HomeMy WebLinkAboutR-97-0662J-97-648
9/23/97
RESOLUTION NO. e9_-
A RESOLUTION, WITH ATTACHMENT(S), AUTHORIZING
THE CITY MANAGER TO ENTER INTO A MANAGEMENT
AND OPERATIONS AGREEMENT, IN SUBSTANTIALLY
THE ATTACHED FORM AND ACCEPTABLE TO THE CITY
ATTORNEY, INCLUDING BUT NOT LIMITED TO THOSE
REQUIREMENTS PRESCRIBED BY CITY CHARTER AND
CODE PROVISIONS, BETWEEN THE CITY OF MIAMI
AND GLOBE FACILITY SERVICES TO PROVIDE
PROFESSIONAL SERVICES FOR THE MANAGEMENT,
OPERATION AND MAINTENANCE OF THE MIAMI
CONVENTION CENTER FOR A TERM OF FIVE (5)
YEARS WITH AN OPTION TO EXTEND THE AGREEMENT
FOR AN ADDITIONAL TERM OF FIVE (5) YEARS AT
THE SOLE. DISCRETION OF THE CITY; AND
PROVIDING REQUIREMENT FOR NOTICE OF
TERMINATION.
WHEREAS, the Miami Convention Center opened on April 27,
1982; and
WHEREAS, it is the intention of the City that the Miami
Convention Center shall be placed under a management agreement
with a' professional management firm having experience in
management of convention center or civic facilities; and
WHEREAS, the City of Miami entered into an Agreement with
Leisure Management, Miami, for the management, operation and
maintenance of Miami Convention Center on September 8, 1992, and
CM CORMSSION
c Or
Resolution No.
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said Agreement expires on or about September 30, 1997; and
WHEREAS, the City Commission, at its meeting of July 24,
1997, directed the City Manager to negotiate an agreement with
Globe Facility Services for the management and operation of the
Miami Convention Center;
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.
Section
2.
The City Manager
is hereby authorized to
execute an
agreement,
in substantially
the attached form and
acceptable to the City Attorney, including but not limited to
those requirements prescribed by City Charter and Code
provisions, with Globe Facility Services for the management,
operation and maintenance of the Miami Convention Center for a
term of five (5) years with an option to extend said Agreement
for an additional term of five (5) years, at the sole discretion
of the City.
Section 3. This agreement' is subject to continued
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ownership of the Miami Convention Center by the City of Miami.
In the event of the sale of the Miami Convention Center, the City
shall provide notice of termination within 36 months to Globe
Facility Services.
Section 4. This Resolution shall become effective
immediately upon its adoption..
PASSED AND ADOPTED this 23rd day of September , 1997.
ATTEST:
WALTER J. FOEMAN, CITY CLERK 2/
APPROV, AS 0 F ' M W CORRECTNESS
1i
I TY OTTORNEY
W18off2:csk:0RS:BSS
JOE CAROLLO, MAYOR
2/ This legislation reflects action taken by the City.Commission
on September , 1997.
i
1�1-
TERJFO TY CLERK
�i This Resolution is amended consistent with the minutes of the meeting of
September 23, 1997.
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AGREEMENT
Between
CITY OF MIAMI
and
for
PROFESSIONAL MANAGEMENT SERVICES
for the
JAMESL. KNIGHT CENTER
in
MIAMI, FLORIDA
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This Agreement between The City of Miami, Florida, a municipal, corporation of the
State of Florida, and having its principal office at 3500 Pan American Drive, Miami, Florida,
33133, hereinafter referred to as the "CITY", and GLOBE FACILITY SERVICES, INC., a
Florida Corporation with its principal office located at 5405 Cypress Center Drive, Suite 290,
Tampa, Florida, hereinafter referred to as the "FIRM."
RECITALS
WHEREAS, the CITY owns the City of Miami Convention Center (" FACILITY"), which
for purposes of this Agreement, is defined to include all of the City of Miami/University of
Miami James L. Knight International Center, excepting only those areas leased to the University
of Miami and to Hyatt Equities, L.L.C.., ("HOTEL OWNER"), and as shown on Attachment "A"
hereto; and
WHEREAS, the CITY requires the service of a private management company to manage the
Center in all of its activities and operations, including rental of space, advertising, promotion,
marketing/sales, events management, box office, public relations, procurement, maintenance,
security, custodial and support services for conferences, conventions, exhibitions, performances,
special events, and any and all convention events and support services taking place in the facility
as deemed necessary by the management company; and
WHEREAS the CITY issued a request for proposals for the management, operation and
maintenance of the Center on May 29, 1997; and
WHEREAS, the Selection Committee evaluated the proposals received June 30, 1997, in
response to the CITY's request for proposals, and selected in rank order three companies as most
qualified to provide the required professional services for said City's facility; and
WHEREAS, the City Commission by Resolution No. 97-532, adopted on June 24, 1997,
approved the findings of the Selection Committee that Globe Facility Services ("the FIRM"),
was the most qualified company to provide professional services in the management, operation
and maintenance of the Center.
WHEREAS, the City Manager or his designee was authorized to negotiate a professional
services agreement with the management company ranked #1 as set forth above; and
WHEREAS, the FIRM has expressed a desire to perform the required services for the CITY;
and
WHEREAS, the FIRM by reason of its expertise in facility management, is eminently
qualified to manage and operate the FACILITY on behalf of the CITY and the CITY contracts
for the FIRM's services as provided herein; and
WHEREAS, the CITY has determined that the mission of the Facility is to benefit the Miami
community including:
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To showcase conventions, conferences and other events;
To present quality programs;
To serve as a resource to the City and the region.
WHEREAS the CITY has set the following goals to be pursued by a private management
entity including; the efficient operation of the FACILITY, while minimizing the net cost; the
safeguarding of the owner's capital investment through the exercise of the highest standards of
maintenance and preservation; the active solicitation, promotion and co -promotion of events to
maximize the revenues to the facilities; and
WHEREAS, the CITY has determined that it requires the services of a private,
management entity to manage the FACILITY in all of its activities and operations, including, but
not limited to, the rental of space, advertising, promotion, marketing/sales, events management,
box office, public relations, procurement, maintenance, security, custodial and support services
including, but not limited to audio visual, decorating and other requirements, for conferences,
conventions, exhibitions, performance, special events, and any and all convention events and
support services taking place in the FACILITY as deemed necessary by the FIRM and CITY;
and
WHEREAS, the FIRM, by reason of the expertise of its principals in facility management, is
qualified to manage and operate the FACILITY on behalf of the CITY in accordance with this
Agreement for the FIRM'S services as provided herein.
NOW, THEREFORE, in consideration of the mutual terms and conditions, promises,
covenants and payments hereinafter set forth, CITY and FIRM agree as follows:
ARTICLE 1
DEFINITIONS AND IDENTIFICATIONS
For the purposes of this Agreement and the various covenants, conditions, terms and
provisions which follow, the defmitions and identifications set forth below are assumed to be
true and correct and are agreed upon by the parties.
1.1 FIRM: Globe Facility Services, Inc., as the management firm selected to perform the
services pursuant to this Agreement.
1.2 EXECUTIVE DIRECTOR: The City Manager or his/her designee who shall represent
the CITY on all issues pertaining to this agreement, unless City Commission approval is
required or unless otherwise specifically provided in this agreement.
1.3 FACILITY: The Convention Center located at 400 S.E. Second Avenue, Miami, FL
33131, including the entrances, grounds and sidewalks surrounding it and adjacent
thereto. It also includes meeting rooms, common areas, lobby areas, executive offices,
storage and utility facilities and other spaces. A diagram of the FACILITY is attached
hereto as Exhibit D. The CITY will remain the sole owner of the FACILITY.
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1.4 FISCAL YEAR: For purposes of this Agreement, the term "fiscal year" shall mean
successive twelve (12) month periods commencing October 1 and concluding September
30.
1.5 HOTEL OWNER: Hyatt Equities, L.L.C.
1.6.1 CITY: Shall mean City of Miami, a municipal corporation of the State of Florida.
ARTICLE 2
SCOPE OF SERVICES
2.1 The FIRM hereby agrees to .perform and furnish management services, .needed to operate,
supervise, manage and maintain the FACILITY in the most efficient manner consistent
with operations of other similar first class facilities, and the CITY agrees to provide the
funds, as appropriated annually, reasonably required to carry out such purposes during the
term of this Agreement. It is the intent of the parties that the FIRM will be responsible
for the day-to-day operation of the FACILITY and all activities therein, but subject to
existing contracts and subject to policies and guidelines established by the CITY. The
FIRM shall also be subject to policies and procedures which, from time to time, hereafter
may be established by the CITY but which shall not unreasonably interfere, impede or
impair the ability of the FIRM to effectively manage the FACILITY.
The FIRM' S obligations shall include, but not be limited to, the performance of the
following obligations, subject to applicable laws and regulations, and controls and
restrictions as stated elsewhere in the Agreement and in an Operations Manual to be
prepared by FIRM within 90 days and reviewed and approved by the EXECUTIVE
DIRECTOR, and will be attached as Exhibit E.
2.1.1 Establish temporary rentals of space within the FACILITY on behalf of the CITY
and schedule events at the FACILITY in accordance with a booking priority, and
rental rate schedules to be developed and provided by the FIRM and subject to
the approval of the CITY.
2.1.2 Manage the FACILITY in accordance with the Operations Manual which shall be
mutually agreed upon by the parties, and the terms of this Agreement, including,
but not limited to bookings, marketing, purchasing, payroll, fire prevention,
security, routine repairs, janitorial services, ticketing, promotions, advertising, and
energy conservation.
2.1.3 Negotiate and contract for events to be held at the FACILITY and for services and
products pertaining to the FACILITY, including, but not limited to, the following:
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2.1.3.1 Conventions, Expositions, Meetings and Banquets;
2.1.3.2 Concerts, Entertainment;
2.1.3.3 Spectaculars;
2.1.3.4 Consumer and Trade Shows;
2.1.3.5 All other forms of activity and entertainment that can properly be housed or
exhibited at the FACILITY
2.1.4 Maintain the FACILITY, including the equipment, materials and supplies,
including any improvements made during the term of this Agreement. At the
conclusion of the term of this Agreement or any extensions thereto the FIRM shall
return the FACILITY, including all equipment . and any improvements made
during the term of the Agreement to the CITY. All losses in inventory of CITY -
owned equipment shall be documented by FIRM as soon as such losses are
discovered by FIRM and the EXECUTIVE DIRECTOR shall be promptly
notified.
2.1.5 Supervise management including but not limited to crowd management, security,
admission procedures supervision of box office and servicing of users both as
conventions and entertainment.
2.1.6 Administer the FACILITY to the extent prescribed in this Agreement. The FIRM
shall not have the power to encumber any real or personal property owned by the
CITY.
2.1.7 Hire, supervise and direct all FIRM' S employees and personnel.
2.1.8 Maintain detailed, accurate and complete financial and other records of all its
activities under this Agreement in accordance with generally accepted. accounting
principles. CITY shall have access to such records.
2.1.9 Administer, assure compliance with and negotiate service contracts required in the
ordinary course of business in operating the FACILITY and rental and lease
agreements for the operation and maintenance of the FACILITY. Such
agreements will be executed by the FIRM in its own name. Such contracts shall
contain such indemnification and insurance requirements as determined by the
EXECUTIVE DIRECTOR. The EXECUTIVE DIRECTOR shall be provided
copies of such contracts within thirty (30) days after execution. No service
contract or rental or lease agreements shall be entered into with an expiration date
after the expiration of the initial term of this Agreement unless approved by the
EXECUTIVE DIRECTOR. If this Agreement is extended to include option
years, no service contracts shall be entered into within such option years with a
term beyond the expiration date of the extension period unless approved by the
EXECUTIVE DIRECTOR.
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2.1.10 All revenues earned pursuant to the Agreement, which are earned within the term
of this Agreement, shall be included in gross revenues for the FACILITY.
2.1.11 FIRM and its affiliates or related entities will be allowed to rent and promote
events at the FACILITY at prevailing rates, fees and prices.
2.1.12 Require that all users of the FACILITY execute rental agreements in accordance
with the requirements of Article 6 herein.
2.1.13 Submit a written report to the EXECUTIVE DIRECTOR at least monthly, or
more often if otherwise voluntarily agreed on between the parties hereto, no later
than the close of the following month concerning its activities in the operation,
management, supervision and maintenance of the FACILITY. Such report shall,
inter alia, set forth bookings, receipts from all sources, expenditures and such
other and further information as the EXECUTIVE DIRECTOR may require or
request.
2.1.14 FIRM agrees to maintain the FACILITY, at a minimum,in the condition received,
reasonable wear and tear excepted. However, at no time shall the maintenance of
the FACILITY fall below industry standards for first class facility, to the extent
permitted by the approved budget.
2.1.15 Provide within ninety (90) days a maintenance and operations plan for the facility
to the mutual satisfaction of the partners.
2.1.16 Furnish such supervisory services, as are herein set forth, as shall ensure that the
FACILITY and services shall be operated in a manner comparable to similar first
class facilities.
2.1.17 Recommend to the CITY prices, rates and rate schedules for user and occupancy
agreements. Any rates established for the use of the FACILITY shall be
comparable to rates charged for similar facilities in that region of the United
States.
2.1.18 Prepare a proposed annual operating budget in accordance with CITY's approved
format and a cash flow budget. and submit it to the EXECUTIVE DIRECTOR, in
accordance with City's established schedule and procedure.
2.1.19 Comply with the spending limitations imposed upon such budget, including any
amendment(s) thereto as authorized. However, if extraordinary events occur
which could not reasonably be contemplated at the time the budget was prepared,
the FIRM may submit an amendment to the budget to the EXECUTIVE
DIRECTOR for review, and approval or denial by the EXECUTIVE DIRECTOR.
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2.1.20 Pay all operating and related expenses for the FACILITY from operating accounts
established pursuant to Article 14 of this Agreement.
2.1.21 After consultation with City Attorney, and with CITY approval, institute in its
own name as managing agent for the CITY, but in any event, at the reasonable
expense of the CITY, any and all legal actions or proceedings. FIRM may cancel
or terminate any license, use or concession agreement for the breach thereof or
default thereunder by any licensee, user, advertiser, or concessionaire of the
FACILITY. Outside legal expenses shall be included as an operating expense of
the FACILITY, if approved by EXECUTIVE DIRECTOR.
2.1.22 In the event of ticketed events, which are conducted by FIRM, the FIRM shall
hold in trust, if applicable, in an interest -bearing account in a local qualified
public depository in Miami, Florida, any ticket sale revenues, which it receives in
the contemplation of or arising from , an event pending the Qompletion of the
event. Such trust monies are to be held for the protection of ticket purchasers; the
CITY and the FIRM, and to provide a source of funds, as required for such
payments to performers and for such payments of direct incidental expenses in
:. connection with the presentation of events as may be required to be paid prior to
or contemporaneously with the event. Following the satisfactory completion of
the events, the FIRM shall make a deposit into the FIRM's operating account(s)
for the FACILITY. Interest accrued in the trust account(s) shall be part of the
operating income as long as the FIRM is not required to pay such interest to the
promoter pursuant to its respective license agreement with the promoter. Bank
service charges, if any, on such account(s), shall be deducted from interest earned.
2.1.23 Submit, within thirty (30) days following the close of each .month, to the
EXECUTIVE DIRECTOR, copies of records and reports, relating to the receipts
and expenditures of all events occurring during such previous month. Such
records and reports shall be as customarily prepared by the FIRM at similar
facilities operated by the FIRM or as may otherwise be required by the CITY.
2.1.24 Open bank accounts in the name of the CITY, with approval on which the FIRM
shall have power and require the local qualified public depository utilized by the
FIRM to submit to the EXECUTIVE DIRECTOR on a monthly basis, copies of
all bank statements concerning all trust accounts established pursuant to this
Agreement.
2.1.25 Establish and have an ongoing relationship with various boards and committees of
the community.
2.1.26 Provide, within ninety (90) days, a marketing plan including a plan for the
promotion of the FACILITY, which shall contain the following elements:
2) Market research;
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2) Market position;
3) Marketing objectives;
4) Marketing strategies;
5) Booking priorities;
6) Targeted events -local, regional, national and international
7)Targeted meetings, conventions and trade shows;
8) Event management and marketing as well as corporate sponsorships;
9) Event marketing;
10) Advertising opportunities at local, regional and national level;
11) Attendance at various trade shows, conventions and seminars; and
Such marketing plan shall be revised, as necessary, by the FIRM, from time to
time as needed to maintain the plan current. During the preparation of said plan,
the FIRM shall solicit comments from the appropriate boards and committees.
2.1.27 The FIRM shall cause such acts and things to be done in and about the FACILITY
as shall be necessary to its operation, control, supervision and maintenance. Both
the FIRM and the CITY shall, throughout the term of this Agreement, comply
with all statutes, ordinances, laws, rules, regulations, orders and requirements by
any Federal, State, County or City government departments, commissions, boards
and office sharing proper jurisdiction, in respect to the use or manner of the use of
the FACILITY including the maintenance and operation thereof, as well as with
all orders and requirements of the FACILITY.
2.1.28 The FIRM shall monitor all concessions operated in the FACILITY by HOTEL
OWNER and report to the Executive Director periodically in respect to the quality
of the products, and adequacy of the services provided to the extent of the CITY's
right to do so. The FIRM shall investigate and report to the Executive Director on
complaints involving the concessions.
ARTICLE 3
OFFICE SPACEIPARKING & STORAGE
3.1 The CITY shall provide the FIRM with necessary office space in the FACILITY
and such equipment as is reasonably necessary to manage the FACILITY.
3.2 The CITY shall provide the FIRM with unrestricted egress and ingress to the
FACILITY and shall make available to the FIRM at no cost parking spaces
adjacent or in close proximity to the FACILITY.
4.1 The CITY shall have the right to use the FACILITY or any part thereof subject to
availability and based on booking priority schedule and pay prevailing rent and
expenses.
4.2 RIGHT OF ENTRY: The CITY shall, through the EXECUTIVE DIRECTOR or
his/her agents who are on officially assigned to CITY business, and at all
reasonable times, have the right to enter into and upon any and all parts of the
FACILITY for the purpose of examining the same for any reason relating to the
obligations of the parties of this Agreement.
ARTICLE 5
USER/RENTAL AGREEMENTS
5.1 The FIRM' S General Manager shall have the Authority to execute user/rental
occupancy agreements for the use of the FACILITY in substantially the form
approved by the EXECUTIVE DIRECTOR. Such agreements shall include such
indemnification, insurance, and other requirements as may be required by the
City. The EXECUTIVE DIRECTOR shall be copied with an occupancy
agreements within thirty (30) business days of their execution by the FIRM. The
FIRM shall establish and charge such rates for the FACILITY as approved by
CITY.
5.2 Attached hereto, as Exhibit _ is a list of all use/rental occupancy agreements or
contracts for attractions, events, and services in the FACILITY existing at the
time of execution of this Agreement which are hereby be assigned to the FIRM,
who hereby assumes and agrees to perform the obligations of the CITY in respect
thereto.
ARTICLE 6
BOOKING POLICIES
6.1 The parties recognize and acknowledge that the interest of the CITY requires a
booking policy that takes into account not only events which generate substantial
direct revenues for the FACILITY, but also events which produce less direct
revenue, but generate significant transient occupancy tax and peripheral economic
benefits in the form of increased tourist revenues and stimulate the general
economy of Miami.
6.2 The FIRM will have primary responsibility for marketing the FACILITY for
Conventions and trade shows, and to carry out this responsibility, will have
control over all bookings. The Department of Public Facilities (the
"Department") will assist the FIRM on an as -needed basis by providing resource
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people to work with the FIRM and, when requested and when budget
appropriations permit, accompany them in their solicitation efforts. Prior to
committing any dates booked by the Department, the Department will confirm
with FIRM that the space can be properly converted, set up, equipped and
furnished on the dates and times user desires it. In the event that a planned
Department booking adversely impacts the FIRM's approved operating budget,
then FIRM shall notify CITY of the extent of such financial impact
6.3 The FIRM shall have primary responsibility for marketing and scheduling the
FACILITY to generate additional income, and will have experienced personnel
who will diligently promote the use of the FACILITY.
6.4 FIRM shall maintain in the offices at the FACILITY a computerized master
reservation of all meeting and function spaces of the FACILITY, which will
become part of the operations manual.
ARTICLE 7
EMPLOYEES
7.1 All personnel employed by the FIRM shall be employees of the FIRM and not of
the CITY. The FIRM shall select the number, function, qualifications,
compensation, including benefits, of its employees subject to the approved
budget, and shall control the terms and conditions of employment relating to such
employees. The FIRM' S current benefit program, which may be amended, is
attached as Exhibit C. The FIRM shall notify the EXECUTIVE DIRECTOR of
relevant changes.
7.2 FIRM EMPLOYEES. The CITY shall not hire any of the senior management
employees of FIRM without FIRM prior approval. In the event CITY hires FIRM
employees CITY shall immediately compensate FIRM an amount equal to one (1)
year's salary for each employee hired. This clause shall apply to the General
Manager, the assistant General Manager and to department heads.
ARTICLE 8
GENERAL MANAGER
8.1 The FIRM' S General Manager shall be responsible for the total operation by the
FIRM of the FACILITY.
8.2 The position of the FIRM'S General Manager is considered key to the successful
operation of the FACILITY. The FIRM shall seek and receive approval from the
EXECUTIVE DIRECTOR regarding the individual to serve in this position, and
the CITY reserves the right to approve all replacements for the positions. The
CITY shall not unreasonably withhold or delay such approval. The CITY shall
have the right to request the removal, for cause, of any of the FIRM's personnel.
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8.3 The FIRM agrees to be responsible for the hiring of all permanent personnel
necessary for the operation of the Facility, as well as all temporary personnel.
ARTICLE 9
CONTRACTING MONITORING
EXECUTIVE DIRECTOR
9.1 CONTRACT MONITORING. The CITY shall monitor the FIRM' S compliance
with the term of this Agreement through the EXECUTIVE DIRECTOR. The
FIRM also agrees to name a specific individual to monitor the contract; whom at
present shall be Mr. Michel F. Sauers, the FIRM'S President, or his designee.
9.2 EXECUTIVE DIRECTOR. The CITY's EXECUTIVE DIRECTOR shall be the
City Manager or his/her designee and shall have such Authority as set forth in this
Agreement. The CITY's EXECUTIVE DIRECTOR:
972.1 Shall be the liaison between the FIRM and the CITY on all matters relating to the
management of the FACILITY and shall be the CITY's designated agent on all
matters pertaining to this Agreement.
9.2.2 Shall be responsible for ensuring that any information supplied by the FIRM is
properly distributed.
9.2.3 Shall be responsible for the monitoring and assessment of the quality of services
provided by the FIRM and contract compliance by the FIRM.
9.3 GENERAL MANAGER. The FIRM agrees to name a qualified individual with
experience in the management of similar facilities as the General Manager of the
FACILITY. The General Manager:
9.3.1 Shall be the day-to-day liaison between the EXECUTIVE DIRECTOR and the
FIRM on all matters relating to this Agreement.
9.3.2 Shall be responsible for the day-to-day management and supervision of the
FACILITY.
9.3.3 Shall be responsible for providing supervision and direction to FACILITY
employees.
9.4 Complaints received by the FIRM from the EXECUTIVE DIRECTOR regarding
the conduct or manner of operation of the FACILITY by the General Manager
shall be addressed by the FIRM.
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ARTICLE 10
COMPENSATION
10.1 MANAGEMENT FEE. The CITY shall pay the FIRM, for the term of this
Agreement, beginning October 1, 1997, a management fee. The net management
fee shall be $ 97,200 annually, payable in twelve (12) equal monthly payment of $
8,100 each, on the first business day of each month of the term.
10.2 ADDITIONAL PERCENTAGE FEE. The parties understand and agree that as of
the date hereof, the facility is operating at a deficit of approximately $330,000 a
year. Accordingly, the City agrees to pay to the Firm an incentive fee equal to 5%
of the amount by which the firm is able to reduce said deficit. Additionally, the
City agrees to pay to the firm an incentive fee for operational profits. Operating
profit is defined as the positive difference between -the gross revenues and
operating expenses. The incentive fee for reduction of operating deficit and profit
is as follows:
Reduction of Deficit
$330,000 - $0
Profit
$0 - $100,000
100,001 - 200,000
200,001 - 300,000
300,001 _- Above
Percentage
5% of amount reduced
Percentage
20%
25%
30%
35%
By way of example: . Assume that on the first anniversary of the agreement the
operating deficit has been reduced by $200,000. In such an event the firm will be entitiled to
compensation in the amount of $107,000 computed as follows:
Based compensation: $ 97,000
5% of $200,000: 10,000
Total compensation: $107,000
Now assume that on the second anniversary of the agreement the Facility operates
at a profit of $200,000. In such event the Firm will be entitled to compensation in the amount of
$133,500, computed as follows:
Based compensation: $ 97,000
5% of $330,000: 16,500
10% of $200,000: 20,000
Total compensation: $133,500
10.3 The CITY shall pay the FIRM the additional percentage fee not later than
60 days after the City's receipt of invoice and audited financial statement.
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10.4 PRORATION. Management Fees or additional Percentage fees payable to the
Firm, pursuant to this Agreement, shall be computed prorata based on the period
of time during which the services were performed.
The Revenues for the FACILITY shall be defined to include, but not limited to:
1)
Rental Revenues;
2)
Merchandise;
3)
Advertising;
4)
Equipment rental;
5)
Utility;
6)
Box Office;
7)
Miscellaneous operating;
8)
Leasing;
9)
and others as determined
10.5 Attached hereto, as Exhibit _, is a copy of an inventory of all expendable
supplies, equipment and fixed assets of the FACILITY, signed by an authorized
representative of each party, to this Agreement.
ARTICLE 11
TERM OF THE AGREEMENT
11.1 TERM. This Agreement shall be for a period of five (5) years commencing
October 1, 1997 and ending September 30, 2002.
11.2 EXTENSION TERM. The CITY and the Firm, by mutual agreement,shall have
the right to extend the initial management term for one (1) additional 5-year
period. CITY and FIRM shall notify each other ninety (90) days prior if it desires
to extend the initial terms. Failure to reach an agreement regarding the terms of
the extension at least 90 days prior to the expiration of the term shall be deemed
an election no to extend..
ARTICLE 12
OWNERSHIP
12.1 The ownership of the FACILITY including the real estate shall remain the
ownership of the CITY. Property rights will not accrue to the FIRM, with the
exception of the proprietary computer software if provided by the FIRM which
shall remain the sole property of the FIRM. All data maintained within such
software shall remain in the ownership of the CITY.
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12.2 The CITY will pay, keep, observe and perform, all payments, terms, covenants,
conditions, and obligations under any bonds, debentures or other security
agreement or contract to which the CITY is hereunder bound.
ARTICLE 13
FISCAL RESPONSIBILITY
13.1 The FIRM agrees to keep and .maintain, at its office in the FACILITY, separate
and independent records, in accordance with generally accepted accounting
principles, devoted exclusively to its FACILITY management operations. Said
books, ledgers, journals, accounts, and records shall contain all entries reflecting
the business operations of the FIRM under this Agreement. All of the foregoing
records shall be open for examination and audit by the EXECUTIVE DIRECTOR
or designated and authorized agents or personnel during FIRM' S ordinary
business hours.
13.2 The FIRM agrees to render, within thirty (30) days after the end of each month,
financial reports for the FACILITY including a balance sheet and statement of
revenues and expenditures (budget to actual) for the current month and year to
date in accordance with generally accepted accounting principles. In addition, the
FIRM will provide separate cash receipts and disbursements report for each event
held at the FACILITY during the month.
13.3 The FIRM agrees to meet with the EXECUTIVE DIRECTOR to answer questions
relating to the operation of the FACILITY and the financial reports. In addition,
FIRM agrees within sixty (60) days following each fiscal year to cause to be
provided to the CITY, a certified audit report on the accounts and records as kept
by the FIRM for the FACILITY to be paid from appropriate funds set aside in the
operating budget. The FIRM shall utilize an external auditor approved by the
CITY to conduct an audit on the accounts and records of the FACILITY in
accordance with generally accepted auditing standards. A letter from said
accounting firm expressing its opinion as to the effectiveness of internal controls
and a management letter will accompany the audit report. At the option of the
CITY at its expense, additional audits maybe performed. .
13.4 The FIRM agrees to use forms, accounting methods, internal controls and
procedures for its reports that are acceptable to the CITY.
13.5 The EXECUTIVE DIRECTOR may request additional financial or statistical
reports with respect to the FACILITY, and FIRM shall promptly provide same. It
is agreed that such requests by the EXECUTIVE DIRECTOR will be reasonable
with respect to timing and frequency. Any and all costs for such reports shall be
included as an operating expenses.
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13.6 The CITY will make immediately available to the FIRM for the operation,
maintenance, supervision, and management of the FACILITY, all funds necessary
to pay all budgeted items of expenses. To the extent the FIRM is unable to
perform under this Agreement due to the fact that required budgeted funds are not
made available by the CITY, the FIRM will not be considered in breach of this
Agreement nor shall be considered an event of default.
13.7 Operating expenses to be paid from FACILITY Operating Accounts, subject to
CITY approved budget, shall include, but not limited to:
1) Payroll, benefits, relocation costs, bonus and related costs;
2) Cost of operating supplies;
3) Advertising costs;
4) Cleaning expenses;
5) Data processing costs;
6) Dues, subscriptions and membership costs;
7) All insurance costs, including but not limited to property, liability, workmen's
comp;
8) Professional and. management fees, including the Management Fee and
Additional Incentive Fee to be paid under this Agreement;
9) Printing and stationery costs;
10) Postage and freight costs;
11) Equipment rental costs;
12) Minor repairs and maintenance, not inclusive of expenses relating to
performing capital improvements, as further defined in Article 15;
13) Security expenses;
14) Cost of office supplies;
15) Telephone and telecommunication charges
16) Travel and entertainment expenses:
All travel and professional expenses of FIRM employees shall be paid
when included in the approved annual budget of the FACILITY, and will
pro -rate these expenses if the FIRM' S employees conduct business on
behalf of the FIRM or other FACILITIES.
17) Cost of employee uniforms;
18) Exterminator, trash removal costs;
19) Computer, software, hardware and training costs
20) Utility expenses;
21) Audit
22) Office expenses
23) And other FACILITY expenses as determined by both parties
13.8 Any data, equipment or materials furnished by the CITY to the FIRM and any
such data, equipment or materials that may be acquired for the CITY by the FIRM
used at the FACILITY shall remain the property of the CITY, and when no longer
needed for the performance of this Agreement, shall be returned to the CITY.
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13.9 The parties agree that in the event the FIRM requests a capital improvement, the
CITY will give reasonable consideration to such request(s) in formulating its
budget.
13.10 All FIRM employees handling monies or designated as authorized signatories on
any FACILITY accounts shall be sufficiently bonded as an expense to the CITY
to protect the FIRM' S and CITY's interests. Such bonds shall be in an amount
not less than $500,000 and shall name the CITY as loss payee as its interest may
appear.
ARTICLE 14
PROCEDURE FOR HANDLING INCOME
14.1 Income derived from FACILITY events will be deposited by the FIRM into the
CITY's FACILITY operating account within one (1) business day of receipt of
such income. Income derived from other operations, such as rental fees,
advertising, exhibitor services, box office, etc., will be also deposited into the
CITY's FACILITY operating accounts within one (1) business day of receipt.
The FIRM shall use funds from these accounts to cover the operation of the
FACILITY. Within sixty (60) days after the end of each year, the FIRM will
provide to the CITY a complete financial statement for each account, which
accounts shall be subject to audit.
14.2 The CITY's FACILITY operating account will be in the. CITY's FACILITY'S
name and have two authorized signatories; however, the FIRM shall have access
to such accounts and shall designate up to four (4) FIRM employees to be
authorized signatories on the account.
14.3 Cash control for CITY's FACILITY operations shall be accomplished through a
combination of rigid accounting procedures. Separate bank accounts shall be
utilized for payroll operating funds and box office receipts. The box office
account shall be a trust account. Payrolls shall be processed through a separate
impressed bank account in the name of the FIRM, reconciled monthly, and tested
via internal audit procedures. Reimbursable expenses for each event shall be
coded for accurate accumulation to ensure all applicable costs shall be paid by the
users of the FACILITY. Advanced deposits covering rentals and estimated costs
shall be required to minimize collection programs.
ARTICLE 15
CAPITAL IMPROVEMENTS,CAPITAL REPAIRS
AND MAINTENANCE
15.1 The CITY will retain the responsibility for capital improvements and capital
repairs and maintenance to the FACILITY, however, the CITY is under no
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obligation to make such improvements. The CITY shall, at its sole discretion,
define Capital Expenditures for repairs, improvements and maintenance. The
FIRM agrees to provide to the EXECUTIVE DIRECTOR, in accordance with the
FIRM' S requirements, a schedule of items that can be reasonably anticipated as
necessary capital expenditures. The purpose of such a schedule is to allow the
EXECUTIVE DIRECTOR to consider for inclusion such projects in its budget for
the ensuing year and to prepare and update a long range (five year) capital
expenditure budget. The FIRM'S failure to list particular items or projects shall
not be deemed a waiver of CITY's responsibility to make such capital
improvements. "Capital Expenditures" means all expenditures for building
additions, alterations, or improvements and for purchases of additional or
replacement furniture, machinery, or equipment, the depreciable life of which,
according to accepted accounting principles, is in excess of one (1) year. All
routine and minor repairs, maintenance, and equipment servicing shall be the
responsibility of the FIRM as an operating expense in accgrdance with the
approved budget.
15.2 FIRM shall obtain approval of the EXECUTIVE DIRECTOR for Capital
Improvements which are made to the FACILITY. FIRM shall further cause all
necessary minor repairs and improvements to be made to the FACILITY from
those monies available in the annual operating budget.
15.3 The cost of such repairs shall be paid by FIRM . from that line of the operating
budget allocated for repairs. In the event repairs exceed the above stated amount,
such repairs must be pre -approved by the EXECUTIVE DIRECTOR as an
amendment to the approved budget. Additionally, FIRM shall be responsible for
assuring that all repairs, replacements, and maintenance shall be of a quality and
class at least equal to the original work. Any replacement of anitem contained on
the inventory schedule or any new item added to the inventory shall be deemed
the property of the CITY.
15.4 However, if repairs are of an emergency nature, FIRM shall make such repairs in
accordance with the following provisions:
An emergency repair is defined herein as the repair of a condition which, if not
performed immediately, creates an imminent danger to persons or property and/or
an unsafe condition at the FACILITY threatening persons or property. The
payment of any emergency repairs shall be made from the capital or operating
budgets.
ARTICLE 16
EXPENDABLE SUPPLIES
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16.1 The FIRM will be responsible for purchasing all expendable supplies for the
operation of the FACILITY. The FIRM will exercise prudent judgment in the
purchase of said supplies within budget guidelines provided to FIRM.
16.2 FIRM will be provided opportunity by CITY to purchase items for use at
FACILITY, from the CITY and Purchasing Department.
16.3 To the extent the prices are competitive and it is cost effective, the FIRM shall,
whenever feasible, use its best effort to purchase such supplies from certified
small or minority businesses.
ARTICLE 17
OPERATING BUDGET
17.1 The FIRM agrees that it will each year, on a date specified by the CITY and in a
format established by the CITY, prepare and present to the CITY a line item
budget for the FACILITY. Said budget shall include, at a minimum, a projected
income and expense statement and projected year-end balance sheet and statement
of projected sources and applications of funds. Additionally, the budget shall
include but not be limited to the following detailed projections:
It is understood that the operating budget for the FACILITY for the INITIAL
contract year has received the prior approval of the CITY. The FIRM
acknowledges such approval.
17.1.1 Gross revenues by department sources;
17.1.2 Operating expenses by department;
17.1.3 Departmental incomes;
17.1.4. Administrative and general expenses;
17.1.5 Marketing, advertising, and promotion expenses;
17.1.6 Repairs and maintenance, and
17.1.7 Energy costs.
The FIRM shall assure that its representatives are present at all necessary
meetings of the budget approval process related to the FACILITY.
17.2 If the FIRM desires amending the approved budget, it shall do so in accordance
with established procedures for budget amendments.
17.3 The FIRM shall be given a budget effective October 1, 1997 of each fiscal year.
The FIRM shall not exceed any sums in excess of the total expenditure amount
allowed in the approved budget of the CITY. In the event that the FIRM does so
overspend, it shall be responsible for said sum; and shall reimburse the CITY for
said sum within thirty (30) days after the end of the contract year, or the CITY
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may withhold said sum from the fees due the FIRM. However, FIRM shall not be
responsible for exceeding the budget if any of these two conditions occur:
First: In the event that an event occurs, which is beyond the FIRM;s control, such
as floods, hurricanes, etc., which requires FIRM to take action, with the approval
of the Executive Director.
Second, If there are changes in expenses completely and totally beyond the
control of the FIRM
ARTICLE 18
OPERATING FUNDS
18.1 The CITY will make available to the FIRM sufficient operating funds pursuant to
the approved budget for the FACILITY to the extent that such funds are not
available in the FACILITY operating accounts.
18.2 The CITY will advance to the FIRM, at the beginning of each contract year, an
amount equal to one -sixth of the approved annual operating budget for the
FACILITY. Thereafter, CITY will advance to FIRM, on a monthly basis, such
sums as are necessary to operate the FACILITY, as provided for in the operating
budget.
18.3 It is understood that the FIRM,. in accordance with provisions to be agreed, shall
be given a budget effective (October 1) of each fiscal year. It is the intention of
the CITY to fund adequately the operation of the FACILITY in accordance with
the level of activities generated, and the FIRM is not obligated to fund the
operations from the management fee. The FIRM's responsibility to manage,
operate, maintain and perform its other obligations shall be dependent on the
CITY's responsibility to approve and provide sufficient operating funds. CITY
further agrees that its failure to provide such funding will relieve the FIRM from
its responsibilities and obligations to perform under this Agreement.
18.4 FIRM may transfer funds within the total budget, with approval from the
Executive Director, which approval shall not be unreasonably withheld.
ARTICLE 19
INDEMNIFICATION AND INSURANCE
ARTICLE 19
RIDER
INDEMNIFICATION AND INSURANCE
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19. INDEMNIFICATION: Provider shall indemnify, defend and hold harmless the
City and its officials, employees and agents (collectively referred to as "Indemnities") and each
of them 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 destruction or loss of any property arising out of,
resulting from, or in connection with (i) the performance or non-performance of the services
contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in
whole or in part, by any act, omission, default ,or negligence (whether active or passive) of
Provider or its employees, agents or subcontractors (collectively referred to as "Provider"),
regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent
or contributing) by any act, omission, default or negligence (whether active or passive) of the
Indemnities, or any of them or (ii) the failure of the Provider to comply with any of the
paragraphs herein or the failure of the Provider to conform to statutes, ordinances or other
regulations or requirements of any governmental authority, federal or state, in connection with
the performance of this Agreement. Provider expressly agrees to indemnify end hold harmless
the Indemnities, or any of them, from and against all liabilities which may be asserted by an
employee or former employee of Provider, or any of its subcontractors, as provided above, for
which the Provider's liability to such employee or former employee would otherwise be limited
to payments under state Workers' Compensation or similar laws.
Provider further agrees to indemnify, defend and hold harmless the Indemnities from and
against (i) any and all Liabilities imposed on account of the violation of any law, ordinance,
order, rule, regulation, condition, or requirement, in any way related, directly or indirectly, to
Provider's performance hereunder, compliance with which is left by this Agreement to the
Provider, and (ii) any and all claims, liens and/or suits for labor and materials furnished by the
Provider or utilized in the performance of this contract or otherwise.
Where not specifically prohibited by law, Provider further specifically agrees to
indemnify, defend and hold harmless the Indemnities from all claims and suits for any liability,
including, but not limited to, injury, death, or damage to any person or property whatsoever,
caused by, arising from, incident to, connected with or growing out of the performance or non-
performance of this agreement which is, or is alleged to be, caused in part (whether joint,
concurrent or contributing) or in whole by any act, omission, default, or negligence (whether
active or passive) of the Indemnities. The foregoing indemnity shall also include liability
imposed by any doctrine of strict liability. Indemnities and Provider further agree that the
liability of the Provider to save harmless and indemnify the Indemnities for damages caused
solely by any act, omission, or default of the Indemnities shall not exceed the sum of
$ [at least $1,000,000 suggested] for property damage arising out of any one
occurrence and $ [at least $1,000,000 suggested] for bodily or personal injury or
death arising out of one occurrence. This indemnity agreement shall apply not only to claims
and suits against Provider and the Indemnities jointly, or any other combination. In the event of
a joint verdict and judgment, the above -stated limit shall apply to the portion of the verdict or
judgment which is against the Indemnities.
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2. INSURANCE: This section should be modified to give the City greater protection.
The following language is suggested:
(a) The Provider shall take out, pay for, and at all times during the performance of
work hereunder maintain, such public, contingent (where applicable, professional
malpractice) and employer's liability insurance as will satisfy the foregoing indemnity
requirements of the Agreement and protect Provider and the City from claims under
Workers' Compensation and other employee benefit acts. Such insurance shall include
Comprehensive General Liability and property and damage, including automobile,
products completed operations and broad form contractual covering liability assumed by
the Provider under this Agreement.
(b) Such insurance shall: (i) include the City as an additional insured; (ii) be primary
insurance written on an occurrence basis to the full limits of liability hereinafter stated,
and should the City have other valid insurance, the City's insurance shall be excess
insurance only; (iii) include a severability clause substantially in the following form:
"The insurance afforded applies separately to each insured against whom
claim is made or suit is brought, but the inclusion hereunder of more than
one insured shall not operate to increase the limits of the insurance
carrier's liability. The inclusion of any person or organization as an
insured shall not affect any right that such person/organization would have
as a claimant if not so included," and
and (iv) contain an endorsement substantially stating:
"Cancellation. or expiration of the policy to which this endorsement. is
attached. shall not become effective until after thirty (30) days advance
written notice has been delivered to the City.
Attention:
at:
(c) Without limitation of the requirements set forth in this Article, Provider
shall maintain insurance with coverage and minimal limits of liability as follows:
(1) Workers' Compensation and Employer's Liability
providing statutory coverage under the Workers' Compensation and
Occupational Disease Laws of the state where operations are being
performed under this Contract; and Employer's Liability coverage with
limits of $ [at least $100,000 suggested] bodily injury
per accident and $ [at least $300,000 suggested] annual
aggregate bodily injury.
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(2) Comprehensive General Liability affording (i) Bodily
Injury Liability (or death) with limits of $ [at least
$1,000,000 suggested] for each person and, where applicable,
$ [at least $2,000,000 suggested] in the aggregate; and
(ii) Property Damage Liability with limits of $ [at least
$250,000 suggested] for each occurrence and $ [at least
$250,000 suggested] in the aggregate, such coverage to include: Products
Completed Operations, Broad Form Contractual Liability covering
liability assumed under this Contract, and Provider's Contingent
(Protective) Liability with respect to work subcontracted by the Provider.
(3) Comprehensive Automobile Liability affording (i) Bodily
Injury Liability (or death) with limits of $ [at least
$500,000 suggested] each person and $ [at least
$1,000,000 suggested] each occurrence; and (ii) Property Damage
Liability with a limit of $ [at least $250,000 suggested]
each occurrence; such coverage to include liability for the operation of
owned, hired, and non -owned vehicles.
(d) In no event shall the provisions of this Article be construed in any way to
limit Provider's obligations under any provision of this Agreement, including, but
not limited to, Provider's obligations to indemnify, defend and hold harmless the
City.
(e) The insurance coverage required herein shall be through policies issued by
companies authorized to do business under the laws of the state where the work is
performed, with these qualifications:
The Company must be rated by the latest edition of Best's Insurance
Guide, published by Alfred M. Best Company, Inc. [or other recognized
organization] at no less than an "A" Best Policyholders Rating and no less than an
"X" rating in Best's Financial Size Category.
(f) All of such insurance, including renewals, shall be subject to the approval
of the City for adequacy of protection, and evidence of such coverage shall be
furnished to the City on Certificates of Insurance indicating such insurance to be
in force and effect and providing that it will not be canceled during the
performance of the services under this contract without thirty (30) calendar days
prior written notice to the City. Completed Certificates of Insurance shall be filed
with the City prior to the performance of services hereunder, provided, however,
that Provider shall at any time upon request file duplicate copies of the policies of
such insurance with the City.
(g) If, in the judgment of the City, prevailing conditions warrant the provision
by Provider of additional liability insurance coverage or coverage which is
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different in kind, the City reserves the right to require the provision by Provider of
an amount of coverage different from the above stated amounts or kind and shall
afford written notice of such change in requirements thirty (30) days prior to the
date on which the requirements shall take effect. Should the Provider fail or
refuse to satisfy the requirement of changed coverage within thirty (30) days
following the City's written notice, this Contract shall be considered terminated
on the date that the required change in policy coverage would otherwise take
effect.
ARTICLE 20 INTENTIONALLY DELETED
ARTICLE 21
CONFLICTS OR INTEREST
21.1 The FIRM hereby certifies that it will make a complete disclosure to the CITY of
all facts bearing upon any possible conflict, direct or indirect, with its
performance that it believes any officer or employee of the FIRM now has or will
have. Said disclosure shall be made by the FIRM contemporaneously with the
execution of this Agreement and at any time thereafter that such facts become
known to the FIRM.
21.2 The CITY recognizes that the FIRM, or its affiliates, may enjoy indirect economic
benefits from the operation of the FACILITY. However, the FIRM agrees that it
will perform its obligation under this Agreement in a manner consistent with the
best interest of the CITY.
21.3 The FIRM agrees that it shall not materially alter the nature of the services that its
company offers in a manner that might impact on the operation at the CENTER
without prior written approval of the Executive Director.
21.4 The FIRM agrees, in all instances when Miami is in convention solicitation
competition with other cities in which the FIRM has convention center operations,
not to become corporately involved on behalf of another City in attempts to
influence the decision -making process regarding selection of a convention site.
Conversely, the FIRM will use best efforts in supporting the Department in all
attempts to obtain exhibition and convention bookings for CENTER.
21.5 The FIRM agrees that the divulging or disclosure of any lead for future bookings
at the CENTER by personnel of the FIRM to other competing public assembly
facilities or individuals, including any public assembly facilities owned or
operated by FIRM, is prohibited. The FIRM shall place in effect stringent
policies and procedures designed to prevent such occurrence. In the event the
Executive Director submits a written finding of fact of a specific disclosure of a
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lead by CENTER personnel supported by reasonable evidence, the culpable
individual(s) shall be immediately terminated or transferred from the CENTER
without any severance pay due from the CITY. CITY agrees that the transfer of
an event to another venue shall not be sufficient cause to justify such termination.
ARTICLE 22
COMPLIANCE WITH LAWS
22.1 The FIRM agrees to comply with all local, state and federal ordinances and laws,
statutes, rules, and regulations; provided that the CITY will cooperate to the
extent necessary to enable compliance by the FIRM.
22.2 APPLICABILITY OF CHARTER AND CODE PROVISIONS:
This Agreement is subject to the budget and fiscal provisions ofthe CITY's
Charter and Code. This requirement shall be controlling against any and all of the
other provisions of this Agreement.
ARTICLE 23
TERMINATION OF AGREEMENT
23.1 FIRM shall be in a default hereunder and CITY shall thereafter have the right to
terminate this Agreement if (i) FIRM shall fail to pay any sum payable herein
with five (5) business days after same is due and payable; or (ii) FIRM shall fail
to perform or comply with any of the other terms, covenants, agreements or
conditions hereof and such failure shall continue for more than thirty (30) days
after written notice thereof from EXECUTIVE DIRECTOR. In the event that the
FIRM reasonably determines that an event of default is not susceptible to being
cured within the thirty (30) day period, FIRM shall not be considered in default if
FIRM shall within such thirty (30) day period have commenced with due
diligence and dispatch to cure such default and shall thereafter complete with
dispatch and due diligence the curing of such default.
23.2. The City shall have the right to terminate this Agreement in whole or in part for
convenience; by giving the FIRM is given not less than one hundred twenty (120)
days' written notice (delivered by certified mail, return receipt requested) of
intent to terminate. In event of notice of termination, the FIRM shall take all
necessary measures to mitigate termination expenses. (If sold after 3 years, no
penalty).
23.2.1 If termination is effected by the CITY, the FIRM will be paid for work actually
performed to the date of termination, plus any fee earned to date of termination,
less the cost to the CITY of making good any deficiencies, correcting all work
improperly performed, and any reasonable additional cost to the CITY for
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removing or replacing the FIRM, exclusive of fees paid to firm(s) hired to replace
the FIRM.
23.2.2. If termination pursuant to paragraph 23.2 above is effected by the CITY, the
CITY will pay for:
1. A termination fee equal to compensation earned to date of termination plus
balance of 50% of management fees if terminated in year one, two or three
of contract or 25% of balance of management fees if terminated in year
four or five of contract.
2. Any cost of lease cancellation for automobile and office equipment;
3. Any existing obligations to the FIRM resulting from wages not to exceed
and limited to the following:
(a) The equivalent of four (4) weeks of salary for the General/Facility
Manager, plus accrued vacation compensation.
(b) The equivalent of two (2) weeks of salary for all other employees,
plus any accrued vacation compensation; and
4. Reasonable charges incurred in the removal of the FIRM's property from
the CENTER.
23.2.3 Notwithstanding anything herein to the contrary, the City, after the third
anniversary of this Agreement, shall have the right to terminate this agreement,
without the payment of a termination fee or any other penalty, in connection with
the sale of the property, by giving the Firm ninety (90) days prior written notice.
23.3 Upon the effective date of a termination notice pursuant to Section 23.1 above, the
FIRM shall (unless the notice directs otherwise); (i) promptly discontinue all
services effected, and (ii) deliver or otherwise make available to the CITY all
data, documents, procedures, reports, estimates, summaries, and other such
information and materials as may have been accumulated by the FIRM in
performing its obligations, whether completed or in process unless said
information is considered proprietary for the FIRM.
23.4 In the event of termination pursuant to Section 23.1 above, the CITY may, in its
discretion, assume the work and see that the same is completed by agreement with
another party, including subcontractors of FIRM, or otherwise, all without
liability to the FIRM.
23.5 In addition to the events of default set forth in Section , the following shall
constitute events of default which, will grant the CITY the right to terminate this
Agreement:
23.5.1 The occurrence of any act or omission on the part of the FIRM that deprives it of the
rights, powers, licenses, permits, and authorizations necessary for the lawful and
proper conduct and operation of the services and activities authorized;
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23.5.2 The filing by or against the FIRM of any petitions in bankruptcy either voluntary
or involuntary, or the making by which the actions shall automatically be a basis
for termination and bar the passing of any benefits to creditors, assignees, or
transferees of the FIRM;
23.5.3 The abandonment or discontinuance by the FIRM, without written consent of the
CITY, of any or all of the operations and services permitted or required;
23.5.4 The failure of the FIRM to account for, and pay to the CITY, as provided herein
any and all amounts of gross revenue due and owing to the CITY from the FIRM;
or
23.5.5 The cessation or deterioration of services for a period that in the reasonable
opinion of the CITY, materially and adversely affects the operation of the public
services required to be performed by the FIRM.
23.6 The exercise by the CITY or FIRM of remedies and rights provided herein shall in
no way affect any other right or remedy available to the CITY or FIRM.
ARTICLE 24
FORCE MAJEURE
24.1 Except as otherwise provided herein, neither parry shall be obligated to perform,
and neither party shall be deemed to be in default of its performance, if prevented
by; (a) fire not caused by negligence of either party, earthquake, hurricane, wind,
flood, act of God, riot, or civil commotion, including the unavailability of
sufficient fuel, energy or funds to operate the FACILITY, occurring at the
FACILITY, or; (b) any law, ordinance, rule, regulation, or order of any public or
military Authority stemming from the existence of economic or energy controls,
hostilities, war, or governmental law and regulation; or labor dispute which
results in a strike or work stoppage affecting the FACILITY or services described
in this Agreement other than those occurring as a result of an act or omission of
the FIRM.
Not withstanding the above, in the event of an emergency threatening damage to
persons or property as determined by the FIRM, the FIRM shall act in an
expeditious manner to protect said persons or property.
ARTICLE 25
ASSIGNMENT
25.1 The CITY is entering into this Agreement in recognition of and in reliance on the
expertise, reliability, and competence of the FIRM and its management in matters
pertinent thereto. The performance of the obligations imposed upon the FIRM
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under the Agreement will not be assignable by it to any other party unless the
CITY, within its sole discretion, consents to said assignment in writing. Any
purported assignment in contravention of this Article shall be void In the event of
any assignment by FIRM to an affiliate, parent or subsidiary which is an entity
which is substantially owned or controlled by FIRM or which retains substantially
similar management and directors and where such assignment is intended to
accomplish an internal corporate purpose of FIRM as opposed to materially and
substantially altering the method of delivery of services to CITY, the City agrees
not to withhold its consent for such assignment.
ARTICLE 26
NOTICES
26.1 All notices required or permitted to be given pursuant to this Agreement shall be
in writing and delivered personally or sent by registered or certified mail, return
receipt requested, or by generally recognized, prepaid, overnight air courier
services. All such notices to either parry shall be deemed to have been provided
when delivered, if delivered personally or refused by those individuals or entities
addressed below. The designation of the individuals to be so notified and the
addresses of such persons or entities for the purpose of notice maybe changed
from time to time by a written notice to the other party which shall be deemed
effective ten (10) days after such notice of change is furnished to the other party.
FOR CITY:
Tel:
Fax:
FOR FIRM:
Globe Facility Services
c/o President
5405 Cypress Center Dr.
Tampa, FL.33609
813/289-3611
813/289-3072 (fax)
cc: General Manager
MIAMI CONVENTION CENTER
Tel:
Fax:
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ARTICLE 27
EQUAL OPPORTUNITY EMPLOYMENT AND W/MBE REQUIREMENTS
27.1 FIRM agrees that it will not discriminate against any employee or applicant for
employment for work under this Agreement because of race, color, religion, sex, age,
ancestry, physical handicap or national origin, and will take affirmative steps to ensure
that applicants are employed and employees are treated during employment without
regard to race, color, religion, sex, age, ancestry, physical handicap, or national origin.
27.2 The FIRM shall make reasonable and good faith efforts to recruit employees to achieve a
representative work force so that the percentage of each minority/sex group within each.
level of employment reasonably approximates or equals the racial and ethnic composition
of the CITY. "Each level of employment", as used in the preceding sentence, includes
management, supervisory, permanent and temporary personnel.
ARTICLE 28
SEVERABILITURESOLUTION OF DISPUTES
28.1 If any term, covenant, condition, or provision of this Agreement is held by any court of
competent jurisdiction to be invalid or unenforceable then the same as so applied shall no
longer be a part of this Agreement, but such invalidity shall in no way affect any other
term, covenant, condition, or provision provided, however, that the invalidity of such
term, covenant, condition, or provision does not, in the opinion of the CITY and the
FIRM, materially prejudice either the CITY or the FIRM as they shall mutually agree in
its rights and obligations under this Agreement. If the validity of any such term,
covenant, condition, or provision should be determined materially to prejudice the FIRM
or CITY in its rights or obligations contained in the valid terms, covenants, conditions, or
provisions, or if the consequence or effect of the invalidity of any term, covenant,
condition, or provision contained will be or may be to reduce any of the areas, spaces,
facilities, benefits, or privileges that the FIRM or the CITY has, the FIRM or CITY may,
consequently, at their option, elect either to terminate entirely or to continue in full force
and effect with any said invalid terms, covenants, conditions, or provisions eliminated.
ARTICLE 29
ALL PRIOR AGREEMENTS SUPERSEDED, GOVERNING LAW AND VENUE
This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements, or understanding applicable to the matter contained herein; and the
parties agree that there are no commitment, agreements, or understandings concerning the subject
matter of this Agreement that are not contained in this document. Accordingly, the parties agree
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that no deviation from the terms hereof shall be predicated upon any prior representations or
agreements whether oral or written.
This Agreement shall be governed by, construed and interpreted in accordance with the laws
of the State of Florida and venue for any litigation hereunder shall lie in Tampa, Florida.
ARTICLE 30
AMENDMENTS TO AGREEMENT
No alteration or variation of terms shall be valid unless made in writing and signed by both
parties, and no oral understanding or agreement not incorporated therein shall be binding on any
of the parties.
ARTICLE 31
FACILITY NAMES AND LOGOS
The FIRM shall have the right to use, for the term of this Agreement, the FACILITY'S
name and logo on stationery, in advertising and whenever conducting business for the
FACILITY and in the FIRM's promotional material.
ARTICLE 32
TRUTH -IN -NEGOTIATION CERTIFICATE
Signature of this Agreement by FIRM shall act as the execution of a truth -in -negotiation
certificate stating that wage rates and other factual unit costs supporting the compensation of this
Agreement are accurate, complete, and current at the time of contracting. The original contract
price and any additions thereto shall be adjusted to exclude any significant sums by which CITY,
determines the contract price was increased due to inaccurate, incomplete, or non -current wage
rates and other factual unit costs. All such contract adjustments shall be made within one (1)
year following the end of this Agreement.
ARTICLE 33
INDEPENDENT CONTRACTOR
33.1 The CITY and the FIRM agree that the only relationship to be created is one for
supplying management services and that the FIRM is an independent contractor
and not an agent, employee, or partner of the CITY.
ARTICLE 34
COVENANTS OF THE CITY
34.1 CITY agrees that prior to the effective date of this Agreement, it will provide to
the FIRM a full and complete furniture, fixtures and equipment audit and
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certifications of warranties governing all equipment contained in the CENTER.
The CITY further agrees that as of the effective date of this Agreement all of its
warranties on said equipment shall be enforced by the FIRM on the CITY's
behalf.
34.2 CITY agrees that if, and to the extent, any possessory interest tax or taxes which
may be imposed or levied upon the FIRM in connection with this Agreement, said
taxes shall be reimbursable to the FIRM as an operating expense to the extent
permitted by law. This shall not include corporate business taxes.
34.3 CITY warrants and represents that there are no other arrangements or agreements,
verbal or written, that affect the rights or obligations of the FIRM other than the
agreements referred to in this Agreement and/or the Trust's indenture.
ARTICLE 35
AUDIT AND INSPECTION RIGHTS:
A. The City may, at reasonable times, and for a period of up to three (3)._ years
following the date of final payment by the City to Firm under this Agreement, audit , or cause :to
be audited, those books and records of Firm which are related to Firm's performance under this
Agreement. Firm agrees to maintain all such books and records at its principal place of business
for a period of three (3) years after final payment is made under this Agreement.
B. The City may, at reasonable times during the term hereof, inspect Firm's facilities
and perform such tests, as the City deems reasonably necessary, to determine whether the goods
or services required to be provided by Firm under this Agreement conform to the terms hereof
and/or the terms of the Solicitation Documents, if applicable. Firm shall make available to the
City all reasonable facilities and assistance to facilitate the performance of tests or inspections by
City representatives. All tests and inspections shall be subject to, and made in accordance with,
the provisions of Section 18-55.2 of the Code of the City of Miami, Florida, as same may be
amended or supplemented, from time to time.
ARTICLE 36
AWARD OF AGREEMENT
Firm represents and warrants to the City that it has not employed or retained any person
or company employed by the City to solicit or secure this Agreement and that it has not offered
to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift
of any kind contingent upon or in connection with, the award of this Agreement.
ARTICLE 37
PUBLIC RECORDS
Firm 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
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Statutes, and agrees to allow access by the City and the public to all documents subject to
disclosure under applicable law. Firm's failure or refusal to comply with the provisions of this
section shall constitute an event of default under this Agreement.
ARTICLE 38
NONDISCRIMINATION
Firm represents and warrants to the City that Firm does not and will not engage in discriminatory
practices and that there shall be no discrimination in connection with Finn's performance under
this Agreement on account of race, color, sex, religion, age, handicap, marital status or national
origin. Firm further covenants that no otherwise qualified 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 under any provision of
this Agreement.
ARTICLE 39
MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM
The City has established a Minority and Women Business Affairs and Procurement Program (the
"M/WBE Program") designed to increase the volume of City procurement and contracts with
Blacks, Hispanic and Women -owned business. The M/WBE Program is found in Ordinance No.
10062, a copy of which has been delivered to, andreceipt of which is hereby acknowledged by,
Firm. Firm understands and agrees that the City shall have the right to terminate and cancel this
Agreement, without notice or penalty to the City, and to eliminate Firm from consideration and
participation in future City contracts if Firm, in the preparation and/or submission of the
Proposal, submitted false of misleading information as to its status as Black, Hispanic and/or
Women owned business and/or the quality and/or type of minority or women owned business
participation.
ARTICLE 40
MISCELLANEOUS PROVISIONS
A. This Agreement shall be construed and enforced according to the laws of the State
of Florida.
B. Title and paragraph headings are for convenient reference and are not a part of this
Agreement.
C. 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.
D. 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
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event, the remaining terms and provisions of this Agreement shall remain unmodified and in full
force and effect or limitation of its use.
E. 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.
ARTICLE 41
INDEPENDENT CONTRACTOR
Firm has been procured and is being engaged to provide services to the City as an independent
contractor, and not as an agent or employee of the City. Accordingly, Firm shall not attain, nor
be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City,
nor any rights. generally afforded classified or unclassified employees. Firm further understands
that Florida Workers' Compensation benefits available to employees of the City are riot available
to Firm, and agrees to provide workers' compensation insurance for any employee or agent of
Firm rendering services to the City under this Agreement.
ARTICLE 42
CONTINGENCY CLAUSE
Funding for this Agreement is contingent on the availability of funds and continued authorization
for program activities and then Agreement is subject to amendment or termination due to lack of
funds, reduction of funds and/or change in regulations, upon thirty (30) days notice.
ARTICLE 43
REAFIRMATION OF REPRESENTATIONS
Firm hereby reaffirms all of the representations contained in the Solicitation Documents.
ARTICLE 44
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.
ARTICLE 45
The State of Florida has appointed an Emergency Financial Oversight Board (the "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 Agreement by the City Manager shall constitute
evidence of its approval by the Oversight Board.
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97—
•
•
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.
ATTEST:
Walter Foeman, City Clerk
ATTEST:
Print Name:
Title: Corporate Secretary
APPROVED AS TO FORM AND
CORRECTNESS:
A. QUINN JONES III
City Attorney #W
"City"
CITY OF MIAMI, a municipal
corporation
By:
Edward Marquez, City Manager
"Firm"
a
By:
Print Name:
Title: President
corporation
APPROVED AS TO INSURANCE
REQUIREMENTS:
MARIO SOLDEVILLA
Assistant Director
Risk Management Division
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� � 06C
RESULTS IN BRIEF
City Attorney's Office - Internal Control Weakness Noted
• City records disclosed that Resolution No. 97-662 which authorized the City Manager to
execute an Agreement with GFSI, for the management of the Facility was passed and
adopted with modifications by the City Commission on September 23, 1997. However,
our review disclosed that the modifications to this Resolution had not been accomplished
as of July 30, 1999. Consequently, this Resolution was not signed by the appropriate
officials. Also, this Resolution along with other Resolutions adopted in 1997, have not
been microfilmed and shipped to an off -site storage facility. The. Resolutions and
Ordinances are shipped to an off -site storage facility because the City Clerk's Office is
located in a flood zone. Our review further disclosed additional 30 pending Resolutions
and Ordinances (Legislation) which have not been finalized as to language modification.
Some of the Legislation date as far back as 1996.
AUDIT FINDINGS AND RECONE%IENDATIONS
City Attorney's Office - Internal Control Weakness Noted
FINDING No. 1
Section 166.041(5), Florida Statutes, states that "every ordinance or resolution shall, upon its
final passage, be recorded in a book kept for that purpose and shall be signed by the
presiding officer and the clerk of the governing body." City procedures require that
Resolutions be sent to the City Attorney's Office after adoption for any modification of the
provisions, terms, languages, and/or conditions. Upon modification, the Resolution is signed
by the City Attorney, the City Clerk and may be signed by the Mayor. After a Resolution is
modified and signed, it goes to the City Clerk's Office and at the end of each fiscal year, all
the Resolutions and Ordinances passed are microfilmed and shipped to an off -site storage
facility. The Resolutions and Ordinances are shipped to an, off -site storage facility because
the City Clerk's Office is located in a flood zone.
The minutes of the City Commission meeting of September 23, 1997, disclosed that
Resolution No. 97-662 which authorized the City Manager to execute an Agreement with
GFSI, for the management of the Facility was passed and adopted with modifications.
However, our review disclosed that the modifications to this Resolution had not been
accomplished as of July 30, 1999. Consequently, this Resolution was not signed by the
appropriate officials. Also, this Resolution along with other Resolutions adopted in 1997,
have not been microfilmed and shipped to an off -site storage facility. Our review further
disclosed an additional 30 pending Resolutions and Ordinances (Legislation) which have not
been finalized as to language modification. Some of the Legislation date as far back as 1996.
Upon audit inquiry, we were informed by personnel in the City Attorney's Office, that the
turn -around time for such modification is usually 3 days and the Legislation in question may
have been inadvertently not modified as required. The personnel also stated that some of the
r
30 pending Legislative documents could be `Motions' which normally do not require any
type of modification.
Legislation is considered a permanent record and when it is not finalized, signed,
microfilmed and stored in an off -site location, in a timely manner, there is an increased risk
of loss of important records, in the event of flooding. Also, in the event of public records
requests, the City Clerk's Office may not be able to comply with the request, since the
Legislation has not been finalized.
RECOMMENDATION No. 1
The City Attorney's Office should enhance its internal control procedures to ensure that any
required modification to the provisions, terms, languages, and/or conditions of all
Resolutions and Ordinances are performed in a timely manner and sent to the City Clerk's
Office for microfilming andJoff-site storage.
AUDITEE RESPONSE AND ACTION PLAN
The City Attorney's Office concurs with this finding and recommendation.
ID=3OS3722919
vnr_r 2/2
SEP-IS-97 09:24 FROM=MIAMI CONVENTION CENTER
6 ,
Honorable Mayor and
Members of the Commission
Gu
Edward ez
City Mang
* u IU 1 � 1 .__ It s
Ll
24
Resolution Authorizing City Manager
to Execute a Management Agreement
for the Operation and Management of
Miami Convention Center
It is respecdully recommended that the City Commission adopt the attached Resolution authorizing
the City Manager to execute a Management and Operations Agreement, in substantially the form
attached, between the City of Miami and Globe Facility Services for the management and operation
of the Miami. Convention Center_ The Agreement is for a period of five (5) years with an option to
extend for an additional period of five(5) years, and includes an option to cancel without penalty at
the end of three (3) .years if the property is sold.
The Management and Operations Agreement between, the City of Miami and Leisure Management,
Inc. for the management of the Miami Convention Center expires on September 30, 1997. Globe
Facility Services submitted a proposal in response to a request for proposals issued by the City for
the management, operation and maintenance of the Miami Convention Center, and was chosen by
the Selection Committee as the most qualified to provide the required professional services. The
City Commission, at its meeting of July 24, 1997, authorized the City Manager to negotiate an
agreement with Globe Facility Services. This Agreement provides for a management fee of S97,200
annually, to be paid from Account Code 420006.35011.5.340.
97- 662