HomeMy WebLinkAboutexhibit3MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI
AND
(SUCCESSFUL PROPOSER)
FOR THE MANAGEMENT OF THE PROPERTY LOCATED AT
DRAFT
ALSO KNOWN AS THE "MELREESE GOLF COURSE"
F:1_SHAREDIMeredithlMelreeseUDP\Management Agr\Managerrment4-6-05.doc
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS 1
1.1. Defined Terms; Singular, Plural and Gender. 1
ARTICLE 2. TERM 4
2.1. Term. 4
2.2. Options to Extend 4
ARTICLE 3. APPOINTMENT OF OPERATOR 5
3.1. Appointment. 5
3.2. Contract Manager. 5
ARTICLE 4. USE AUTHORIZATIONS AND STANDARDS 5
4.1. Use of Golf Course Facilities. 5
ARTICLE 5. OBLIGATIONS AND RESPONSIBILITIES OF OPERATOR 6
5.1. Operator's Responsibilities. 6
5.2. Operator's Personnel. 8
5.3. Furnishings, Fixtures and Equipment 9
5.4. Fiscal Responsibility. 10
5.5. Audit 11
ARTICLE 6. CONDITION OF PROPERTY 11
6.1. Condition of Golf Course Facilities. 11
6.2. Alterations. 12
6.3. Payment, Performance Bonds And Letters Of Credit. 12
6.4. Mechanics' Liens 12
6.5. Changes and Additions to Golf Course Facilities 13
ARTICLE 7. OWNER RESPONSIBILITIES 14
7.1. Notice of Potential Liability. 14
7.2. City Not Liable For Failure Of Utilities 14
ARTICLE 8. OPERATOR FEES AND LOSSES 14
8.1. Management Fee. 14
8.2. Operating Losses. 15
8.3. Repayment of City's Contribution. Error! Bookmark not defined.
8.4. Performance Deposit 15
8.5. Increase Of Performance Deposit. 16
ARTICLE 9. INSURANCE AND INDEMNIFICATION 16
9.1. Insurance. 16
9.2. Damage Or Loss To Operator's Property. 17
9.3. Vandalism and Thefts 18
9.4. Theft and Loss Liability. 18
9.5. Indemnification. 18
9.6. Notice of Potential Liability. 19
ARTICLE 10. DESTRUCTION OF PROPERTY 19
10.1. Destruction of Golf Course Facilities. 19
10.2. City's Option to Terminate Due to Casualty. 20
ARTICLE 11. HAZARDOUS MATERIALS
11.1. Hazardous Materials
ARTICLE 12. SAFETY
20
20
21
12.1. Safety 21
ARTICLE 13. AMERICANS WITH DISABILITIES ACT 21
13.1. ADA. 21
ARTICLE 14. CITY'S INSPECTION AND RIGHT OF ENTRY 22
14.1. Inspection by City. 22
14.2. City's Right of Entry 22
ARTICLE 15. USE OF CITY OR GOLF COURSE FACILITIES' NAME AND LOGO...22
15.1. Use of Logo. 22
ARTICLE 16. SPECIAL ASSESSMENTS AND TAXES 22
16.1. Special Assessments and Taxes. 22
ARTICLE 17. NO REPRESENTATION BY CITY
17.1. Condition of Golf Course Facilities.
23
23
ARTICLE 18. DEFAULT 23
18.1. Events of Default — Operator. 23
18.2. Remedies in Event of Default. 24
18.3. Repeated Defaults. 25
ARTICLE 19. NOTICES
19.1. Notice
ARTICLE 20. FORCE MAJEURE
20.1. Force Majeure.
26
26
26
26
ARTICLE 21. MISCELLANEOUS PROVISIONS 27
21.1. Ingress and Egress. Error! Bookmark not defined.
21.2. Approvals. 27
21.3. Assignment 27
ii
21.4. No Agency or Joint Venture 27
21.5. No Third Party Beneficiaries. 27
21.6. Remedies. 27
21.7. Exhibits. 27
21.8. Successors And Assigns. 27
21.9. Surrender Of Property. 27
21.10. Amendments. 28
21.11. Construction Of Agreement. 28
21.12. Court Costs And Attorneys' Fees. 28
21.13. Waiver Of Jury Trial. 28
21.14. Conflict of Interest. 28
21.15. Counterparts 29
21.16. Conditions to Effectiveness of this Agreement. 29
21.17. Severability. 29
21.18. Waiver 29
21.19. Captions. 29
21.20. Radon. 30
21.21. Real Estate Agent. Error! Bookmark not defined.
21.22. Public Records 30
21.23. No Recordation Error! Bookmark not defined.
21.24. Agreement Preparation. 30
21.25. Authority. 30
ARTICLE 22. HOLDING OVER ERROR! BOOKMARK NOT DEFINED.
22.1. Holding Over. Error! Bookmark not defined.
ARTICLE 23. AFFIRMATIVE ACTION 30
23.1. Affirmative Action. 30
23.2. Nondiscrimination 30
ARTICLE 24. MINORITY PROCUREMENT 31
24.1. Minority/Women Business Utilization. 31
ARTICLE 25. ENTIRE AGREEMENT 32
25.1. Entire Agreement. 32
iii
MANAGEMENT AGREEMENT
This Management Agreement (hereinafter the "Agreement"), is made and entered into this
day of 2005 (the "Agreement Date"), by and between the City of Miami, a municipal
corporation of the State of Florida (hereinafter the "City") and
, a
(hereinafter the "Operator"), (hereinafter collectively referred to as the "Parties").
WITNESSETH
In consideration of the mutual covenants set forth herein, the Parties agree as follows:
corporation
ARTICLE 1.
DEFINITIONS
1.1. Defined Terms; Singular, Plural and Gender.
Any word contained in the text of this Agreement shall be read as the singular or the plural, and
as the masculine, feminine or neuter gender as may be applicable in the particular context. More
specifically, however, for the purposes of this Agreement the following words shall have the meanings
attributed to them in the following subsections:
1.1.1. "Additional Term" has the meaning ascribed to it in Section 2.2.
1.1.2. "Agreement" means this Management Agreement.
1.1.3. "Approved Subcontractor" means any entity contracted by the Operator to fulfill
an obligation of the Operator, which subcontractor has been approved by the City Manager.
1.1.4. "Business Day" means Monday through Friday, excluding legal holidays.
1.1.5. "Calendar Year" means the period of time commencing January 1 and ending
December 31 ".
1.1.6. "City Manager" means administrative head of the City's government who is
authorized to execute this Agreement and other documents, including notices required hereunder.
1.1.7. "Commencement Date" means the date of execution of this Agreement by both
parties and approval by the City Commission.
1.1.8. "Event of Force Majeure" means a delay resulting from damage or destruction by
fire or other casualty, strikes, embargoes, shortages of material or labor, labor disputes, unusually adverse
weather conditions; or other like or unlike events or conditions beyond the control of the Parties,
including any court actions, and injunctions by third parties.
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1.1.9. "Golf Course" means the portion of the Golf Course Facilities (and all
improvements thereon) upon which the eighteen (18) holes of the golf course, driving range and ancillary
facilities are located.
1.1.10. "Golf Course Facilities" means the Property and all existing and/or future
improvements, equipment, furniture and fixtures located within the Property.
1.1.11. "Gross Revenue" means all revenue derived from business operations located on
or initiated at the Golf Course Facilities, including, but not limited to, gross sales derived from greens
fees, cart fees, cancellation charges, driving range fees, trail fees, reservation fees, locker rental,
equipment rental, bag storage, equipment repair, parking fees, food and beverage sales, merchandise
sales, pay telephones, vending machines, and entertainment devices, charges for use of any pro-
shop/clubhouse space and all monies received from all sources. Gross Revenue shall not include
applicable sales, excise, gross receipts or admission taxes paid to a legal taxing authority, tips and
gratuities paid by users of the facilities to service providers (so long as such tips and gratuities arc not
paid in lieu of sales), refunds or allowances made on merchandise claimed to be defective or
unsatisfactory, or discounts to customers, provided said amounts had been previously included as part of
Gross Revenue, and that if such refunds, allowances or discounts are in the form of credits to customers,
such credits shall be included in Gross Revenue when used; uncollected or uncollectible credit accounts
(those accounts which are more than Ninety (90) days delinquent) provided said amounts are included in
Gross Revenue upon payment, if made; all sums and credits received in settlement of claims for loss or
damage to inventory or equipment at the Golf Course Facilities; gains or losses from the sale of any
capital asset, furniture, fixtures and equipment owned by Operator; any compensation payments or
insurance proceeds for claims against third parties arising out of or during the course of the operation of
the Golf Course Facilities (other than proceeds from business interruption insurance); interest earned on
Operator's deposit accounts, earnings or profits on Operator's investments, and fees paid for golf lessons
and organized golfing schools.
1.1.12. "Impositions" means all governmental assessments, fees, charges and levies
imposed by any governmental authority, including, without limitation, assessments imposed by the City
(in its municipal capacity), franchise fees, excises, license and permit fees, levies, charges and taxes
(including ad valorem real estate taxes on the land under the Property and/or the improvements), personal
property taxes, sales taxes, fire fees and parking surcharges of any kind now or hereafter enacted, whether
general or special, ordinary or extraordinary, foreseen or unforeseen, any of which is properly levied
against the Property and the improvements.
1.1.13. "Initial Term" has the meaning ascribed to it in Section 2.1.
1.1.14. "inventory" means attached hereto as Exhibit "B".
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1.1.15. "Letter of Credit" whenever used in this Agreement means an irrevocable and
unconditional, clean standby letter of credit, including replacements thereof, in form and substance
reasonably satisfactory to the City Manager and issued by a state or federal banking institution. The
letter of credit shall: (i) name City as beneficiary; (ii) allow City to make partial and multiple draws
thereunder up to the face amount, as determined by City; (iii) require such financial institution to pay
within no more than one (1) Business Day to City the amount of a draw upon receipt by such financial
institution solely of a sight draft signed by City and presented at a location within Miami -Dade County,
Florida (which shall include a certification signed by the City Manager on behalf of City that an Event of
Operator's Default has occurred and is continuing); (iv) provide for an automatic payment to City upon
expiration thereof unless a replacement Letter of Credit is issued to City within thirty (30) days prior to
the expiration thereof (if such provision is, when requested, commercially available from the issuer); and
(v) provide that City can freely transfer it upon an assignment or other transfer of its interest in the Golf
Course Facilities to the assignee or transferee, without charge and without recourse, and without having to
obtain the consent of Operator or such financial institution (if such provision is, when requested,
commercially available from the issuer.
1.1.16. "Net Operating Income" means Gross Revenue less Operating Expenses during
each Calendar Year.
1.1.17. "Net Operating Loss" means the amount by which Gross Revenue is less than
Operating Expenses during each Calendar Year.
1.1.18. "Operating Expenses" means any and all costs and expenses paid or incurred by
Operator, its representative or designee, in connection with the operation, maintenance, management and
repair of the Golf Coursc Facilities. By way of illustration but not limitation, Operating Expenses shall
include the following: insurance premiums paid by Operator for the insurance policies required to be
maintained by Operator under this Agreement and (to the extent paid or required to be paid) deductibles;
water, sewer and all other utility charges; janitorial and all other cleaning services (including supplies of
every kind); Impositions; refurbishing and repainting; air conditioning, and heating; pest control; trash
and disposal service; resurfacing; lighting systems, fire detection and security services; maintenance and
repair of Golf Course Facilities; leasing of equipment; personnel costs including all appurtenant payroll
expenses and fringe benefits and payroll taxes of every nature; minimum monthly guarantee and
percentage fees paid to the City; annual reserves for capital replacement based on the estimated cost and
remaining useful life of such capital items, as reasonably determined by Operator; the amortized costs
over the expected useful life (as reasonably determined by Operator) to repair, maintain, replace and
instal! capital improvements as Operator may in the future install to comply with governmental
regulations and rules or undertaken in good faith with a reasonable expectation of reducing operating
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costs, fees for required licenses and permits, fees, charges and other costs necessary for the management,
administration and operation of the Golf Course Facilities; and costs of legal services, accounting
services, labor, supplies, materials and tools. Operating Expenses shall not include: Operator's income tax
or general corporate overhead; capital improvements or replacement of any equipment or component
which would be considered a capital expense, except as specifically provided above; depreciation on the
building(s) or equipment therein; loan payments; real estate broker's commissions; training costs;
management fees.
1.1.19. "Parks Director" means the Director of the Parks and Recreation Department
authorized by the City to administer this Agreement and coordinate the activities of the Operator at the
Golf Course Facilities.
1.1.20. "Property" means that real property owned by the City located at 1802 NW 37
Avenue, Miami, Florida, as more particularly described in Exhibit "A" attached hereto and made a part
hereof.
1.1.21. "Term" shall have the meaning ascribed to it in ARTICLE 2.
ARTICLE 2.
TERM
2.1. Term — Early Termination.
The term of this Agreement shall commence as of the Commencement Date and shall have an
initial term of two (2) years ("Initial Term").
2.2. Options to Extend.
In the event the City and the Operator mutually wish to extend this Agreement, this Agreement
may be extended for two (2) additional one-year periods (hereinafter the "Additional Tcrm"), upon such
terms and conditions, provided that no event of default, as defined in ARTICLE 18, exists at the time of
notice. If the Operator desires to extend this Agreement for an Additional Term, the Operator must
deliver written notice of its intent to the City Manager no later than four (4) months prior to the expiration
of the then current Term, (the "Option Request").
Upon receipt of the Option Request, the City Manager shall conduct a review of the Operator's
compliance with the provisions of this Agreement. Following such review, the City Manager, in his sole
discretion, shall either extend the Agreement or reject the Option Request within sixty (60) days of receipt
of the Option Request. The City Manager's failure to act shall be deemed a rejection of the Option
Request. In the event an option to extend the Initial Term of this Agreement is exercised, the City will
retain the Performance Deposit provided for in the Section 8.5 hereof, for the same purposes as described
therein. The Initial Term and any Additional Term shall be collectively referred to as the "Term".
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2.3. Early Termination.
The City shall have the right to terminate this Agreement in the event the Operator and the City
fail to reach an agreement for the lease and development of the Property by , 200 .
The parties furthcr agree to terminate this Agreement upon the Operator taking possession of the
Property pursuant to a lcase agreement with the City.
ARTICLE 3.
APPOINTMENT OF OPERATOR
3.1. Appointment.
The City hereby engages Operator as an independent contractor and not as an employee of City to
operate, manage and maintain the Golf Course Facilities during the Term in accordance with the terms
and conditions set forth herein, and Operator hereby accepts such engagement.
3.2. Contract Manager.
The Operator acknowledges that the Operator has been retained as a contract manager only, and
as such, the Operator shall have no interest in the Golf Course Facilities as owner, lessee or otherwise. It
is expressly understood and agreed that no real or personal property is leased to the Operator, that this is a
management agreement and not a lease, that the Operator's right to use the Golf Course Facilities shall
continue only so long as the Operator shall comply strictly and promptly with each and all of the
undertakings, provisions, covenants, agreements, stipulations and conditions contained herein. The
Operator agrees not to represent itself as an agent or associate of the City or any unit thereof. The City
shall retain legal possession of and control over the Golf Course Facilities, and approve Operator's use
thereof and all programs and services conducted thereon.
ARTICLE 4.
AUTHORIZATIONS AND STANDARDS
4.1. Operation of Golf Course Facilities.
4.1.1. The Operator shall operate thc Golf Course Facilities as a golf facility with
related golf activities, recreational amenities, hospitality facilities and amusements, open to the general
public upon the terms and conditions herein provided.
4.1.2. The Operator shall take such actions as may be necessary to promptly comply
with any and all orders or requirements of any federal, state, county or municipal authority having
jurisdiction over thc Golf Course Facilities, issued in the exercise of such jurisdiction, with respect to thc
operation, management or maintenance thereof. Except in the case of an emergency, Operator shall not
take any action in response to a governmental order or requirement without notifying thc City Manager.
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The Operator shall not take any action with respect to any governmental order or requirement that City is
contesting and has notified Operator of the same, or has notified Operator of its intention to contest;
provided, however, that City shall proceed with all duc diligence in contesting any such governmental
order or requirement and shall use best efforts to prevent a shut-off of essential services to the Golf
Course Facilities.
4.1.3. The Operator, subject to the Parks Director's, and where required, City
Commission approval, shall adopt, publish, and enforce rules, regulations and policies for the operation
and use of the Golf Course Facilities, including, without limitation, hours of operation, selection of tee
times, dress code, conduct of players and the like.
4.1.4. Notwithstanding anything to the contrary contained herein, Operator and City
agree as follows with respect to operation of the Golf Course Facilities:
4.1.4.1. The Golf Course Facilities shall be operated as a public facility open to
all players upon payment of the applicable use fees.
4.1.4.2. The Operator shall operate the Golf Course in accordance with the
provisions of City of Miami Code, Chapter 18, Article V, as the same may be amended hereafter, which
Article governs the operating hours and fees charged at the Golf Course.
4.1.4.3. With respect to material matters in connection with operation of the Golf
Course Facilities, Operator agrees to operate the Golf Course Facilities according to a written program
that shall list all activities that may significantly infringe upon availability to the public of any facility or
service at the Golf Course Facilities. City may deny the use of the facilities for any activity that infringes
upon the public's use.
ARTICLE 5.
OBLIGATIONS AND RESPONSIBILITIES OF OPERATOR
5.1. Operator's Responsibilities.
Operator shall be responsible for all aspects of operating the Golf Course, at its sole cost and
expense, which shall include, but is not limited to, the following:
5.1.1. Operator shall operate and maintain the Golf Course Facilities in accordance with
standards similar to those of other local public daily fee golf course facilities.
5.1.2. Operator shall provide all furnishings, fixtures and equipment required for its
operation of the Golf Course Facilities. All furniture, fixtures and equipment used by the Operator at the
Golf Course Facilities shall be of good quality and suitable for its purpose.
5.1.3. Operator shall provide any and all security measures it deems required to protect
its equipment, materials and facilities and to provide for the safe operation of the Golf Course Facilities.
Page 6
5.1.4. The Golf Course Facilities shall be made available to the City on weekdays for
up to four (4) special functions per year. Such special functions may include up to one hundred and forty-
four (144) players each. City and retired City employees playing golf at such special functions shall not
be required to pay any greens fees, but shall pay the cost of cart fees, food and beverage and merchandise
provided by Operator.
5.1.5. The Parks Director and Operator shall establish emergency procedures for the
Golf Course Facilities and each operation thereon to be implemented in case of hurricane or other
emergency.
5.1.6. Operator shall be responsible for the provision, installation, preventive
maintenance, maintenance, repair, substitutions and replacements, as necessary, of all equipment and
improvements necessary to operate the Goff Course Facilities, including without limitation, air
conditioning and heating systems, decoration, plumbing, mechanical, electrical, fixtures, floor coverings,
building interior and exterior walls, ceilings, elevator, structural, the pavement, driveways, window and
roof repairs and replacements, plumbing, electrical and life safety systems. The Operator shall not
commit, or suffer to be committed, any waste in or upon the Golf Course Facilities or do anything in or
on the Golf Course Facilities which, in City's sole opinion, detracts from the appearance of the Golf
Course Facilities. All maintenance, repairs or replacements shall be performed in a manner and level of
service satisfactory to the City. The Operator agrees to use reasonable efforts to secure contracts with
minority owned companies, where available and where cost, service level and quality arc comparable to
othcr companies.
5.1.7. The Operator shall make arrangements, negotiate and enter into contracts for
exterminating services, vending services, security, cleaning, landscaping, trash collection and such other
services as Operator reasonably deems advisable for the operation of the Golf Course Facilities. The
Operator agrees to use reasonable efforts to secure contracts with minority owned companies, where
available and where cost, service level and quality are comparable to other companies.
5.1.8. The Operator shall be responsible for the provision of all utilities, including but
not limited to, electricity, water, stormwater fees, gas, telephone, garbage and sewage disposal used by
Operator in its operation of the Golf Course Facilities, as well as all costs for installation of any lines and
equipment necessary.
5.1.9. Operator shall abide by all laws, statutes, ordinances, rules, regulations and other
enforceable issuance by bodies with legal jurisdiction, including, but not limited to, laws relating to
discrimination, civil rights, health, safety and welfare of individuals.
5.1.10. Operator shall obtain any and all licenses and permits necessary, and in
connection with the Operator's use and occupancy of the Golf Course Facilities, including a liquor license
Page 7
if liquor is to be sold at thc Golf Course Facilities. Liquor sales shall be limited to sales for consumption
at the premises only. If required by governmental authorities, licenses shall be obtained in the name of the
City (except liquor) and all documents to be signed in connection with the application for such licenses
shall be executed by the City.
5.1.11. The Operator may provide or cause to be provided customary food, beverage, on -
course service, restaurant and bar service at the Golf Course Facilities and such other services as may be
approved by the City Manager.
5.1.12. In the event Operator elects to subcontract any of its obligations with respect to
the Golf Course Facilities (which subcontract shall be subject to thc prior written approval of the City
Manager), Operator will guarantee to the City the due performance of any and all such obligations.
5.1.13. Except where the Golf Course Facilities are rendered unusable by reason of fire,
act of God, or other casualty, Operator shall at all times during thc Term hereof (i) occupy the Golf
Course Facilities; (ii) continuously conduct operations on the Golf Course Facilities in accordance with
the terms of this Agreement; (iii) at all times keep the Golf Course Facilities fully stocked with materials,
trade fixtures and furnishings necessary and proper to operate the Golf Course Facilities and (iv) keep the
Golf Course Facilities open for operation during hours as provided for in the City of Miami Code,
Chapter 38, Article V, as may be amended from time to time (hereinafter the "Required Operating
Hours").
5.1.14. The Operator shall advise the City promptly with confirmation, in writing, of the
service upon the Operator of any summons, subpoena or other similar legal document, including, but not
limited to, letters, noticcs and other communications setting forth or claiming an actual or alleged
potential liability or encumbrance to the City, Operator or the Golf Course Facilities, and shall cooperate
with the City in connection with any legal proceeding arising in connection with the operation of the Golf
Course Facilities.
5.1.15. The Operator shall have the right, subject to the prior written approval of the City
Manager, which approval can be withheld in his sole discretion, to use affiliated parties in fulfilling its
obligations hereunder, so long as the use of the affiliated party is not morc costly or otherwise detrimental
to the City.
5.2. Operator's Personnel.
5.2.f. Operator shall hire and assign a full-time manager comparable to managers at
similar public daily fee golf courses. The manager shall be present at the Golf Course Facilities during
normal business hours. At times when the full-time manager is absent, there shall be a designated
assistant manager present. Operator agrees to supply the City with background information and telephone
numbers for making contact with the manager and assistant manager.
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5.2.2. Operator shall, in the name of the Operator and not in the name of the City, hirc,
train, promote, supervise, discharge and be responsible for all personnel matters of its employees at the
Golf Course Facilities. Operator shall be responsible for the conduct of its officers, directors,
management and employees who shall conduct themselves in a manner so as not to cause civil or criminal
charge and shall provide safe, courteous, honest and efficient service to patrons of the Golf Course
Facilities. All such persons who are employed by the Operator shall be the employees of the Operator and
every person performing services in connection with this Agreement, including subcontractors,
volunteers, agents or employees of Operator, shall be acting solely on behalf of the Operator. Operator
shall be responsible for timely compliance with all local, state and federal labor and tax laws, including,
without limitation, OSHA, federal withholding tax laws, worker's compensations insurance, FICA,
MICA and federal and state unemployment insurance laws. 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.
5.2.3. Operator represents and warrants that all Approved Subcontractors shall be
licensed, if required, and shall be trained, safe, courteous, helpful and efficient in carrying out those
duties. Further, Operator represents that all of its employees shall be so trained and shall perform their
duties as herein required.
5.2.4. All terms and conditions of this Agreement shall extend to, be binding on, and
directly enforceable upon Approved Subcontractors, Operators and permittecs as authorized under this
Agreement.
5.3. Furnishings, Fixtures and Equipment.
5.3.1. City has title to all items listed in the Inventory. Operator may use such
Inventory, free of any charge, and Operator hereby accepts the use of such Inventory "as is" and "where
is". The Operator shall not remove any of the Inventory from the Golf Course Facilities without thc prior
written consent of the Parks Director. Operator shall, at its sole cost and expense, be responsible for the
normal operation, cleaning, preventative maintenance, reasonable care and repair of all the equipment and
furnishings listed in the Inventory. The Operator shall replace or repair, at its sole cost and expense, any
of those items and any fixture or furnishing provided by the City lost, damaged or destroyed due to the
acts, omissions or negligence of the Operator or its agents or employees. Any replacement or substitution
of such personal property shall become City personal property upon replacement or substitution. All City -
owned personal property must be returned to the City in its original condition, normal wear and tear
excepted, as appropriate during the term of this Agreement, upon expiration or termination of this
Agreement.
5.3.2. Any property not owned by the City remaining at the Golf Course Facilities more
than thirty (30) days after termination or expiration of this Agreement shall be deemed at thc election of
Page 9
the City, to be (1) a gratuitous gift to the City, or (2) removed from the Golf Course Facilities and stored
or disposed of by the City at the sole cost of the Operator.
5.4. Fiscal Responsibility.
5.4.1. The Operator shall charge such fees (the "Fees") for use of thc Golf Course
Facilities as provided in City of Miami Code, Chapter 18, Article V, as the same may be amended
hereafter.
5.4.2. Prior to the Commencement Date and no later than sixty (60) days prior to the
end of each Calendar Year, thc Operator shall provide to the Parks Director for his review and approval a
copy of its proposed operating budget projecting all sales and expenses of the Golf Course Facilities for
the next Calendar Year. Operator shall submit to the City along with its proposed operating budget, year-
to-date unaudited actual comparative financial statements. The Parks Director shall approve or
disapprove the budget within thirty (30) days of receipt of such proposed budget inclusive of unaudited
financial statements. In the event the Parks Director disapproves the Budget, then he must submit to
Operator the reasons for disapproval. Operator and Parks Director shall use their best efforts to reach an
agreement with respect to the proposed Budget. In the event the parties cannot reach an agreement, then
the prior year's budget shall be utilized with up to a five percent (5%) increase in the total budget.
5.4.3. Operator shall, at its sole cost and expense, pay all federal, state and local taxes,
which may be assessed against its operations, equipment, or merchandise while in or upon the Golf
Course Facilities.
5.4.4. At all times during the Term, the Operator shall maintain and keep, or cause to be
maintained and kept at the Golf Course Facilities, or such other location as may be approved by the Parks
Director, a full, complete and accurate daily record and account of all Gross Revenues, other revenues, if
any, and expenses arising or accruing by virtue of its operations conducted at or related to the Golf
Course Facilities, including, but not limited to, any tournaments, special events and/or other contributions
to the Operator.
5.4.5. All records and accounts including invoices, sales slips, bank statements or
duplicate deposit slips and all other supporting records, shall be available for inspection and/or 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 Operator shall keep and preserve, or cause to be kept and preserved, said records for not
less than sixty (60) months after the expiration of this Agreement. For the same period of time, the
Operator shall also retain copies of all sales and tax returns covering its operations at the Golf Course
Facilities, and any other governmental tax or other returns, which show the Operator's sales therein, and
shall, upon demand, deliver photographic copies thereof to the City at no cost. The Operator will
Page 10
cooperate with the City's internal auditors (or such other auditors designated by the City) in order to
facilitate the City's examination of records and accounts. The Operator 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.
5.5. Audit.
5.5.1. Operator shall deliver or cause to be delivered to the Parks Director within ninety
(90) days after the end of each Calendar Year, a financial statement for the prior Calendar Year for
Operator's operations at the Golf Course Facilities, prepared and certified by an independent certified
public accountant (the "CPA") employed at Operator's sole cost and expense. in the event the
Commencement Date falls between July 1 and December 31m, the Operator shall not be required to file a
certified financial statement for its first Calendar Year of operation at the Golf Course Facilities until the
end of the following Calendar Year. If the Commencement Date falls between January 1 S` and June 30th,
the Operator shall be required to submit a financial statement for the Calendar Year or portion thereof in
accordance with the time frame set forth above. Said CPA shall certify that he/she made a complete
examination of the books, state sales tax returns, and federal income tax returns of the Operator, and that
the financial statement is prepared in accordance with generally accepted accounting principles and
practices and represents the Gross Revenue and other revenues, if any, of the Operator for the period
indicated therein.
5.5.2. Notwithstanding the above and during the sixty (60) month period described in
the Section 5.4.5, at its option, the City may cause, at its sole cost and expense, a complete audit to be
made of the Operator's business affairs, records, files, sales slips and sales tax records in connection with
the Operator's operations on, from or related to the Golf Course Facilities for the period covered by any
financial statement, report or record furnished by the Operator to the City. The Operator shall allow the
City or the auditors of the City to inspect all or any part of the compilation procedures for the aforesaid
monthly reports. Records shall be available at the Golf Course Facilities, or such other location in Miami
approved by the Parks Director, Monday through Friday, inclusive, between the hours of 8:00 AM and
5:00 PM.
ARTICLE 6.
CONDITION OF PROPERTY
6.1. Condition of Golf Course Facilities.
The Operator takes the Golf Course Facilities in its present "as is" condition and state of repair
and without any representation by or on behalf of the City, and agrees that the City shall not be liable for
any latent, patent or other defects on or in the Golf Course Facilities. At the expiration or earlier
Page 11
termination of the term of this Agreement, the Operator shall surrender the Golf Course Facilities "broom
clean" and in good order and condition, ordinary wear and tear excepted. Operator shall be responsible
and pay for, all damages to the Golf Course Facilities , except as otherwise provided in ARTICLE 10.
6.2. Alterations.
In the event the Operator desires to make or causc to be made any construction, repair, alteration,
addition, deletion, partition or change to the Golf Course Facilities (hereinafter collectively called
"Alterations"), the Operator shall submit for prior approval by the Parks Director detailed plans and
specifications of the proposed Alterations and proof of funding and/or its financing plans. No
construction shall commence on the Golf Course Facilities until the Operator has received written
approval from the Parks Director and has complied with all of the conditions imposed by the City. The
Operator shall be solely responsible for applying and acquiring all necessary building and zoning permits.
The Operator shall be responsible for any and all costs associated with any Alterations including, but not
limited to, design, construction, installation and permitting costs. All Alterations to the Golf Course
Facilities, whether or not by or at the expense of the Operator, 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 Golf Course Facilities. All Alterations must be in compliance
with all statutes, laws, ordinances and regulations of the State of Florida, Miami -Dade County, City of
Miami and any other agency that may have jurisdiction over the Golf Course Facilities as they presently
exist and as they may be amended hereafter.
6.3. Payment, Performance Bonds And Letters Of Credit.
The City Manager, at its sole discretion, may require, as a condition to its approval of a proposed
Alteration, that the requested construction be secured by a payment and performance bond or Letter of
Credit in the amount of one hundred twenty-five percent (125%) of the total construction cost, or in such
other amounts as may be designated by the City Manager, and that the Operator complies with City's
insurance requirements. The Operator shall be responsible for maintaining or causing to be maintained
said bond or Letter of Credit and insurance policies, in full force and effect throughout the construction
period. At any time or times when City has made application of all or any part of the Performance Bond
or Letter of Credit, the Operator shall deposit the sum or sums equal to the amounts so applied by City
within ten (10) days of written notice by the City.
6.4. Mechanics' Liens.
The Operator shall not knowingly suffer or permit any mechanics liens to be filed against the title
to the Golf Course Facilities by reason of work, labor, services or materials supplied to the Operator or
anyone having a right to utilize the Golf Course Facilities as a result of an agreement, with or without the
consent of the Operator. Nothing in this Agreement shall be construed as constituting the consent or
Page 12
request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor,
laborer or materialman for the perforrnance of any labor or the furnishing of any materials for any specific
Alteration, or repair of or to the Golf Course Facilities nor as giving the Operator the right, power or
authority to contract for or permit the rendering of any services of the furnishing of any materials that
would give rise to the filing of any mechanics liens against the City's interest in the Golf Course
Facilities. If any mechanics' lien shall at any time be filed against the Golf Course Facilities, the
Operator shall cause it to be discharged of record within fifteen (15) days after thc date of its filing. If the
Operator 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 procuring the discharge of the lien by deposit in court of bonding, or in the event
the City shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the
mechanics' lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor with
interest, costs and allowances with the understanding that all amounts paid by the City shall constitute
additional payments due and payable under this Agreement and shall be repaid to the City by the Operator
immediately upon rendition of an invoice or bill by the City. Notwithstanding the aforementioned, the
Operator shall not be required to pay or discharge any mechanics' lien, and will not be considered to have
committed an Event of Default, as hereinafter defined, so long as (i) the Operator shall in good faith
proceed to contest the lien by appropriate proceedings, (ii) the Operator shall have given notice in writing
to thc City of its intention to contest the validity of the lien, and, (iii) the Operator 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 satisfactory to the City in an amount sufficient to pay one hundred ten
percent of the amount of the contested lien claim with interest, costs and expenses, including reasonable
attorneys' fees, to be incurred in connection therewith.
6.5. Changes and Additions to Golf Course Facilities.
The City reserves the right at any time and from time to time to reasonably: (i) make or permit
changes or revisions in its plan for the Golf Course Facilities, including additions to, subtractions from,
rearrangements of, alterations of, modifications of or supplements to the building areas, walkways,
parking areas, or driveways, (ii) construct other buildings or improvements on the Golf Course Facilities
and to make alterations thereof or additions thereto, and (iii) change location, size, content and design of
any signage for the Golf Course Facilities. The Operator is aware and acknowledges that the City is in
the process of doing certain improvements in connection with the redevelopment of Grapeland Park that
lies adjacent to the Property, which improvements may impact portions of the Golf Course. Such
improvements will be conducted by the City in such a manner as to minimize interference with use of the
Golf Course and will not materially impact the course.
Page 13
ARTICLE 7.
OWNER RESPONSIBILITIES
7.1. Notice of Potential Liability.
The City shall advise the Operator promptly with confirmation, in writing, of the service upon the
City of any summons, subpoena or other similar legal document, including, but not limited to, letters,
notices and other communications setting forth or claiming an actual or alleged potential liability to the
City, Operator or the Golf Course Facilities, and shall cooperate with the Operator in connection with any
legal proceedings arising out of the Operator's management of the Golf Course Facilities.
7.2. City Not Liable For Failure Of Utilities.
The City shall not be liable for any failure of water supply, sewer, gas or electric current, 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 or gas mains on to any part of the Golf Course
Facilities.
ARTICLE 8.
OPERATOR FEES AND LOSSES
8.1. Management Fee.
The Operator's management fee shall be equal to Net Operating Income during each Calendar
Year, it being understood that the Net Operating Income is the amount available after payment of all
Operating Expenses, including the payment of the Minimum Monthly Guarantee plus percentage of Gross
Revenue to the City as provided below. The Operator may project on a quarterly basis the Net Operating
Income for the Calendar Year and disburse such projected quarterly Net Operating Income to itself as its
management fee.
8.2. Fees to City.
Commencing on the Commencement Date, the Operator shall pay in advance, and in full, on the
first day of each month $ (the "Minimum Monthly Guarantee") to the City. In the event
the Commencement Date does not fall on the first day of the month, the Minimum Monthly Guarantee for
the first month will be prorated based on the days remaining in that month.
In addition to the payment of the Minimum Monthly Guarantee, the Operator shall pay to the City
monthly, in the manner and upon the conditions hereinafter provided, a percentage of Gross Revenue (the
"Percentage Fee") during each calendar year including any extension hereof, an amount equal to
percent ( %) of Gross Revenue. Within thirty (30) days after the end of each calendar month: (i) the
Operator shall deliver to the City a written report of Gross Revenue during the preceding calendar month,
Page 14
on forms approved by the City. This report shall be signed by the Operator certifying to the accuracy of
such Gross Revenue, and (ii) the Operator shall pay to the City the Percentage Fee due.
Payments shalt be made payable to "City of Miami" and shall be mailed to 444 S.W. 2fh Avenue,
6'h Floor, Finance Department, Miami, Florida 33130, or such other address as may be designated from
time to time.
8.3. Operating Losses.
The Operator shall be responsible for the payment of all Net Operating Losses.
8.4. Late Fees.
8.4.1. The Operator hereby acknowledges that late payment by the Operator to the City
of fees and other sums duc hereunder will cause the City to incur costs not contemplated by this
Agreement, the exact amount of which will be extremely difficult to ascertain. Accordingly, if any
installment of fees or any other sum due from the Operator shall not be received by the City within fifteen
(15) days after said amount is due, the Operator shall pay to the City a late charge equal to 5% of such
overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate
of the costs the City will incur by reason of late payment by the Operator. Acceptance of such late charge
by the City shall not constitute a waiver of the Operator's default with respect to such overdue amount,
nor prevent thc City from exercising any of its other rights and remedies granted hereunder or at law or in
equity.
8.4.2. Any amount not paid to the City within fifteen (15) days after the date said
amount is duc shall bear interest at the rate of 12% per annum from its duc date until paid. Payment of
such interest shall not excuse or cure any default by the Operator under this Agreement.
8.5. Performance Deposit.
Simultaneously with the execution of this Agreement, thc Operator shall post either an
irrevocable Letter of Credit or cash deposit (the "Performance Deposit"), in the amount of
$ as guarantee for the full and faithful performance by Operator of all obligations of
Operator under this Agreement or in connection with this Agreement. If Operator is in default beyond
any applicable notice or cure period, the City may use, apply or retain all or any part of the Performance
Deposit for the payment of (i) any fee or other sum of money which Operator was obligated to pay but did
not pay, (ii) any sum expended by City on Operator's behalf in accordance with the provisions of this
Agreement, or (iii) any sum which City may expend or be required to expend as a result of Operator's
default. The use, application or retention of the Performance Deposit or any portion thcrcof by City shall
not prevent City from exercising any other right or remedy provided for under this Agreement or at law
and shall not limit any recovery to which City may be entitled otherwise. At any time or times when
City has made any such application of all or any part of thc Performance Deposit, the Operator shall
Page 15
deposit the sum or sums equal to the amounts so applied by City within ten (10) days of written notice by
the City. Provided Operator is not in violation of this Agreement, the Performance Deposit or balance
thereof, as the case may be, shall be returned to Operator upon the termination of this Agreement or upon
any later date after which Operator has vacated the Golf Course Facilities in the same condition or better
as existed on the Commencement Date, ordinary wear and tear excepted. Upon the return of the
Performance Deposit (or balance thereof) to the Operator, City shall be completely relieved of liability
with respect to the Performance Deposit. The Operator shall not be entitled to receive any interest on the
Performance Deposit.
8.6. Increase Of Performance Deposit.
if Operator is in default under this Agreement more than two (2) tunes within any twelve (12)
month period, irrespectively of whether or not such default is cured, then, without limiting City's other
rights and remedies provided for in this Agreement or at law or equity, the City may, at its sole option,
increase the Performance Deposit by three (3) times the Performance Deposit then in place. This increase
shall be paid by Operator to City forthwith on demand.
ARTICLE 9.
INSURANCE AND INDEMNIFICATION (TO BE REVIEWED BY RISK MANAGEMENT)
9.1. Insurance.
Throughout the Term, Operator shall obtain and maintain the following insurance cause such
insurance to be maintained with respect to the Golf Course Facilities:
9.1.1. Commercial General Liability coverage form, or its equivalent, including
contractual liability, products and completed operations, personal injury and premises and operations
coverages against all claims, demands or actions, bodily injury, personal injury, death or property damage
occurring at the Golf Course Facilities with such limits as may be reasonably requested by the City from
time to time but not less than $ per occurrence combined single limit for bodily injury and
property damage. The City shall be namcd as Additional Insured on the policy or policies of insurance.
9.1.2. "All Risk" property insurance against loss or damage by fire, windstorm, flood
with such endorsement for extended coverage, vandalism, malicious mischief and special coverage,
insuring 100% of the replacement cost of Operator's improvements, fixtures, equipment, furniture and all
other personal property in and about Property.
9.1.3. 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 time but not less than
Page 16
$ 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.
9.1.4. Worker's Compensation in the form and amounts required by Florida law.
9.1.5. The City reserves the right to amend the insurance requirements by the issuance
of a notice in writing to the Operator. The Operator shall provide any other insurance or security
reasonably required by thc City.
9.1.6. 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
City. Said notice should be delivered to the City of Miami, Department of Risk Management, 444 SW 2
Avenue, 9`h Floor, Miami, FL 33130 with copy to City of Miami, Office of Asset Management, 444 SW 2
Avenue, 3rd Floor, Miami, FL 33130.
9.1.7. A current Evidence 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 thc term of this Agreement and a new Evidence and Policy shall be
supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies required
herein 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 holds a valid Florida Certificate of Authority and is 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
Operator's obligation to fulfill the insurance requirements herein.
9.1.8. In the event the Operator 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 thc premium
paid shall be paid by the Operator to the City as additional payment 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 the ARTICLE 18. The Operator's failure to procure insurance shall in
no way release the Operator from its obligations and responsibilities as provided herein.
9.2. Damage Or Loss To Operator's Property.
The City shall not be liable for injury or damage which may be sustained to the Golf Course
Facilities or sustained by a person, goods, wares, merchandise or other property of the Operator, or the
Operator's employees, agents, contractors, invitees, and guests or of any other person in or about the Golf
Course Facilities caused by or resulting from any peril whatsoever which may affect the Golf Course
Page 17
Facilities, including, without limitation, fire, steam, electricity, gas, water, rain or theft which may Teak or
flow from or into any part of the Golf Course Facilities, or from the breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of
the Golf Course Facilities, or from hurricane or any act of God or any act of negligence of any uscr of the
facilities or occupants of the Golf Course Facilities or any person whomsoever, including the City, its
officers, employees or agents, whether such damage or injury results from conditions arising upon the
Golf Course Facilities or upon other portions of the Golf Course Facilities or from other sources.
9.3. Vandalism and Thefts.
Where vandalism or theft occurs to Operator's equipment or operation, it shall be the sole
responsibility and liability of Operator to insure, repair or replace damages or stolen equipment at
Operator's expense within a reasonable period of time in order for them to continue to provide the
services contemplated by this Agreement. All vandalism shall be reported to the Park's Director
immediately upon discovery.
9.4. Theft and Loss Liability.
City will not be responsible for any of Operator's losses or thefts, and any such losses must be
borne solely by the Operator out of its own funds; they may not be used to diminish or be absorbed by
payment due thc City.
9.5. indemnification.
Operator shall indemnify, protect, defend and hold harmless thc 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 Golf Course Facilities or the surrounding areas, whether
such claim shall be made by the Operator, or an employee, agent, contractor, invitee or guest of the
Operator, 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, agents or officials were negligent. The Operator shall, at its own cost and expense, pay and
satisfy all costs related to any orders, judgments or decrees which may be entered thcrcon, and all costs,
attorneys' fecs, expenses and liabilities incurred in and about the defense of any such claims and the
investigation thereof. The Operator shall also indemnify, defend, protect and hold City harmless from
and against any and all claims arising from any breach or default in performance of any obligation of the
Operator's part to be performed under the terms of this Agreement, or arising from any act, neglect, fault
or omission of the Operator, 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
Page 18
reason of any claim, upon notice from the City the Operator shall defend the same at the Operator's
expense by counsel approved in writing by the City. The City reserves the right to defend itself.
9.6. Notice of Potential Liability.
The Operator 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 Golf Course Facilities by the Operator, its
employees, agents, contractors, invitees and guests. The Operator shall also immediately notify the City
if the Operator 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 Golf Course Facilities by the Operator, its employees, agents,
contractors, invitees and guests.
ARTICLE 10.
DESTRUCTION OF PROPERTY
10.1. Destruction of Golf Course Facilities.
If the Golf Course Facilities shall be damaged by fire, the elements, accident, or other casualty
(any of such causes being referred to herein as a "Casualty"), but the Golf Course Facilities shall not be
rendered wholly or partially unusable, and such damage is not caused by Operator, its employees, agent,
contractors, representatives, guests or invitees, the City shall promptly cause such damage to be repaired.
If, as a result of Casualty, the Golf Course Facilities shall be rendered partially unusable, then,
subject to the provisions of Section 10.2 of this Agreement, the City shall cause such damage to be
repaired, provided such damage is not caused by the negligence of the Operator, its employees, agents,
contractors, representatives, guests or invitees, and the Minimum Monthly Guarantee due to the City
(other than additional payments due to the City by rcason of the Operator's failure to perform any of its
obligations hereunder) shall be abated proportionately as to the portion of the Golf Course Facilities
rendered unusable during the period of such unusability. In such event, all such repairs shall be made at
the expense of the City to the extent insurance proceeds arc available. The City shall not be liable for
interruption to the Operator's business or for damage to or replacement or repair of Operator's personal
property (including, without limitation, inventory, trade fixtures, floor coverings, furniture and other
property removable by the Operator under the provisions of this Agreement) or damage to or replacement
or repair shall be promptly undertaken and completed by the Operator. The City shall not be obligated to
spend more for the cost of repair than net insurance proceeds recovered with respect to such loss. In this
regard, the City's repair of the Golf Course Facilities may not result in the same being restored to its
condition prior to any such Casualty to the extent funds are not so available to fully restore the Golf
Course Facilities to its original condition. In the event the cost to repair the Golf Course Facilities is less
Page 19
than thc net insurance proceeds received by thc City, all excess insurance proceeds shall be remitted to the
City.
10.2. City's Option to Terminate Due to Casualty.
If the Golf Course Facilities are (a) rendered wholly unusable, or (b) damaged as a result of any
cause which is not covered by the City's insurance, or (c) insurance proceeds are insufficient to restore
the Golf Course Facilities to a condition reasonably intended to carry out the purposes described in this
Agreement, or (d) damaged or destroyed in whole or in part during the last year of the Term, or (e) if the
Golf Course Facilities are damaged to the extent of fifty percent (50%) or more of the Golf Course
Facilities, then, in any of such events, the City may elect to terminate this Agreement by giving to the
Operator notice of such election within ninety (90) days after the occurrence of such event. If such notice
is given, the rights and obligations of thc Parties shall cease as of the date of such notice, and the payment
of fees to the City and (other than any additional payment duc to thc City by reason of the Operator's
failure to perform any of its obligations hereunder) shall be adjusted as of the date of such termination.
Upon any termination of this Agreement under any of the provisions of this Section, the Operator and the
City shall each be released thereby from any further obligations hereunder accruing after such
termination, except that such release shall not apply to any sums then accrued or duc, or to the Operator's
obligations under Section 21.8 of this Agreement or to any obligation otherwise surviving the termination
of this Agreement.
11.1.
ARTICLE 11.
HAZARDOUS MATERIALS
Hazardous Materials.
The Operator 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 ("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", under any such laws, ordinances or
regulations (collectively "Hazardous Materials"). The Operator 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 Golf Course Facilities required for the Operator's use of any Hazardous Materials in or about
the Golf Course Facilities in conformity with all applicable Hazardous Materials Laws and prudent
Page 20
industry practices regarding management of such Hazardous Materials. The City recognizes and agrees
that the Operator may use such materials in quantities appropriate for its use of the Golf Course Facilities
for the purposes stated herein and that such use by the Operator shall not be deemed a violation of this
section so long as the levels of use of such materials arc not in violation of any Hazardous Materials
Laws. Upon termination or expiration of this Agreement, the Operator shall, at its sole cost and expense,
cause all Hazardous Materials, including their storage devices, placed in or about the Golf Course
Facilities by the Operator or at the Operator's direction, to be removed from the Golf Course Facilities
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 ARTICLE 11 to prohibit the
Operator from operating in the Golf Course Facilities for the uses described in the ARTICLE 4. The
Operator 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 12.
SAFETY
12.1. Safety;
Operator 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. Operator 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 Operator shall contact the Risk Management Department of the City
of Miami to schedule the inspection(s).
ARTICLE 13.
AMERICANS WITH DISABILITIES ACT
13.1. ADA.
Operator shall affinnatively 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 I1 of the ADA (regarding nondiscrimination on the basis of disability) and all
applicable regulations, guidelines and standards. Additionally, Operator shall take affirmative steps to
ensure nondiscrimination in employment of disabled person.
Page 21
ARTICLE 14.
CITY'S INSPECTION AND RIGHT OF ENTRY
14.1. Inspection by City.
The City shall have the authority to make periodic inspections of the Golf Course Facilities and
improvements thereof, during normal working hours. The Operator, at its sole cost and expense, shall be
required to make any modifications in cleaning or maintenance methods reasonably required by the City.
14.2. City's Right of Entry.
The Operator agrees to permit the City to enter upon the Golf Course Facilities at all reasonable
times, for any purpose City deems necessary to, incident to, or connected with the performance of the
City's duties and obligations hereunder or in the exercise of its municipal function.
ARTICLE 15.
USE OF CITY OR GOLF COURSE FACILITIES' NAME AND LOGO
15.1. Use of Logo.
The Operator may use the name and/or logo of the City or Golf Course Facilities only in
connection with marketing operation of the Golf Course Facilities. The Operator shall use such names and
logos in a tasteful manner and upon objection by the City shall immediately cease use of the names or
logos in the objectionable form.
ARTICLE 16.
SPECIAL ASSESSMENTS AND TAXES
16.1. Special Assessments and Taxes.
The Operator covenants and agrees to pay all Impositions of whatsoever nature lawfully levied or
assessed against the Golf Course Facilities and improvements, sales, fees or operations thereon. Payment
thereof shall commence with and shall include taxes assessed for the current year. The Operator further
covenants and agrees to pay all of the said taxes, if any, lawfully assessed on such dates before
delinquency. The Operator shall be responsible to pay any interest and/or penalties assessed in connection
with any late payments. In the event Operator appeals a tax or fee, Operator shall immediately notify City
of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible
and substantial surety company reasonably acceptable to City or other security reasonably satisfactory to
City in an amount sufficient to pay one hundred percent of the contested tax or fee with all interest on it
and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it.
Page 22
In thc event the Operator fails to pay the real property taxes by April l of cach year, the
Operator shall be responsible to pay any interest and/or penalties charged by the tax assessor's office.
In addition to the interest and/or penalties payable to the tax assessor's office, in the event that the
Operator becomes delinquent in the payment of real property taxes, the City, upon providing written
notice to the Operator, may require either of the following, at its sole option: (1) the Operator to escrow
monthly to the City an amount equal to one -twelfth of the amount billed for ad valorem taxes, without
discounts, during the previous calendar year plus 5% to cover estimated annual tax increases, provided,
however, that sufficient funds, as determined by the City in its sole judgment, shall be paid to the City,
with the first such escrow payment so that the aggregate of all such escrow payments shall be sufficient to
pay the real estate taxes for that calendar ycar when due. Said amount shall be paid with the rent due on
the first day of each month. In the event the amount escrowed is not sufficient to pay the full amount of
taxes due, the Operator shall pay the difference to the City, for remittance to the County within fifteen
(15) days of receipt of notice from the City of the amount of such deficiency. In the event thc amount of
monies escrowed are in excess of thc taxes due, the balance shall be applied to the following year's tax
payment; or (2) the Operator shall enroll in the Dade County Ad Valorem Tax Payment Plan.
Failure of the Operator: (i) to pay the real property taxes whcn due and any interest or penalties
charged in connection therewith, or, (ii) if required in accordance with thc previous paragraph hereof, to
pay the monthly real estate tax escrow to the City or enroll in the Dade County Ad Valorem Tax Payment
Plan, shall constitute an event(s) of default under this Agreement, subject to the notice and cure
provisions provided in this Agreement.
ARTICLE 17.
NO REPRESENTATION BY CITY
17.1. Condition of Golf Course Facilities.
The Operator takes the Golf Course Facilities in its present "as is" condition and state of repair
and without any representation by or on behalf of the City, and agrees that the City shall not be liable for
any latent, patent or other defects on or in the Golf Course Facilities. At the expiration or earlier
termination of the term of this Agreement, the Operator shall surrender the Golf Course Facilities "broom
clean" and in good order and condition, ordinary wear and tear excepted.
ARTICLE 18.
DEFAULT
18.1. Events of Default — Operator.
Each of the following events is defined as an Event of Default:
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18.1.1. The failure of the Operator to pay any sum due under this Agreement which
failure continues for a period of fifteen (15) days after the due date.
18.1.2. The failure of the Operator to perform any of the other covenants, conditions and
agreements of this Agreement on the part of the Operator to be performed and the continuance of the
failure for a period of thirty (30) days after notice in writing (which notice shall specify the nature of the
default) from the City to the Operator, unless with respect to any default which cannot be cured within
thirty (30) days, the Operator, in good faith, promptly after receipt of written notice, shall have
commenced and continued diligently to reasonably prosecute all action necessary to cure the default and
shall have so notified the City in writing;
18.1.3. The filing of an application by the Operator: (i) for 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;
18.1.4. The entry of an order, judgment or decree by any court of competent jurisdiction,
adjudicating the Operator as bankrupt, or appointing a receiver, trustee or liquidator of it or of its assets,
and this order, judgment or decree continuing unstaycd and in effect for any period of sixty (60)
consecutive days, or if this Agreement is taken under a writ of execution; or
18.1.5. In the event this Agreement is assumed by or assigned to a trustee pursuant to the
provisions of the US Bankruptcy Code, as the same may be amended from time to time, the trustee shall
cure any default under this Agreement and shall provide the City with adequate assurance of future
performance of all of the terms and conditions of this Agreement. If the trustee does not cure such default
and provide such adequate assurances 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
immediately to possession of the Golf Course Facilities and shall be entitled to all remedies provided by
the Bankruptcy Code for damages for breach or termination of this Agreement
18.2. Remedies in Event of Default.
Upon the occurrence of an Event of Default, the City shall have the option, without further notice
or demand of any kind to the Operator or any other person, and in addition to every other right or remedy
existing at law or in equity, to do any one or more of the following:
18.2.1. Elect to cancel and terminate this Agreement and dispossess the Operator by
giving a three (3) day notice of such election to the Operator, and re-enter the Golf Course Facilities,
without the necessity of legal proceedings. In the event of such termination, the City shall have the right
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to seek any damages sustained by it by reason of the Operator's actions or inactions and the resulting
termination of this Agreement. Upon termination of this Agreement, the Operator shall immediately
cease all operations at the Golf Course Facilities and surrender the Golf Course Facilities in accordance
with the provisions contained herein.
18.2.2. Perforn, on behalf of and at the expense of the Operator, any obligation of the
Operator under this Agreement which the Operator has failed to perform, the cost of which performance
by thc 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 by the Operator to the City upon
demand. The Operator agrees that the City shall not be liable to the Operator for any damage resulting to
the Operator as a result of such action.
18.2.3. Exercise any other legal or equitable right or remedy which it may have under
this Agreement, at law or in equity.
Notwithstanding the provisions of subsection 18.2.2 above and regardless of whether an Event of
Default shall have occurred, the City may exercise the remedy described in subsection 18.2.2 without any
notice to the Operator 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 Operator 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 Operator
upon demand.
18.3. Repeated Defaults.
If more than twice during any twelve (12) month period during the Term or any Additional Term
hereof, thc Operator fails to satisfy or comply with thc same or substantially the same requirements or
provisions under 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 Operator, its guests, employees,
agents or others within the Operator's control), then at the City's election, the Operator 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 Event of Default.
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ARTICLE 19.
NOTICES
19.1. Notice.
All notices or other communications which shalt 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
City Manager
3500 Pan American Drive
Miami, Florida 33133
WITH COPY TO:
City of Miami
Director of Economic Development
444 SW 2 Avenue, 3Ta Floor
Miami, FL 33130
City of Miami
Director of Parks Department
444 SW 2 Avenue, 8'h Floor
Miami, FL 33130
City of Miami
City Attorney
444 SW 2 Avenue, 9th Floor
Miami, FL 33130
ARTICLE 20.
FORCE MAJEURE
NOTICE TO OPERATOR:
20.1. Force Maieure.
For the purpose of any of the provisions of this Agreement (except the payment of fees to the City
pursuant to ARTICLE 8), neither the City nor the Operator, as the case may be, shall be considered in
breach of or in default of any obligations under this Agreement, if the performance is delayed due to an
Event of Force Majeure. A party claiming that delayed performance is the result of an Event of Force
Majcure shall give written notice of same to the other party as soon as possible but in no event later than
twenty (20) days of such Event of Force Majcure causing the delay.
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ARTICLE 21.
MISCELLANEOUS PROVISIONS
21.1. Approvals.
Except as otherwise provided each party shall act promptly and reasonable in exercising its right
to approve or disapprove any document, budget, proposal, report, selection, or other document submitted
to it for approval under the terms of this Agreement. Unless specifically provided herein to the contrary,
all request for approval shall be either approve or disapproved within thirty (30) days of receipt of the
request.
21.2. Assienment.
The Operator shall not subcontract or assign this Agreement, or any part thereof, under any
circumstances, without the prior written approval of the City Manager, which approval may be withheld
or conditioned in his sole discretion. The City may assign its rights, together with its obligations
hereunder.
21.3. No Auencv or Joint Venture.
This Agreement shall not be construed as in any way establishing a partnership, joint venture,
express or implied agency or employer -employee relationship between or among City and Operator.
21.4. No Third Party Beneficiaries.
This Agreement shall be for the sole benefit of the parties hereto, and no other person or entity
shall be entitled to rely upon or receive any benefit from this Agreement or any provision hereof.
21.5. Remedies.
All of the rights and remedies of any party under this Agreement arc intended to be distinct,
separate and cumulative and no such right or remedy herein or therein mentioned is intended to be in
exclusion of or a waiver of any of the others.
21.6. Exhibits.
All recitals and all exhibits referred to in this Agreement arc incorporated herein by reference and
shall be deemed part of this Agreement for all purposes as if set forth at length herein.
21.7. Successors And Assigns.
This Agreement shall be binding upon the Parties hereto, their heirs, executors, legal
representatives, successors and assigns.
21.8. Surrender Of Property.
Upon the expiration of this Agreement or earlier termination as provided herein, Operator shall
peacefully surrender the Golf Course Facilities broom clean and in good condition and repair together
with all alterations, fixtures, installation, additions and improvements which may have been made in or
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attached on or to the Golf Course Facilities. Upon surrender, Operator shall promptly remove all its
personal property, trade fixtures and equipment and Operator shall repair any damage to the Golf Course
Facilities caused thereby. Should Operator fail to repair any damage caused to the Golf Course Facilities
within ten (10) days after receipt of written notice from the City directing the required repairs, the City
shall cause the Golf Course Facilities to be repaired at the sole cost and expense of Operator. Operator
shall pay the City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the
cost of such required repairs. At the City's option, the City may require Operator to restore the Golf
Course Facilities so that it shall be as it was on the Commencement Date. In the event Operator fails to
remove its personal property, equipment and fixtures from the Golf Course Facilities within the time limit
set by the notice, said personal property shall be deemed abandoned and thereupon shall become the sole
personal property of the City. The City, at its sole discretion and without liability, may remove and/or
dispose of same as the City secs fit, all at Operator's sole cost and expense.
21.9. Amendments.
The City Manager and the Operator by mutual agreement, shall have the right but not the
obligation to amend this Agreement. Such amendments shall be effective only when signed by the City
Manager and the Operator and shall be incorporated as a part of this Agrccment. The City Manager is
authorized to amend or modify this Agreement as needed.
21.10. Construction Of Agreement.
This Agreement shall be construed and enforced according to the laws of the State of Florida.
21.11. Court Costs And Attorneys' Fees.
In the event of any litigation between the parties, all expenses, including reasonable attorneys fees
and court costs, at both the trial and appellate levels incurred by the prevailing party, shall be paid by the
non -prevailing party.
21.12. Waiver Of Jury Trial.
The Parties hereby knowingly, irrevocable, 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 amendment or
modification of this Agrccment, 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 of jury trial provision is a material inducement for
the City and the Operator entering into the subject transaction.
21.13. Conflict of Interest.
Operator is aware of the conflict of interest laws of the City (Miami City Code Chapter 2, Article
V), Dade County, Florida (Dade County Code, Section 2-1 1.1 et. seq.) and of the State of Florida as set
Page 28
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. Operator covenants that no person or entity under its employ,
presently exercising any functions or responsibilities in connection with this Agreement, has any personal
financial interests, dircct or indirect, with thc City. Operator further covenants that, in the performance of
this 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 Operator, its employees or associated
persons, or entities must be disclosed in writing to the City.
21.14. Counterparts.
This Agreement may be executed by the parties hereto individually or in combination, in one or
more counterparts, each of which shall be an original and all of which shall constitute one and the same
Agreement.
21.15. Conditions to Effectiveness of this Agreement.
This Agreement shall not become effective until such time as each of the following conditions
precedent have occurred and thereafter shall be deemed effective upon the last date to occur of the
following: (i) approval of this Agreement and the execution of the same by the Operator; (ii) approval of
this Agreement by the City Commission; and (iii) execution of this Agreement by the City.
21.16. Severability.
If any provision of the Agreement, or any paragraph, sentence, clause, phrase, or word, 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.
21.17. Waiver.
The acceptance of the City payment or additional payments by the City, with knowledge of any
breach of this Agreement by the Operator or of any default on the part of the Operator 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 City Manager or the Operator. 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.
21.18. Captions.
The captions contained in this Agreement are inserted only as a matter of convenience and for
reference and do not define, limit or prescribe the scope of this Agreement or thc intent of any provisions
thereof.
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21.19. 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.
21.20. Public Records.
Operator understands that the public shall have access, at all reasonable times, to City contracts,
subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the
public to all documents subject to disclosure under applicable law.
21.21. 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. The Parties agree that this Agreement shall not be
construed in favor of or against either of the Parties.
21.22. Authority.
Each of the parties hereto acknowledges it is duly authorized to enter into this Agreement and that
the signatories below are duly authorized to execute this Agreement in their respective behalf.
ARTICLE 22.
AFFIRMATIVE ACTION
22.1. Affirmative Action.
The Operator shall have in place an Affirmative Action/Equal Employment Opportunity Policy
and shall institute a plan for its achievement that 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
work place as it relates to hiring, firing, training and promotion. In lieu of such a policy/plan, the
Operator shall submit a Statement of Assurance indicating that their business is in compliance with all
relevant Civil Rights laws and regulations.
22.2. Nondiscrimination.
The Operator agrees that it will not discriminate against any person based upon racc, religion,
color, sex, ancestry, age, national origin, disability or marital status, in the operation of the Golf Course
Facilities.
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ARTICLE 23.
MINORITY PROCUREMENT
23.1. Minority/Women Business Utilization.
The Operator shall use its best efforts to purchase/contract fifty-one (51 %) of its annual goods
and services requirements from Hispanic, Black and Womcn businesses/professionals registered/certified
with the City of Miami's Office of Minority/Women Business Affairs. Such lists arc available to the
Operator at the City of Miami's Office of Minority/Women Busincss Affairs.
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ARTICLE 24.
ENTIRE AGREEMENT
24.1. Entire Agreement.
This Agreement represents the total agreement between the Parties. All other prior agreements
between the Parties, either verbal or written, are superseded by this Agreement and are therefore no
longer valid.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
ATTEST:
THE CITY OF MIAMI,
a municipal corporation
of the State of Florida
By: By:
Priscilla A. Thompson Joe Arriola
City Clerk City Manager
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS: CORRECTNESS:
By: By:
Dania Carrillo, Director Jorge L. Fernandez
Risk Management Department City Attorney
ATTEST: OPERATOR
By: By:
Print Name & Title Print Name & Title
By:
Print Name & Title
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EXHIBIT A
PROPERTY LEGAL DESCRIPTION
TO BE INSERTED
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EXHIBIT B
INVENTORY
TO BE INSERTED
Page 34