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HomeMy WebLinkAboutR-98-0317J-98-373 3/24/98 RESOLUTION NO. 9 8 - 317 A RESOLUTION, WITH ATTACHMENT, AUTHORIZING THE CITY MANAGER TO EXECUTE A USE AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM AND ACCEPTABLE TO THE CITY ATTORNEY, BETWEEN THE CITY OF MIAMI AND MIAMI HISPANIC BALLET & CREATION ART, INC., FOR THE USE OF THE MANUEL ARTIME PERFORMING ARTS CENTER (FACILITY) FOR A PERIOD OF FIVE (5) MONTHS FOR A FEE OF $1,000 PER MONTH, FOR THE PURPOSE OF CONDUCTING BALLET AND THEATER CLASSES AND PERFORMANCES. WHEREAS, the City of Miami owns and operates the Manuel Artime Performing Arts Center ("Facility"); E-nd WHEREAS, Miami Hispanic Ballet & Creation Art, Inc. ("User") has requested that the City make available to it the use of certain portions of the Facility for a term of five (5) months for a basic user fee of $1,000 per month, plus applicable additional charges and ticket surcharges; 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. �ATTACNMENT (S; CONTAINED CITY COMMISSION MEETING OF MAR 2 4 1998 Rewluaon rio. 98- 317 Section 2. The City Manager is hereby authorized to execute a Use Agreement, in substantially the attached form and acceptable to the City Attorney, for the use of the Manuel Artime Performing Arts Centel (Facility) for a period of i,i 11iVildis, for a basic user fee of $1,000 per month, plus additional fees for light and sound technicians, cleaning, City of Miami event personnel, and ticket surcharges, plus any further costs above and beyond the basic user fee granted under this Resolution. Section 3. The herein authorization is conditioned upon the User obtaining applicable insurance to protect the City in the amount as prescribed by the City Manager or his designee, and complying with the terms and conditions of the Use Agreement. Section 4. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 24th day of March , 1998. JOE CAROLLO, MAYOR In accordance with Miami Code Sec. 2-36, since the Mayor did not indicate approval of this legislation by signing it in the designated place provided, said legislation novi becomes effective with the elapse of ten (10) days from the date of Commiss Cn action ATTEST: regarding same, without the Mayor exercising v t Walter J. F an, ity Clerk WALTER J. FOEMAN CITY CLERK PREPARED AND APPROVED BY: �Vpa' 6-ma OLGA A REZ-SEIWOH ASSI ANT CITY AY W2425:csk:ORS -r APPROVED AS TO FORM AND CORK CTN SS: J EL EDWARD MA ELL TERIM CITY ATTORNEY 98- 317 CITY OF MIAM1, FLORIDA INTER -OFFICE MEMORANDUM TO. Honorable Chairman and DATE: March 24, 1998 Members of the City Commission FILE: SUBJECT: Pocket Item FRO __'" REFERENCES: omas Regala Commissioner ENCLOSURES: I propose a motion to approve a use agreement with Miami Hispanic Ballet & Creation Art Incorporated (formerly the International Ballet Festival of Miami) for the use of the Manuel Artime Community Center Theater. 98- 317 USE AGREEMENT MANUEL ARTIME PERFORMING ARTS CENTER This Agreement is entered into this day of 11998, by and between the City of Miami, a municipal corporation of the State of Florida ("City") and Miami Hispanic Ballet & Creation Art Incorporated, a Florida corporation not -for -profit ("User"). RECITALS A. User is a ballet and theater company and school, which has requested that the City make available to it the use of certain portions of the Manuel Artime Performing Arts Center (the "Facility"), for the fee specified herein. B. The City owns and operates the Facility and is willing to permit User to use the Facility during the term, for the purposes, and subject to the terms and conditions set forth herein. C. The City Commission, by Resolution No. 98- , adopted , 1998, has approved the special fees and rates being charged to the User hereunder, and has authorized the execution of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, the City hereby grants to User the right, privilege and permission to enter into and upon Facility for the Permitted Use and during the Use Period, as the terms are hereinafter defined, subject the terms and conditions set forth in this Agreement. 1. TERM: Unless sooner terminated pursuant to the provisions hereof, the term of this Agreement shall be five (5) months, commencing upon full execution hereof. 2. PERMITTED USE: User shall be permitted to enter and occupy certain portions of the Facility for the purposes of presenting ballet and theater classes and for weekend performances as follows: (a) Classes: During the term, and provided that the area has not been reserved by another user, User shall be permitted to use the main auditorium Mondays through Fridays, from 11:00 a.m. through 5:00 p.m., for the purpose of presenting ballet and theater classes and for no other purpose. (b) Performances: During the term, and provided that the City is notified of its intended use by User at least one week in advance, and further provided that the auditorium has not been reserved by another user, User shall be permitted to use the main auditorium on Saturday or Sunday, from 3:00 p.m. through 11:00 p.m., for the purpose of presenting ballet and theater performances (the Event") and for no other purpose (herein referred to as the "Use Period"). The Use Period shall include the periods for set-up and dismantle and for presentation of the Event.. Unless otherwise agreed by the Director of the Facility (the 98- 317 "Director"), the set-up period shall commence no earlier than 10:00 a.m. on the date of the Event, and dismantle shall begin immediately upon the conclusion of the Event and conclude before midnight or, if not possible, before noon the day following the event. Should User require a longer period for set-up and dismantle, the same may be allowed by the Director, in consideration of an additional fee. Any equipment or stage props left in the Facility after the expiration of the time allowed for dismantle shall be disposed of by the City without any right of claim by the User, or at the City's option, may be stored at User's cost. (c) Other Uses: Should User wish to use the Facility at any other times or for any other purposes, then the proposed use and the charges to be paid in connection therewith shall be as customarily charged by the City for similar use of the Facility. (d) Reservation by other users: For purposes of this paragraph, the auditorium or any portion of the Facility shall be deemed to have been reserved by another user if, as of the date hereof, such areas is reserved for use by another user or if the City notifies User of a prior reservation at least fifteen (15) days prior to the date of the reserved event or use. 3. USE FEE: (a) Basic User Fee: In consideration of the use of the Facility as described above, User agrees to pay to the City the sum of $1,000 per month, on the first day of each month during the Term (the "Basic Use Fee"). The Basic Use Fee includes normal janitorial supplies, house lights for ordinary use and air conditioning during the Event hours only. The Basic Use Fee does not include air conditioning for use during the week (which is hereby expressly prohibited) nor janitorial services during the weekend, which shall be paid by User at a charge of $140.00 per performance. (b) Ticket Surcharge: For all paid events, User shall levy, collect and remit to the City a Ticket Surcharge based upon the actual admission price for the Event, excluding taxes. The amount of the surcharge shall be computed as follows: Price of Admission Surcharge $ 1.00 to $ 5.00 $0.50 $ 5.01 to $15.00 $0.75 $15.01 and over $1.00 User shall be responsible for the collection of the Ticket Surcharge, which shall be recorded and listed as a separate item in the statement of accounts for the Event. User shall pay to the City the Ticket Surcharge upon demand, and/or as soon as possible after the conclusion of each Event, but in no event later than five (5) business days following conclusion of the Event. User shall maintain all books and records pertaining to the Event available for City's inspection and auditing as provided herein ORSsevinterballetAgreement M.A doc 2 98- 317 (c) Additional Charges: User shall be responsible for the staffing of all Events and shall pay for all utilities, supplies or other services, needed or provided in connection with the use of the Facility and/or the presentation of an Event except those which are furnished by the City and are included in the Basic Use Fee, as specifically provided under subsection (a) above (all such costs and expenses being referred to herein as "Additional Charges"). Payment of Additional Charges shall be made within five (5) business days following the occurrence of the event giving rise to such payment. (d) Payment of Use Fee: All payments form User to the City shall be by cashier's or certified check drawn on a local bank. Failure to pay any portion of the Use Fee within five (5) days from the date the same is due shall result in the immediate termination of this Agreement and may result in the forfeiture of the Deposit. All amounts not paid when due shall accrue interest at the rate of % from the date due until payment is received by the City. 4. DEPOSIT: Upon execution of this Agreement, and as a condition to its effectiveness, User shall deliver to the City a deposit, in the amount of $2,000, to be held by the City throughout the Term. The Deposit shall secure User's performance under this Agreement and full payment of all amounts due hereunder, including the cost of any damage repairs, replacement or restoration, payment of any Additional Charges, or to defray any other unusual but reasonable expense borne by the City as a consequence of User's use of the Facilities hereunder and/or presentation of an Event. The City shall return the Deposit, or the unexpended portion thereof, to the User upon full satisfaction of all of User's obligations hereunder. 5. PAID EVENTS: Whenever admission is charged, User shall provide to the City, a ticket manifest at least ( ) hours prior to the Event. User understands that the maximum attendance a t any one event is 834 persons and that User shall not prints more than 834 tickets per Event. 6. EVENT PERSONNEL, UTILITIES AND SUPPLIES: Except as specifically provided herein, User shall be responsible for all staffing in connection with the use of the Facility and/or the presentation of an Event which includes ticket sellers, ticket takers, ushering staff, stagehands, spotlight operators, etc.. Specifically, User shall pay for one (1) event employee, to be provided by the City at User's expense, to work on weekends during the hours that User occupies any portion of the Facility in accordance with this Agreement, and on weekdays after 5:00 p.m. Additionally, User understands and agrees that it shall only utilize the services of sound and/or lighting technicians who have been approved by he City to operate the Facility's sound and/or lighting equipment. 7. CONDITION OF FACILITY/REMOVAL OF USER'S EFFECTS: (a) User has inspected the Facility and accepts it in "as -is" condition. User agrees to tear down and remove all of User's effects immediately after the presentation of an Event and/or expiration of the Term. ORSsevinterballetAgreement M.A doc 3 A O - 317 (b) At the conclusion of each Event, and upon expiration of the Term, User agrees to surrender the Facility to the City properly cleaned and in the same condition existing upon User's acceptance. If the Facility is not properly cleaned to the City's satisfaction, then the City shall have the right to invoice the User for such additional cleaning. The cost of additional cleaning, as well as the cost of damage repairs, or any repairs necessitated as a result of the use of the Facility by User, shall be deducted from the Deposit. Any deficiency shall be paid by User upon demand. (c) User shall not be permitted to remove the piano from the stage under any circumstances. Additionally, the removal of lights from their original setting is prohibited. Changing of the original positioning or focusing of the lighting equipment, or reprogramming of the lighting computer can only be done with the City's approval and supervision. If any such changes are made with City's permission, User shall pay for any technical labor involved in returning the equipment to its original standard design. Any violation of this section may result in the immediate termination of this Agreement and will subject User to liability for all damages arising from, or in connection with, said violation. (d) The City shall have the right to enter upon the Facility at any time during the Use Period as it deems necessary. 8. AUDIT AND INSPECTION RIGHTS: The City may, at reasonable times, and for a period of up to three (3) years following the expiration of the Term, audit, or cause to be audited, those books and records of User which are related to this Agreement. User agrees to maintain all such books and records at its principal place of business for a period of three (3) years after expiration of the Term. 9. PUBLIC RECORDS: User understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. User's failure or refusal to comply with the provisions of this section shall result in the immediate termination of this Agreement by the City. 10. COMPLIANCE WITH APPLICABLE LAWS AND RULES AND REGULATIONS: User agrees to obtain all required licenses and permits and to abide by and comply with all applicable laws, rules, regulations, codes and ordinances in the use of the Facility and/or presentation of an Event. By execution of this Agreement, User acknowledges that it has received and fully understands the "Rules and Regulations for Use of City of Miami Municipal Facilities" which has been furnished to User prior to the execution hereof. User hereby represent and warrants to the City that User shall abide by each, and shall not permit the violation of any, rule and regulation set out therein. 11. INDEMNIFICATION: User shall indemnify, defend and hold harmless the City, including all the City's volunteers, agents, officers and employees, from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or ORS:revInWrballetAgeement M.Adoc 4 98- 317 destruction or loss of any property arising out of, resulting from, or in connection with the use of the Facility, whether caused directly or indirectly, , in whole or in part, by any act, omission, default or negligence of User or any of its guests, invitees, employees, agents or subcontractors, or by the failure of User to comply with any of the provisions hereof, specifically User's obligation to comply with all applicable statutes, ordinances or other regulations or requirements in connection with the use of the Facility. 12. RISK OF LOSS: User understands and agrees that the City shall not be liable for any loss, injury or damage to any personal property or equipment brought into the Facility by User or by anyone whomsoever, during the time that the Facility is under the control of, or occupied by the User. All personal property placed or moved in the Facility shall be at the risk of User or the owner thereof. User further agrees that it shall be responsible to provide security whenever personal property either owned or used by the User, its employees, agents or subcontractors is placed in the Facility, including any property or equipment necessary for set-up and dismantle, whether or not the Facility is open to the general public. 13. INSURANCE: User shall obtain, at User's expense, and keep in effect during the Term of this Agreement, general liability insurance, in a comprehensive form, in the following insurance limit amounts: General Aggregate: $1,000,000 Products/complete operations: $1,000,000 Personal/advertising injury: $1,000,000 Fire damage (any one fire): $ 50,000 Liquor liability (where applicable): $1.000,000 Such insurance shall be written by insurance companies which are satisfactory to the City and which are registered to do business in the State of Florida. All policies shall be endorsed to name the City and its directors, officers, employees and agents, as additional insured, to provide that the City shall be given thirty (30) days advance written notice of cancellation, and shall be written on an occurrence basis. User shall provide to the City certificates evidencing the required insurance coverage at least thirty (30) days prior to the commencement of the Term and throughout the term of the Agreement, as the insurance policies expire. Binders are not acceptable. 14. DEFAULT: If User fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then User shall be in default. Upon the occurrence of a default hereunder the City, in addition to all remedies available to it by law, may by notice to User, terminate this Agreement whereupon all deposits, payments, advances, or other compensation paid by the User to the City shall be retained by the City. ORS:revinterballetAgreement M.A.doc 5 9 8 _ 317 15. CITY'S TERMINATION RIGHTS: (a) Termination for Convenience: The City shall have the right to terminate this Agreement for convenience, in its sole discretion, upon at thirty (30) days prior written notice to User. Additionally, the City shall have the right to cancel the presentation of an Event, at any time if, in the exercise of its reasonable discretion, the City determines that the presentation of such Event, at the scheduled time, is not in the best interest of the City due to circumstances beyond the City's reasonable control. (b) Termination for Cause: The City shall have the right to terminate this Agreement, without notice or liability to User, upon the occurrence of an event of default, as described in Section 21 above. (c) Other Termination Rights: The City shall have the right to terminate this Agreement in the event that the Facility is sold, is condemned, or in the event of its damage due to fire, windstorm, catastrophe or other act of God, and the City decides, in its sole discretion, not to repair or rebuild. (d) Return of the Deposit: Except where this Agreement is terminated for cause, User shall be entitled to a refund of the Deposit, or so much thereof as has not been applied, upon termination of the Agreement, after satisfaction of all amounts due by User hereunder, if any. 16. NONDISCRIMINATION: User represents and warrants to the City that User does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with User's use of the Facility or presentation of the Event on account of race, color, sex, religion, age, handicap, marital status or national origin. User further covenants that no individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination in connection with the use of the Facility under this Agreement. 17. ASSIGNMENT: This Agreement shall not be assigned by User, in whole or in part, without the prior written consent of the City's, which may be withheld, or conditioned, in the City's sole discretion. 18. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by giving notice in the manner herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO USER: TO THE CITY: ORSsevinterballetAgreement M.Ada: 6 98- 317 19. MISCELLANEOUS PROVISIONS: (a) User shall provide to the Director twenty (20) promotional tickets for each paid event, for the purpose of promoting the Facility. (b) This Agreement shall be construed and enforced according to the laws of the State of Florida. (c) Title and paragraph headings are for convenient reference and are not a part of this Agreement. (d) No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. (e) Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. (f) This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by property authorized representatives of the parties hereto. 20. ENTIRE AGREEMENT: This instrument, together with its attachments and all other instruments incorporated herein by reference, constitute the sole and only agreement of the parties hereto relating to the use of the Facilities. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 21. COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one and the same agreement. 22. APPROVAL BY OVERSIGHT BOARD: The State of Florida has appointed an Emergency Financial Oversight Board ("Oversight Board") which is empowered to review and approve all pending City of Miami contracts. As a result, contracts shall not be binding on the City until such time as they have been approved by the Oversight Board. Execution of this contract by the City Manager shall constitute evidence of its approval by the Oversight Board. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. ORS: evInterballetAgeement M.A.doc 7 98- 317 ATTEST: Walter Foeman, City Clerk Print Name: Title: Corporate Secretary APPROVED AS TO FORM AND CORRECTNESS: JOEL EDWARD MAXWELL Interim City Attorney "CITY" CITY OF MIAMI, a municipal corporation By: Jose Garcia -Pedrosa, City Manager "USER" Miami Hispanic Ballet & Creation Art Incorporated, a Florida corporation not -for -profit ("User"). By: Print Name: Pedro Pablo Pena Title: President APPROVED AS TO INSURANCE REQUIREMENTS: Mario Soldevilla, Administrator Division of Risk Management ORSsevinterballetAgreement M.Adoc g 98- 317