the City on a temporary basis.
3. Operations.
The Uscr 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. The User agrees that, at no time during; the Use Period, as hereinafter defined, shall it
permit any obscene performances or other obscene material to be exhibited or performed in the
Property. For the purposes hereof, the term "obscene" shall be defined in the sante manner as
such term is defined under applicable federal law, with the further proviso that "X" (or "XX" or
"XXX") rated or similarly rated movies or other performances shall, for the pui-poses hereof, be
deemed obscene.
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The User shall keep the Property open for operation seven days a week except for
Holidays ("Required Operating Hours"). Any changes to the 'Required Operating; Hours shall
require the prior written approval of the City Nlanagcr.
The User shall further submit to the City Manager for his approval the proposed fees or
range of fees and charges, which approval shall not be unreasonably withheld. Any proposed
modification of the fees shall be submittcd to the City Manager for his prior written approval,
which approval shall not be unreasonably withheld. User shall provide a discounted fee schedule
for the elderly.
4. City Programming
The City shall assign a City employee to work with the User far the purpose of
developing programming and a schedule for said programming, The City agrees to coordinate all
City events in the theatre with User. The City acknowledges that if the User has previously
scheduled an event and the City requires User to cancel it, the City shall compensate the Uscr
reasonable loss it might suffer as a result of the cancellation f'or a City sponsored event. The
User has the exclusive right to provide all food, beverage and catering service in the theatre. If
the City has a sponsored event and wishes to provide food or beverage it shall advise the User.
If there is no admission charge and the City's use requires the provision of User staff, additional
equipment during the event or cleaning the theatre after the event., the City shall reimburse the
User the actual cost of such services provided to the City. The cost of the services to be provided
by User shall be discussed Nvith the City prior to the event schedule date. City reserves the rights
to have sponsors provide food and beverages associated with a Special Event procured by the
City. For the purpose of this Agreement, "Special Events" shall mean activities at the Property,
which exceed the scope of the regular program activities, which are conducted at the Property.
The City Manager shall be the party to resolve any controversy or disputes relating to
programming on this Agreement. The decision of the City Manager shall he final in this
respect.
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5. Use Period.
The Use Period shall commence on August 21, 2001 and terminates on February 20, 2002
unless sooner terminated as provided herein.
6. Interest Conferred by this Agreement.
The User agrees that this Agrectnent has been issued by the City to authorize the User to
occupy the Property solely for the limited purpose of utilizing the Property to serve as a public
cinema and cultural center, and to provide cultural, cinema -graphic and educational opportunities
to City of Miami residents, organized youth groups, disadvantaged sectors of the public,
organized community groups and the general public and no other purpose. The parties hereby
agree that the provisions of this Agreement do not constitute a lease and the rights of the User
hereunder are not those, of a tenant but as a more personal privilege to do certain acts of a
temporary character and to otherwise use the Property subject to the terms of this Agreement. No
leasehold interest in the Property is conferred upon the User Wider the provisions hereof and the
User does not and shall not claim at any time any leasehold estate or ownership interest in the
Property by virtue of this Agreement or its use of the Property hereunder. Additionally, the User
does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in
the Property by virtue of any expenditure of funds by the User for improvements, construction,
repairs, partitions or alterations to the Property which rnay be authorized by the City.
7. Use Fee.
In consideration for this Agreement, the User agrees to pay to the City a monthly fee of
$1.00 (the "Use Fce").
The parties agree that revenue from ticket sales for any Special Event in which the City
is the procuring cause shall be divided 50% for the City and 50% for the User, taking into
consideration the expenses of the respective parties. User shall provide services at no cost to
the City during ticketed events.
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S. Damage Deposit.
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The User deposited the amount of Five Hundred Dollars (5500.00) (the "Deposit") with
City as guarantee for the full and faithful performance by User. The City shall retain this Deposit
as guarantee for the full and faithful performance by User under the Use Agreement. If User is in
�( violation (as provided in Section 24. "Dciault Provision") beyond any applicable notice or cure
period, 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 User was obligated to pay but did not pay, (ii) any sum
expended by City on User's behalf in accordance with the provisions of this Agreement, or (iii)
any sum which City may expend or be required to expend as a result of User's violation. The
use, application or retention of the Deposit or any portion thereof by City shall not prevent City
flan exercising any other right or remedy provided for under this Agreement or at law and shall
not limit any recovery to which City may be entitled otherwise. At any time or times when City
has made any such application of all or any pant of the Deposit, the User shall deposit the sum or
sums equal to the amounts so applied by City within ten (l 0) days of written notice by the City.
Provided User is not in violation of this Agreement, the Deposit or balance thereof, as the
case may be, shall be returned to User upon the termination of this Agreement or upon any later
date after which User has vacated the Properties in the same condition or better as existed on the
commencement of the Use Period, ordinary wear and tear excepted. Upon the return of the
Deposit (or balance thereof) to the User, the City shall be completely relieved of liability with
respect to the Deposit. The User shall not be entitled to receive any interest on the Deposit.
9. 'Picket Surcharge.
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, is hereby waived for the teen. of
this Agreement.
10. Complimentary Tickets.
The User agrees that the City resci vcs the tight to receive up to thirty (30) scats per
month, at no cost to the City, for itself.
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IL . Utilities and Other Services.
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City shall, at its sole cost and expense, be responsible for all utilities excluding the Wer.'§
telephone, keeping the exterior grounds around the cinema clean. The City shall in no respect be
liable for any failure of the utility companies or governmental authorities to supply utility service
to User or for any limitation of supply resulting from governmental orders or directives. User
shall not claim any damages by reason of the City's or other individual's interruption, curtailment
or suspension of a utility service. nor shall the Agreen fxnt or any of User's obligations hereunder
be affected or reduced thereby.
The City shall pay for its own telephone services. The User will pay ibr any utilities or
lines it may require its own use.
In the event any bill for services rendered in connection with the Property that the City is
not responsible for is received by the City for payment, the City shall have the option of:
A. Making payment on the bill and the User shall within ten (10) days of receipt of
notice from the City reimburse the City, or
B. Forwarding the bill to the User for payment.
12. Condition of the Property.
The User accepts the Property "as is", in its present condition and state of repair and
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 Property. Throughout the
Use Period, the User shall provide all materials and labor required in order to maintain the
Property in a clean and sanitary condition. The User shall maintain and return the Property to the
City in the same condition, or better condition, as the Property was on the commencement of the
Use Period, normal wear and tear excepted.
13. Permits.
User shall be responsible for obtaining, at its sole cost and expense, all necessary permits
required for the staging of Special Events, including but not limited to an assembly permit from
the Office of Fire Prevention and any and all permits needed for the dispensing of
food and alcoholic beverages, if applicable, except..far'thase events' shgrisored by the City. Fire
Department manpower requirements shall be determined by the Fire Department at least 24 hours
prior to event. The City shall be responsible for the necessary permits to conduct a City special
event.
14. Equipment.
The City owns the equipment as detailed in Exhibit A attached hereto and made part
hereof (the "City's Equipment"), The User will be permitted to use City's Equipment, however
any additional equipment needed by the User for the Permitted Use must be provided at the
User's sole cost and expense. The User shall provide a qualified teclinician to test and operate
the City's Equipment. The User shall replace or repair, at its sole cost and expense, any of those
items and any fixture or furnishing provided by the City lost, damaged or destroyed due to acts,
omissions or negligence of the User or its agents or employees.
User agrees to provide any and all security it deans necessary to protect its own
equipment including insurance.
The production and talent costs for any event held by the User within the Property will be
the responsibility of the User, and will be paid for by the User. The City shall be responsible for
such expenses for city -sponsored events.
15. City Services
The City shall, at its sole cost, discretion, and expense, provide all maintenance,
preventive maintenance and services required for use of the Property, including, but not limited
to, the following maintenance, preventive maintenance and services:
a) Heating, ventilation and air conditioning as required for the comfortable use and
occupation of the Property;
b) Water and sewage facilities;
C) Electric current for normal use and lighting;
d) Indoor and outdoor lighting;
e) Elevator service;
f) Security & Fire alarm monitoring services;
g) City's Equipment;
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h) Sprinklers;
i) Garbage collection;
j) Grounds services including lawn, shrub and tree maintenance and removal of any
rubbish or obstructions fi-om the Property;
k) Pcst control services, as needed, to insure that the Property will at all time be in a
clean and sanitary condition and free from vermin.
The Uscr shall, promptly advise the City of any condition of the Property requiring
maintenance or repair so as to prevent injury to persons and waste to the Property.
16. User's Services
User, at its sole cost and expense, shall provide including but not limited to the following;
a) Daily cleaning services for the Property;
b) Employ, train, pay, supervise, discharge and determine the compensation of all
employees necessary for the operation of the Property;
c) Purchase all supplies required for the operation of the Property, including but not
limited to, office supplies, cleaning supplies, and food and beverages;
d) All marketing and advertising required for its operations except for city -sponsored
events.
17. Promotion of Cite.
The User acknowledges the benefits afforded to it by the City providing the Property for
use by the User and shall provide recognition of the City of Miami in all its marketing,
advertising and promotional materials.
18. Signs.
The User shall be permitted to place signs or posters relatcd to the film operation on the
areas designated on the exterior and interior of the Property. The User shall not permit any signs,
advertising materials or other objects to be placed or hung on any portion of the Property or allow
any change or modification to the exterior or interior of the Property except with prior written
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approval of (lie Director of Asset Management, which approval may be conditioned or
reasonably withheld. The User must also obtain approval from all governmental authorities
having jurisdiction, and must comply with all applicable requirements set forth in the City of
Miami Code and Zoning Ordinance. Upon the expiration or earlier termination of this
Agreement, for any reason, the User shall, at its sole cost and expense, remove and dispose of all
signs, advertising materials or other objects located on the Property.
19. Cit`' Access to Facility.
The City and its authorized rcpresentative(s) shall have at all times access to the Property
20. City's Right to Perform Work.
The City shall have the right to enter the Property to perform any work necessary to
complete all phases of construction of the Property and to conduct any work necessary to obtain
all applicable permits and approvals, including but not limited to the C.O.
21. Indemnification and Hold Harmless.
The User shall indemnify, hold hannless and defend the City from and against any and all
claims, Suits, actions, damages or causes of action of Whatever nature arising during the Use
Period, for any personal injury, loss of life or damage to property sustained in or on the Property,
by reason of or as a result of the User's use or operations thereon, and from and against any
orders, judgments or decrees which may be entered thereon, and from and against all costs,
attorney's fees, expenses and liabilities incurred in and about the defense of any such claims and
the investigation thereof, even if the. claims, costs, liabilities, suits, actions, damages or causes of
action arise from the negligence or alleged negligence of the City, including any of its employees,
agents, or officials.
The User hereby releases the City from and against any and all actions, claims, suits,
judgments and demands whatsoever in law or in equity for costs, lost profits and/or any other
damages relating in any manner to the termination of [his Agreement,
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22. Insurance.
The User, at its sole cost and expense, shall obtain and maintain in full force and effect at
ail times throughout the Use Period, the following insurance:
A. Commercial General Liability insurance on a comprehensive general liability
coverage form, or its equivalent, including contractual liability, products, liquor
(if applicable) and completed operations, personal in.juiy and Property and
operations coverage's against all claims, demands or actions, bodily injury,
personal injury, death or property damage occurring in the Property with such
limits as may be reasonably requested by the City from time to time but not less
than $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. The Operator shall also obtain and maintain in force for the
length of the agreement a $1,000,000 Excess Umbrella type policy taking effect
on top of the base $1,000,000 required.
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 $1,000,000 for bodily injury and
properly 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 Florida law.
D. A current Evidence of Insurance and Policy of Insurance evidencing the aforesaid
required insurance coverage shall be supplied to the Office of Asset Management
of the City at the commencement of the Use Period 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 herein shall be issued by companies
authorized to do business under the laws of the State of Florida, with the
following qualifications as to management and financial strength: the company
should be rated "A" as to management, and no less than class "X" as to financial
strength, in accordance with the latest edition of Best's Key Rating Guide, or the
company holds a valid Florida Certificate of Authority and is a member of the
Florida Guarantee Fund.
Receipt of any documentation of insurance by the City or by any of its representatives,
which indicates less coverage than required, does not constitute a waiver of the User's obligation
to fulfill the insurance requirements herein. The City reserves the right to amend these insurance
requirements by the issuance of a notice in writing to the User. The User shall provide any other
insurance or security reasonably required by the City.
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 he delivered to the City of Miami, Department of Risk Management,
444 SW 2 Avenue, 9`1' Floor, Miami, FI. 33130 with copy to City of Miami, Office of Asset
Management, 444 SW 2 Avenue, 3'*d Floor, Miami, FL 33130.
hi the event the User shall fail to procure and place such insurance, the City may, but
shalt not be obligated to, procure and place same, in which event the amount of the premium paid
shall be paid by the User to the City as Additional Payments upon demand and shall in each
instance be collectible on the first day of the month or any subsequent month following the date
of payment by the City. Failure to pay such amount within the time flame provided shall
constitute a default of this Agreement as provided in Default Provision below. The User's failure
to procure insurance shall in no way release the User from its obligations and responsibilities as
provided herein.
Notwithstanding anything contained herein, in the event that the Property or any content
within the Property is lost, stolen or damaged due to the negligence of.'the User, the User shall
replace or repair the Property or the content that was is lost, stolen or damaged.
23. No Liability.
In no event shall the City be liable or responsible for injury, loss or damage to the
property, improvements, fixtures and/or equipment belonging to or rented by the User, its
officers, agents, employees, invitees or patrons occurring in or about the Property that may be
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stolen, destroyed, or in any way damaged, including, without limitation, vandalism, theft, fire,
flood, steam, electricity, gas, water, rain which may leak or, Dow 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 facilities or occupants of
the Property or any person whomsoever whether such damage or injury results from conditions
arising upon the Property or upon other portions of the Property or from other sources. The
User indemnifies the City its officers, agents and employees from and against any and all such
claims even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from
the negligence or alleged negligence of the City, including any of its employees, agents, or
officials.
The User further acknowledges that as lawful consideration for being granted the right
to utilize and occupy the Property, the User, on behalf of himself, his agents, invitees and
employees, does hereby release from any legal liability the City, its officers, agents and
employees, from any and all claims for injury, death or property damage resulting from the
User's use of the Property.
24. Default Provision.
In the event the City or the User shall fail to comply with each and every teen and
condition of the Agreement or shall fail to perform any of the terms and conditions contained
herein, then the City or the User, at its sole option and in addition to all other rights and remedies
available to it by law, upon written notice of thirty (30) days to User or City may cancel and
terminate Agreement, and all payments, advances, or other compensation paid by User or City
pursuant to this Agreement, shall be forthwith retained by the City.
25. Cancellation by Request of Either of the Parties Without Cause.
Either party may cancel this Agreement at any time by giving ninety (90) days written
notice to the non -canceling party prior to the effective date of the cancellation.
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26. Notices.
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All notices or other communications which may be given pursuant to this Agreement
shall be in writing and shall be deemed properly served if delivered by personal service or by
certified mail addressed to (lie City and the User at the address indicated herein oras the same,
may be changed from time to time. Such notice shall be deemed given on the day on which
personally served; or if by certified mail, on the fifth day after being posted or the date of actual
receipt, whichever is earlier:
NO'T'ICE TO THE CITY:
City of Miami
City Manager
3500 Ilan American Drive
Miami, Florida 33133
WITH A COPY TO
City of Miami
Office of Asset Management
444 SW 2" d Avenue, Suite 325
Miami, FL 33130
27. Per Diem Fee.
NO'T'ICE TO THE USER:
2151 Century Cinemas, Inc.
Attim Steven Krams
100 N. F. 39" Street
Miami, FL 33137
WITH A COPY TO:
City of Miami
City Attorney
444 SW 2 I Avenue, 9"' Floor
Miami, Fl, 33130
In the event the User is in default of the terms of this Agreement, the City shall have all
remedies available to it by law or in equity. In the event that the User fails to peacefully
surrender the Property at the expiration of the Use Period or of the notice period provided in the
Section of this Agreement entitled "Default Provision", after delivery of a notice of cancellation
of the Agreement by the City (the "City Notice"), then the City shall, in addition to all other
remedies, shall be entitled to collect from the User and the User shall pay to the City, a per diem
fee of One hundred Dollars ($100.00) for each day that the User remains in the Property in
violation of this Agreement (the "Per diens Fee"). Acceptance of the Per diem Fee by City shall,
in no event, constitute a waiver of the City's rights under this Agreement and shall not prevent
the City from pursuing all other remedies to which is entitled including but not limited to the
right to seek injunctive relief to eject the User front the Property.
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28. Severability.
Should any provisions, paragraphs, sentences, words or phrases contained in this
Agreement be determined by a court of co npetent jurisdiction to be invalid, illegal or otherwise
unlawful under the laws of the State of Florida or the City, such provisions, paragraphs,
sentences, words or phrases shall be deemed modi fied to the extent necessary in order to conform
with such laws, and the same may be deemed severable by the City, and in such event, the
remaining terms and conditions of this Agreement shall remain unmodified and in full force and
effect.
29. No Assignment or Transfer.
The User carmot assign or transfer its privilege of occupancy and use granted unto it by
this Agreement.
30. Nondiscrimination.
"rhe User shall not discriminate as to race, color, religion, sex, national origin, age,
disability or marital status in connection with its occupancy and use of the Property and
improvements thereon.
31. Waiver ot'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 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 Uscr entering into the subject transaction.
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32. Waiver.
No failure on the part of the City to enforce or insist upon performance of any of the
terms of this Agreement, nor any waivcr of any right hereunder by the City, unless in writing,
shall be construed as a waiver of any other term or as a waiver of any future right to enfbree or
insist upon the performance of the same term.
33. Amendments and Modifications.
No amendments or modifications to this Agreement shall be binding on either party
unless in writing, signed by both parties and approved by the City Manager. The City Manager is
authorized to amend or modify this Agreement as needed.
34. Court Costs and Attorney(s)' Fees.
In the event it becomes necessary for the City or the User to institute legal proceedings to
enforce or interpret the provisions of this Agreement, the City or the User shall pay its own court
costs and attorney's fees through all trial and appellate levels. User acknowledges that Florida
law provides for mutuality of attorney's fees as a remedy in contract cases and specifically and
irrevocably waves its right to collect attorney's fees from the City under applicable laws,
including specifically, but not limited to Section 57.105, Florida Statutes. It is the express intent.
of the Parties hereto that in no event will the City be required to pay the User's attorney's fees
and court costs for any action arising out of this Agreement. In the event that the User's waivcr
under this section is found to be invalid then the User agrees that the City's liability f'or the
User's attorney's fees and court costs shall not exceed the sum of $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 tltlll and void.
35. Compliance with All Laws Applicable.
'(he User accepts this Agreement and hereby acknowledges that User's strict compliance
with all applicable federal, state and local laws, ordinances and regulations is a condition of this
Agreement, and the User shall comply therewith as the same presently exist and as they may be
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amended hereafter. This Agreement shall be construed and en
State of Florida.
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according; to the laws of the
36. Entire Agreement,
'Phis instrument and its attachments constitute the sole ant only agreement of the parties
hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date.
Any prior agreements, prornises, negotiations or representations riot expressly set forth in this
Agreement are of no force or effect.
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 covenant that this
Agreemctit shall not be construed in favor of or against either of the parties.
LN WITNESS WHEREOF, the parties hereto have indiideally, through their proper
officials, executed this Use the day and year first herein above writ en.
ATTEST:
Walter ,I . Focnian
City Clerk
APPROVED AS TO FORM
AND CORRECTNESS
Alejandro Vilarello
City Attorney
TH E CITY 0a MIAMI,
A municipal c rporatioi
of the State of lorida
- By: --
Carlos A. Giniencz
City Manager
APPROVEDS TO INSURANCE
RfsME
REQUITTS
Mario Soldevi
Risk Manaacn
15
I 01- 91 Z.
ATTEST
Print Name & Title
STATE OF 1"LORIDA
COUNTY OF DAVE
USER: 21" Century Cinemas, Inc.
By:
Print Name & Title
The foregoing instrument was acknowledged belbre me this day of
by __. of 21 St. Century Cinemas, Inc.
a for 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.
16
01' 013
TO
FROM
CITY OF MIAMI, FLORIDA 26
INTER -OFFICE MEMORANDUM
The Honorable Mayor and Members
of the City Commission
nez
City Manage
RECOMMENDATION:
DATE: FILE:
AZ 29
SUBJECT:
Temporary Use Agreement
between the City of Miami & 21 S`
REFERENCES' Century Cinemas, Inc.
ENCLOSURES:
The administration recommends that the Miami City Commission approve the attached
Resolution ratifying the action of the City Manager in executing a Use Agreement (the
"Agreement") with 21" Century Cinemas, Inc. (the "User"), for the use of the Tower Theater
located at 1 508 SW 8th Street, Miami, Florida, on an interim basis, while the City conducts
competitive negotiations for the management of the theater.
BACKGROUND
The Office of Asset Management issued a Request for Proposals (the "RC'P") for the
management of the Tower Theater with one proposal received on April 30, 2001.
Following the review of the proposal by an evaluation committee, the committee determined that
it was not in the best interest of the City and recommended the bid be rejected. The City
Manager accepted the recommendation of the committee and rejected the bid.
Subsequently, the Office of Asset Management solicited letters of interest for the management of
the Tower Theater in which five responses were received. These respondents are currently being
interviewed to determine whose proposal is in the best interest of the City.
Since the selection of a permanent theater manager was delayed as a result of having to conduct
a second competitive process, it became necessary to permit 21st Century Cinemas the continued
use of the theater. The Office of Asset Management met with 2151 Century Cinemas and they
expressed their willingness to stay; however, they requested the extension be for six months in
order to effectively manage the theater and be able to book events. The City Manager
authorized, on an emergency basis, a new Temporary Use Agreement, for a period of six months
to expire February 20, 2002. The time provided by the new agreement will provide the Office of
Asset Management time to conduct the competitive negotiations with the five proposers and to
prese negotiated agreement to the City Commission for its approval.
CAG: ! :. :e6: Mayor CC —Use Agreement 21" Ccntury4