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HomeMy WebLinkAboutR-96-0291t J-96-380 04/29/96 RESOLUTION NO. 9 6- 291 A RESOLUTION ACCEPTING THE BID OF GREGORI INTERNATIONAL OF FLORIDA, INC., IN THE PROPOSED AMOUNT OF $3,108,081.00, TOTAL BID OF THE PROPOSAL, FOR THE PROJECT ENTITLED "MELREESE GOLF COURSE RENOVATIONS, B-3255; FROM THE FISCAL YEAR 1995-1996 CAPITAL IMPROVEMENT ORDINANCE NO 11337, AS AMENDED, PROJECT NO. 416048, IN THE AMOUNT OF $3,108,081.00 TO COVER THE CONTRACT COST AND $10,000 00 TO COVER THE ESTIMATED EXPENSES, FOR AN ;ESTIMATED TOTAL COST OF $3,118,081.00, SUBJECT TO THE COURT'S DENIAL OF THE, COCONUT GROVE CIVIC CLUBS_ MOTION FOR INJUNCTIVE RELIEF IN THE LAWSUIT ENTITLED COCONUT GROVE CIVIC CLUB, ET AL., VS CITY OF MIAMI AND BUNKER'S OF MIAMI, INC., CASE NO 96-3766CA09; AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, WITH SAID FIRM. WHEREAS, sealed bids were received April 16, 1996, for 11MELREESE GOLF COURSE RENOVATION, B-325511, and; WHEREAS, the City Manager and the Director of the Department Ordinance No. 11337, as amended, "adopted on appropriated monies for the proposed amount $3,108,081.00, for the project entitled "MELR.EESE GOLF COURSE RENOVATION, B-325511, for the total base bid of the proposal, based on lump sum and unit prices, is hereby accepted at the price stated therein, subject to the Court's denial of the Coconut Grove Civic Club's motion for injunctive relief in the lawsuit entitled, Coconut Grove Civic Club, et al, vs. City of .Miami and Bunker's of Miami, Inc.,Case No. 96-3766CA09. Section 3. The total estimated project cost of $3,118;081.00 is hereby allocated from' Project No. 416048, as appropriated by the Fiscal Year 1995-Z996 Capital Improvement Ordinance No. 11337, as amended. Said total project 'cost consists of the $3,108,081.00 contract cost and $10,000.00 CAPITAL PROJECT REVIEW: SUBMITTED BY: GRIP_ SHEEHAN WALDEMAR E. LEE COORDINATOR, CIP COORDINATOR, CIP PREPARED.AND APPROVED BY: APPROVED AS TO FORM AND CORRECTNESS: q(� AJ ' l - -. r , G..MIRIAM MAER A. QU O,ES, I L CHIEF ASSISTANT,CITY^ATTORNEY CITY ATT EY 'W813:GMM:WB:CSK j i� The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by , applicable City Charter and Code provisions. - 3 4. 96-r 291 AZT �}, .Nji�i; `�h t :�1��* ..y f .''..'a5 C .. .. .. t� MN = MELREESE GOLF COURSE RENOVATION, B-3255 �errrrrrrrrrrrrrrwwwwrrw�rrr�.rover-�.wrrerw�rwwrwrar, �y �w�wererwrw.(-/Qrrwrrrw(((w���rrrr--sir-rrwa.•�rreroerrrwrrr.�ryra,wr ��y �0• ` Me��-_re � wrr�-�reeseereerree��w *ATZ -APRIL 16 . 1996 10 :00 a.m. rwwrrr�.w�e-rwe•.�..e�rwsrrrerrrr ww.yr er AMU iGw w�w===�r�� rs---w•-rrNrr r-*rr---ere er-rrreersr-wee •errs.eeee�.rewwer-er---r OREGORY INTERNATIONAL $ 1,518,401.20 B.B. 5% er-ereewr�.wrre�►rrrr reeer�rrerrr-r eewerer ier�rrer.wr��ewe RYAN°rNCORPORATED EASTERN $ 2,157,635.00 B.B. 5% �r-wsr�eeerwr--s weerre w-re•erer ��eer.ee�ewerwrr.ersrr.�. COMMUNITY ASPHALT CORP. -ie�.r--e.�e--N-,e $ 2,646,215.00 rererrrr--eew B.B. 5% ererrr.�.ww.eee�eeNr PRINCE CONTRACTING CO., INC. $ 2,859,847.50 B.B. 5% --.ewr.rr.er.••e- -e--+e-erwr�.re rrwersree-wo.reewr--- Offersfrom' tie vennor� iY 4ea '�iePei"'r+.i are 19 i6�eirY/r iilttir�T� LTt �,;�' ir t'k' r?rr4a+; rt {•'.�..ti ., j othor Of!erSSaibnliftc d in to i'sx =r,' -' �� �.:a}►, ` -----r-------w -e------w----r--w---- --------------w r-ww---------- _i ----- ------------rw--�. ---w----,-------------- — -----_------------- ------------ ------------------�--- - V -------- - ------ ------------------r-wow------ ------------- - - - - - - - - -�� --. -----w-------- ---w-rer--b--------w--- -----------�- --w�---wr--r- w-rww-----s-r r--r---re---r-Nre-rr-is- -------------- -------------- w-r-----w---- ---------------------- - - - - - - - - - - - - - - - - - - - - - - --------------------r --l------------- --rerrs�-r �--w -- -_-_-�'------ --�"-r--------- -------r--------------- •+r-w-..---------w - - - --------r--------w oavaioyes on beheir of �Yerson+ 'cei�ia� 'aidsa _ Public lPa1l�,_ _ to Depart®eat) i 1 _ SIGN b - - -- ----------- 1 CITY OF MIAMI, FLORIDA 33 y INTER -OFFICE MEMORANDUM rn The Honorable Mayor and DATE October 19, 1995 FILE -'Members of the City Commission SUBJECT EMERGENCY ORDINANCE FOR PC' M aEFEaENces : CITY GOLF COURSES Cesar H. Clty Man ENCLOSURES RECOMNffiNDATION It is respectfully recommended that an emergency ordinance be passed amending Chapter 30, Article III, Division 2, of the Code of the City of Miami, Florida, as amended, which sets forth the rates and charges for City Golf Courses, thereby adding new section 30-57 exempting those City Golf Course facilities operated and managed by private parties pursuant to agreements having terms of twenty years or more; containing a repealer provision, a severability clause, and providing for an effective date. ® BACKGROUND Resolution 94-584 was passed by the City Commission authorizing the City Manager to issue a Request for Qualifications to identify persons and/or firms suited for the management and/or operation of the MelReese Golf Course which is in dire need of renovation and improvements. Subsequently, only one (1) response was received and deemed qualified; Bunkers of Miami, Inc. Pursuant to this decision, it is respectfully requested that Chapter30, Article III, Division 2, of the City Code be amended in the form of an Emergency Ordinance to allow private parties who operate and manage City golf course facilities, and have an agreement with a tenor of twenty years or more, to set forth rates other than those in accordance to City Ordinance. l Section 2. Chapter 30, Article III, Division 3, of the Code of the -City of Miami, Florida, as amended, is hereby amended f to add new Section 30-57 to provide as follows: "Seca 30-57. Exempt Facilities. - The provisions contained in Sections 30-53, 30-54, 30-55 and.30-56 hereinabove shall not apply to those city golf course facilities. operated and managed by private parties pursuant to agreements having terms of The rates, charges and discounts applicable'to said facilities shall be as established by said agreements providing for the management of said facilities." Section 3. All ordinances or parts of ordinances insofar as they are inconsistent or in conflict with the provisions of this Ordinance are hereby repealed. Section 4. rf any section, part' -of section, paragraph,` clause~, phrase or word of this Ordinaicre is declared invalid, the remaining provisions-of.this Ordinance shall not be affected. Section S. This Ordinance is hereby declared to be an 4 emergency measure& on the grounds- of urgent public need for the preservation of peace, health, safety, and property of the City of Miami-, anA&-upgpl.r.ha further grounds of -the necessity to make the required_. any necessary payments; --to its► employees and officers*,,: payment, off_ it& debts, necessary and required purchases of goods and supplies, and to generally carry on.the functions and duties of municipal affairs. Section 6. The requirement of reading this Ordinance on two separate days is hereby dispensed with by an affirmative vote of not lees thaw four -fifths of the Members of the Commission. 1 -2- � JI`:Y "Clubhouse" means the existing or planned permanent clubhouse located on the Golf Course Facilities. "Commencement Date" means the date of execution of this Agreement and approval by the City Commission. "Fiscal Year" means a period consisting of 365 days. For purposes of this Agreement, the First Fiscal Year shall commence on the Reopening Date and for the final year of the term, the Fiscal Year shall end on the 365th day of the 30th year after the Reopening Date. "Golf Course" means the portion of the Property (and all improvements thereon) upon which the eighteen (18) holes of the golf course, driving range and ancillary facilities are located. "Golf Course Facilities" means the Property and all existing and/or future improvements, equipment, furniture and fixtures located within the Property, including the Clubhouse. "Golf Course Sales & Income'" means all gross sales associated with the Golf Course Facilities, including but not limited to gross sales derived from greens fees, cart fees,._ cancellation charges, driving range fees, trail fees, Approved Subcontractor Fees, reservation fees, locker rental, equipment rental, bag storage, equipment repair, charges for use of any pro shop/clubhouse space and all monies received from all sources excepting only: applicable sales taxes paid to a legal taxing authority, tips and gratuities paid by users of the facilities to service providers (so long as such tips and gratuities are not paid in lieu of sales), returns and allowances documented in accordance with procedures approved in advance and in writing by the City Manager, his designee or representative and fees paid for golf lessons and organized golfing schools provided, however, that employee discounts are not included and recognized as Golf Course Sales and Income. "Merchandise/Food and Beverage Income" means all monies received from Merchandise/Food and Beverage Sales excepting only applicable sales taxes paid to a legal authori tips and gratuities `paid by users of the Facilities to service providers so taxingtY. ps long as such tips and gratuities are not paid in lieu of sales, returns and allowances documented in accordance with procedures approved in advance and in writing by the City Manager. All employee meals and discounts are included in the definition of Merchandise/Food and Beverage Income. "Net Operating Income" means the amount by which Golf Course Sales and Income plus Merchandise/Food and Beverage Income is greater than Operating Expenses during each Fiscal Year. "Net Operating Loss" means the amount by which Golf Course Sales and Income plus 2 95.- 772 Merchandise/Food and Beverage Income is less than Operating Expenses during each Fiscal Year. "Operating Expenses" means with respect to any Fiscal Year, all operating, maintenance and other costs and expenses incurred in connection with the operation of the Golf Course Facilities including, but not limited to, the Repayment of City's Contribution purchasing of supplies, leasing of equipment, maintenance and repair of the Golf Course Facilities, calculated in accordance with generally accepted accounting principles, costs of goods sold, salaries of all employees employed by Operator for the Golf Course Facilities and all appurtenant payroll expenses and fringe benefits and payroll taxes of every nature, charges (including supplies of every kind) for cleaning, security guard service, exterminating service, trash and disposal service, heat, air conditioning and utilities (including taxes thereon), water and sewer charges, charges pursuant to service contracts with independent contractors, charges for legal services, charges for accounting services, licenses and permit fees, insurance premiums, advertising and promotional fees, fidelity bonds, excluding any and all property taxes, including real and personal property taxes and assessments of every nature levied on the Golf Course Facilities. "Reopening Date" means the date on which the Golf Course Facilities are reopened to... the public after completion of the renovations or ninety (90) days following the Completion Date, as defined in Paragraph 5.12 hereof, whichever occurs first. "Repayment of City's Contribution" means the stipulated amount of Two Hundred and Seventy -Five Thousand Dollars ($275,000.00) to be paid by Operator to City each year throughout the Term of this Agreement in accordance with the provisions of Paragraph 7 hereof. in accordance with the terms and conditions set from herein, and Operator hereby accepts such engagement. In addition, the Operator shall act as City's Project Manager during the Construction Period and shall provide such expertise and guidance as appropriate and acceptable to She City Manager; accomplishing or overseeing the design and renovation of the Property on behalf of the City, and notifying the City Manager of any and all discrepancies in the design or work as intended or approved by City contract or the City Manager. 3.2 The Operator acknowledges that Operator has been retained as contract manager only, and, as such, Operator shall have no interest in the Golf Course Facilities as owner, lessee or otherwise. All mineral rights and all land ownership rights are hereby reserved by the City. However, 'the City may contract with or through the Operator for development or use of 'such rights. The City agrees that no exploration of such minerals shall occur after completion of the Golf Course Facilities or sale of the Golf Course Facilities without the mutual written agreement of City and Operator. 4. OBLIGATIONS AND RESPONSIBILITIES OF OPERATOR 4.1 Fiscal Obligations 4.1.1 The Operating Budget for the Golf Course Facilities for the First Fisc& Year shall be as set forth in Exhibit "B" attached hereto and incorporated herein. 4.1.2. No later than sixty (60) days prior to the commencement of each Fiscal Year, commencing with the second Fiscal Year, Operator shall provide the City Manager with a copy of its proposed operating budget projecting all sales and expenses of the Golf Course Facilities for the next Fiscal Year. Such budget shall be reasonable in light of past operations and expenses and in light of projected operations for the coming Fiscal Year. Operator and City Manager shall then discuss such budget in good faith and Operator will consider any input from the City Manager. Tha City Manager shall approve or disapprove the budget within thirty (30) days of receipt of such proposed budget. In the event that the City Manager fails to approve or disapprove the budget within such thirty (30) days, then the budget shall be deemed approved. In the event the City Manager disapproves the Budget then he must submit to Operator the reasons for disapproval. Operator and City Mmi ager shall use their beat efforts to rah an agreement with respect to the proposed Budget. In the event the parties cannot reach an agreement, then the prior years budget shall be utilized with up to a five percent (5%) increase in the total budget P3determinedsolely by Operator. 4.2 Operational Responsibilities 4.24 Operator shall operate and maintain the Golf Course Facilities in accordance with standards similar to those of other local public first-class daily fee - golf course facilities. 4 95- 77 4.2.2 Operator shall hire and assign a full-time manager comparable to managers �at similar public first-class daily fee golf courses. The manager shall be present at the Golf Course Facilities during normal business hours. At times when the full-time manager is absent, there shall be a designated assistant manager present. The Operator agrees to supply the City with background information and telephone numbers for making contact with the manager and assistant manager. 4.2.3 The Operator shall hire, train, promote, fire and be responsible for all personnel matters of its employees at the Golf Course Facilities. The Operator shall be responsible for the conduct of its officers, directors, management and employees who shall conduct themselves in a manner so as not to cause civil or criminal charge and shall provide safe, courteous, honest and efficient service to patrons of the Golf Course Facilities. 4.2.4 The Golf Course Facilities shall be made available to the City on weekdays for up to four (4) special functions per year between April 15 • November 15 of each year.. Such special functions may include up to one hundred and forty-four (144) players each. City and retired City employees playing golf at such special functions shall not be required to pay any greens fees, but shall pay the cost of cart fees, food and beverage and any merchandise provided by Operator. - 4.2.5 The City Manager and Operator shall establish emergency procedures for the Golf Course Facilities and each operation thereon to be implemented in case of hurricane or other emergency. 4.2.6 Operator shall use its best efforts to ensure that all Approved Subcontractors shall be trained in their duties and shall be safe, courteous, helpful and efficient in. carrying out those duties. Further, Operator represents that all of its employees snail be so trained and shall perform then duties as herem requsred. \f more than thirty (30) days after termination or expiration of this Agreement shall be 'deemed, at the election of the City, to be (1) a gratuitous gift to the City or (2) removed from the Golf Course and stored or disposed of by the City at the cost of the Operator. 42.11 The Operator shall have the right to use all City -owned personal property at the Golf Course Facilities, and City agrees to make all such property available to Operator as of the Commencement Date. Any replacement or substitution of such personal property shall become City personal property upon replacement or substitution. All City -owned personal property must be returned to the City in its original condition, normal wear and tear excepted as appropriate during the term of this Agreement, upon expiration or termination of this Agreement. 5. REIVOVA _ ON OF GOLF COURSE FACILITIES 5.1 Renovatio Immediately following the Commencement Date, Operator shall initiate all action necessary to implement the following improvements (the "Improvements"); a. Renovate and rebuild greens, tees, fairways and roughs; b. Rebuild and renovate all sand bunkers (traps); C. Construct cart paths as *planned; d. Install new automatic irrigation system; f the amount of City's Contribution then the Operator may use up to Three Hundred and Ninety - Thousand Dollars ($390,000.00) to establish a Reserve Account for repair and replacement of Golf Course Facilities. In the event that a grant can be obtained by Operator or City, then the proceeds from such grant shall be used for the purposes set forth in the grant, grant application 04 or any other legal purpose. All grant proceeds shall not be considered part of the City's Contribution. 53 Operator's RestsonsibilitiU During Renovation In addition to all other duties and responsibilities set forth herein, the Operator shall have the following responsibilities during the Construction Period, as the term defined in Section 5.5 below. 5.3.1 Project Manager Operator shall act as the Project Manager during the planning, design and construction phases of the Improvements, subject to the terms and conditions established by law and by this Agreement. Operator's responsibilities include, but are not limited to, the following: a. Prepare for City's approval, a preliminary renovation plan and proposed schedule for the Improvements and proposed Construction Budget. b. Prepare all documentation necessary to obtain all permits and approvals needed to implement the renovations and construct the Improvements. C. Assist the City in the procurement of all services needed to implement the renovations and prepare, for City's approval, all contracts in connection therewith. d Administer, subject to City's approval, all contracts for the construction of the Improvements. 5A Contracting Methods and roc dures, Operator understands and agrees that the procurement of all services for the -construction of the Improvements is subject to the Code of the City of Miami and represents.and warrants that 4-is thoroughly familiar with and will strictly observe and comply with all requirements contained therein. Due to several factors including: (a) weather considerations which require that the improvements be constructed during the "dry" season and (b) the importance of various factors (not only the lowest price) in the awarding of contracts for the construction of the Improvements, the City has determined that it is more practical and advantageous for the City to use Competitive Negotiations in the procurement of the services required for the renovations as permitted by and in accordance with Section 18-52.2 of the Code of the City of Miami. (Notwithstanding the foregoing, it is agreed that the competitive methods and procedures prescribed in Section 18-52.3 of the Code shall be used if the services described therein are required). In furtherance of the foregoing, the City and Operator shall, within forty-five (45). days following the Commencement Date, establish a three (3) member committee to implement the Competitive Negotiation Requirements established by the Code and make the appropriate recommendations to the City Manager. The Committee shall consist of a representative of the_. Department of Parks and Recreation of the City and a representative of the City's Asset Management Department both to be appointed by the City Manager and a third member appointed by Operator. Operator understands and agrees that all contracts procured in accordance with Section I8-52 shall be subject to City Commission approval. 5.5 * Design and Construction Period - Operator shall take all necessary action to ensure that the design plan for the Golf Course be completed within five (5) months following the Commencement Date (the "Design Period"). The Improvements shall be completed during the fourteen (14) month period immediately following the Design Period (the "Redevelopment Period"). Tire Construction Period, which combines the Design Period and the Redevelopment Period, shall not exceed a total of nineteen (19) months from the Commencement Date, subject, however, to delays caused by Force Majeure as provided for in Section 17 of this Agreement or delays caused by the City. 5.6 ShMdggh for Construction of Golf Course - The standard for the design and construction of the Golf Course Facilities shall be comparable to those of similar municipal golf coursesm Dade County. All Improvements shall become the property of the City immediately upon being constructed The construction of the Improvements shall be in accordance with the design development documents (the "Design Development Documents"), construction documents (the "Construction Documents") and schematic design documents (the "Schematic Design Documents"), (collectively the "Plans"), all of which shall be subject to the City's Manager's prior written approval. The approval. by the City Manager of the design plans for the Golf 8 9�- 772 Course pursuant to this Section shall not relieve the Operator of any responsibilities in connection therewith. Specifically, Operator shall be responsible for the submission of such plans to the appropriate departments of the City or any other governmental authority having jurisdiction over them and for obtaining all building or other permits or approvals required by law. Operator acknowledges that any approval given by the City Manager pursuant to this Section shall not constitute. an opinion or agreement by the City that such plans are sufficient or in compliance with any laws, codes or other applicable regulations, and no such approval shall impose or imply any liability on or waive any rights of the City. 5.7 Construction Budget Within one hundred and fifty (150) days after the Commencement Date, Operator shall prepare and submit to the City, for its approval, a proposed Construction Costs and an FF&E Budget. The procurement of services and all amounts to be i paid under each contract shall be made in strict adherence to the approved Construction Costs and FF&E Budget (the "Construction Budget"). All expenses in excess of the three million nine hundredthousand 'dollars ($3,900,000) shall be borne by Operator unless they have been approved, in advance, by the City Manager. 5.8 Changes in Plans and S;cifications - All material changes or additions to the Plans shall be submitted to the City Manager for his approval, which may not be unreasonably withheld or delayed The Operator may make changes and additions to the Plans without the City_.. Manager's approval which are not substantial; provided, however, that in no event shall the City be required to pay any amounts in excess of the Construction Costs, unless the City Manager has previously approved such payment. 5.9 Procedures for Approval or Disa22avA - Unless otherwise specifically provided for in the Agreement or in the Event of Force Majeure, any consent or approval required by Operator from the City Manager pursuant to the terms of this Agreement which has not been given or denied within twenty (20) business days following receipt of the request for consent and/or approval by the City Manager, shall be deemed to have been approved by the City Manager. In the event that the City Manager disapproves or qualifies his approval or consent within' such twenty (20) business day period, said disapproval or qualification shall be in writing setting forth the reasons therefor. Any and all requests for consent and/or approval shall be accompanied by all documents and/or information necessary to permit an adequate evaluation of some Iby the City.Manager and shall be sent by United States registered or certified mail, return receipt requesU4 postage prepaid or hand delivered to the City Manager's office. 510 Qator's Obligations where Construction Budget is Exceeded In the event the Construction Budget is exceeded without City Manager's agreement to pay such excess or if Operator elects to make Improvements, the costs of which exceed the Construction Cost then, at the City Manager's request and within five (5) business days thereafter, the Operator shall deposit m an account to be designated by the City Manager the amount required to pay such excess cost. 5.11 gight of Inspection During Construction of Improvements - During the Construction Period, the City may inspect, but shall have no duty or obligation to do so, the 9 95- 772 construction of the Improvements and the materials being used or to be used in the performance of the work. If during construction of the Improvements, the City shall reasonably determine that the materials used or the construction of the Improvements do not substantially conform to the approved Plans, then the City may give written notices thereof to Operator specifying the nature of the deficiency; defect, or omission. Upon receipt of such written notification, Operator shall, within thirty (30) days thereafter, take such steps as may be necessary to correct such defects, defciencies or omissions unless Operator is granted an extension in writing by the City Manager or it is impossible to correct such defects within thirty (30) days in which case such defects must be corrected in a reasonable amount of time. Operator agrees to permit the City Manager or its designee(s) to enter the Golf Course Facilities at any time for any purpose the City deems necessary for the duration of this Agreement. 5.12 Construction Schedules and Completion Dates - In the event that Construction of the Improvements is not completed within twenty-four (24) months after the Commencement Date, the City may terminate this Agreement upon sixty (60) days written notice to Operator, unless the delay is caused by an event of Force Majeure or by actions or inaction of the City. In such event the period for completion of construction shall be extended by a time period commensurate with such delay. Construction of the Improvements shall be deemed completed upon the issuance of the appropriate certificate of completion, occupancy or its equivalent for the entire Golf Course Facilities. The date of such certificate shall be the "Completion Date". �. 5.13 ESMents - Payments for services performed in connection with the Renovations shall be made in accordance with the corresponding agreement. 5.14 Construction Liens - Operator indemnifies and holds the City, its officials and employees, harmless from and against all claims for labor and materials in connection with supplies, equipment, improvements, repairs or alterations of the Golf Course Facilities and the cost of defending against such claims, including reasonable attorneys' fees. Ten Dollars ($10.00) is granted as separate and distinct consideration for this indemnity. 4 14 Anil snA Trimimnma _ rnnafnvtinn of A^ Tmrwnvoensnte e1kA11 not enen*mm"e-as 8.1.1. If less than all or substantially all of the Golf Course Facilities or any individual portions of the Golf Course Facilities are taken by any governmental or quasi -governmental body the City and Operator shall determine whether in its reasonable judgment the Golf Course Facilities (or the applicable portion thereof) can continue to be operated for its intended use. In the event the Operator decides to continue the operation of the Golf Course Facilities, then the Operator shall be entitled to use such portion of the proceeds of the condemnation award paid in connection with such taking as determined by the. Operator and the City to be necessary to restore the remaining portions of the Golf Course Facilities (or the applicable portions thereof) and/or to make additional improvements as are necessary to continue the operation of the Golf Course Facilities (or the applicable portions thereof); 8.1.2. If all or substantially all of the Golf Course Facilities (or applicable portion thereof) are taken by any governmental agency this Agreement shall terminate and neither party shall have any further right or obligations hereunder. In such event the parties shall be entitled to a portion of the condemnation award based on the amount of damages resulting to each party by reason of such taking. In the event that a single award is made ` without separately determining the respective interests of the parties and the parties cannot agree as to their respective portions of the award within twenty (20) days after the final determination of the amount thereof, then the City and Operator agree t submit the matter to a court of competent jurisdiction for a final determination of their respective shares. 8.2 If the Golf Course is relocated for any reason, including condemnation, the Operator shall act as the City's Project Manager in the location, design and construction phases. The City shall execute a new contract with the Operator for management of the new site with the same Management Fee term as set forth herein. 9. USE ACTHORMATIONS AND 61ANDAM 9.1 Operator agrees that the Golf Course Facilities will be used by Operator as a golf facility with related golf activities, recreational amenities, hospitality facilities, and amusements, open to the general public upon the terms and conditions herein provided. 9.2 TOperator small take such actions as may be necessary to promptly comply with he any and all orders or requirements of any federal, state, county or municipal authority having Jurisdiction over the Golf Course Facilities, issued in the exercise of such jurisdiction, with respedilto the operation, management or maintenance thereof. ' Except in the case of an emergency, Operator shall not take any action in response to a governmental order or requirement without notifying the City Manager. The Operator shall not take any action with respect to any governmental order or requirement that City is contesting and has notified Operator of the same, or has notified Operator of its intention to contest; provided, however, that City shall proceed with all due diligence in contesting any such governmental order or requirement and shall use best efforts to prevent a shut -of of essential services to the Golf Coarse Facilities. 12 95-- 772, f: t 93 The Operator shall, in the name of the Operator (and not in the name of the City), select, employ, supervise, and discharge all employees and personnel necessary for the operation and maintenance of the Golf Course Facilities. All such employees shall be employees or independent contractors of Operator and shall not in any event be deemed employees of the City. Operator shall be responsible for timely compliance with all local, state and federal labor and tax laws, including, without limitation, OSHA, federal withholding tax laws, Worker's Compensation Insurance, FICA, MICA and federal and state unemployment insurance laws. 9.4 The Operator shall purchase or lease all materials necessary or desirable in Operator's reasonable judgment and as approved in the Operating Budget by City Manager for the operation or maintenance of the Golf Course Facilities. The Operator agrees to use reasonable efforts to secure contracts with minority owned companies, where available and where cost, service level and quality are comparable to other companies. 9.5 The Operator shall make arrangements, negotiate and enter into contracts for exterminating services, vending services, HdAC, security, cleaning, landscaping, trash collection and such. other services as Operator reasonably deems advisable for the operation of the Golf Course Facilities. The Operator agrees to use reasonable effort to secure contracts with minority owned companies, where available and where cost, service level and quality are comparable te„ other companies. The City shall cover under their blanket deposit, water, electricity, gas and telephone. 9.6 The Operator shall apply for, and use its best efforts tb obtain and/or renew all licenses, permits, and certificates required in connection with the operation of the Golf Course Facilities, including a liquor license. If required by governmental authorities, licenses shall be obtained in the name of the City and all documents to be signed in connection with the application for such licenses shall be executed by the City. 9.7 The Operator shall bill, collect and administer all Golf Course Sales and Income and Merchandise/Food and Beverage Sales and shall cauto be instituted any and all legal se actions and proceedings which Operator deems necessary and desirable to collect charges, fees, or other Golf Course Sales and Income and Merchandise/Food and Beverage Sales. 9.8 Mh a OpeWrs, subject to the City's and, where required, City Commissions approval, shall adopt, pubfish, and enforce rules, regulations, and policies for the operation and use of_ the Golf Course Facilities, including, without limitation, hours of operation, greens fees and -otlfer prices comparable with other first class public golf facilities, selection of tee times, dress code,conduct of players and the like. Subject to the City's and, where required, City Commissions approval, the Operator shall, be able to set and periodically change all golf related fees at the Golf Course Facilities except that City of Miami residents shall always have a minimuffi of a ten percent (10%) discount on greens fees and membership fees and retired City employees shall play free of a greens fee charge during designated times determined by Operator. 13 95 772 r 9.9 The Operator shall provide or cause to be provided customary food, beverage, on - course service, restaurant, banquet, and bar service at the Golf Course Facilities, and such other services as may be approved by the City Manager. 9,10 The City'sha11 advise the Operator promptly with confirmation, in writing, of the service upon the City of any summons, subpoena or other similar legal document, including but not ` limited to letters,notices, and other communications setting forth or claiming an actual or alleged potential liability to the City, Operator or Approved Subcontractor(s) or the Golf Course Facilities and shall cooperate with Operator in connection with any legal proceedings arising out of Operator's; management of the Golf Course Facilities. 9.11 The Operator shall advise the City promptly with confirmation, in writing, of the service upon the Operator of any summons, subpoena or other similar legal document, including but .not limited to, letters, notices and other communications setting forth or claiming an actual or alleged potential liability or incumbrance to the City, Operator, Approved Subcontractor(s), or the Golf Course Facilities, and shall cooperate with the City in connection with any legal' Proceeding arising in connection with the operation of the Golf Course Facilities. 9,12 The Operator shall have the right, with specific prior approval of the City Manager to use Affiliated Parties in fulfilling its obligations hereunder, so long as use of the Affiliatek. Party is not more costly or otherwise detrimental to the City, in the City's sole discretion. 9.13 Notwithstanding anything to the contrary contained herein, Operator and City agree as follows with respect to operation of Golf Course Facilities: 9.13.1 The Golf Course Facilities shall be operated as a public facility open to all players upon payment of the applicable use fees. 9.13.2 Fees for the Golf Course Facilities shall be established by Operator, subject to City Manager's approval which shall not be withheld if such fees are comparable to other local first class golf courses. Fees charged at local first-class daily fee golf courses like, but not limited to, Key Biscayne golf course shall be deemed comparable. Operator shall have the exclusive right, without City Manager approval, to charge fees at any rate less than other local first-class daily fee golf courses. 9.13.3 With respect to material matters in connection with operation of the Golf Course Facilities, Operator agrees to operate the Golf Course Facilities according to :a written program which shall list all activities which may significantly infringe upon availability of the public to use any facility or service at the Golf Course Facilities. City may deny the use of the Facilities for any activity that infringes upon public use. 9.14 Inspection. The City and its representatives shall have the right at all reasonable times to enter upon the Golf Course Facilities for the purpose of inspecting the same, provided, however, that City shall use all reasonable efforts not to disturb the and operation 14 95-, 77`� of the Golf_ Course Facilities by Operator and persons then lawfully using the Golf Course Facilities, 10. INSi,JRANCE AND INDEMNIFICATION 10.1 Throughout the Term, Operator shall, as an Operating Expense, obtain and maintain the following insurance or cause such insurance to be maintained with respect to the Golf Course Facilities: 10.1.1 Insurance against loss or damage by fire, flood, windstorm and other casualties, including vandalism and malicious mischief, within the meaning of "extended coverage" covering all buildings and contents, including the Clubhouse, located on the Property insuring one hundred percent (100%) of the full insurable value of all buildings and contents on the Property. The term "full insurable value shall mean actual replacement value of the buildings and contents on the Property. This property coverage may have up to a five percent (5%) of "full insurable value" deductible. 10.1.2 Comprehensive, general public liability insurance and providing for Completed Products coverage, Host Liquor and Liquor Legal liability as applicable for bodily injury, death or property damage occurring upon, in or about the Golf Course. Facilities covering both Operator and City as insured, with minimum limits of five million dollars ($5,000,000.00) for bodily injury or death for any one occurrence or accident and one million dollars ($1,000,000.00) for property damage; and up to, in Operator's sole discretion, a ten thousand dollar ($10,000.00) deductible unless the Operator and City. agree otherwise. 10,13 Worker's Compensation Insurance as required by Chapter 440, Florida Statutes. 10.1.4 Comprehensive Automobile coverage covering owned and hired vehicles with limits as set in Paragraph 10.1.2 above. 10.2 The Operator may obtain the aforementioned insurance and coverages as part of Operator's master policy namin Operator as insured or additionally insured if appropriate. 10.3 17he Operator may elect to be included on any City insurance policy with coverages set forth above and pay to the City any actual increase in premium attributable to such coverages. 10.4 All policies required to be maintained under this Paragraph 10 shall, unless otherwise approved by the City Manager, be written by companies of recognized standing qualified to do business in the State of Florida and may be provided by a blanket policy covering the Golf Course Facilities portions thereof and other properties. Such policies shall contain waiver of subrogation clauses and shall provide that they may not be canceled without thirty (30) days' prior written notice to each insured. Operator shall furnish City with copies of the original 15 9 5 7 7` policies or certificates of insurance, together with evidence of payment of the premiums therefor, and thereafter Operator shall furnish City with evidence of the renewal of such policies and.the ` payment of the premiums therefor not less than thirty (30) days prior to the expiration date of such policies. The failure of Operator to provide such evidence, whether or not objected to by City, shall not be deemed a waiver of Operator's obligation to maintain the insurance required hereunder. City shall have the right to require higher or lower minimum limits of coverage than those contained herein to the extent necessary to take into account the effects of inflation, costs of coverage, claim history of the industry or other reasonable cause during the Term. Unless otherwise approved by the City Manager, all policies required above shall be issued by companies with no less than a rating of A as to management and no less than XV as to strength, as rated by Best's Key Rating Guide or as accepted by the City Manager. 10.4.1 All applicable proceeds from the insurance coverage described in paragraph 10.1.1 hereof 'shall be applied in whole. or in part to the restoration or replacement of the damn ed or destroyed portions of the buildings and contents on the Property resulting in the payment of such insurance proceeds (the "Restoration Work"). Any insurance proceeds remaining after the completion of the Restoration Work shall be put in an Operator's reserve account for repairs and replacement funding. 10.4.2 Operator shall indemnify and hold City harmless from any and alit. claims, liability, losses, and causes of action (including attorneys' fees and court costs, whether in preparation for trial, at trial, or on appeal) which may arise out of the Operator's performance of this Agreement, except for damages caused solely by the negligence or willful misconduct of City. Operator shall defend all such suits, in the name of the City when requested by the City, and shall pay all costs and judgments which may issue thereon. The cost of such defence shall be deemed an Operating Expense. 10.5 The City shall be solely responsible for identifying funding any repairs and replacement of Golf Course Facilities which insurance proceeds are inadequate to properly fund any such repairs or replacements. The City shall fund within one hundred and eighty (180) days of notice from Operator such Golf Course Facilities repairs and replacements. 11. USE OF CITY OR GOLF COURSE FACILITIES' NAMES AND LOGO. The Operator may use the name and/or logo of the City or Golf Course Facilities only in connection with marketing operation of the Golf Course Facilities. The Operator shall use such names and logos in a tasteful manner and upon objection by the City shall immediately cease use of the names or logos in the objectionable fashion. 12. EVENTS OF 12FIAULT 12.1 The occurrence of any one or more of the following events shall constitute an Event of Default hereunder: 16 95 772` . 12.1,1 Default in the payment of any sum due under this Agreement which default coritinues for thirty(30) days after written notice thereof. 12.1.2 Default in the performance or observance of any of the material non -monetary terms, agreements, covenants or conditions of this Agreement, which default continues for forty-five (45) days after receipt of written notice thereof, provided that, if such default cannot reasonably be cured within forty-five (45) days, no Event or Default shall be deemed to occur so tong as the defaulting party has commenced and is diligently implementing a cure within such forty-five (45) period and pursues such cure to a timely conclusion. 12.1.3 The. application by any party hereto (or its corporate parent) for, or consent to, the appointment of a receiver, trustee, liquidator or custodian (or similar official) of it or of all or a substantial part of its assets, or if any party (or its corporate parent) shall (i) be unable, or admit in writing its inability to pay its debts as they mature, (H) make a general assignment for the benefit of creditors, (iii) be adjudicated as bankrupt or insolvent, (iv) file for voluntary petition in bankruptcy or a petition or an answer seeking reorganization or any arrangement with creditors or to take advantage of any insolvency law, (v) file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding; (vi) take any^, corporate action for the purpose of effecting any of the foregoing; or if an order, judgment, or decree shall be entered by any court of competent jurisdiction approving a petition seeking reorganization or appointing a receiver, trustee, liquidator or custodian (or other similar official) of any party hereto (or its corporate parent) or of all or a substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for a period of ninety (90) consecutive days. 12.2 If any representation or warranty contained in this Agreement shall be false or misleading in any material respect, and the condition making such representation or warranty remain uncorrected for thirty (30) days after receipt of written notice hereof, the failure to correct such condition shall constitute an Event of Default; provided, however, that if such conditions cannot reasonably be corrected within thirty (30) days, no Event of Default shall be deemed to occur hereunder so long as the defaulting party has commenced and is diligently implementing a cure within such thirty (30) day period and pursues such a cure to a timely conclusion. 13. RIGIM AND YdF_MDIES UPON THE OCCURRENCE OF AN EVENT OF DEFA�La. 13.1 Default by City. Upon the occurrence of any Event of Default by City, Operator may, at its option, either terminate this Agreement or sue for specific performance or exercise whatever other rights or remedies it may have at law or in equity. 13.2 Default by ggm=r. Upon the occurrence of any Event of Default by Operator, City may, at its option, either terminate this Agreement or sue for specific performance or 17 95- 772 exercise whatever other rights or remedies it may have at law or in equity. 14. REPRESENTATIONS AND WARRANTIES. 14.1 Without limiting the representations, covenants and warranties of City contained elsewhere in this Agreement, as a material inducement for Operator to enter into this Agreement, City represents and warrants to Operator (and unless otherwise specified, such representations and warranties are true as of the date hereof and will continue and be effective at all times, as if, continuously reiterated, during the term of this Agreement) that: 14.1.1 City is a political subdivision of the State of Florida duly incorporated under the laws and Constitution of the State of Florida. Subject to obtaining the approval of City Commission, City has full power and authority to execute and deliver this Agreement and all documents, if any, now or hereafter to be executed and delivered by it pursuant to this Agreement (collectively "City's Documents") and to perform all obligations arising under this Agreement and under City's Documents. This Agreement and City's Documents will each constitute the legal, valid and binding obligations of City, enforceable in accordance with their respective terms, covenants and conditions; 14.1.2 This Agreement and City's Documents do not and will not contravene ang, provision of the powers of City, any judgment,.order, decree, writ or injunction, or any provision of any applicable law or regulation, and the delivery of this Agreement and City's Documents will not result in a breach of, constitute a default under, or require consent pursuant to any law or regulation or any credit agreement, lease, indenture, mortgage, deed of trust, purchase agreement, guaranty or other instrument to which City is a party or by which City is bound or affected; 14.1.3 Pursuant to all applicable laws, regulations, rules or ordinances promulgated, issued or enforced by any and all local, state or federal governmental bodies, agencies or organizations having any jurisdiction over the Golf Course Facilities, the Golf Course Facilities may be operated, maintained and used for golf course purposes and other related, ancillary or subordinate uses. 14.1.4 Some utilities necessary to operate and maintain the Golf Course Facilities may not be available within the Golf Course Facilities or at the boundary thereof in sufficient capacity to operate or conduct the uses described in paragraph 9.1.3 hereof.' 14.1.5 Except as otherwise set forth in this Agreement, no person, group, association, entity or organization has any priority, rights, privileges, membership rights, or other entitlement to the Golf Course Facilities or the right to use the same, including any tenant's association, membership, organization, club or other similar entity. 14.1.6 The City has the necessary funds to re -design, manage the construction and construct the Golf Course Facilities upon the execution of this Agreement up to the 18 95- 772 amount of the City's Contribution. 14.1.7 The Operator may charge fees for the Golf Course Facilities comparable to other local first class golf course facilities. 14.2 Without limiting the representations, covenants and warranties of Operator contained elsewhere in this Agreement, as a material inducement for City to enter into this Agreement, Operator represents and warrants to City (and unless otherwise specified, such representations and warranties are true as of the date hereof and will continue and be effective at all times, as if continuously reiterated, throughout the term of this Agreement) that: 14.2.1 Operator is a joint venture duly authorized and in good standing under the laws of the State of Florida. Operator has full power and authority to execute and deliver this Agreement and all documents, if any, now or hereafter to be executed and delivered by it pursuant to this Agreement (collectively, "Operator's Documents") and to perform all obligations arising under this Agreement and under Operator's Documents. This Agreement and Operator's Documents will each constitute the legal, valid and binding obligations of Operator enforceable in accordance with their respective terms, covenants and conditions; and 14.2.2 This Agreement and Operator's Documents do not and will not contravene any provision of the powers of Operator, any judgment, order, decree, write or injunction, or any provision of any applicable law or regulation, and the delivery of this Agreement and Operator's Documents will not result in a breach of, constitute a default under, or require consent pursuant to any law or regulation or any credit agreement, lease, indenture, mortgage, deed of trust, purchase agreement, guaranty or other instrument to which City is a party or by which Operator is bound or affected. 15. Q> MT EMJQYIVI�NT. City covenants that, as long as Operator shall perform all of the terms and conditions contained herein on the part of Operator to be observed or performed, Operator may manage the Golf Course Facilities during the Term without molestation or hindrance by City or anyone claiming through City. ' 16. ,; )F'�fltCE 1VIAJEURE. Performance may be delayed and such delay shall not be deemed to be an event of default where . it is the result of an event of Force Majeure (the "Event of Force Mayeure"). Force Majeure shall include acts of God, weather or unusual severity, fire, earthquake, flood, lightning, hurricane, explosion, action of the elements, war (declared or undeclared), invasion, insurrection, riot, mob violence, sabotage, malicious mischief, acts of the public enemy, failure of transportation, strikes, lockouts, action of labor unions, other industrial disturbances, :condemnation, public requisition and laws rules, regulations or orders of government, breakage 19 95- 772 i rx� .-2 �. t• ' 1 t 1 F !. >i�j a •; , !. .� •�, •!' �j:, .art . ,} � i • . • . �,.� `.• �� � ,. , � r l r � ' _..� EXHIBIT "B" 95. 772 Food and 0~490 Adv 16,000.00 Ctsh 1400.00 Chins. OWf and SNvsrwars $2.000.00 Ctaanin Ssniet 181000.00 Cradht Card Cast f 2.000. 00 Elaatrio s 14,000.00 E omant t2.000.00 Flowart and Owmations 62.000. Grounds and ILA tocing02.000. Guts arw C1san' SuooYad 18.000.00 InaWanCt t 14,000.00 Khtohsn and Bar Su ss $3.000.00 i1when Gat, $4.000.00 Khtehtn Layrodry t2A00.00 and DfVs2.000.00 UPS u f3,500.00 Msnlr• u+d Ticksta 62.000.00 Mtscs(Iww" • 1.500.00 Musk 1 81.000.00 Peow irld DWoosaifts 43.000.00 Promotlan 1 113.000.00 Rtosdn and McM►etnsnn 6e.000.00 •1n 1 812.000.00 8500.00' alophow t. IME 62.000.w trrar t�.000.00 t t l .400.00 Tam •ae ToSd I41M•d /> •�.risarn.00 W,