HomeMy WebLinkAboutexhibit 1-management agreeMANAGEMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI
AND
BELAFONTE TACOLCY CENTER, INC.
FOR THE USE OF PROPERTY LOCATED AT
6161 NORTHWEST 9th AVENUE
MIAMI, FLORIDA
TABLE OF CONTENTS
ARTICLE I DESCRIPTION AND TERM
1.1 Description of Property 1
1.2 Term 2
1.3 Option to Extend 2
ARTICLE II PURPOSE
2.1 Purpose and Use 3
2.2 Other Organizations Use of Property 3
2.3 Commercial Activities Within The Property 4
2.4 Operations 4
2.5 Special Events 4
2.6 Rules and Regulations 5
2.7 Ticket Surcharge 5
2.8 Continuous Duty To Operate 5
ARTICLE III CONSIDERATION
3.1 Fee 6
3.2 Additional Payments 6
3.3 Late Payments 6
3.4 Returned Check Fee 6
3.5 Performance Deposit 7
3.6 Promotion of City 7
ARTICLE IV PROVIDER'S COVENANTS
4.1 Personnel 7
4.2 Annual Plan 8
4.3 Performance Review 8
ARTICLE V RECORDS AND AUDITING
5.1 Records of Operations 9
5.2 Audited Financials 10
ARTICLE VI LICENSES; COMPLIANCE WITH LAWS
6.1 Licenses and Permits 10
6.2 Compliance With Laws 11
ARTICLE VII HAZARDOUS MATERIALS
7.1 Hazardous Materials 11
ARTICLE VIII ALTERATIONS AND IMPROVEMENTS
8.1 City's Alteration of Improvements 12
8.2 Provider's Alteration of Improvements 12
8.3 Mechanic's Liens 13
8.4 Changes and Additions to the Property 14
ARTICLE IX CITY'S INSPECTION AND RIGHT OF ENTRY
9.1 Inspection By City 14
9.2 City's Right Of Entry 14
ARTICLE X UTILITIES
10.1 Utilities 14
10.2 City Not Liable For Failure Of Utilities 15
ARTICLE XI CITY MAINTENANCE AND REPAIRS
11.1 City Maintenance And Repairs 15
11.2 Preventive Maintenance And Services 15
ARTICLE XII PROVIDER MAINTENANCE AND REPAIRS
12.1 Provider Maintenance and Repairs 16
12.2 Preventive Maintenance And Services 16
ARTICLE XIII NO REPRESENTATION BY CITY
13.1 Condition of Property 17
ARTICLE XIV INDEMNIFICATION AND INSURANCE
14.1 Indemnification 17
14.2 Insurance 19
14.3 Safety 20
14.4 Damage Or Loss of the Property 20
14.5 Notice of Damages or Injuries 22
14.6 Vandalism and Thefts 22
14.7 Theft and Loss Liability 22
14.8 Destruction of the Property 21
14.9 City's Option to Terminate Due to Casualty 23
ARTICLE XV ASSIGNMENTS AND SUBLETTING
15.1 Assignment and Subletting Of Property 23
15.2 Event Of Bankruptcy 23
ARTICLE XVI OWNERSHIP OF IMPROVEMENTS
16.1 Ownership of Improvements 24
ARTICLE XVII SIGNAGE
17.1 Signs
24
ARTICLE XVIII
18.1
18.2
SPECIAL ASSESSMENTS, TAXES AND FEES
Special Assessments, Taxes And Fees
Appealing Ad Valorem Taxes
25
25
ARTICLE XIX DEFAULT
19.1 Events of Default 26
19.2 Remedies in Event of Default 27
19.3 Repeated Defaults 28
19.4 City's Right To Cure Default 28
ARTICLE XX NOTICES
20.1 Notice
29
ARTICLE XXI MISCELLANEOUS PROVISIONS
21.1 ingress And Egress 30
21.2 Use Rights 30
21.3 City Approval 30
21.4 Operating Losses 30
21.5 Successors And Assigns 30
21.6 Surrender Of Property 31
21.7 Amendments 31
21.8 Construction Of Agreement 31
21.9 Court Costs And Attorneys' Fees 31
21.10 Waiver Of Jury Trial 31
21.11 Severability 32
21.12 No Waiver 32
21.13 Captions 32
21.14 Radon 32
21.15 No Recordation 33
21.16 Agreement Preparation 33
ARTICLE XXII
22.1
HOLDING OVER
Holding Over
33
ARTICLE XXIII AFFIRMATIVE ACTION
23,1 Affirmative Action 33
23,2 Nondiscrimination 34
23.3 Americans with Disabilities Act 34
ARTICLE XXIV MINORITY PROCUREMENT
24.1 MinoritylWomen Business Utilization 34
ARTICLE XXV CONFLICT OF INTEREST
25.1 Conflict of interest 35
ARTICLE XXVI ENTIRE AGREEMENT
26.1 Entire Agreement 35
EXHIBIT A THE PROPERTY
MANAGEMENT AGREEMENT
This Management Agreement (hereinafter the "Agreement"), is made and entered into
this day of , 2004 (the "Effective Date"), by and between the City of
Miami, a municipal corporation of the State of Florida (hereinafter the "City") and Belafonte
Tacolcy Center, Inc., a Florida not -for -profit corporation (hereinafter the "Provider"), (hereinafter
collectively referred to as the "Parties").
WITNESSETH
WHEREAS, the Provider has been operating and maintaining City -owned real property
located at 6161 Northwest 9th Avenue, Miami, Florida, for the purpose of providing youth
development and educational programs; and
WHEREAS, the City is desirous of having the Provider continue to serve the citizens of
the City of Miami, and the general public; and
NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants
hereinafter contained to be observed and performed, the Parties hereto do hereby covenant
and agree as follows:
ARTICLE I
DESCRIPTION AND TERM
1.1 Description Of Property
The City owns and/or has under its jurisdiction and control certain lands and facilities of
approximately 3.5 acres located at 6161 Northwest 9th Avenue, Miami, Florida, as more
particularly described in Exhibit "A" attached hereto and made a part hereof (the "Property").
The Provider is hereby permitted the use of the Property, including the improvements
constructed thereon for the specific purposes hereinafter described and, subject to all of the
terms and conditions contained herein.
1.2 Term
The term of this Agreement shall be for a fifteen (15) year period (hereinafter the
"Term") commencing on the Effective Date and expiring fifteen (15) years thereafter, unless
sooner terminated as provided herein. In the event the Effective Date does not fall on the first
day of the calendar month, the Effective Date shall be adjusted to be the first day of the
following calendar month.
1.3 Option to Extend
In the event the City and the Provider mutually wish to extend this Agreement, this
Agreement may be extended for one (1) additional fifteen (15) year period (hereinafter the
"Additional Term"), upon such terms and conditions as may be agreed to by the Parties which
may include, but are not limited to, renegotiation of the financial terms of this Agreement,
provided that no event of default, as defined in Article XIX, entitled "Default", exists at the time
of notice. If the Provider desires to extend this Agreement for an Additional Term, the Provider
must deliver written notice of its intent to the City Manager not earlier than one (1) year and not
later than six (6) months prior to the year of expiration of the then current Term, (the "Option
Request").
Upon receipt of the Option Request, the City Manager or his/her designee shall conduct
a review of the Provider's compliance with the provisions of this Agreement, which may include,
but is not limited to, a review of the following:
a) The Provider's adherence to and performance of all covenants, agreements and
other obligations on its part hereunder.
b) The Provider's Annual Plan approved by the Parks Director in accordance with
Section 4.2 herein.
The City Manager, in his sole discretion, shall either extend the Agreement or reject the
Option Request within 90 days of receipt of the Option Request of the year of expiration of the
Term. The City Manager's failure to act shall be deemed a rejection of the Option Request.
The Original Term and any Additional Term shall be collectively referred to as the
"Term".
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ARTICLE II
PURPOSE
2.1 Purpose and Use
The purpose of this Agreement is to allow the Provider to utilize the Property on a
nonexclusive basis primarily to provide youth development, recreational, educational and
leadership training programs for the youth of the area, which may include group and individual
instruction, lectures, clinics, classes, camps, conferences, meetings and social events,
banquets, tournaments, sports programs, together with associated ancillary uses, and for no
other purpose whatsoever (the "Permitted Use").
The Provider shall ensure that the Property and all of the Provider's activities thereon, or
resulting from or relating to the Provider's use of the Property, shall be available to all segments
of the community including the physically disabled and financially disadvantaged. The Provider
shall operate, manage, supervise and administer the Property as an independent contractor
and not as an employee of the City. The Provider is encouraged and expected to participate in
City -sponsored recreational programming leagues/activities when the Provider offers
recreational programs of the same nature. The Provider is not obligated to participate when
such participation will create an undue financial burden for the Provider. The Provider may
request written consent from the City Manager to use the Property for any other use, but shall
not be authorized to use the Property for that use until the Provider has received the written
consent of the City Manager, which consent may be conditioned or withheld in the City
Manager's sole discretion.
Nothing herein shall restrict the Provider from using vending machines for the sale of
food and beverage items. The sale, distribution and/or consumption of alcoholic beverages at
the Property is prohibited unless specifically authorized in writing by the City Manager in
connection with a Special Event.
This Agreement and all rights of the Provider hereunder shall, at the option of the City,
cease and terminate, in accordance with the provisions of Article XIX, in the event that the
Provider ceases to use and operate the Property for the purposes provided herein.
2.2 Other Organizations Use Of Property
The Provider shall be solely responsible for all activities at the Property. The Provider
shall be allowed to enter into professional service agreements with other organizations (the
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"Service Providers") in order to provide the services set forth in Section 2.1 herein. The
Provider shall require that each Service Provider obtain and maintain in effect insurance, in the
same amounts and on the same terms and conditions as is required of the Provider in Section
14.2 below, unless waived in writing by the City's Risk Management Administrator. The City
shall be permitted to utilize the Property for City or City -sponsored events at no cost to the City,
subject to approval by the Provider. The Parties agree that the Provider shall not unreasonably
withhold approval for use of the Property by the City or' for City -sponsored events,
2.3 Commercial Activities Within The Property
The Provider shall be required to receive the City Manager's prior written approval to
provide commercial activities that are ancillary to the Provider's use of the Property. Such
approval may be conditioned or withheld for any or no reason whatsoever including requiring
payment of additional compensation to the City.
2.4 Operations
The Provider shall conduct its operations in an orderly manner so as not to disturb or be
offensive to customers, patrons or others in the vicinity of such operations.
2.5 Special Events
The City shall have the sole right to issue permits (the "Permit") to utilize the Property for
Special Events. Any inquiries to the Provider for a Special Event shall be referred to the City's
Parks Director. The City and the Provider shall review all inquiries for Special Events within the
Property. In the event the City issues a Permit to the Provider, the Provider shall have the sole
responsibility to cause the Property to be cleaned and any damages repaired at the conclusion
of the Special Event. The Provider shall be solely responsible for ensuring that the Property is
secure at the end of the Special Event. For purposes of this Agreement, Special Events shall
mean activities at the Property which substantially exceed the scope of the regular program
activities, conducted at the Property ("Special Events"). The City shall have the absolute right
to deny the Provider a Permit for any Special Event. For each Special Event, the Provider shall
be required to submit detailed sketches of the entire area thirty (30) days prior of the event.
The Provider and/or Service Provider shall not be exempt from obtaining a Permit for any
Special Event. The City shall waive the permit fee for Provider's Special Events but Provider
shall pay any and all other costs associated with the issuance of the Permit including, but not
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limited to, the provision of additional insurance, off -duty police, fire -rescue services and/or
additional cleanup services. For the purpose of facilitating the planning of Special Events, the
Provider may submit a list of all planned Special Events for a one-year period at the same time
it submits its Annual Plan to the City in accordance with Section 4.2 herein, thereby requesting
the advance issuance of Permit(s) for the respective Special Events.
2.6 Rules And Regulations
The Provider agrees to comply with all rules and regulations that may be promulgated
by the Parks Director for the use and operation of the Property. These rules and regulations
may be amended from time to time in the Parks Director's sole discretion. As rule changes
occur, they shall be provided to Provider, in writing, at least fifteen (15) days before their
effective date.
2.7 Ticket Surcharge
The Provider shall pay all applicable ticket surcharges as stated in chapter 53.1 of the
Code of the City of Miami and Ordinance 10509 of the City of Miami, as amended and as the
same may be amended from time to time. As of the date of execution of this Agreement, the
ticket surcharge is as follows:
Ticket Price Amount of Surcharge
$1.00 to $5.00 $0.50
$5.01 to $15.00 $0.75
$15.01 and over $1.00
2.8 Continuous Duty To Operate
Except where the Property is rendered untenantable by reason of fire or other casualty,
the Provider shall at all times during the Term hereof (i) occupy the Property on the Effective
Date; (ii) shall thereafter continuously conduct operations at the Property in accordance with the
terms of this Agreement; (iii) at all times keep the Property fully stocked with materials, trade
fixtures and furnishings necessary and proper to operate the Property; and, (iv) keep the
Property open for operation during hours established from time to time which shall be included
in the Annual Plan (the "Required Operating Hours").
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ARTICLE III
CONSIDERATION
3.1 Fee
The Provider agrees to pay to the City an annual fee of one dollar ($1.00), plus State of
Florida Sales and Use Tax, if applicable, which shall be paid in advance and in full on the first
day of each Agreement Year, without notice or demand (hereinafter the "Annual Fee").
Payments shall be made payable to "City of Miami" and shall be mailed to City of Miami,
Department of Finance, 444 SW 2"d Avenue, 6th Floor, Miami, Florida 33130, or such other
address as may be designated from time to time. For purposes of this Agreement, the term
"Agreement Year" shall mean any period of time consisting of twelve (12) consecutive calendar
months, with the first year commencing on the Effective Date and each anniversary thereafter.
3.2 Additional Payments
In addition to the Annual Fee, all other payments or charges payable by the Provider,
however denoted, are called "Additional Payments".
3.3 Late Payments
Any payment to be made by the Provider for any fee, or charge required to be paid
under the provisions of this Agreement, which is not received by the City within ten (10) days
after same shall become due, shall be subject to late fee of ten percent (10%) of the amount
due (the "Late Fee"). Acceptance of such Late Fee by the City shall not constitute a waiver of
the Provider's violations with respect to such overdue amount nor prevent the City from the
pursuit of any remedy to which the City may otherwise be entitled.
3.4 Returned Check Fee
In the event any check is returned to the City as uncollectible, the Provider shall pay to
the City a returned check fee (the "Returned Check Fee") based on the following schedule or
the maximum amount permitted by law, whichever is greater:
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Returned Amount
$00.01 - 50.00
$50.01 - 300.00
$300.01 - 800.00
OVER $800
Returned Check Fee
$20.00
$30.00
$40.00
5% of the returned amount.
The Returned Check Fee shall constitute Additional Payments due and payable to the
City by the Provider. Acceptance of Returned Check Fee by the City shall not constitute a
waiver of Provider's violations with respect to such overdue amount nor prevent the City from
the pursuit of any remedy to which the City may otherwise be entitled.
3.5 Performance Deposit
Provider shall not be required to provide a security deposit with the City (the "Deposit")
in guarantee of the full and faithful performance by the Provider of all obligations of the Provider
under this Agreement.
3.6 Promotion of City
The Provider acknowledges the benefits afforded to it by the City's providing the
Property for the Provider's operations, and shall provide recognition of the City of Miami, in a
manner satisfactory to the City, in all its marketing, advertising and promotional materials.
ARTICLE IV
PROVIDER'S COVENANTS
4.1 Personnel
The Provider shall furnish a designated manager experienced in the operation and
control of the type of operations to be performed hereunder, and who shall be delegated with
sufficient authority and responsibility to insure proper use and operation of the Property in
compliance with this Agreement.'
The Provider shall require the designated manager or his/her designee to remain on site
and in charge during scheduled activities. The designated manager or his/her designee must
be available to take telephone calls during scheduled activities.
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The Provider shall employ, train, pay, supervise and discharge all employees necessary
for the operation of the Property. All such persons shall be the employees of the Provider or its
Service Providers, and every person performing services in connection with this Agreement,
including (any agent) subcontractor or employee of Provider, or any agent subcontractor or
employee of any Service Provider hired by the Provider, shall be acting solely on behalf of the
Provider. The City shall not be liable for their compensation or for the consequences of any act
or omission on the part of any of them.
4.2 Annual Plan
Prior to the Effective Date and on or before each November 1st of each year during the
Term of this Agreement, the Provider shall prepare and present, an annual plan for the review
and approval of the Director, Department of Parks and Recreation of the City of Miami ("Parks
Director"). The Annual Plan shall be in a form acceptable to the Parks Director and shall at a
minimum include the following:
a) A description of programs and activities including agreements with all Service
Providers;
b) A consolidated annual operating budget for the upcoming Fiscal Year ("Operating
Budget") which budget shall include a projected income and expense statement, a
projected balance sheet and projected source and application of funds.
For purposes of this Agreement, the term "Fiscal Year" shall mean each consecutive
twelve-month period commencing on January 1st and expiring December 31st. If a Service
Provider has a different Fiscal Year than defined in this Agreement, said Service Provider shall
be allowed to utilize its Fiscal Year in accordance with generally acceptable accounting
principles.
4.3 Performance Review
The Provider shall transmit to the Parks Director, in writing, in a format acceptable to the
Parks Director, an annual report regarding all activities, and accomplishment of objectives of
the Provider and its Service Providers. The Provider shall submit these reports to the Parks
Director on or before the date set forth below.
Operating Period
Jan. 1 — Dec. 31
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Report Due Date
Apr. 1
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The Provider shall submit to the City such additional reports as may be requested by the
Parks Director. The Provider shall prepare, in writing, in a form acceptable to the Parks
Director, any reports or documentation that may be required by Federal, State or local
directives. The Provider shall use its best efforts to make, in a timely manner, such changes to
its programs and operations, as may be requested by the Parks Director.
The City may carry out monitoring and evaluation activities, including site visits
observations by City staff, or community surveys; and the Provider shall ensure the cooperation
of its employees in such efforts. Any inconsistent, incomplete or inadequate information either
received by the City on an annual basis or obtained through monitoring and evaluation by the
City, which is not remedied by the Provider within ten (10) days of the City's notice to the
Provider of such inconsistent, incomplete or inadequate information, shall constitute and Event
of Default hereunder.
ARTICLE V
RECORDS AND AUDITING
5.1 Records Of Operations
During the Term of this Agreement, the Provider shall maintain and keep, and require its
Service Providers to maintain and keep, at a location within Dade County, Florida, a full,
complete and accurate daily record and account of all revenues, if any, and expenses arising or
accruing by virtue of their operations conducted at or from the Property, including, but not
limited to, any grants, donations, foundation support, tournaments, Special Events, and/or other
contributions to the Provider.
All records and accounts including invoices, sales slips (which will be serially
numbered), bank statements or duplicate deposit slips, and all other supporting records, shall
be available for inspection and audit by the City and its duly authorized agents or
representatives during the hours of 8:00 AM to 5:00 PM, Monday through Friday, and shall be
maintained in accordance with generally accepted accounting principles. The Provider and its
Service Providers shall be required to keep and preserve, or cause to be kept and preserved,
said records for not less than sixty (60) months after the expiration or earlier termination of this
Agreement. For the same period of time, the Provider shall require its Service Providers to
retain copies of all sales and tax returns covering their operations at the Property, and any other
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governmental tax or other returns, which show the Service Provider's revenues therein, and
shall, upon demand, deliver photographic copies thereof to the City at no cost. The Provider
and Service Providers shall cooperate with the City's Office of Auditor General (or other
auditors designated by the City) in order to facilitate the City's examination of records and
accounts. The Provider agrees that all documents, records and reports maintained and
generated pursuant to this Agreement shall be subject to the provisions of the Public Records
Law, Chapter 119, Florida Statutes.
5.2 Audited Financials
Within ninety (90) days after the end of each Fiscal Year, the Provider shall deliver or
cause to be delivered to the City of Miami, Director, Department of Economic Development, 444
S.W. 2nd Avenue, 3rd Floor, Miami, FL 33130, a compilation financial statement for the Fiscal
Year, prepared and certified by an independent Certified Public Accountant ("CPA") employed
at the Provider's sole cost and expense. In the event the Provider is unable to timely submit the
compilation financial statement and provided the Provider has commenced and diligently
pursued the completion of the compilation, the Provider may request from the City, a thirty (30)
day extension to complete the compilation which request shall not be unreasonably denied.
Said CPA shall certify that he made a complete examination of the books, state sales tax
returns, and federal income tax returns of Provider and that such statement is prepared in
accordance with generally accepted accounting principles and practices and represents the
revenues, if any, and expenses of the Provider for the period indicated therein.
Notwithstanding the above and during the sixty (60) month period described in Section
5.1 of this Agreement entitled "Records of Operations", at its option, the City may, at its sole
cost and expense, audit the Provider and/or Service Provider's business affairs, records, files,
sales slips and sales tax records in connection with the Provider and/or Service Provider's sales
on, from or related to the Property for the period covered by any financial statement, report or
record furnished to the City.
The Provider and its Service Providers shall allow the City or its auditors of the City to
inspect all or any part of the source documents and records for the aforesaid annual reports.
Said inspection shall be conducted at the sole discretion of the City. Records shall be available
Monday through Friday, inclusive, between the hours of 8:00 AM and 5:00 PM at the Property.
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ARTICLE VI
LICENSES: COMPLIANCE WITH LAWS
6.1 Licenses And Permits
The Provider shall, at the Provider's sole cost and expense, obtain any and all licenses
and permits necessary in connection with the Provider's use and occupancy of the Property.
6.2 Compliance With Laws
The Provider hereby acknowledges that the Provider's compliance with all applicable
laws, ordinances and codes of federal, state and local governments, as they may apply to this
Agreement, including but not limited to building codes and zoning restrictions, is a condition of
this Agreement. The Provider shall comply therewith as the same presently exist and as they
may be amended hereafter.
ARTICLE VII
HAZARDOUS MATERIALS
7.1 Hazardous Materials
The Provider shall, at its sole cost and expense, at all times and in all respects comply
with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings,
policies, orders and administrative actions and orders relating to hazardous materials
("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws
relating to industrial hygiene, environmental protection or the use, storage, disposal or
transportation of any flammable explosives, toxic substances or other hazardous, contaminated
or polluting materials, substances or wastes, including, without limitation, any "Hazardous
Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances" (collectively
"Hazardous Materials"), under any such laws, ordinances or regulations. The Provider shall, at
its sole cost and expense, procure, maintain in effect and comply with all conditions of any and
all permits, licenses and other governmental and regulatory approvals relating to the presence
of Hazardous Materials within, on, under or about the Property or required for the Provider's
use of any Hazardous Materials in or about the Property in conformity with all applicable
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Hazardous Materials Laws and prudent industry practices regarding management of such
Hazardous Materials. The City recognizes and agrees that the Provider may use such
materials in quantities appropriate for its use of the Property, for the purposes stated herein and
that such use by the Provider shall not be deemed a violation of this Section so long as the
manner and levels of use of such materials are not in violation of any Hazardous Materials
Laws. Upon termination or expiration of this Agreement, the Provider shall, at its sole cost and
expense, cause all Hazardous Materials, including their storage devices, placed in or about the
Property by the Provider or at the Provider's direction, to be removed from the Property and
transported for use, storage or disposal in accordance and compliance with all applicable
Hazardous Materials Laws. The City acknowledges that it is not the intent of this section to
prohibit the Provider from operating in the Property for the uses described in the Section of this
Agreement entitled "Purpose". The Provider may operate according to the custom of the
industry so long as the use or presence of Hazardous Materials is strictly and properly
monitored according to, and in compliance with, all applicable governmental requirements. The
requirements of this Section of the Agreement shall survive the expiration or termination of this
Agreement.
ARTICLE VIII
ALTERATIONS AND IMPROVEMENTS
8.1 Citv's Alteration of Improvements
The City shall make certain improvements on the Property using Homeland Security
Bond funds in the aggregate of three hundred thousand dollars ($300,000.00), which shall be
for the exterior use of the Property (the "Improvements").
8.2 Provider's Alteration of Improvements
In the event the Provider desires to make or cause to be made any major repair
requiring a permit, alteration, addition, deletion, partition or change to the Property (hereinafter
collectively called "Alterations"), the Provider shall submit detailed plans and specifications of
the proposed Alterations, and proof of funding and/or its financing plans, for approval by the
City Manager which approval may be withheld or conditioned in his sole discretion. The
Provider shall be solely responsible for applying and acquiring all necessary building and zoning
permits for approved Alterations. The Provider shall be responsible for any and all costs
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associated with any Alterations including but not limited to design, construction, installation and
permitting costs. All Alterations to the Property, whether or not by or at the expense of the
Provider, shall, unless otherwise provided by written agreement of the Parties hereto,
immediately upon their completion become the property of the City and shall remain and be
surrendered with the Property. The Department of Risk Management shall approve all
Alterations to the Property that require additional insurance.
All Alterations must be in compliance with all statutes, laws, ordinances and regulations
of the State of Florida, Miami -Dade County, the City of Miami and any other agency that may
have jurisdiction over the Property.
All equipment and personal property used by the Provider at the Property shall be of
good quality and suitable for its purpose. The City Manager shall have the right to require
substitute equipment or personal property or additional equipment or personal property when
such action is deemed necessary or desirable in his sole discretion.
The Provider agrees that the City Manager shall have the right to approve the age,
condition, design and acceptability of Alterations and equipment, furnished for installation and
use, in his sole discretion.
8.3 Mechanics' Liens
The Provider shall not suffer or permit any mechanics' liens to be filed against the
Property, or against the Provider's interest in the Property, by reason of work, labor, services or
materials supplied to the Provider or anyone having a right to possession or use of the
Property. Nothing in this Agreement shall be construed as constituting the expressed or implied
consent or request of the City, to any contractor, subcontractor, laborer or material man for the
performance of any labor or the furnishing of any materials for any specific Alteration, or repair
of or to the Property or as giving the Provider the right, power or authority to contract for or
permit the rendering of any services or the furnishing of any materials that would give rise to the
filing of any mechanics liens against the Property. If any mechanics' lien shall at any time be
filed against the Property, the Provider shall cause it to be discharged of record within fifteen
(15) days after the date the Provider has knowledge of its filing. If the Provider shall fail to
discharge a mechanics' lien within that period, then in addition to any other right or remedy, the
City may, but shall not be obligated to, discharge the lien either by paying the amount claimed
to be due or by posting a bond, or by compelling the prosecution of an action for the foreclosure
of the mechanics' lien by the lienor or and paying the amount of the judgment, if any, in favor of
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the lienor with interest, costs and fees with the understanding that all amounts paid by the City
in removing or disclosing the lien shall constitute Additional Payments due and payable under
this Agreement and shall be repaid to the City by the Provider immediately upon rendition of
any invoice or bill by the City. The Provider shall not be required to pay or discharge any
mechanics' lien so long as (i) the Provider shall in good faith proceed to contest the lien by
appropriate proceedings, (ii) the Provider shall have given notice in writing to the City of its
intention to contest the validity of the lien, and (iii) the Provider shall furnish and keep in effect a
surety bond of a responsible and substantial surety company reasonably acceptable to the City
or other security acceptable to the City in an amount sufficient to pay one hundred ten percent
(110%) of the amount of the contested lien claim with all interest on it and costs and expenses,
including reasonable attorneys' fees, to be incurred in connection therewith.
8.4 Changes and Additions to the Property
The City reserves the right at any time and from time to time (i) to make or permit
changes or revisions in its plan for the Property, including additions to, subtractions from,
rearrangements of, alterations of, modifications of or supplements to the building areas,
walkways, parking areas, or driveways, (ii) to construct other improvements on the Property and
to make alterations thereof or additions thereto, and (lil) to change location, size, content and
design of any signage for the Property.
ARTICLE IX
CITY'S INSPECTION AND RIGHT OF ENTRY
9.1 Inspection By City
The City shall have the right to make periodic inspections of the Property and
improvements thereof, during normal working hours. The Provider, at its sole cost and
expense, shall be required to make any interior modifications in cleaning or maintenance
methods reasonably required by the City.
9.2 Citv's Right Of Entry
The Provider agrees to permit the City to enter upon the Property at all reasonable
times, for any purpose the City deems necessary to, incident to, or connected with the
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performance of the City's duties and obligations hereunder or in the exercise of its municipal
functions.
ARTICLE X
UTILITY CHARGES
10.1 Utilities.
The Provider, at its sole cost and expense, shall be responsible for the costs of all
utilities rendered or supplied to the Property, including but not limited to, electricity, telephone,
water, gas, sewage disposal, storm water fees, trash and garbage removal, as well as all costs
for installation of any lines and necessary equipment.
10.2 City Not Liable For Failure of Utilities.
The City shall not be liable for any failure of the utility companies or governmental
authorities to supply utility service to the Provider, or for any limitation of supply resulting from
governmental orders or directives, or for any injury or damage to any person or property caused
by or resulting from any water, sewer, gas, or electricity which may leak or flow from the water,
sewer, gas or electric mains on to any part of the Property. The Provider shall not claim any
damages by reason of the City's or other individual's interruption, curtailment or suspension of a
utility service, nor shall this Agreement, or any of Provider's obligations hereunder, be affected
or reduced thereby.
ARTICLE XI
CITY MAINTENANCE AND REPAIRS
11.1 City Maintenance and Repairs.
The City shall, at its sole cost and expense, provide all exterior maintenance, including
preventive maintenance, repairs and replacements, as necessary, to the Property and any
structural portions of any buildings and grounds, installed or furnished by the City.
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In the event such maintenance and repair becomes necessary in whole or in part due to:
(i) the misuse, act, neglect, fault or omission of the Provider, or its employees, agents,
representatives, contractors, guests or invitees; (ii) any damage occasioned by the failure of the
Provider to perform or comply with any terms, conditions, or covenants of this Agreement; (iii)
any structural alterations or improvements required by Provider's use and occupancy of the
Property, the Provider shall pay to the City the entire cost of such maintenance, repair or
alteration within fifteen (15) days after receipt of written notice.
11.2 Preventive Maintenance And Services.
The City shall, at its sole cost and expense, provide all exterior preventive maintenance,
maintenance and services, excluding only those repair obligations assumed by the Provider in
Section 12.1 and 12.2, required for use of the Property including, but not limited to, the
following:
a) Grounds services including lawn, shrub, and tree maintenance and removal of any
rubbish or obstructions from the Property;
b) Maintenance and repair of the basketball courts including resurfacing, subject to
available funding;
c) Exterior Water and sewer facilities such as water main lines;
d) Garbage and trash disposal as required;
e) Painting of exterior of building, including caulking of all window and door frames;
ARTICLE XII
PROVIDER MAINTENANCE AND REPAIRS
12.1 Provider Maintenance and Repairs.
The Provider shall be required, at its sole cost and expense, to provide all interior
property maintenance, repairs and replacements during the Term including, without limitation,
any nonstructural portions of the building; the security, plumbing, electrical, heating, and air
conditioning systems and equipment; all doors, floor coverings, interior walls, ceilings,
decoration (e.g., carpeting, painting, wall coverings, drapes and other window treatments,
refinishing, etc.), and all fixtures and equipment therein, excluding only those repair obligations
assumed by the City in Section 11.1 and 11.2. Provider shall not commit, or suffer to be
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committed, any waste in or upon the Property or do anything in or on the Property which, in the
City's sole opinion, detracts from the appearance of the Property. All maintenance, repairs and
replacements shall be performed to the satisfaction of the City.
12.2 Preventive Maintenance And Services.
The Provider shall, at its sole cost and expense, provide all preventive maintenance,
maintenance and services required for use of the Property including, but not limited to, the
following:
a) Cleaning and janitorial services for the interior of the Property;
b) Annual inspection of the heating, ventilation, and air conditioning including freon and
coils, and changing of filters as required for the comfortable use and occupation of
the Property;
c) Electric current for normal use and light;
d) Interior and exterior window cleaning for the Property to be performed as needed but
no less than once every one hundred and eighty (180) days;
e) Vermin and pest control, as necessary, but no Tess than once every sixty (60) days;
f) Painting of interior of building, including caulking of all interior window and door
frames;
f) Daily pick-up of litter for the exterior of the Property.
The Provider shall, at all times, be responsible for the condition of the Property, and
shall perform repairs required in a timely manner so as to prevent injury to persons and waste
to the Property.
ARTICLE XIII
NO REPRESENTATION BY CITY
13.1 Condition Of Property
The Provider shall take possession of the Property "as is" except for the initial repairs to
be performed by the City as specified in Section 11.1 and 11.2, without any representation by or
on behalf of the City; and Provider agrees that the City shall, under no circumstances, be liable
for any latent, patent or other defects in the Property.
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At the expiration or earlier termination of this Agreement, the Provider shall surrender
the building "broom clean" and in the same, or better, order and condition which it was upon
execution of the Agreement, ordinary wear and tear excepted.
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
14.1 Indemnification
The Provider shall indemnify, protect, defend and hold harmless the City, its officials and
employees, from and against any and all claims, suits, actions, damages or causes of action of
whatever nature arising out of the use or operation of the Property or the surrounding areas,
whether such claim shall be made by the Provider, or an employee, agent, contractor, invitee or
guest of the Provider, an employee, agent or official of the City or by any third party, and
whether it relates to injury to persons (including death) or damage to property and whether it is
alleged that the City or its employees or officials were negligent. The Provider shall, at its own
cost and expense, pay and satisfy all costs related to any orders, judgments or decrees which
may be entered thereon, and all costs, attorneys' fees, expenses and liabilities incurred in and
about the defense of any such claims and the investigation thereof. The Provider shall also
indemnify, defend, protect and hold the City harmless from and against any and all claims
arising from any breach or default in performance of any obligation on the Provider's part to be
performed under the terms of this Agreement, or arising from any act, neglect, fault or omission
of the Provider, its employees, agents, contractors, invitees and guests, and from and against
all costs, attorneys' fees, expenses and liability incurred in connection with any such claim or
any action or proceeding brought thereon. In case any action or proceeding shall be brought
against the City by reason of any claim, upon notice from the City, the Provider shall defend the
same at the Provider's expense by counsel approved in writing by the City. The City reserves
the right to defend itself. Provider reserves the right to retain counsel of its choice.
The Provider shall immediately notify the City, in writing, of any claim or action filed, of
whatever nature, arising out of the use or operation of the Property by the Provider, its Service
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Providers, employees, agents, contractors, invitees and guests. The Provider shall also
immediately notify the City if the Provider knows or has reason to believe a claim or action will
be filed, of whatever nature, arising out of the use or operation of the Property by the Provider,
its Service Providers, employees, agents, contractors, invitees and guests agents, contractors,
employees or servants.
The Provider expressly agrees to indemnify and hold harmless the Indemnitees, or any
of them, from and against all liabilities which may be asserted by an employee or former
employee of Provider, or any of its subcontractors, as provided above, for which the Provider's
liability to such employee or former employee would otherwise be limited to payments under
state Workers' Compensation or similar laws.
14.2 Insurance
The Provider, at its sole cost and expense, shall obtain and maintain in full force and
effect at all times throughout the Term of this Agreement and through any periods of holding
over on extension, the following insurance:
A. Commercial General Liability insurance on a comprehensive general liability
coverage form, or its equivalent, including contractual liability, products and completed
operations, personal injury and premises and operations coverage's against all claims,
demands or actions, for bodily injury, personal injury, death or property damage occurring on
the Property with such limits as may be reasonably requested by the City from time to time but
not less than $1,000,000 per occurrence combined single limit for bodily injury and property
damage. Excess coverage shall be provided in an amount not less than $2,000,000 in
aggregate. The City shall be named as Additional Insured on the policy or policies of
insurance.
B. "All Risk" property insurance against Toss or damage by fire, windstorm, with such
endorsements for extended coverage, vandalism, malicious mischief, flood and special
coverage, insuring 100% of the replacement cost of Provider's fixtures, equipment, furniture
and all other personal property in and about the Property. This requirement may be waived if
the Provider executes a full release holding the City harmless for any damages incurred by the
Provider due to the above -mentioned causes as defined in a standard All Risk policy.
C. Automobile liability insurance covering all owned, non -owned and hired vehicles
used in conjunction with operations covered by this agreement. The policy or policies of
insurance shall contain such limits as may be reasonably requested by the City from time to
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time but not less than $500,000 for bodily injury and property damage. The requirements of
this provision may be waived upon submission of a written statement that no automobiles are
used to conduct business.
D. Worker's Compensation in the form and amounts required by State law,
E. The City reserves the right to amend the insurance requirements by the issuance of
a notice in writing to the Provider. The Provider shall provide any other insurance or security
reasonably required by the City.
F. The policy or policies of insurance required shall be so written that the policy or
policies may not be canceled or materially changed without thirty (30) days advance written
notice to the City. Said notice should be delivered to the City of Miami, Department of Risk
Management, 444 S.W. 2 Avenue, 9th Floor, Miami, FL 33130 with copy to the City of Miami,
Department of Economic Development, 444 S.W. 2 Avenue, 3rd Floor, Miami, FL 33130.
G. A current Certificate of Insurance and Policy of Insurance evidencing the aforesaid
required insurance coverage shall be supplied to the Department of Economic Development of
the City at the commencement of the term of this Agreement and a new Certificate and Policy
shall be supplied at least twenty (20) days prior to the expiration of each such policy. Insurance
policies required above shall be issued by companies authorized to do business under the laws
of the State of Florida, with the following qualifications as to management and financial
strength: the company should be rated "A" as to management, and no less than class "X" as to
financial strength, in accordance with the latest edition of Best's Key Rating Guide, or the
company shall hold a valid Florida Certificate of Authority and be a member of the Florida
Guarantee Fund. Receipt of any documentation of insurance by the City or by any of its
representatives, which indicates less coverage than required, does not constitute a waiver of
the Provider's obligation to fulfill the insurance requirements herein.
In the event the Provider shall fail to procure and place such insurance, the City may,
but shall not be obligated to, procure and place same, in which event the amount of the
premium paid shall be paid by the Provider to the City as Additional Payments upon demand
and shall in each instance be collectible on the first day of the month or any subsequent month
following the date of payment by the City. Failure to pay such amount within the time frame
provided shall constitute a default of this Agreement as provided in Article XIX entitled, "Default"
below. The Provider's failure to procure insurance shall in no way release the Provider from its
obligations and responsibilities as provided herein.
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Provider shall require each Service Provider to furnish the same level of coverage as is
required of the Provider.
14.3 Safety
Provider will allow City inspectors, agents or representatives the ability to monitor its
compliance with safety precautions as required by federal, state or local laws, rules, regulations
and ordinances. By performing these inspections the City, its agents, or representatives are not
assuming any liability by virtue of these laws, rules, regulations and ordinances. Provider shall
have no recourse against the City, its agents, or representatives from the occurrence, non-
occurrence or result of such inspection(s). Upon issuance of a notice to proceed, the Provider
shall contact the Risk Management Department at (305) 416-1800 to schedule the
inspection(s).
14.4 Damage Or Loss of the Property
The City shall not be liable for injury or damage which may be sustained to the Property
or sustained by a person, goods, wares, merchandise or other property of the Provider or
Service Provider, or the Provider's employees, Service Provider's agents, representatives,
invitees, guests or of any other person in or about the Property caused by or resulting from any
peril whatsoever which may affect the Property, including, without limitation, fire, steam,
electricity, gas, water, rain or theft which may leak or flow from or into any part of the Property,
or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures of the Property, or from hurricane or
any act of God, or any act of negligence of any user of the facility or occupants of the Property
or any person whomsoever, including the City, its officers, employees or agents, whether such
damage or injury results from conditions arising upon the Property or upon other portions of the
Property or from other sources. The City shall not be liable for any damages arising from any
act or neglect of: (a) any other provider at the Property; or (b) any officer, employee, agent,
representative, customer, visitor or invitee of any such provider.
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14.5 Notice of Damages or Injuries
The Provider shall give prompt written notice of any fire, damage or injury occurring at
the Property.
14.6 Vandalism and Thefts
Where vandalism or theft occurs to Provider's equipment or operations, it shall be the
sole responsibility and liability of Provider to insure, repair or replace damaged or stolen
equipment at Provider's expense within a reasonable period of time in order for them to
continue to provide the services contemplated by this Agreement.
14.7 Theft and Loss Liability
The City will not be responsible for any of Provider's losses or thefts, and any such
losses must be borne solely by the Provider out of its own funds they may not be used to
diminish or be absorbed by payment sue the City.
14.8 Destruction Of The Property
If the Property shall be damaged by fire, the elements, accident or other casualty (any
of such causes being referred to herein as a "Casualty"), but the Property shall not be rendered
wholly or partially untenantable, the City shall promptly cause such damage to be repaired,
subject to collection of sufficient insurance proceeds, and there shall be no abatement of the
Annual Fee.
If, as a result of Casualty, the Property shall be rendered partially untenantable, then,
subject to the provisions of Section 14.5, the City shall promptly cause such damage to be
repaired, and, provided such damage is not caused by the negligence of the Provider, its
employees, agents, contractors, representatives, guests or invitees, all Annual Fees (other than
those Additional Payments that are due to the City by reason of the Provider's failure to perform
any of its obligations hereunder), shall be abated proportionately as to the portion of the
Property rendered untenantable during the period of such untenantability. All such repairs shall
be made at the expense of the City, subject to the Provider's responsibilities set forth herein.
The City shall not be liable for interruption to the Provider's business or for damage to or
replacement or repair of Provider's personal property (including, without limitation, inventory,
trade fixtures, floor coverings, furniture and other property removable by the Provider under the
provisions of this Agreement) or to any improvements installed in the Property.
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14.9 City's Option to Terminate Due to Casualty
If the Property is (a) rendered wholly untenantable, or (b) damaged as a result of any
cause which is not covered by the City's insurance or (c) damaged or destroyed in whole or in
part during the Term, or (d) if the City's building is damaged to the extent of fifty percent (50%)
or more of the floor area, then, in any of such events, the City may elect to terminate this
Agreement by giving to the Provider notice of such election within ninety (90) days after the
occurrence of such event. If such notice is given, the rights and obligations of the Parties shall
cease as of the date of such notice, and the Annual Fee, and Additional Payments (other than
those that are due to the City by reason of the Provider's failure to perform any of its obligations
hereunder) shall be adjusted as of the date of such termination.
ARTICLE XV
ASSIGNMENTS AND SUBLETTING
15.1 Assignment And Subletting Of Property
Except as specifically provided in Section 2.2 of this Agreement, the Provider shall not,
at any time during the term of this Agreement, assign, mortgage, pledge or otherwise encumber
this Agreement, the term, or any interest hereunder, or lease, offer or advertise for leasing the
Property or any portion thereof.
15.2 Event Of Bankruptcy
If this Agreement is assigned to any person or entity pursuant to the provisions of the
United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq. (hereinafter the "Bankruptcy Code"),
any and all monies or other consideration payable or otherwise to be delivered in connection
with such assignment shall be paid or delivered to the City, shall be and remain the exclusive
property of the City, and shall not constitute the property of the Provider or of the estate of the
Provider within the meaning of the Bankruptcy Code. Any and all monies or other
considerations constituting the City's property under this Section not paid or delivered to the
City shall be held in trust for the benefit of the City and shall be promptly paid or delivered to the
City. Any person or entity to which this Agreement is assigned pursuant to the provision of the
Bankruptcy Code shall be deemed, without further act or deed, to have assumed all of the
obligations arising under this Agreement on and after the date of such assignment.
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ARTICLE XVI
OWNERSHIP OF IMPROVEMENTS
16.1 Ownershp Of Improvements
As of the Effective Date and throughout the Term, title to the Property, equipment, and
all improvements thereon shall be vested in the City. Furthermore, title to any improvements,
and all Alterations made in or to the Property during the Term, whether or not by or at the
expense of the Provider, shall, unless otherwise provided by written agreement, immediately
upon their completion become the property of the City and shall remain and be surrendered
with the Property.
At any time during the Term, the Provider shall have the right to remove any movable
personal property owned by the Provider, so long as the Provider is not in default of any of its
obligations under this Agreement and the same have not become a fixture or trade fixture, and
so long as such does not materially affect the Provider's ability to use the premises and conduct
its operations as provided herein. However, if any part of the Property is damaged by the
removal of such items, said damage shall be repaired by the Provider at its sole cost and
expense, in accordance with the provisions of Section 12.1 and 12.2 hereof.
Any property belonging to the Provider and not removed by the Provider at the
expiration or earlier termination of the Agreement, shall be deemed to be abandoned by the
Provider, and the City may keep or dispose of such property at the Provider's sole cost and
expense. The Provider will reimburse the City for any costs associated with such abandoned
property within ten (10) days of after receipt of written notice. At the expiration of the Term, the
Provider shall deliver to the City the keys and combination to all safes, cabinets, vaults, doors
and other locks on the Property.
ARTICLE XVII
SIGNAGE
17.1 Signs
The Provider shall not permit any signs or use any advertising media on any portion of
the Property except with prior written approval of the City Manager, which approval may be
withheld, for any or no reason whatsoever, in his sole discretion. The Provider must also obtain
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approval from all governmental authorities having jurisdiction, and must comply with all
applicable requirements set forth in the City of Miami Code and Zoning Ordinance. The
Provider shall be allowed to establish a sign on the Property with the designation "Belafonte
Tacolcy Center". Upon the expiration or earlier termination of this Agreement, for any reason,
the Provider shall, at its sole cost and expense, remove and dispose of all signs located on the
Property.
ARTICLE XVI1I
SPECIAL ASSESSMENTS AND TAXES
18,1 Special Assessments, Taxes and Fees
The Provider covenants and agrees to pay any and all charges, taxes, or,assessments,
levied against the Property and improvements, personal property or operations thereon,
including, but not limited to, ad valorem taxes, fire fees and parking surcharges. Payment
thereof shall commence with and shall include taxes assessed for the current year, if any. The
Provider shall pay all of said charges, taxes, or assessments, if any, lawfully assessed, on such
dates as they become due and payable. The Parties agree that if the Provider fails to pay when
due the charges, taxes, or assessments, levied against the Property, improvements, personal
property or operations thereon, then the Provider or the City shall have the right to terminate
this Agreement upon thirty (30) days written notice to the non -canceling party, and the rights
and obligations of the Parties shall cease as of the date of such notice.
18.2 Appealing Ad Valorem Taxes
In the event the Provider appeals an ad valorem tax or the assessment value, the
Provider shall immediately notify the City of its intention to appeal said tax and shall furnish and
keep in effect a surety bond of a responsible and substantial surety company reasonably
acceptable to the City or other security reasonably acceptable to the City in an amount
sufficient to pay one hundred percent (100%) of the contested tax together with all interest on it
costs, and expenses, including reasonable attorneys' fees, to be incurred in connection
therewith. The Provider shall provide such surety bond or other form of security as may be
satisfactory to the City in the event the Provider appeals any tax seeking a determination of its
tax exempt status.
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ARTICLE XIX
DEFAULT
19.1 Events of Default
Each of following events is defined as an Event of Default:
(a) The failure of the Provider to pay any Annual Fee, or Additional Payments when
due and the continuance of the failure for a period of fifteen (15) days after
notice in writing from the City to the Provider;
(b) The failure of the Provider to perform any of the other covenants, conditions and
agreements of this Agreement on the part of the Provider to be performed and
the continuance of the failure for a period of fifteen (15) days after notice in
writing (which notice shall specify the nature of the default) from the City to the
Provider, unless with respect to any default which cannot be cured within fifteen
(15) days, the Provider, in good faith, promptly after receipt of written notice,
shall have commenced and continued diligently to reasonably prosecute all
actions necessary to cure the default and shall have so notified the City in
writing;
(c) The failure to maintain tax-exempt status under Section 501(c) (3) of the Internal
Revenue Code of 1986, as amended;
(d) The filing by the Provider:
(i) of a consent to the appointment of a receiver, trustee or liquidator of itself
or all its assets;
(ii) of a voluntary petition in bankruptcy or the filing of a pleading in any court
of record admitting in writing its inability to pay its debts as they come
due;
(iii) of a general assignment for the benefit of creditors;
(iv) of an answer admitting the material allegations of, or its consenting to, or
defaulting in answering, a petition filed against it in any bankruptcy
proceeding; or
(e) The entry of an order, judgment or decree by any court of competent jurisdiction,
adjudicating the Provider as bankrupt, or appointing a receiver, trustee or liquidator of it or of its
assets, and this order, judgment or decree continuing unstayed and in effect for any period of
sixty (60) consecutive days, or if this Agreement is taken under a writ of execution; or
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(f) The failure of Provider to remit any information, to the City's satisfaction,
requested in Article IV of this Agreement entitled "Provider's Covenants".
(g) If the Provider abandons or vacates the Property prior to the expiration of the
Term hereof. For purposes of this Agreement, Provider shall be deemed to have abandoned
the Property if it fails to operate the facilities for the public, for seven (7) consecutive days, and
such failure is not due to a force majeure and has not been authorized by the City Manager.
In the event this Agreement is assumed by or assigned to a trustee pursuant to the
provisions of the Bankruptcy Code, and the trustee shall cure any default under this Agreement
and shall provide adequate assurances of future performance of this Agreement as are
required by the Bankruptcy Code (including, but not limited to, the requirement of Section
365(b)(1) (referred to as Adequate Assurances), and if the trustee does not cure such default
and provide such Adequate Assurances under the Bankruptcy Code within the applicable time
periods provided by the Bankruptcy Code, then this Agreement shall be deemed rejected
automatically and the City shall have the right to immediate possession of the Property and
shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or
termination of this Agreement.
19.2 Remedies in Event of Default
The City may treat any one or more of the Event(s) of Default as a breach of this
Agreement, and thereupon at its option, without further notice or demand of any kind to the
Provider or any other person, the City may, in addition to every other right or remedy existing at
law or equity, do any one or more of the following:
(a) Elect to cancel and terminate this Agreement and dispossess the Provider by
giving a three (3) day notice of such election to the Provider, and reenter the Property, without
the necessity of legal proceedings. In the event of such termination, the City shall have the
right to seek any damages sustained by it by reason of the Provider's actions or inactions and
the resulting termination of this Agreement. Upon termination of this Agreement, the Provider
shall immediately cease all operations at the Property and surrender the Property in accordance
with the provisions contained herein.
(b) Perform, on behalf of and at the expense of the Provider, any obligation of the
Provider under this Agreement which the Provider has failed to perform the cost of which
performance by the City, together with interest thereon at the rate of eighteen percent (18%)
from the date of such expenditure, shall be deemed Additional Payments and shall be payable
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by the Provider to the City upon demand. The Provider agrees that the City shall not be liable
to the Provider for any damage resulting to the Provider as a result of such action.
(c) Exercise any other right or remedy, which it may have under this Agreement, at
law or in equity.
Notwithstanding the provisions of clause (b) above and regardless of whether an Event
of Default shall have occurred, the City may exercise the remedy described in clause (b) without
any notice to the Provider if the City, in the exercise of its good faith judgment, believes it would
be injured by failure to take rapid action or if the unperformed obligation of the Provider
constitutes an emergency.
All of the remedies of the City shall be cumulative and enforcing one or more of the
remedies herein provided upon an Event of Default shall not be deemed or construed to
constitute a waiver of such default, or an election of remedies.
Any costs and expenses incurred by the City in enforcing any of its rights or remedies
under this Agreement shall be deemed to be an Additional Payment and shall be repaid to the
City by the Provider upon demand.
19.3 Repeated Defaults
If more than twice in any twelve (12) month period during the Term hereof, the Provider
fails to satisfy or comply with the same or substantially the same requirement or provision of
this Agreement (except where such repeated default arises from acts of God or results from
causes or conditions not attributable, directly or indirectly, to the Provider, its guests,
employees, agents or others within the Provider's control), then at the City's election, the
Provider shall not have any right to cure such repeated default. In the event of the City's
election not to allow a cure of a repeated failure to satisfy or comply, the City shall have all of
the rights and remedies provided in this Agreement relative to an uncured Event of Default.
19.4 City's Right To Cure Default
If the Provider fails to make any payment to any third party or do any act required to be
made or done by the Provider, then the City may, but shall not be required to, make payment to
such third party or perform such act at the sole cost and expense of the Provider. The Provider
shall pay the City, as Additional Payment due hereunder, upon receipt of a written invoice of
costs from the City, the City's expenses in making such payment or in performing such
obligations together with interest thereon at a rate of eighteen percent (18%) per annum from
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the date the City incurs such expenses until the Provider makes such payment to the City. The
making of such payment or the doing of such act by the City shall not operate to cure the
Provider's Default, nor shall it prevent the City from the pursuit of any remedy to which the City
would otherwise be entitled.
ARTICLE XX
NOTICES
20.1 Notice
'A11 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 certified mail
addressed to the parties at their respective addresses indicated below or as the same may be
changed in writing from time to time. Such notice shall be deemed given on the day on which
personally served, or if by certified mail, on the fifth day after being posted or the date of actual
receipt, whichever is earlier.
NOTICE TO CITY:
City of Miami
Attn: City Manager
3500 Pan American Drive
Miami, Florida 33133
WITH COPIES TO:
City of Miami
City Attorney
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33130
City of Miami
Department of Economic Development
444 S.W. 2nd Avenue, 3rd Floor
Miami, FL 33130
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NOTICE TO PROVIDER:
Belafonte Tacolcy Center, Inc.
Attn: Executive Director
6161 N.W. 9th Avenue
Miami, Florida 33127
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ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 Ingress And Egress
Subject to rules and regulations, statutes and ordinances and terms of this Agreement
governing the use of the Property, the Provider, his agents, representatives, guests, and
invitees shall have ingress and egress to and from the Property.
21.2 Use Rights
It is expressly understood and agreed that no real or personal property is leased to the
Provider, that this is a management agreement and not a lease, that the Provider's right to use
the Property, and operate the use hereby granted shall continue only so long as the Provider
shall comply strictly and promptly with each and all of the undertakings, provisions, covenants,
agreements, stipulations and conditions contained herein. The Provider agrees not to
represent itself as an agent or associate of the City or any unit thereof.
Notwithstanding any other provision of this Agreement regarding the Term hereof, either
party may terminate this Management Agreement at any time by providing the non -canceling
party not less than one hundred eighty (180) days advance written notice.
21.3 City Approval
Whenever an item herein is subject to approval by the City, the City Manager shall be
the sole judge of the worthiness and benefit of the item for which approval is sought shall
approve or disapprove it at his/her sole discretion.
21.4 Operating Losses
The Provider shall be solely responsible for any and all operating losses incurred.
21.5 Successors And Assigns
This Agreement shall be binding upon the Parties hereto, their heirs, executors, legal
representatives, successors and assigns.
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21.6 Surrender Of Property
Upon the expiration or earlier termination of this Agreement, the Provider shall promptly
and peacefully surrender and deliver possession of the Property to the City in accordance with
the covenants herein contained.
21.7 Amendments
No amendment or modification to this Agreement shall be binding on either party unless
it is in writing, signed by both parties, and approved by the City Manager.
21.8 Construction Of Agreement
This Agreement shall be construed and enforced according to the laws of the State of
Florida.
21.9 Court Costs And Attorneys' Fees
In the event it becomes necessary for the City to institute legal proceedings to enforce
or interpret the provisions of this Agreement, the Provider shall pay the City's court costs and
attorney's fees through all trial and appellate levels. The Provider acknowledges that Florida
law provides for mutuality of attorney's fees as a remedy in contract cases and specifically and
irrevocable waives its right to collect attorney's fees from the City under applicable laws,
including specifically, but not limited to Section 57.105, Florida Statutes. It is the express intent
of the parties hereto that in no event will the City be required to pay the Provider's attorney's
fees and court costs for any action arising out of this Agreement. In the event the Provider's
waiver under this section is found to be invalid then the Provider agrees that the City's liability
for the Provider's attorney's fees and court costs shall not exceed the sum of One Hundred
Dollars ($100.00). In the event that the waiver and limitations contained herein are found to be
invalid, or are otherwise not upheld, then the provisions of this Section shall become null and
void and each Party shall be responsible for its own attorney's fees and costs.
21.10 Waiver Of Jury Trial
The Parties hereby knowingly, irrevocably, voluntarily, and intentionally waive any right
either may have to a trial by jury in respect of any action, proceeding, claim, or counterclaim
based on this Agreement, or arising out of, under or in connection with this Agreement or any
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amendment or modification of this Agreement, or any other agreement executed by and
between the Parties in connection with this Agreement, or any course of conduct, course of
dealing, statements (whether verbal or written) or actions of any party hereto. This waiver is a
material inducement for the City and the Provider entering into the subject transaction.
21.11 Severabilitv
If any provision of the Agreement, or the application thereof, is held invalid, the
remainder of the Agreement shall be construed as if such invalid part were never included
herein and the Agreement shall be and remain valid and enforceable to the fullest extent
permitted by law.
21.12 No Waiver
The acceptance of the Annual Fee, or Additional Payments by the City, with knowledge
of any breach of this Agreement by the Provider or of any default on the part of the Provider in
the observance or performance of any of the conditions, agreements or covenants of this
Agreement, shall not be deemed to be a waiver of any provision of this Agreement. No waiver
of any provision hereof shall be deemed to have been made unless such waiver is in writing
and signed by the party to be bound. The failure of either Party 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.
21.13 Captions
The captions contained in this Agreement are inserted only as a matter of convenience
and do not define, limit or prescribe the scope of this Agreement or the intent of any provisions
thereof.
21.14 Radon
Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it over
time. Levels of Radon that exceed Federal and State guidelines have been found in buildings
in Florida. Additional information regarding Radon and Radon testing may be obtained from
your county public health unit.
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21.15 No Recordation
The Provider shall not record this Agreement without the prior written consent of the
City. However, the City may require that this Agreement be recorded or a "Short Form"
memorandum of this Agreement be executed by both Parties and recorded.
21.16 Agreement Preparation
This Agreement is the result of negotiations between the Parties and has been
typed/printed by one party for the convenience of both Parties, and the Parties agree that this
Agreement shall not be construed in favor of or against either of the Parties by virtue of the rule
of construction that an ambiguity in an agreement is to be construed against the drafter.
ARTICLE XXII
HOLDING OVER
22.1 Holding Over
The Provider shall vacate the Property upon the expiration or earlier termination of this
Agreement. The Provider shall reimburse the City for and indemnify the City against all
damages incurred by the City from any delay by the Provider in vacating the Property. If the
Provider remains in possession of all or any part of the Property after the expiration of the
Term, with or without the express or implied consent of the City, such occupancy shall be from
month -to -month only and not a renewal hereof or an extension for any further term, and in such
case, the fee then in effect shall be payable in the amount and the time specified in the
Agreement, and such month -to -month occupancy shall be subject to all conditions, provisions
and obligations of this Agreement in effect on the last day of the last term hereof, except the
month -to -month occupancy will be terminable upon fifteen (15) days notice given at any time by
either Party.
ARTICLE XXIII
AFFIRMATIVE ACTION
23.1 Affirmative Action
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The Provider shall have in place an Affirmative Action/Equal Employment Opportunity
Policy and shall institute a plan for its achievement, which will require that action be taken to
provide equal opportunity in hiring and promoting for women, minorities, individuals with
disabilities and veterans. Such plan will include a set of positive measures which will be taken
to insure nondiscrimination in the workplace as it relates to hiring, firing, training and promotion.
In lieu of such a policy, plan, the Provider shall submit a State of Assurance indicating that their
business is in compliance with all relevant Civil Rights laws and regulations.
23.2 Nondiscrimination
The Provider agrees that it will not discriminate against any person based upon race,
religion, color, sex, ancestry, age, national origin, mental or physical handicap, in the use of the
Property and improvements thereof. It is expressly understood that upon a determination by a
court of competent jurisdiction that discrimination has occurred, the City shall have the right to
terminate this Agreement.
23.3 Americans With Disability Act
Provider shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City
including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and
all applicable regulations, guidelines and standards. Additionally, Licensee shall take affirmative
steps to ensure nondiscrimination in employment of disabled persons.
ARTICLE XXIV
MINORITY PROCUREMENT
24.1 Minority/Women Business Utilization
The Provider shall use its best efforts to purchase/contract fifty one percent (51 %) of its
annual goods and services requirements from Hispanic, Black and Women
businesses/professionals registered/certified with the City of Miami's Office of Minority/Women
Business Affairs. Such lists will be made available to the Provider at the time of the signing of
the Agreement, and updates will be routinely provided by the City's Office of Minority/Women
Business Affairs.
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ARTICLE XXV
CONFLICT OF INTEREST
25.1 Conflict of Interest
The Provider is aware of the conflict of interest laws of the City of Miami (Miami City
Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.)
and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply
in all respects with the terms of said laws and any future amendments thereto. The Provider
covenants that no person or entity under its employ, presently exercising any functions or
responsibilities in connection with this Management Agreement, has any personal financial
interests, direct or indirect, with the City. The Provider further covenants that, in the
performance of this Management Agreement, no person or entity having such conflicting
interest shall be utilized in respect to services provided hereunder. Any such conflict of
interest(s) on the part of the Provider, its employees or associated persons, or entities must be
disclosed in writing to the City.
ARTICLE XXVI
ENTIRE AGREEMENT
26.1 Entire Agreement
This Agreement represents the sole and entire agreement between the Parties. All prior
agreements promises, negotiations, and representations not expressly set forth herein are
superseded by this Agreement and are of no force or effect.
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IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be
executed, through their proper officials, the day and year first above written.
THE CITY OF MIAMI, a municipal corporation
of the State of Florida ("City")
ATTEST:
By: By:
Pricilla A. Thompson - Joe Arriola
City Clerk City Manager
APPROVED AS TO FORM APPROVED AS TO INSURANCE
AND CORRECTNESS REQUIREMENTS
By: By:
Alejandro Vilarello Dania Carrillo, Director
City Attorney Risk Management Department
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Belafonte Tacolcy Center, Inc., a Florida
non-profit corporation ("Provider")
WITNESSES: By:
Witness Signature Print Name & Title
Print Name
Witness Signature
Print Name
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