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Home My WebLink AboutR-89-1104J-89•-1065 11 /21 /89 RESOLUTION NO. ?49--1104 A RESOLUTION, WITH ATTACHMENT, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI AND THE FRIENDS OF THE JAPANESE GARDEN, INC. FOR THE MANAGEMENT AND OPERATION OF THE CITY -OWNED PROPERTY KNOWN AS THE MIAMI - ICHUMURA JAPAN GARDEN LOCATED ON WATSON ISLAND, MIAMI, FLORIDA, FOR A THREE (3) YEAR PERIOD, WHICH TERM MAY BE EXTENDED BY THE CITY MANAGER FOR THREE ADDITIONAL THREE (3) YEAR PERIODS UNDER THE SAME TERMS AND CONDITIONS, SUBJECT TO CONTINUED SATISFACTORY PERFORMANCE BY SAID ORGANIZATION. WHEREAS, with the generous assistance of the Ricoh Corporation, the City of Miami has completed the renovation of the Miami - Ichimura Japan Garden (the "GARDEN") located on Watson Island, Miami, Florida; and WHEREAS, the GARDEN is a unique cultural and recreational facility that embodies Japanese design in its physical elements and programmatic function; and WHEREAS, the City lacks the cultural expertise to effectively manage and operate the GARDEN in the manner it was intended for the benefit of the community; and WHEREAS, in accordance with Section 18-52.2 of the Code of the City of Miami, Florida, as amended, and upon notification to the City Commission, proposals were solicited for the management and operation of the GARDEN and interviews were conducted of the two proposers; and WHEREAS, the selection committee was comprised of T.W. Fair, Chairman of the Parks Advisory Board, Michael Spring, Deputy Director of the Dade County Cultural Affairs Council, and representatives from the Departments of Finance, Parks, Recreation and Public Facilities, General Services Administration, Development and Minority and Women's Business Affairs; and J-89-1065 11 /21 /89 RESOLUTION NO. R9-1104 A RESOLUTION, WITH ATTACHMENT, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI AND THE FRIENDS OF THE JAPANESE GARDEN, INC. FOR THE MANAGEMENT AND OPERATION OF THE CITY -OWNED PROPERTY KNOWN AS THE MIAMI - ICHUMURA JAPAN GARDEN LOCATED ON WATSON ISLAND, MIAMI, FLORIDA, FOR A THREE (3) YEAR PERIOD, WHICH TERM MAY BE EXTENDED BY THE CITY MANAGER FOR THREE ADDITIONAL THREE (3) YEAR PERIODS UNDER THE SAME TERMS AND CONDITIONS, SUBJECT TO CONTINUED SATISFACTORY PERFORMANCE BY SAID ORGANIZATION. WHEREAS, with the generous assistance of the Ricoh Corporation, the City of Miami has completed the renovation of the Miami - Ichimura Japan Garden (the "GARDEN") located on Watson Island, Miami, Florida; and WHEREAS, the GARDEN is a unique cultural and recreational facility that embodies Japanese design in its physical elements and programmatic function; and WHEREAS, the City lacks the cultural expertise to effectively manage and operate the GARDEN in the manner it was intended for the benefit of the community; and WHEREAS, in accordance with Section 18-52.2 of the Code of the City of Miami, Florida, as amended, and upon notification to the City Commission, proposals were solicited for the management and operation of the GARDEN and interviews were conducted of the two proposers; and WHEREAS, the selection committee was comprised of T.W. Fair, Chairman of the Parks Advisory Board, Michael Spring, Deputy Director of the Dade County Cultural Affairs Council, and representatives from the Departments of Finance, Parks, Recreation and Public Facilities, General Services Administration, Development and Minority and Women's Business Affairs; and ATTACHMENTS CONTAINED CITY COSSION MEETING OF J-89-1065 11 /21 /89 RESOLUTION NO. R9`1104 A RESOLUTION, WITH ATTACHMENT, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI AND THE FRIENDS OF THE JAPANESE GARDEN, INC. FOR THE MANAGEMENT AND OPERATION OF THE CITY -OWNED PROPERTY KNOWN AS THE MIAMI - ICHUMURA JAPAN GARDEN LOCATED ON WATSON ISLAND, MIAMI, FLORIDA, FOR A THREE (3) YEAR PERIOD, WHICH TERM MAY BE EXTENDED BY THE CITY MANAGER FOR THREE ADDITIONAL THREE (3) YEAR PERIODS UNDER THE SAME TERMS AND CONDITIONS, SUBJECT TO CONTINUED SATISFACTORY PERFORMANCE BY SAID ORGANIZATION. WHEREAS, with the generous assistance of the Ricoh Corporation, the City of Miami has completed the renovation of the Miami - Ichimura Japan Garden (the "GARDEN") located on Watson Island, Miami, Florida; and WHEREAS, the GARDEN is a unique cultural and recreational facility that embodies Japanese design in its physical elements and programmatic function; and WHEREAS, the City lacks the cultural expertise to effectively manage and operate the GARDEN in the manner it was intended for the benefit of the community; and WHEREAS, in accordance with Section 18-52.2 of the Code of the City of Miami, Florida, as amended, and upon notification to the City Commission, proposals were solicited for the management and operation of the GARDEN and interviews were conducted of the two proposers; and WHEREAS, the selection committee was comprised of T.W. Fair, Chairman of the Parks Advisory Board, Michael Spring, Deputy Director of the Dade County Cultural Affairs Council, and representatives from the Departments of Finance, Parks, Recreation and Public Facilities, General Services Administration, Development and Minority and Women's Business Affairs; and CITY CONDUS811 MEETING OF - w�iw�rvmcn�a °��iioa CONTAINEDRHOWTION r WHEREAS, on the basis of the proposals and interviews, the selection committee recommended that the Friends of the Japanese Gardens, Inc., a not -for -profit organization, offered the most advantageous combination of membership, skills, experience, cultural programs, maintenance, operation and management, and financial resources; and WHEREAS, the attached agreement was negotiated with said organization to establish the responsibilities, terms and conditions for the operation and management of the GARDEN by said organization; and WHEREAS, said agreement calls for the regular opening of the GARDEN to the public, for the conduct of ongoing cultural programs and periodic special events, for the organization to allow use of the GARDEN for social events such as weddings, for the complete and specialized maintenance of the facility, and for related concession operations; and WHEREAS, it is the purpose of the agreement to make the GARDEN a self-sustaining operation and that all revenue raised be put back into the facility in the form of operating capital, improvements and/or programs; and ,t WHEREAS, the City Manager and the Director of the Department i of Parks, Recreation and Public Facilities recommend that the �! execution of the negotiated agreement be authorized; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY j OF MIAMI, FLORIDA: Section 1. The recitals contained in the Preamble to this i 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, between the City of Miami and the Friends of the Japanese Garden, Inc, for - the management and operation of the City -owned property known as ra 1 The herein authorization is further subject to comp liaa� # all requirements that may be imposed b the Cot Attore q Y Po Y � � including but not limited to those prescribed day aPpIiciw 0 � f, City Charter and Code provisions, r 4 x;. fi i 1 , C t WHEREAS, on the basis of the proposals and interviews, the selection committee recommended that the Friends of the Japanese Gardens, Inc., a not -for -profit organization, offered the most advantageous combination of membership, skills, experience, cultural programs, maintenance, operation and management, and financial resources; and WHEREAS, the attached agreement was negotiated with said organization to establish the responsibilities, terms and conditions for the operation and management of the GARDEN by said organization; and WHEREAS, said agreement calls for the regular opening of the GARDEN to the public, for the conduct of ongoing cultural programs and periodic special events, for the organization to allow use of the GARDEN for social events such as weddings, for the complete and specialized maintenance of the facility, and for related concession operations; and WHEREAS, it is the purpose of the agreement to make the GARDEN a self-sustaining operation and that all revenue raised be put Lack into the facility in the form of operating capital, improvements and/or programs; and WHEREAS, the City Manager and the Director of the Department of Parks, Recreation and Public Facilities recommend that the execution of the negotiated agreement be authorized; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals contained in the Praamhl a to ttl,i a 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 agreementl/, in substantially the attached form, between the City of Miami and the Friends of the Japanese Garden, Inc. for the management and operation of the City -owned property known as 1/ 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. - 2 - the Miami - Ichimura Japan Garden located can Watson Island, Miami, Florida, for a three (3) year period, which term may be extended for three additional three (3) year periods by the City Manager under the same terms and conditions, subject to continued satisfactory performance by said organization. Section 3. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 7th day of recember 1989. PREPARE APPF(0_V9D BY: LrJANDAO VILARELLO IEF ASSISTANT CITY ATTORNEY MA APPROVED AS TO FORM AND CORRECTNESS: - 3 - AGREEMENT between CITY OF MIAMI and FRIENDS OF THE JAPANESE GARDEN, INC. Table of Contents Section Page RPr- 7 f- A 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 1 I. Definitions....* ....... It. Term.................................................3 III. Purpose..............................................4 IV. Use of Areas.........................................4 V. Advisory Committee...................................5 VI. General Responsibilities and Privileges..............6 VII. Administrative Management ............................6 Vill. Fiscal Management....................................8 IX. Improvements......................................solo X. Maintenance and Repairs .............................14 XI. Operations..........................................20 XII. City Responsibilities...............................23 XIII. Suppliers and Subcontractors ........................24 XIV. Minority Procurement Compliance .....................24 XV. Utilities...........................................24 XVII. Advertising.........................................25 XVIII. CITY's Right of Entry...............................25 XIX. Risk of Lass........................................25 XX. Indemnification.....................................26 XXI. Insurance...........................................26 XXII. Default............................................28 XXIII. Abandonment........................................:29 XIV. Termination.........................................29 XXV. NonDelagability.....................................29 XXVI. Assignment or Transfer..............................30 XXVII. Successors and Assigns..............................30 XXVIII. Nondiscrimination....................•..............30 XXIX. Independent Contractor..............................30 XXX. Conflict of Interest................................30 XXXI. Award of Agreement..................................31 XXXII. General Conditions..................................31 XXXIII. Interpretations.....................................32 XXXIV. Assurances and Certifications .......................32 XXXV. Waiver..............................................33 XXXVI. Court Costs and Attorneys Fees......................33 XXXVII. Construction of Agreement ...........................33 XXXVIII. Compliance with Federal, State and Vocal. Laws ....... 33 XXXIX. Entire Agreement....................................33 XL. Amendments..........................................33 CORPORATERESOLUTION................................................35 EXHIBITS r THIS AGREEMENT made and entered into this day of , 1989, by and between the CITY of Miami, Florida, a municipal corporation of. the State of Florida, (hereinafter referred to as the "CITY"), and the Friends of the Japanese Garden, Inc., a Florida corporation (hereinafter referred to as the "FRIENDS"). RECITAL WHEREAS, with the generous assistance of the Ricoh Corporation, the CITY of Miami has completed the renovation of the Miami - Ichimura .japan Garden (hereinafter referrrred to as the "GARDEN") located on Watson Island; and WHEREAS, the GARDEN is a unique cult»ral and recreational facility that embodies Japanese design in its physical elements and programmatic function; and WHEREAS, the CITY lacks the cultural expertise to effectively manage and operate the GARDEN in the manner it was intended for the benefit of the community; and WHEREAS, in accordance with Section 18-52.2 of the CITY Code, and upon notification to the CITY Commission, proposals were solicited for the management and operation of the GARDEN and interviews were conducted; and WHEREAS, the selection committee was comprised of T.W. Fair, Chairman of the Parks Advisory Board, Michael Spring, Deputy Director of the Dade County Cultural Affairs Council, and representatives from the Departments of Finance, Parks, Recreation and Public Facilities, General Services Administration, Development, and Minority and Women's Business Affairs; and WHEREAS, on the basis of the proposals and interviews, the selection committee recommended that the FRIENDS offers the,CITY the most advantageous combination of membership, skills, experience, cultural programs, maintenance, operation " and M�N�/Y AtiAN,+ SMI. �j..1 M/.j �� MAI. A.•MP.AA. �Ml� rj WHEREAS, the CITY MANAGER has recommended to the CITY Commission that the proposal of FRIENDS be accepters and that this negotiated agreement be authorized; and WHEREAS, the CITY Commission via Resolution No. adopted , 19�1 accepted the CITY MANAGER's recommendation and authorized the execution of this agreement; NOW, THEREFORE, in consideration of the premises and of the terms, covenants and conditions hereinafter contained to be kept and performed by the FRIENDS and CITY, it is agreed as follows: I. DEFINITIONS A. CITY: shall mean the CITY of Miami, a municipal corporation of the State of Florida. B. CITY COMMISSION: Shall mean CITY Commission, the publicly elected board of the CITY of Miami, Florida. C. CITY MANAGER: shall mean the CtTY MANAGER or Chief Administrative Officer of the CITY, or designee. D. DEPARTMENT: Shall mean the CITY's Department of Parks, Recreation and Public Facilities, with its administrative offices located at 1390 NW 7th Street, Miami, Florida, 33125. E. DIRECTOR: Shall mean the director or chief administrative officer of the DEPARTMENT, or designee. F. FRIENDS: Shall mean the Friends of the Japanese Garden, a = not for profit Florida corporation with its principal office located at 700 Lakeview Drive, Miami Beach, Florida 33140. G. GARDEN: shall mean the CITY -owned property known as the Miami - Ichimura Japan Garden, located on Watson Island, comprising an area of approximately 43,800 square feet, more specifically described in Attachment I hereto,, and all related aspects and fixtures of said area, including, = without limitation, electrical fixtures, lighting, plumbing, walkways, pavilion, structures and landscaping. H. IMPRO MENTS; shall mean any construction,.. repai rg renovation, alteration, addition, iaartition,tt.l4rt$.t ;installation or improvement to the GARDEN, and/or Xo 62 e S Ja Y ri adjacent areas as may be authorized by CITY, including the provision and/or installation of the necessary equipment, fixtures, and furnishings required for the effective maintenance, management and operation of the GARDEN. I. LIAISON: Shall mean the employee or representative of the DEPARTMENT appointed by the DIRECTOR to serve as the point of contact, supervisor and coordinator in matters relating to this Agreement. J. PARK: Shall mean the balance of publicly owned and operated recreational property comprising Watson Island. K. PLAN: Shall mean the Master Plan for the Miami - Ichimura Japanese Garden► dated 7/25/88 and prepared by Albert Perez Associates for the CITY, on file in the DEPARTMENT and in the Department of Development. L. PUBLIC WORKS: Shall mean the CITY's Department of Pubic Works, with its principal office located at 275 NW 2nd Street, Miami, Florida 33128. M. REPRESENTATIVE: Shall mean the individual designated by the FRIENDS to serve as the point of contact, supervisor and coordinator in matters relating to this Agreement. N. USER: Shall mean any person or persons, group or groups, other than the CITY or FRIENDS, who use any or all portions of the GARDEN or PARK at no charge or for a fee paid to the CITY, for the purpose of conducting entertainment, social, cultural and/or other events and/or activities;. II. TERM: The term of this Agreement shall be for a three (3) year period commencing 1989, and expiring on 1992, subject to the CITY MANAGER's receipt of a satisfactory performance review by the DEPARTMENT on an annual basis. This term may be extended for three additional three (3) year periods by the CITY MANAGER, upon mutual written consent. In the event that the CITY undertakes development of `the PARK pursuant to the 1989 Watson Island Master Plan, and such development requires the temporary closing of the GARDEN, tbo t k � -3- r � term of this Agreement or any extension thereof shall be extended for an additional period equal in length to the time of the temporary closure, upon mutual written consent. III. PURPOSE The purpose of this Agreement is to allow FRIENDS to manage, maintain and operate the GARDEN for the cultural and recreational benefit of residents and visitors to the CITY. Said purpose shall include, without limitation, regular opening of the GARDEN to the public, the promotion and marketing of the GARDEN, as well cgs the presentation of cultural events and programs. Furthermore, FRIENDS shall have authority to permit the use of the GARDEN by other organizations, groups, and/or individuals for social and cultural functions. Moreover, FRIENDS shall have the authority to conduct additional cultural, social, fund-raising and/or other associated activities in order to obtain financial and other support for the operation of the GARDEN, and to operate non-exclusive concessions within the GARDEN and to use all such revenues for the enhancement and maintenance of the GARDEN, for the conduct of FRIENDS' responsibilities defined herein, and for other functions of FRIENDS directly related to the GARDEN. FRIENDS shall not change or modify such use without the prior written consent of the CITY. IV. USE OF AREAS A. GENERAL: The GARDEN and all its furnishings and amenities shall be used by FRIENDS for the purpose for which they were intended. FRIENDS may allow the GARDEN to be used by other individuals and/or parties for social or other functions. In no case, however, shall the GARDEN be operated on a private club or d i membership ba81s by FRIENDS. FRIENDS may operate an /or prow de catered and/or other food and beverage services and merchandise concessions from or within the GARDEN in conjunction. with its regular operations, programs, and/or special events in accordance with the provisions of this Agreement. i B. WATSON ISLAND PARK: FRIENDS may conduct special events, activities and/or programs within the PARK adjacent to the GARDEN, upon the written approval of the DIRECTOR, upon payment of any additional consideration if so required, and in accordance with such conditions and limitations as may be prescribed by DIRECTOR. FRIENDS shall allow unrestricted public access to all areas of the PARK. V. ADVISORY COMMITTEE A. ESTABLISHMENT AND MEMBERSHIP: Within ninety (90) days of the execution of this Agreement, an Advisory Committee of not less that five and not more than nine members shall be appointed by the CITY MANAGER, or designee, and by the Chairperson of the Board of FRIENDS. The CITY MANAGER shall have the power to appoint a maximum of five (5) Committee members and the Charrperson shall have the power to appoint a maximum of four (4) Committee members. The membership of' the Advisory Committee shall be comprised of individuals from within the following categories, without limitation as to the number of individuals from each category: a representative from the membership of FRIENDS, a representative from the local Japanese Community, CITY staff from the DEPARTMENT and/or other CITY Departments, private citizens with business and/or marketing expertise relevant to this Agreement, and/or a representative from other local a governmental or quasi -governmental entities in the field of cultural affairs. Members shall each serve a term of three (3) years. The Advisory Committee shall elect its Chairperson from among its members by a majority vote of the Committee members. Vacancies shall be filled by appointment by the CITY MANAGER or FRIENDS' Chairperson, as applicable. Be.FUNCTIONt The function of the Advisory Committee shall be: to provide general supervision of and assistance to the FRIENDS in, their performance under this Agreementf to facilitate cooperation between the CITY and 'FRIENDS; to review the annual budget., goals and objectives of the FRIENDS for the QARDZRr'�`an to review and assist in, matters related to grants and ,capftal improvements. , 0 VI. GENERAL RESPONSIBILITIES AND PRIVILEGES A. GENERAL REQUIREMENTS: During the course of this Agreement and any extensions thereof, the FRIENDS will. undertake the f.oltowing activities in the conduct of its obligations hereunder: 1. Representation: The FRIENDS shall designate one individual within its organization to serve as its REPRESENTATIVE in a coordinating capacity who will meet and converse regularly with LIAISON, prepare and/or submit required documentation, and who will generally function as the point of contact between CITY and FRIENDS. If REPRESENTATIVE fails to adequately fulfill his/her responsibilities to the satisfaction of the DIRECTOR, FRIENDS shall designate another individual to serve in this capacity upon ten (10) days notification by DIRECTOR. 2. Resources: The FRIENDS shall devote adequate and necessary personnel, financial and other resources as required to meet its responsibilities under this Agreement in a timely manner. 3. Compliance: The FRIENDS shall comply with all applicable time and fiscal requirements of this Agreement. B. SPECIFIC RESPONSIBILITIES: The FRIENDS shall perform in a management/administrative capacity over the GARDEN, and shall operate, maintain and improve the GARDEN in accordance with the detailed provisions of this Agreement. VII. ADMINISTRATIVE MANAGEMENT A. GOALS AND OBJECTIVES: On an annual basis coinciding with the anniversary date of this Agreement and the submittal of its annual budget for the GARDEN, as further defined herein, FRIENDS shall prepare a detailed plan of goals and objectives pertaining to the overall management of the GARDEN. activities which will be undertaken at or for the GARDEN for the following year. Said programmatic plan shall be submitted to DEPARTMENT within forty-five days of execution of this Agreement and thereafter within sixty (60) days prior to the anniversary date for each annual period. C. ESTABLISHMENT OF FEES: Upon execution of this agreement, FRIENDS shall be hereby authorized to collect fees for the use of the GARDEN for social functions and for particular cultural and recreational programs on a participant basis, in accordance with existing and applicable provisions of the CITY Code. Within sixty (60) days of execution, FRIENDS shall conduct a survey of similar cultural facilities and make recommendation to the DIRECTOR as to the fees to be charged for daily admission, for various regular activities and programs, for gated special events, and/or for the booking of the GARDEN and related services for weddings and other social functions. DIRECTOR shall review same, and upon agreement of both parties as to fees and charges, shall submit enabling legislation to establish said fees for adoption by the CITY Commission. Said fees and charges may be modified in the same manner from time to time during the term of this Agreement. D. ESTABLISHMENT OF HOURS: Within thirty (30) days of the execution of this Agreement, FRIENDS shall make a recommendation as to the scheduled hours and days of general public access to the GARDEN, as well as to the schedule for other programs and activities. This schedule of openings may be phased to increase during the term of this Agreement. The DIRECTOR shall review said schedule, and upon agreement of both parties, shall approve said schedule for implementation. If applicable, DIRECTOR shal submit said schedule to the CITY MANAGER for review and approval. E. PROCEDURES FOR USE BY OUTSIDE PARTIESs FRIENDS shal.l establish policies, procedures and permits for the use ot,the GARDEN by outside parties for social and other functiona,; which shall comply with the Code of the City of Miami and the F. STAFFING: FRIENDS shall be responsible for the necessary staffing, whether by paid employees or volunteers, required for the management, maintenance and operation of the GARDEN, except as may be otherwise provided herein. VIII. FISCAL MANAGEMENT A. COMPREHENSIVE BUDGET: FRIENDS shall prepare a comprehensive annual budget for the GARDEN, which shall include a detailed section of goals and objectives. Said budget shall be in line - item form, containing revenue projections and proposed expenditures of revenue generated from or on behalf of GARDEN. Said budget shall be submitted to DEPARTMENT within forty-five days of execution of this Agreement and thereafter within sixty (60) days prior to the anniversary date for each annual period. The DIRECTOR shall review said budget and approve it if the financial and other resources are adequate to cover proposed programs and activities consistent with the obligations hereunder. The DIRECTOR shall not approve any expenditure of revenue generated from or on behalf of the GARDEN except those expenditures that are utilized for the GARDEN and/or for programs or activities related to the FRIENDS' responsibilities and privileges granted under this Agreement. B. ACCOUNTING METHODS: Within thirty (30) days of execution of this Agreement, FRIENDS shall provide the CITY with a letter from an independent certified public accountant (C.P.A.) stating that FRIENDS' internal controls are adequate to safeguard its assets and properly record funds and reconcile transactions. C. SEGREGATED ACCOUNTS: FRIENDS shall maintain a separate bank account for use and entry fees and for other such revenue generated from or received on behalf of the GARDEN. D. AUDIT RIGHTS: CITY reserves the right to audit the records of FRIENDS at any time during the performance of this Agreement and for a period of three years after the expiration of this Agreement or any extensions thereof. E. FUNDS FOR CAPITAL IMPROVEM NT8's FRIENDS shall have "'the authority to identify and obtain' funds for IMPROVEMENTS to 'tfi�r GARDEN, provided that such IMPROVEMENTS are consistent with the character of the GARDEN, the PLAN, and/or the responsibilities assumed by FRIENDS under this Agreement, and provided that such IMPROVEMENTS are performed in the manner prescribed herein. If FRIENDS and the DIRECTOR agree in advance that such funds are to be expended for IMPROVEMENTS to be conducted by the CITY, then the CITY shall be responsible for the fiscal control and monitoring of such funds, and the following provisions shall apply: 1. Authorization: The FRIENDS shall submit to LIAISON for DIRECTOR's approval all requests, applications, and required documentation, for grants and/or donations prior to submittal to funding agency. 2. Receipt of Grant Funds: The FRIENDS shall ensure that all grants, donations and other revenue received for improvements to the GARDEN are made jointly payable to CITY and FRIENDS. F. RECORDS: 1. General: Upon execution of this Agreement, the form of all records, reports and operating controls relative to funds generated from and/or received on behalf of the GARDEN, are subject to the review and approval of CITY's Internal Auditor. Such records and reports shall be kept separately and apart from any other business or businesses of FRIENDS, shall be made available in Dade County, and shall be open for inspection by CITY's authorized representative during times and under circumstances agreed upon by both 2. parties. Records: FRIENDS agrees to prepare, and maintain throughout the Agreement term, true, accurate and complete records and accounts of all revenues ari$ng from, or occurring by virtue of, the operation of the GARDEN, in accordance with generalLy acceptable accounting principles which shall be consiateAtlir followed. Such records .and accounts shall include sales slips, cash register tapes, bank statements, and/or other such records which certify the information contained in FRIENDS' quarterly reports and annual statements. FRIENDS shall provide point of sale machines or such other accounting control equipment deemed reasonably necessary by CITY's authorized representative for proper control of cash and payments. FRIENDS shall further maintain copies of all sales and income tax returns covering its operations in or from the GARDEN. G. ANNUAL AUDIT REPORT: Within sixty (60) days after each anniversary date of this Agreement, FRIENDS shall submit to DEPARTMENT a statement prepared and certified by an independent Certified Public Accountant (CPA) showing revenues and expenditures for the preceding year. The CPA's services shall be provided at FRIENDS' sole cost and expense. Said C.P.A. shall certify his complete examination of all books, records of accounts, State sales and Federal Income tax returns of FRIENDS. H. ADDITIONAL REPORTS: If requested by CITY, FRIENDS shall submit quarterly revenue and expense reports to the CITY MANAGER or his designee„ I. TAXES: During the term of this Agreement and any extensions thereof, FRIENDS shall pay whatever taxes are lawfully levied against the GARDEN. IX. IMPROVEMENTS A. GENERAL: 1. Design of IMPROVEMENTS: FRIENDS understands and agrees that IMPROVEMENTS installed or constructed in the GARDEN and/or adjacent Areas, if authorized by the CITY MANAGER or designee, shall conform to and/or complement the existing design of the GARDEN and PLAN. Any IMPROVEMENTS shall be subject to the review and approval of the CITY, CITY MANAGED, and other persons or entities with jurisdiction, as applicable.—' to 1000 2. Completion of PLAN: Both parties shall work together to achieve completion of IMPROVEMENTS detailed in the PLAN, the remaining elements to include, without limitation, irrigation system, lighting, and pond repair. 3. Additional Area: Recognizing the need of FRIENDS to have a structure to house its maintenance and other equipment, its staff for the day-to-day operation and management of the GARDEN, for concession operations, and for restroom facilities for its personnel and the public, the CITY MANAGER or designee may authorize the use of an additional area immediately adjacent to but outside the existing GARDEN which shall be of sufficient size to accommodate such a structure, upon presentation of the required plans and specifications as provided herein. Such additional area shall be incorporated into the GARDEN as defined and provided herein, by attachment hereto of the necessary plans and approvals. 3. Closure during Construction: During the course of actual construction or installation of IMPROVEMENTS, designated areas of the GARDEN or PARK may be closed to the public by FRIENDS, upon the approval of the DIRECTOR. The DIRECTOR may also designate a specific storage area within the PARK for use by FRIENDS during such construction and/or installation. 4. Completion of Work: Upon completion of any and all - IMPROVEMENTS, the GARDEN and all adjacent areas of the PARK shall be left in good order and in a completes - finished state. The CITY shall have the right to accept or reject completed work subject to the provisions contained herein. - B. PERFORMANCE GUARANTEE -.- The CITY reserves the right, to require a pertOFX4,000 f ga aarantee to ensure the proper completion of author d _ �� Sxk'•t �N' { Y vr` I AD IMPROVEMENTS conducted by FRIENDS or its agents. If required by the DIRECTOR, prier to the start of work for any IMPROVEMENTS, FRIENDS shalt submit to DIRECTOR a performance guarantee in an amount equal to the total cost of approved IMPROVEMENTS. Such guarantee shall ensure the faithful performance of all conditions pertinent to such IMPROVEMENTS, including prompt payment of contractual indebtedness. The form of the performance guarantee shall conform to applicable CITY Code provisions. C. IN -KIND DONATIONS= FRIENDS may seek private, corporate and other donations of goods, materials and/or services required for the completion of. IMPROVEMENTS, provided that FRIENDS shall obtain approval of DEPARTMENT and/or PUBLIC WORKS, as applicable, to ensure that any proposed in -kind donations adhere to specifications and/or other requirements, prior to acceptance of any in -kind donations. D. SCHEDULE IMPROVEMENTS undertaken by FRIENDS are to be completed in accordance with a schedule to be mutually determined by FRIENDS, DEPARTMENT and PUBLIC WORKS. Extensions may be granted only upon written request and explanation to the DIRECTOR, who shall not unreasonably withhold approval. E. APPROVALS: FRIENDS agrees that no IMPROVEMENTS may be undertaken in or upon the GARDEN unless the plans and specifications: 1. Are first submitted to the DIRECTOR, for presentation and review by all Departments and Offices with jurisdiction, and 2. Are approved by the CITY MANAGER or designee, and 3. Are in compliance with all State, County and CITY rules and regulations, and those of any other agency or public authority that may have jurisdiction in these matters. FRIENDS shall obtain all requisite approvals from all publIC authorities for such IMPROVEMENTS and provides 'satisfactory �12 - evidence of same to DIRECTOR and/or appropriate CITY agencies. The parties mutually agree to use their best efforts to assist one another in obtaining requisite approvals from any and all public authorities. FRIENDS shall use due diligence to obtain requisite approvals, to comply with local building code requirements and to promptly make all changes on plans or drawings as may be requested by said public authorities. F. QUALITY OF IMPROVEMENTS The quality of IMPROVEMENTS to the GARDEN shall be equal or comparable to that of other public or private facilities of its type operating in Dade, Broward, and Monroe Counties in the State of Florida. G. RIGHT OF INSPECTION During construction or installation of IMPROVEMENTS, the CITY through the DEPARTMENT and PUBLIC WORKS or other representative may inspect the work being performed and the - materials being used or to be used in the performance of such work. If during construction on the site, the CITY though such representative shall reasonably determine the materials do not substantially conform to the approved specifications or that the construction is not substantially = in accord with the plans, specifications and drawings previously approved, notice shall be given to FRIENDS specifying the nature of the deficiency, defect, or omission. Upon receipt of such notice, FRIENDS shall, promptly take such steps as may be necessary to correct such defects, deficiencies or omissions. H. FINANCIAL RESPONSIBILITY FOR IMPROVEMENTS IMPROVEMENTS undertaken by FRIENDS shall be conducted at its sole cost and expense, in accordance with the provisions of - this agreement. I. OWNERSHIP OF IMPROVEMENTS All IMPROVEMENTS shall become the property of CITY and shall remain in or as a part of the QARDVN. At the expiration of this Agroement. Plans# dr- awinge, related documents andWHim $' 4 Of 1 specifications pertaining to said IMPROVEMENTS shall also become the property of the CITY. J. IMPROVEMENTS BY CITY The CITY through the DEPARTMENT and PUBLIC WORKS or other authorized entity shall have the right to undertake IMPROVEMENTS to the GARDEN in accordance with the PLAN, or •as deemed in the CITY's best interest, providing that the CITY shalt not: conduct tmPizovFmv:N,rs to the GARDEN without the express consent of FRIENDS as to the nature and scheduling of such IMPROVEMENTS. K. REMOVAL OF PROPERTY OR FIXTURES FRIENDS shall have the right to remove any movable personal property or fixtures that it places in or on the GARDEN. X. 14AINTENANCE AND REPAIRS: A. GENERAL: 1. Except as may be otherwise provided herein, FRIENDS shall be responsible for all necessary maintenance and repairs required for the GARDEN, including IMPROVEMENTS thereto, throughout the term of this Agreement. The GARDEN, IMPROVEMENTS and all related aspects and fixtures, including, without limitation, electrical fixtures, lighting, plumbing, walkways, pavilion, and landscaping, shall be maintained in acceptable working order and safe condition and in an attractive, clean and appropriate condition to the satisfaction of DIRECTOR, or designee. at all times during the term of this Agreement. 2. Except as may be otherwise provided herein, 'the DEPARTMENT shall provide such maintenance assistance as may br deemed appropriate by the DIRECTOR during the first year of this Agreement in order to ensure the proper functioning of the GARDEN. However, it is the intent of both parties that the' GARDEN shall• ` be II. MAINTENANCE PROGRAM: 1. Maintenance Personnel: FRIENDS will appoint at least two (2) persons to perform the maintenance of the GARDEN and structures; DEPARTMENT will identify a CITY employee who will be trained and educated in the particular maintenance techniques required for the GARDEN. The LIAISON will assist FRIENDS with 2. 3. 4. 5. maintenance problems when authorized by DIRECTOR. Expert Instructor: An expert instructor in Japanese Gardening will be selected by both parties to train FRIENDS and CITY personnel in the upkeep of the GARDEN. In the event that the FRIENDS and/or CITY changes maintenance personnel, said expert will train the new personnel or a new instructor will be appointed. If required, the expense of the expert instructor will be borne by CITY. Watering/Irrigation: FRIENDS shall water the lawns weekly (during wet season) or twice weekly (in dry season) after dawn. When installed, the underground sprinkler system is to be used by FRIENDS with same regularity. If approved by DIRECTOR, CITY shall make necessary repairs to sprinkler system for the first year of its operation, upon notification of the need for such repair by FRIENDS. FRIENDS shall assume said responsibility for the remainder of the term of this Agreement and any extensions thereof. General Cleaning: The GARDEN, including the pavilion and other structures, is to be cleaned in its entirety at least every other week by FRIENDS, or more often if required. Landscape Maintenance The shrubs, lawn, walkways and rock garden are to be attended to twice monthly, by FRIENDS, or more often if .required, by mowing, trimming, edging and weeding, as applicable. t 6. Pond: Within one year of the execution of this Agreement, the CITY will. undertake repairs to the pond in accordance with the PLAN, if funds are available, or otherwise to seal the pond to ensure water retainage. The FRIENDS shall keep the pond clean or covered during Such time. when in proper working order, the pond shall be kept clean by removing all dead leaves, and the like, by FRIENDS. If fish are stocked in the pond by FRIENDS, the pond and the fish shall be kept in a manner sufficient to ensure their survival. 7. Lighting: CITY will endeavor to install security lighting around the GARDEN within the first eighteen (18) months of this Agreement. The maintenance and/or repair of such new lighting in the GARDEN shall be the responsibility of the CITY for the first six (6) months of its operation, and thereafter shall be the responsibility of the FRIENDS, unless otherwise approved by the DIRECTOR. The maintenance and/or repair of existing lighting shall be the responsibility of the CITY for the first six (6) months of this Agreement, and thereafter shall be the responsibility of the FRIENDS. The maintenance and/or repair of such lighting installed as IMPROVEMENTS to the GARDEN by FRIENDS shall be the responsibility of the FRIENDS. 8. Fencing: The fence surrounding the garden shall be maintained in good repair by CITY for the first six (6) months of this Agreement, and thereafter shall be the responsibility of the FRIENDS, unless otherwise approved by the DIRECTOR. 9. Restrooms: The CITY shall provide FRIENDS with access to existing restroom facilities within the PARK upon execution of this Agreement. Said restroom facilities which shall be maintained and cleaned after each use'by FRIENDS. The CITY shall clean said restroom facilitties after each use by CITY. Upon construction of now restroom facilities within the GARDEN, the new -16- 10. 11. 12. 13. facilities shall be maintained and cleaned regularly, as often as needed, by FRIENDS. FRIENDS shall then terminate its regular use of existing restroom facilities, however, the DIRECTOR may approve their use for special events as may be conducted by FRIENDS. Storage Facility: Upon execution of this Agreement, the CITY shall provide FRIENDS with an existing available storage facility located within the PARK, until such time as the necessary IMPROVEMENTS are conducted for a separate structure to house FRIENDS' operations and equipment. Should such existing available storage facility be required by CITY for the housing of the proposed new irrigation pump equipment prior to the construction of the separate structure, then the CITY shall identify and make available to FRIENDS an alternative storage facility. Walkways: CITY, through the DEPARTMENT, shall provide staff and equipment to roll the gravel walkways within the GARDEN three (3) times a year. The DIRECTOR may authorize such additional treatment(s) if he deems necessary, upon the request of FRIENDS. Maintenance Reports: FRIENDS shall submit regular reports to CITY detailing the condition of the GARDEN, particularly making note of safety factors and condition of CITY property. Such reports shall submitted at least quarterly, or as directed dy the DIRECTOR. Any emergency situation shall be reported to DEPARTMENT immediately upon FRIENDS' knowledge thereof. Refresher Course: The DEPARTMENT shall send suitable crews to the GARDEN once a year on an annual basis to work with staff of FRIENDS on the maintenance of the .GARDEN as a "refresher course" in Japanese Garden maintenance. The scheduling and duration 'of this $$ref.resher course" shall be mutually determined by DIRECTOR and FRIENDS. W 1 7 r f 10 00 14. Equipment and Supplies: FRIENDS shall provide all necessary equipment and supplies for all of ites responsibilities detailed herein, except as may be otherwise provided herein. 15. Outside Inspector: If required by any granting or funding agency, an appropriate outside inspector shall check the condition of the GARDEN on an annual basis, or as required, and submit a report of its condition to FRIENDS and the DIRECTOR. Represtatives of both parties to this agreeemtn shall be invited to attend said inspection. If there is anything that requires repair, the FRIENDS and/or CITY, as applicable, shall will take the necessary repair action thirty (30) days. C. CONDITION OF AREAS FRIENDS shall accept the GARDEN in its present condition and agrees to maintain it in the same, or better, condition, order and repair as it is at this time, and to keep it in an attractive, clean and sanitary condition throughout the"term of this Agreement. The DIRECTOR shall furnish to FRIENDS copies of all plans, drawings, documents and specifications pertaining to all fixtures, aspects, portions, structures and/or infrastructures of the GARDEN as the same exist at. the time of execution of this Agreement. D. RIGHT OF INSPECTION Throughout the term of this Agreement, the CITY, CITY MANAGER or authorized representative may inspect the GARDEN, the maintenance and repair services being performed therein, -= and/or materials being used in the performance of such maintenance and repairs. Should CITY, CITY MANAGER or representative determine that either the services or materials utilized in the GARDEN are deficient, or do not conform to the quality and type required herein, the DIRECTOR shall notify FRIENDS specifying the nature of, the deficiency, defect or omission, and FRIENDS shall promptly take ouch steps as may be necessary to correct such deficiency, defect or omission. Where such CITY *nspecltion 90 4M reveals a deficiency, defect or omission in maintenance or repair services and/or materials in the GARDEN, the DIRECTOR and FRIENDS shall mutually agree to the course of corrective action, which shall be undertaken by FRIENDS without delay. E. FINANCIAL RESPONSIBILITY FOR MAINTENANCE/REPAIRS FRIENDS shall provide all such maintenance and repair services and materials as required and described herein at its sole cost and expense throughout the term of this Agreement. F. REPLACEMENT/REPAIR: 1. Except as may be specifically provided herein to the contrary, FRIENDS shall repair or replace, at its own expense, any and all related aspects and fixtures of the GARDEN, including, without limitation, equipment, furnishings, electrical fixtures, lighting, plumbing, walkways, pavilion, structures and landscaping, and any IMPROVEMENTS thereto, which have been destroyed, damaged, or become inoperable due to the action of FRIENDS in the conduct of its rights and responsibilities hereunder, or to normal wear and tear through FRIENDS' use under this Agreement. 2. Should FRIENDS fail -to repair any damage caused to the GARDEN within ten (10) days after the receipt of written notice from CITY directing the required repairs, CITY shall cause the GARDEN to be repaired at the sole cost and expense of FRIENDS. FRIENDS shall pay CITY the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. Failure to pay such invoice shall be sufficient cause for a finding of Default, as provided herein. Notwithstanding the above, the FRIENDS may be found in default due to its failure to repair the premises as directed without the necessity of CITY repairing the GARDEN. MA ..1 9 �,� G. CITY APPROVAL FOR MAJOR REPAIRS In the event that repair is required to any fixture, aspect, portion, structure and/or infrastructure located in or servicing the GARDEN, and the cost of such repair is estimated to exceed of Four Thousand Dollars ($4,000), the DIRECTOR's approval shall be required prior to the commencement of any work. Said repair work shall I HF I. A. B. procedurally conform to the conditions stipulated in Sections IX herein and shall be in compliance with all other applicable provisions of this Agreement. MAINTENANCE/REPAIR OF IMPROVEMENTS Except as may be otherwise provided herein, the maintenance and repair of IMPROVEMENTS to the GARDEN that are conducted during the term of this Agreement shall be the responsibility of the FRIENDS. TRANSFER OF PLANS, CONTRACTS Upon expiration of this Agreement, copies of all plans, drawings. and/or specifications relating to maintenance and repair of the GARDEN shall become the property of the CITY. Any and all contracts for repair and/or maintenance services shall be transferred without penalty or initial charge to the CITY, provided that the DIRECTOR or designee desires to retain such services. XI. OPERATIONS GENERAL It is understood and agreed that FRIENDS shall operate the GARDEN in accordance with the terms and conditions of this agreement, with due diligence in its observance of the; provisions of Sections III and IV herein, entitled 'Purpose"l and "Use of Areas", respectively. CONSULTATION WITH CITY FRIENDS and DIRECTOR _shall consult regularly with reference to the operations of GARDEN, to review such operations and, the proper` conduct thereof. CITY shall have the -right- to reject the character of services ` " and require,: th t, +x xf'�at_+ E..ed �Ta�M FS undesirable practices be discontinued Or remedied. FRIEN DS's failure to act appropriately after notice from the CITY MANAGER or designee will result in termination of this Agreement. C . HOURS/ DAYS OF O PE RA'r I ONS 1. FRIENDS shalt open the GARDEN to the public during the days and times established by FRIENDS and approved by the DIRECTOR or CITY MANAGER as required under this Agreement. Adjustments to said regular schedule of times and days of operation shalt be made upon written notice submitted by FRIENDS to the DIRECTOR and his approval thereof. FRIENDS shall provide adequate time during the course of its ongoing operations for all necessary management responsibilities, maintenance, repairs, and/or IMPROVEMENTS. 2. It is intended by both parties that the GARDEN shall be open as follows: on a regular basis, at least once a week, to the general public; on a regular basis, approximately once a month, for specific programs and/or activities such as flower arranging demonstrations or tea ceremonies; and as the market and general public require, for social functions such as weddings. The minimum once per week opening for the general public shall commence upon execution of this Agreement. The days and hours of other activities shall be implemented in accordance with the schedule approved by the DIRECTOR under the terms of this Agreement. 3. FRIENDS shall furnish and install a sign designating the closing hours of the GARDEN, pursuant to'Section 38-6 of the CITY Code. D. CONCESSION OPERATIONS 1. Regular Concessions: FRIENDS may provide and offer for sale to the public a variety of food and beverage items and/or merchandise suitable for the GARDEN in a "gift shop" or similar type of facility. 'Prices for such 41 g. d s items and merchandise are permitted to fluctuate with wholesale market costs. All prices shall be visibly posted or marked on the items offered for sale. 2. Catering: FRIENDS may offer appropriate food and beverage services to USERS for social. functions or participants in ongoing programs as described herein, and may hire licensed caterers to provide same. 3. Alcoholic beverages: Wine, beer and other alcoholic beverages may be dispensed or offered for sale to the extent permitted by applicable state and local laws and subject to regulations established by the CITY MANAGER or the DIRECTOR. The CITY Commission, CITY MANAGER, or DIRECTOR retain the right to restrict, limit and/or prohibit such sales for a reasonable period of time when deemed in the CITY's best interest. FRIENDS shall provide, at its sole cost and expense, all liability insurance, licenses and permits required for the legal sale of alcoholic beverages and shall maintain and renew same in a timely fashion throughout the Agreement term. 4. FRIENDS shall not sell any goods outside of the GARDEN, unless otherwise approved by the DIRECTOR, or designee. E. PERSONNEL 1. The FRIENDS shall provide, train and supervise personnel with appropriate qualifications and experience in sufficient numbers to provide -all services necessary for the operations and responsibilities assumed under this Agreement. 2. The FRIENDS shall use its best efforts to not employ or utilize any person who shall use improper language or; who acts in .a loud or boisterous manner. Staff shall, be clean, courteous, efficient and properly trained,. Staff shall be neatly and cleanly attired at all;ti;as when the GARDEN is open to the general public..or other USERS. V F . PARKI NG The FRIENDS shall ensure that its members, staff and the general public park only in the parking area designated for the GARDEN. The FRIENDS shall not permit staff or other persons to park vehicles within the GARDEN, unless specifically required for maintenance purposes. G. SECURITY if required for r3ngoing operations, social functions, and/or special events, FRIENDS shall provide qualified and licensed individuals or firms to provide security for public safety and property protection. Such security for the GARDEN shall be provided at all times deemed necessary by FRIENDS to ensure USER and public safety at FRIENDS' sole cost and expense. The DIRECTOR shall be advised of the need for such security services and the provider thereof. H. SPECIAL EVENTS Upon the approval of the DIRECTOR, FRIENDS may conduct special events in the GARDEN and PARK for fundraising and marketing/community outreach purposes. FRIENDS shall be responsible `for the payment of City services -`and fees as may be, required for said special e«ents,'as determined by the DIRECTOR. t _5 .y xII. CITY RESPONSIBILITIES - A LIAISON: The DIRECTOR shall appoint an employee' or representiatfive '`of� the DEVARTMENT. -tQ `setae a the point of — contact, super isor `and coordinator in, ua�tters rei if Fl,`. Fib 4 S this Agreement. y g, GRANT 'AND LEGISLATIVB 'ASSI6TANCEa .The- "CI,TTYj "jtha 609 _ ±4) t t 1 1 €"Ak r s"fix v DEPARTkENT and/o1r', the ::.Department ,, of Devslt3p�lent £54 3 j`a provide` admini ati itine ` ya'68,tstancQ, as may available, to the FRIEND& for the preparation and 4UIM, r C a'hl� of grant appli.cattioO and, d stagy xr s xs, �.-,+�kd'in1,( 'iuo1►na4i�'sd - 3£ bo '•yj�'.y�] A��/ 1 syy. k. is y t� _ El 0 same from its own resources. The CITY, through the DEPARTMENT or other entity, shall prepare all necessary legislation as may be required for CITY Commission review. C. MAINTENANCE ASSISTANCE: As detailed in Section X herein, the CITY shall provide limited maintenance assistance to the FRIENDS, during the first year of this Agreement and as provided herein. D. FUNDS FOR IMPROVEMENTS: The CITY shall seek to identify and/or obtain the necessary funding for the completion of IMPROVEMENTS in accordance with the PLAN. Such activity shall not preclude the FRIENDS from identifying alternative and independent funding sources for the same IMPROVEMENTS. E. TIMELY REVIEW: The CITY shall conduct a timely review of all requests, reports and/or other documentation submitted to it by FRIENDS. F. OTHER: Nothing contained in this Section shall prohibit the CITY from fulfilling such other responsibilities as may be detailed herein. XIII. SUPPLIERS AND SUBCONTRACTORS If required by CITY, FRIENDS shall furnish to DIRECTOR a complete and detailed listing of all suppliers and/or subcontractors hired for or utilized in the performance of obligations stipulated in this Agreement. XIV. MINORITY PROCUREMENT COMPLIANCE FRIENDS acknowledges that it has been furnished a copy of Ordinance No. 10538, the Minority and Women's Business Affairs and Procurement Ordinance of the CITY of Miami, and agrees to comply with all applicable substantive and procedural provisions therein, including any amendments thereto. XV. UTILITIES Electrical service to the proposed new security lighting;' as detailed in Section X.B.7 herein, shall be the responsibility'of the CITY ,for the f irst six months ' of 'the operation cif 641 -240m, u 44 st;nor X,,, same from its own resources. The CITY, through the DEPARTMENT or other entity, shalt prepare all necessary legislation as may be required for CITY Commission review. C. MAINTENANCE ASSISTANCE: As detailed in Section X herein, the CITY shall provide limited maintenance assistance to the FRIENDS, during the first year of this Agreement and as provided herein. D. FUNDS FOR IMPROVEMENTS: The CITY shall seek to identify and/or obtain the necessary funding for the completion of IMPROVEMENTS in accordance with the PLAN. Such activity shall not preclude the FRIENDS from identifying alternative and independent funding sources for the same IMPROVEMENTS. E. TIMELY REVIEW: The CITY shall conduct a timely review of all requests, reports and/or other documentation submitted to it by FRIENDS. F. OTHER: Nothing contained in this Section shall prohibit the CITY from fulfilling such other responsibilities as may be detailed herein. XIII. SUPPLIERS AND SUBCONTRACTORS If required by CITY, FRIENDS shall furnish to DIRECTOR a complete and detailed listing of all suppliers and/or subcontractors hired for or utilized in the performance of obligations stipulated in this Agreement. XIV. !MINORITY PROCUREMENT COMPLIANCE FRIENDS acknowledges that it has been furnished a copy of Ordinance No. 10538, the Minority and Women's Business Affairs and Procurement Ordinance of the CITY of Miami, and agrees to comply with all applicable substantive and procedural provisions therein, including any amendments thereto. XV. UTILITIES Electrical service to the proposed new security lighting, a detailed in Section X.B.7 herein, shall be the responsibility'o the CITY for the ftrot six months of the operation 'of maid. JS` -24- ..r. 0 E lighting, and thereafter shall be the responsibility of the FRIENDS. FRIENDS shall provide all utilities, including but not limited to, electricity, water, telephone, gas, sewage, and trash and garbage removal for the GARDEN. All charges for said utility services, installation and/or connections are the responsibility of FRIENDS, except as otherwise provided in this Section. XVI. ADVERTISING FRIENDS shall not allow any signs or advertising matter to be placed either in the interior or upon the exterior of the GARDEN without having first obtained the approval of the CITY MANAGER or designee. XVII. CITY'S RIGHT OF ENTRY CITY, or any of its properly authorized agents, representatives, or employees, shall have the right to enter the GARDEN during all reasonable working hours, to examine and/or inspect same, or at any time for any purpose deemed necessary to, incidental to, or connected with the performance of FRIENDS's duties and obligations hereunder, or in exercise of its rights or functions, throughout the Agreement term. CITY shall further retain the right to use the GARDEN for its own purposes upon thirty (30) days advance written notice to FRIENDS by the DIRECTOR, upon FRIENDS's agreement to the date(s) requested, for such consideration as may be mutually agreed upon, and without undue interference with the responsibilities assumed hereunder by FRIENDS. XVIII. RISK OF I,OSS FRIENDS shall save harmless the CITY, its agents, officers and employees against all risk of loss, injury, damage or loss of use: of any kind or nature whatsoever to property now or hereafter placed on or within said GARDEN, and all risk of loss, injury, damage or loss of use of any kind or nature whatsoever''to the contents of the GARDEN or` IMPROVEMENTS to the structure' or structures, or to any goods, chattels, merchandise nor to a"y other property that may now or hereafter be ; placed upon ISA141 GARDEN, whether belonging to FRIENDS or others, whether said loss, injury or damage results from fire, hurricane, rising water or any other peril, cause of action or other contingency, and whether the same be caused by the negligence of the CITY or any of its employees, agents, or otherwise, and to keep harmless CITY from all claims and suits growing out of any such loss, injury, damage or loss of use. XIX. INDEMNIFICATION: FRIENDS shall pay on behalf of, indemnify and save the CITY, its agents, officers and employees, harmless from and against any and all claims, liabilities, losses, and causes of action, which may arise from any bodily injury, loss of life--, damage to property or loss of use stemming from any and all activities under this Agreement, including all acts or omissions to act on the part of FRIENDS, its officers, employees, volunteers, representatives agents, contractors, subcontractors and USERS against any orders, judgments or decrees which may be entered and from and against all costs, attorney's fees, cost of defense, or the investigation _ thereof. This indemnification shall include any action - challenging or protesting the selection of FRIENDS, and shall include thecost of the defense of any such challenge or protest. XX. INSURANCE: Y A. ADDITIONAL INSURED: FRIENDS is required to name CITY as an Additional Insured on their policy or policies, exclusive of workers' compensation B. policies. Unless otherwise approved by CITY, all USERS,, contractors and subcontractors of FRIENDS shall name FRIENDS. and the CITY as Additional Insureds on their policies for;, activities conducted on or related to the GARDEN.-, REQUIRED COVERAGES AND LIMITS: Insurance coverage for the FRIENDS required uncle r .khis, Agreement shall include a severability of interept/.cros liability provision for the CITY, which shank provide that failure on the part of FRIENDS to comply with any of the, policy provisions shall not void any coverage for the CITY, ' ..� 1. General: The required insurance shall be written in a manner such that the policy or policies may not be cancelled, non -renewed or adversely changed without thirty (30) days advance written notice to CITY. Written notice shall be sent to the Insurance Coordinator, Law Department at the address indicated below. 2. General Liability: FRIENDS shalt maintain throughout the term of this Agreement, Comprehensive General Liability Coverage, or its equivalent as approved by the Insurance Coordinator, on an occurence form with a limit of at least $1,000,000 per occurence for premises, operations, bodily injury, and property damage. Products and Completed Operations, Fire Legal Liability broad farm, Personal Injury, and Contractual Liability shall be included. If alcoholic beverages are sold, Liquor Liability coverage shall also be included. Other forms of insurance coverage as may be necessary in the course of business conducted under this Agreement shall also be included. 3. Auto/vehicle Coverage: FRIENDS shall maintain in force for the length of this Agreement, vehicular liability insurance covering all owned, non -owned, and hired vehicles used in connection with its obligations = arising out of this Agreement. Coverage shall be written with at least a combined single limit of _ $300,000 for Bodily Injury and Property Damage. 4. Workers' Compensation: The FRIENDS shall at all times - during the term of the Agreement subscribe to. .and comply with applicable Worker's Compensation Laws and similar laws, of the State of Florida and pay such premiums as may be required thereunder. The FRIENDS agrees that it shall be solely responsible for paying — workers' compensation benefits to ids' etgpl4yeea (bUk not I TY' $ employees) . 1 r F w �27-i ,. i Tw7,'31.` s Ilk 5. Replacement Basis: Coverage shall be provided on a replacement cost basis for real and personal property located in the GARDEN and/or other Areas operated and/or maintained by FRIENDS. C. COMPANIES WRITING COVERAGE: All required insurance policies must be written by a company or companies that are satisfactory to the CITY as to management and financial strength ratings afforded in the latest edition of the A.M. Best's Insurance Guide, published by Alfred M. Best Co., Inc., Ambest Rd., Oldwick, N.J., 08858. The company or companies must be duly authorized to engage in insurance business by the State of Florida. D. EVIDENCE OF COVERAGE: Upon exectuion of this Agreement, the FRIENDS shall furnish a current Certificate of Insurance and/or policy to the CITY. Evidence of Insurance should be forwarded to: CITY of Miami - Law Department Attn: Insurance Coordinator One Southeast Third Ave. - Suite 1100 Miami, Florida 33131 Policies, forms and endorsements shall be submitted to the CITY within five (5) days receipt of notice from the CITY. Receipt of any documentation of insurance by the CITY or by any of its representatives which indicates less coverage than required under this Agreement shall not constitute waiver of the FRIENDS' obligation to fulfill the insurance requirements stipulated herein. XXI. DEFAULT: In the event FRIENDS defaults in the performance of any of the provisions of this Agreement, CITY shall have the following options, and its choice of any option shall in no way waive its right to select any other option at any time: A. The CITY MANAGER or designee may give the FRIENDS written notice of such default. If the FRIENDS does not cure said default within thirty (30) days after written notice was given or make reasonable progress to cure said defaulto CITY -28- i may terminate this Agreement, assume the operation of the GARDEN, and exclude the FRIENDS from the GARDEN and/or CITY may recover at law any and all. claims which may be due the CITY; and/or B. The CITY MANAGER or designee may direct the performance of such work as it deems necessary to cure said default and charge the FRIENDS for the full cost of labor and materials expended. XXII. ABANDONMENT: If GARDEN shall be vacated or abandoned by FRIENDS during the term of this Agreement for a period of thirty (30) days, the CITY MANAGER, or designee, at his option and without serving notice elsewhere required in this Agreement, may: (a) take immediate possession thereof for the remainder of the said term, and, at its discretion re -advertise and solicit proposals for the contract, with FRIENDS remaining liable for the unpaid balance of any payments herein required, and for all other obligations under this Agreement to the same extent as if said abandonment had not taken place; or (b) cancel this Agreement, without prejudice to its rights and remedies under applicable laws. XXIII. TERMINATION OF CONTRACT: CITY retains the right to terminate this Agreement at any time during the term of the Agreement for cause, without penalty to CITY. In such event, notice of termination of this Agreement shall be in writing to FRIENDS, and any monies owed to CITY shall be due immediately upon receipt of such notice. XXIV. NON-DELF.CABILITY: Except as may be otherwise provided herein, the obligations undertaken by FRIENDS pursuant to this Agreement shall not be delegated or assigned to any other person or firm unless the CITY MANAGER or designee shall first consent in writing to the performance or assignment of such services or any part thereof by another person or firm. -29- L2 XXV. ASSIGNMENT OR TRANSFER Except as may be otherwise provided herein, the FRIENDS shall not sublet, transfer, convey, assign nor permit the use of the rights, privileges or premises granted under this Agreement in whole or in part to any other person, firm or corporation without written consent of the CITY MANAGER or designee which consent may not be unreasonably denied. XXVI. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and assigns. XXVII. NON-DISCRIMINATION: FRIENDS agrees that it shall not discriminate as to race, sex, color, creed, national origin or handicap in connection with its performance under this Agreement. XXVIII. INDEPENDENT CONTRACTOR: FRIENDS and its employees and agents shall be deemed to be independent contractors, and not agents or employees of CITY, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the CITY or any rights generally afforded classified or unclassified employees; further, FRIENDS, its employees and agents shall not be deemed entitled to Florida Worker's Compensation benefits as an employee of the CITY. XXIX. CONFLICT OF INTEREST A. FRIENDS covenants that no person under its employ who presently exercises any functions or responsibilities in connection with this Agreement has any personal financial interests, direct or indirect, with CITY. FRIENDS further covenants that, in the performance of this Agreement, no person having such conflicting interest shall be employed. Any such interests on the part of FRIENDS or its employees, must be disclosed in writing to CITY. wlw% -30- B. FRIENDS is aware of the conflict of interest laws of CITY of Miami (Miami CITY Code Chapter 2, Article V), Dade County, Florida (Dade County Code Section 2-11..1) and the State of Florida, and agrees that it will fully comply in all respects with the terms of said laws. XXX. AWARD OF AGREEMENT: FRIENDS warrants that it has not employed or retained any person employed by CITY to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by CITY any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. XXXI. GENERAL CONDITION: A. All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail addressed to the other party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. FRIENDS FRIENDS OF THE JAPANESE GARDEN, Inc. 700 Lakeview Drive Miami Beach, Florida 33140 CITY OF MIAMI CITY MANAGER 3500 Pan American Drive Miami, Florida 33133 attn: Director, Dept. of Parks, Recreation and Public Facilities B. Titled, and paragraph headings are for convenient reference and are not a part of this Agreement. C, In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms in this Agreement shall rule. t, .� t B. FRIENDS is aware of the conflict of interest laws of CITY of tliami (Miami CITY Code Chapter 2, Article V), Dade County, Florida (Dade County Code Section 2-11..1) and the State of Florida, and agrees that it will fully comply in all respects with the terms of said laws. XXX. AWARD OF AGREEMENT: FRIENDS warrants that it has not employed or retained any person employed by CITY to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by CITY any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. XXXI. GENERAL CONDITION: A. All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail addressed to the other party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. FRIENDS FRIENDS OF THE JAPANESE GARDEN, Inc. 700 Lakeview Drive Miami Beach, Florida 33140 CITY OF 14IAMI CITY MANAGER 3500 Pan American Drive Miami, Florida 33133 attn: Director, Dept. of Parks, Recreation and Public Facilities B. Titles and paragraph headings are for convenient reference = and are not a part of this Agreement. C. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms in this .Agreement shall rule. -3� -AWN x f 1P D. Should any provisions, paragraphs, sentences, words or phrases 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 CITY, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to conform with such laws, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. E. Venue in any litigation, administrative or mutually agreed upon arbitration proceedings shall be in Courts or tribunals located in Dade County, Florida. XXXII. INTERPRETATIONS FRIENDS shall accept the decisions of the DIRECTOR as binding in matters of Agreement interpretation, providing, however, that FRIENDS shall appeal any decision he disagrees with, in writing, within thirty (30) days of such decision, to the CITY MANAGER, and providing further, however, that this shall not abridge the rights and remedies of the parties as are allowed by law. XXXIII. ASSURANCES AND CERTIFICATIONS: FRIENDS assures and certifies that FRIENDS possesses legal authority to enter into this Agreement; a resolution, motion, or • similar action has been duly adopted or passed as an official act of FRIENDS's governing body, authorizing the execution of this Agreement, including all understandings and assurances contained herein, and directing and authorizing the person identified as the official representative of FRIENDS to act in connection with FRIENDS and to provide such additional information as required. W32- =f XXXIV. WAIVER Except those provisions reserved for CITY, no waiver of any provision hereof shall be deemed to have been made unless such waiver be in writing signed by the CITY MANAGER, or designee. The failure of CITY to insist upon the strict performance of any of the provisions or conditions of this Agreement shall not be construed as waiving or relinquishing in the future any such covenants or conditions but the same shall continue and remain in full force and effect. XXXV. COURT COSTS AND ATTORNEYS FEES In the event that it becomes necessary for either party to institute legal proceedings to enforce the provisions of this Agreement, both parties agree that court costs and attorney's fees of the prevailing party shall be reimbursed by the non - prevailing party. XXXVI. CONSTRUCTION OF AGREEMENT: This Agreement shall be construed and enforced according to the laws of the State of Florida. XXXVII. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Both parties shall comply with all applicable laws, ordinances and codes of Federal, State and Local Governments. XXXVIII. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only Agreement of the parties hereto relating to said grant and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. XXXIX. AMENDMENTS: No amendments to this Agreement shall be binding on either party unless in writing and signed by both parties. * r¢ -33- IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by the respective officials thereunto duly authorized, this the day and year first above written. ATTEST: Matty Hirai, City Clerk ATTEST: Corporate Secretary APPROVED AS TO DEPARTMENTAL REQUIREMENTS: Alberto Ruder, Director Department of Parks, Recreation and Public Facilities APPROVED AS TO INSURANCE REQUIREMENTS: Segundo Perez Insurance Coordinator CITY OF MIAMI, a municipal corporation of the State of Florida BY: Cesar H. Odio, CITY MANAGER FRIENDS: FRIENDS OF THE JAPANESE GARDEN, Inc., a not - for -profit Florida Corporation By: signature print name, title Federal Employer I.D. Number: (SEAL) CORPORATE RESOLUTION WHEREAS, the Board of Directors of FRIENDS OF THE JAPANESE GARDEN Inc., has examined the terms, conditions and obligations of the proposed agreement with the CITY of Miami for the operation and management of the Miami - Ichimura Japan Garden; and WHEREAS, the Board of Directors, at a duly held corporate meeting, have considered the matter in accordance with the by- laws of the corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF FRIENDS OF THE JAPANESE GARDEN, INC., that the president and secretary are hereby authorized and instructed to enter into an agreement in the name of, and on behalf of this corporation, with the CITY of Miami upon the terms contained in the proposed contract to which this resolution is attached. IN WITNESS WHEREOF, this day of , 1989: ATTEST: CORPORATE SECRETARY CHAIRPERSON, Board of Directors Print name, title) (SEAL) - 35 - x SY G i{ 4 i 4 CITY or MIA1,11 FLORIDA INTER -OFFICE MEMORANDUM CA=22 'O Honorable Mayor and Members DATE -FILE of the City Commission NOV 3 w f98k 51tWFcResolut ion to pprove Contract: Friends of the Japanese Garden 9 AOM '� RUERENCES Cesar H. Odio, City Manager F�i�IOSURES RECOMMEND,ATI ON : It is respectfully recommended that the City Commission adopt the attached resolution authorizing the City Manager to execute an agreement, in the substantially attached form, with the Friends of the Japanese Garden, Inc. for the management and operation of the Miami - Ichimura Japan Garden located on Watson Island, for an initial term -of three (3) years, which may be extended by the City Manager -for three additional 3-year periods under the same terms and conditions and subject to satisfactory performance. BACKGROUND: The Department of Parks, Recreation and Public Facilities has prepared the attached legislation which would put into effect the management of the City -owned Japanese Garden by the Friends of the Japanese Garden, Inc., a local not -for -profit cultural organization. Near the end of the construction of recent improvements to the Garden, the Administration solicited proposals for the management of this unique cultural and recreational facility. Two proposals were received and a selection committee comprised of private citizens and city staff conducted their review and proposer interviews. The committee found that. the "Friends" offered the City the best combination of resources, including membership, experience, cultural skills and programs, and proposed maintenance and operations. The attached agreement was negotiated to detail the utilization of these resources -for the benefit of the community in the management of this park property. Under the terms of the proposed agreement, the "Friends" will be responsible for the regular opening of the Garden to the public, for ongoing programs (such as tea ceremonies and flower arranging) and periodic special events. They would also be allowed to permit the Garden out to private individuals for social functions such as weddings. Additionally, the "Friends" will be allowed to operate a small concession for related merchandise; to.seek and receive donations for the operation of 89-1104 Honorable Mayor and Members of the City Commission page 2 the Garden and for additional improvements as may be required, and to charge admission or use fees in accordance with City Code provisions, which may be amended to provide for a self-sustaining operation. All revenue generated from the Garden must be utilized for its maintenance, operation and/or improvement. In the short term, the Department and the Department of Development will provide limited assistance for maintenance and for the preparation of grant applications to outside entities. The "Friends" will be required to provide an annual budget and program, as well as regular financial reports. Any capital improvements _undertaken would be subject to normal City approvals. On the recommendation of the Ricoh Corporation, it was also agreed that an informal Advisory Committee be established, consisting of staff from both parties, as well as individuals from the community with business, marketing and cultural expertise. The Board would provide general supervision and assistance to the "Friends", particularly in its annual budget process and in the establishment of goals, objectives, and programs. Attachments: Resolution Agreement