HomeMy WebLinkAboutExhibit 1 09/13/12•
JAMES L. KNIGHT CENTER MANAGEMENT AGREEMENT
This JAMES L. KNIGHT CENTER MANAGEMENT AGREEMENT ("Agreement") is entered into this day of
, 2012 by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida
("CITY"), and SMG, a Pennsylvania general partnership with its principal office located at West Conshohocken, Pennsylvania
("FIRM").
ARTICLE 1
DEFINITIONS AND IDENTIFICATIONS
For purposes of this Agreement and the several covenants, conditions, terms and provisions which follow, the
definitions and identifications set forth below are assumed to be true and correct and are agreed upon by the parties.
1.1 FIRM shall have the meaning ascribed to it in the Title.
1.2 CITY MANAGER shall mean the chief administrator of the CITY or his/her designee who shall represent the CITY on
all issues pertaining to this agreement, unless City Commission approval is required or unless otherwise specifically
provided in this agreement.
1.3 FACILITY shall mean the James L. Knight International Center located at 400 S.E. Second Avenue, Miami, Florida,
33131, including the entrances, grounds and sidewalks surrounding it and adjacent thereto. It also includes meeting
rooms, common areas, lobby areas, executive offices, storage and utility facilities, elevators, and other spaces. A
diagram of the FACILITY is attached as Exhibit "A" hereto and made a part hereof. The CITY will remain the sole
owner of the FACILITY.
1.4 FISCAL YEAR shall mean the twelve (12) month period commencing on the first (1st) day of October of every year
and ending on the thirtieth (30th) day of September of the year immediately succeeding. For purposes of identification
during the ordinary course of operations, and other documents as may be required by this Agreement, a specific Fiscal
Year shall be identified as follows: either (I) "Fiscal Year x," where "x" equals the year in which the Fiscal Year ends;
or (2) "Fiscal Year y — z," where "y" equals the year in which the Fiscal Year begins and "z" equals the year in which
the Fiscal Year ends.
ARTICLE 2
SCOPE OF SERVICES
2.1 The FIRM hereby agrees to perform and furnish services necessary for the operation, supervision, management and
maintenance the FACILITY in the most efficient manner consistent with operations of other similar first class facilities,
and the CITY agrees to provide the funds; subject to availability and annual appropriations, reasonably required to
carry out such purposes during the tern of this Agreement. It is the intent of the parties that the FIRM will be
responsible for the day-to-day operation of the FACILITY and all activities therein, but subject to existing contracts
and subject to policies and guidelines established by the CITY. The FIRM shall also be subject to policies and
procedures which, from time to time, hereafter may be established by the CITY but which shall not unreasonably
interfere impede or impair the ability of the FIRM to effectively manage the FACILITY.
The FIRM'S obligation shall include, but not be limited to, the performance of the following obligations, subject to
applicable laws and regulations, and controls and restrictions as stated elsewhere in the Agreement and in an
Operations Manual to be prepared by FIRM within 90 days and reviewed and approved by the CITY MANAGER.
2.1.1 Establish temporary rentals of space within the FACILITY on behalf of the CITY and schedule events at the
FACILITY in accordance with a booking priority; and rental rate schedules to be developed and provided by
the FIRM and subject to the approval of the CITY.
2.1.2 Manage the FACILITY in accordance with the Operations Manual.
2.1.3 Negotiate and contract for events to be held at the FACILITY and for services and products pertaining to the
FACILITY, including, but not limited to the following:
2.1.3.1 Conventions, Expositions, Meetings and Banquets;
2.1.3.2 Concerts, Entertainment;
2.1.3.3 Spectaculars;
2.1.3.4 Consumer and Trade Shows;
2.1.3.5 All other forms of activity and entertainment that can properly be housed or exhibited at the
FACILITY
2.1.4 Maintain the FACILITY, including the equipment, materials and supplies; including any improvements made
during the term of this Agreement. At the conclusion of the term of this Agreement or any extensions thereto
the FIRM shall return the FACILITY, including all equipment and any improvements made during the term
of the Agreement to the CITY. All losses in inventory of CITY -owned equipment shall be documented by
FIRM as soon as such losses are discovered by FIRM and the CITY MANAGER shall be promptly notified.
2.1.5 Supervise management including but not limited to crowd management, security, admission procedures
supervision of box office and servicing of users both as conventions and entertainment.
2.1.6 Administer the FACILITY to the extent prescribed in this Agreement. The FIRM shall not have the power to
encumber any real or personal property owned by the CITY.
2.1.7 Hire, supervise and direct all FIRM'S employees and personnel.
2.1.8 Maintain detailed, accurate and complete financial and other records of all its activities under this Agreement
in accordance with generally accepted accounting principles. CITY shall have access to such records.
2.1.9 Administer, assure compliance with and negotiate service agreements required in the ordinary course of
business in operating the FACILITY and other agreements necessary for the operation and maintenance of
the FACILITY. Such agreements will be executed by the FIRM in its own name. Such contracts shall
contain such indemnification and insurance requirements as determined by the CITY MANAGER. The
CITY MANAGER shall be provided copies of such contracts no later than thirty (30) days after execution.
No agreement shall be entered into with an expiration date after the expiration of the initial term of this
Agreement unless approved by the CITY MANAGER. If this Agreement is extended to include option years,
no service contracts shall be entered into within such option years with a term beyond the expiration date of
the extension period unless approved by the CITY MANAGER.
2.1.10 All revenues earned pursuant to the Agreement, which are earned within the tern of this Agreement, shall be
included in gross revenues for the FACILITY.
2.1.11 FIRM and its affiliates or related entities will be allowed to rent and promote events at the FACILITY at
prevailing rates, fees and prices.
2.1.12 Require that all users of the FACILITY execute rental and use agreements in accordance with the
requirements of Article 6 herein.
2.1.13 Submit a written report to the CITY MANAGER no later than the twentieth (20th) day following the close of
each calendar month, or more often if otherwise voluntarily agreed on between the parties hereto, concerning
its activities in the operation, management, supervision and maintenance of the FACILITY. Such report
shall, inter alia, set forth bookings, receipts from all sources, expenditures and such other and further
information as the CITY MANAGER may require or request.
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2.1.14 FIRM agrees to maintain the FACILITY at a minimum in the condition received, reasonable wear and tear
excepted. On no occasion, however, shall the maintenance of the FACILITY fall below industry standards
for a first-class facility.
2.1.15 Provide within ninety (90) days of the full execution of this Agreement a maintenance and operations plan for
the FACILITY to the satisfaction of the CITY MANAGER, which satisfaction may be withheld at the CITY
MANAGER'S reasonable discretion.
2.1.16 Furnish such supervisory services, set forth herein, as shall ensure that the FACILITY shall be operated in ,a
manner comparable to first-class facilities.
2.1.17 Recommend to the CITY prices, rates and rate schedules for user and occupancy agreements.
2.1.18 Prepare a proposed annual operating budget in accordance with CITY's approved format and a cash flow
budget and submit it to the CITY MANAGER in accordance with CITY's established schedule and
procedure.
2.1.19 Comply with the spending limitations imposed upon such budget, including any amendment(s) thereto as
authorized. However, if extraordinary events occur which could not reasonably be contemplated at the time
the budget was prepared, the FIRM may submit an amendment to the budget to the CITY MANAGER for
review, and approval or denial by the CITY MANAGER, which approval may be withheld at the CITY
MANAGER'S reasonable discretion.
2.I20 Pay all operating and related expenses for the FACILITY from operating accounts established pursuant to
Article of this Agreement.
2.1.21 After consultation with City Attorney, and with CITY approval, institute in its own name on behalf of the
CITY, but in any event, at the reasonable expense of the CITY, any and all legal actions or proceedings.
FIRM may cancel or terminate any license, use or concession agreement for the breach thereof or default
thereunder by any licensee, user, advertiser, or concessionaire of the FACILITY. Outside legal expenses
shall be included as an operating expense of the FACILITY, if approved by the CITY MANAGER.
2.1.22 In the event of ticketed events, which are conducted by FIRM, the FIRM shall hold in trust, if applicable, in
an interest -bearing account in a local qualified public depository in Miami, Florida, any ticket sale revenues.
Such trust monies are to be held for the protection of ticket purchasers, the CITY and the FIRM, and to
provide a source of funds, as required for such payments to performers and for such payments of direct
incidental expenses in connection with the presentation of events as may be required to be paid prior to or
contemporaneously with the event. Following the satisfactory completion of the events, the FIRM shall
make a deposit into the FIRM's operating account(s) for the FACILITY. Interest accrued in the trust
account(s) shall be part of the operating income as long as the FIRM is not required to pay such interest to the
promoter pursuant to its respective license agreement with the promoter. Bank service charges, if any, on
such account(s), shall be deducted from interest earned.
2.1.23 Submit, within thirty (30) days following the close of each month, to the CITY MANAGER copies of records
and financial reports, relating to the receipts and expenditures of all events occurring during such previous
month. Such records and reports shall be as customarily prepared by the FIRM at similar facilities operated
by the FIRM or as may otherwise be required by the CITY.
2.1.24 Open bank accounts in the name of the CITY, with approval on which the FIRM shall have power and
require the local qualified public depository utilized by the FIRM to submit to the CITY MANAGER on a
monthly basis, copies of all bank statements concerning all trust accounts established pursuant to this
Agreement.
2.1.25 Establish and have an ongoing relationship with various community and industry boards and committees.
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2.1.26 Provide, within ninety (90) days of the full execution of this Agreement, a marketing plan including a plan
for the promotion of the FACILITY, which shall contain the following elements:
1) Market research;
2) Market position;
3) Marketing objectives;
4) Marketing strategies;
5) Booking priorities;
6) Targeted events -local, regional, national and international;
7) Targeted meetings, conventions and trade shows;
8) Event management and marketing as well as corporate sponsorships;
9) Advertising opportunities at local, regional and national levels, and
10) Attendance at various trade shows, conventions and seminars.
FIRM agrees to submit the marketing plan to the CITY MANAGER, for his/her review and approval, which
approval may be withheld in his/her reasonable discretion. If the marketing plan is not acceptable to the
CITY and after a good faith effort to reach agreement as to an acceptable marketing plan, then the CITY shall
have the right to cancel this Agreement by giving FIRM thirty (30) days written notice of its decision to do
so. Such marketing plan shall be revised, as necessary, by the FIRM, from time to time as needed to maintain
the plan current. During the preparation of said plan, the FIRM shall solicit comments from any appropriate
boards and committees.
2.1.27 The FIRM shall cause such acts and things to be done in and about the FACILITY as shall be necessary to its
operation, control supervision and maintenance. Both the FIRM and the CITY shall, throughout the teen of
this Agreement comply with all statutes, ordinances, laws, rules, regulations, orders and requirements by any
Federal, State, County or City government departments, commissions, boards and office sharing proper
jurisdiction, in respect to the use or manner of the use of the FACILITY including the maintenance and
operation thereof, as well as with all orders and requirements of the FACILITY.
2.1.28 The FIRM shall monitor all concessions operated in the FACILITY by HOTEL OWNER and report to the
CITY MANAGER periodically in respect to the quality of the products, and adequacy of the services
provided to the extent of the CITY's right to do so. The FIRM shall investigate and report to the CITY
MANAGER on complaints involving concessions.
2.1.29 The FIRM shall make available $15,000 as an Event Marketing Fund to be used at the City's discretion to
enhance event activity at the FACILITY.
ARTICLE 3
OFFICE SPACE/PARKING & STORAGE
3.1 The CITY shall provide the FIRM with necessary office space currently available within the FACILITY and
such equipment as is currently in place.
3.2 The CITY shall provide the FIRM with unrestricted egress and ingress to the FACILITY and,shall make
available to the FIRM at no cost parking spaces adjacent or in close proximity to the FACILITY.
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ARTICLE 4
USE BY THE CITY & RIGHT OF ENTRY
4.1 The CITY shall have the right to use the FACILITY or any part thereof subject to availability and based on
booking priority schedule.
4.2 RIGHT OF ENTRY: The CITY shall, through the CITY MANAGER or his/her agents who are officially
assigned to CITY business, and at all reasonable times, have the right to enter and upon any and all parts of
the FACILITY.
4.3 The Firm specifically acknowledges and agrees that this Agreement does not convey and rights to control,
manage, operate or dictate the City's ability to place any type of signs in, upon, about or around the Facility.
Any and all signs shall be at the City's sole and strict control. Any and all revenue, rights and obligations
associated with any signs shall belong strictly to the City.
ARTICLE 5
USER/RENTAL AGREEMENTS
5.1 The FIRM's General Manager shall have the Authority to execute user/rental occupancy agreements for the
use of the FACILITY in substantially the form approved by the CITY MANAGER. Such agreements shall
include such indemnification, insurance, and other requirements as may be required by the City. The CITY
MANAGER shall be copied with an occupancy agreement within thirty (30) business days of their execution
by the FIRM. The FIRM shall establish and charge such rates for the FACILITY as approved by CITY.
5.2 Attached hereto, as Exhibit _ is a list of all use/rental occupancy agreements or contracts for attractions,
events, and services in the FACILITY existing at the time of execution of this Agreement which are hereby
be assigned to the FIRM, who hereby assumes and agrees to perform the obligations of the CITY in respect
thereto.
ARTICLE 6
BOOKING POLICIES
6.1 The parties recognize and acknowledge that the interest of the CITY requires a booking policy that takes into
account not only events which generate substantial direct revenues for the FACILITY, but also events which
produce less direct revenue, but generate significant transient occupancy tax and peripheral economic
benefits in the form of increased tourist revenues and stimulate the general economy of the city of Miami.
6.2 The FIRM will have primary responsibility for marketing the FACILITY for conventions and trade shows,
and to carry out this responsibility, will have control over all bookings. The Department of Public Facilities
(the "Department") will assist the FIRM on an as -need basis by providing resources to the FIRM and, when
requested and when budget appropriations permit, aid in solicitation efforts. Prior to committing any dates
booked by the Depaitinent, the Department will confirm with FIRM that the space can be properly converted,
set up, equipped and furnished on the dates and times user desires it. In the event that a planned Department
booking adversely impacts the FIRM's approved operating budget, then FIRM shall notify CITY of the
extent of such financial impact.
6.3 The FIRM shall have primary responsibility for marketing and scheduling the FACILITY to generate
additional income, and will have experienced personnel who will diligently promote the use of the
FACILITY.
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6.4 FIRM shall maintain in the offices at the FACILITY a computerized master reservation of all meeting and
function spaces of the FACILITY, which will become part of the operations manual.
ARTICLE 7
EMPLOYEES
7.1 All personnel employed by the FIRM shall be employees of the FIRM and not of the CITY.
7.2 During the period commencing on the date hereof, and ending one (1) year after the expiration or termination
of this Agreement, except with FIRM's prior written consent, the CITY shall not, for any reason, directly or
indirectly, solicit for employment, or hire, any of the senior management personnel employed by the FIRM at
the FACILITY, including, without limitation, the general manager, director -level employees and department
heads, provided such employee was not employed by the CITY immediately prior to employment with
FIRM. In addition to any other remedies that FIRM may have, specific performance in the form of injunctive
relief shall be available for the enforcement of this provision.
ARTICLE 8
GENERAL MANAGER
8.1 The FIRM's General Manager shall be responsible for the total operation by the FIRM of the FACILITY.
8.2 The position of the FIRM's General Manager is considered key to the successful operation of the FACILITY.
The FIRM shall seek and receive approval from the CITY MANAGER regarding the individual to serve in
this position, and the CITY reserves the right to approve all replacements for the positions. The CITY
MANAGER shall not unreasonably withhold or delay such approval. The CITY MANAGER shall have the
right to request the removal, for cause, of any of the FIRM's personnel.
8.3 The FIRM agrees to be responsible for the hiring of all permanent personnel necessary for the operation of
the Facility, as well as all temporary personnel.
ARTICLE 9
CONTRACT MONITORING & CITY MANAGER
9.1 CONTRACT MONITORING: The parties shall each designate for themselves a representative for the
prompt and efficient administration of this Agreement.
9.2 The CITY MANAGER:
9.2.1 Shall be the liaison between the FIRM and the CITY on all matters relating to the management of the
FACILITY and shall be the CITY's designated agent on all matters pertaining to this Agreement.
9.2.2 Shall be responsible for ensuring that any information supplied by the FIRM is properly distributed.
9.2.3 Shall be responsible for the monitoring and assessment of the quality of services provided by the FIRM and
contract compliance by the FIRM.
9.3 The GENERAL MANAGER:
The FIRM agrees to name a qualified individual with experience in the management of similar facilities as
the General Manager of the FACILITY. The General Manager:
9.3.1 Shall be the day-to-day liaison between the CITY MANAGER and the FIRM on all matters relating to this
Agreement.
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9.3.2 Shall be responsible for the day-to-day management and supervision of the FACILITY.
9.3.3 Shall be responsible for providing supervision and direction to FACILITY employees.
9.4 Complaints received by the FIRM from the CITY MANAGER regarding the conduct or manner of operation
of the FACILITY by the General Manager shall be addressed by the FIRM.
ARTICLE 10
COMPENSATION
10.1 MANAGEMENT FEE: The CITY shall pay to the FIRM a management fee of $78,000 per FISCAL YEAR,
payable at a rate of $6,500 per month.
10.2 The CITY shall pay the FIRM the management fee in monthly installments no later than thirty (30) days after
the CITY's receipt of invoice. The CITY shall have the right to review and inspect all corresponding records
prior to payment of management fee installments.
10.3 PRORATION: Management Fees pursuant to this Agreement shall be computed on a prorated basis for the
period of time during in which the services were performed.
The Revenues for the FACILITY shall be defined to include:
1) Rental Revenues;
2) Advertising and Merchandise;
3) Equipment rental;
3) Box Office;
4) Ticket Surcharge;
5) Miscellaneous revenue
10.4 Attached hereto, as Exhibit B, is a copy of an inventory of all expendable supplies, equipment and fixed
assets of the FACILITY, signed by an authorized representative of each party to this Agreement.
ARTICLE H
TERM OF THE AGREEMENT
TERM: This Agreement shall be for a period of three (3) years commencing September 25. 2012 and ending
September 30. 2015, unless sooner terminated pursuant to the provisions of 2.1.26 hereof or as otherwise
provided in the Agreement.
11.2 EXTENSION TERM: The CITY shall have the right to extend the initial management term for three (3)
additional one-year periods. The CITY shall provide ninety (90) days' written notice of its intention to
extend the management tern.
ARTICLE 12
OWNERSHIP
12.1 The ownership of the FACILITY including the real estate shall remain the ownership of the CITY. Property
rights will not accrue to the FIRM, with the exception of the proprietary computer software if provided by the
FIRM which shall remain the sole property of the FIRM. All data maintained within such software shall
remain in the ownership of the CITY.
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12.2 The CITY will pay, keep, observe and perform, all payments, terms, covenants, conditions, and obligations
under any bonds, debentures or other security agreement or contract to which the CITY is hereunder bound.
ARTICLE 13
FISCAL RESPONSIBILITY
13.1 The FIRM agrees to keep and maintain at its office in the FACILITY, separate and independent records, in
accordance with generally accepted accounting principles, devoted exclusively to its FACILITY management
operations. Said books, ledgers, journals, accounts, and records shall contain all entries reflecting the
business operations of the FIRM under this Agreement. All of the foregoing records shall be open for
examination and audit by the CITY MANAGER or designated and authorized agents or personnel during
FIRM's ordinary business hours.
13.2 The FIRM agrees to render, within thirty (30) days after the end of each month, financial reports for the
FACILITY including a balance sheet and statement of revenues and expenditures (budget to actual) for the
current month and year to date in accordance with generally accepted accounting principles. In addition, the
FIRM will provide separate cash receipts and disbursements report for each event held at the FACILITY
during the month.
13.3 The FIRM agrees to meet with the CITY MANAGER to answer questions relating to the operation of the
FACILITY and the financial reports. In addition, FIRM agrees within sixty (60) days following each fiscal
year to cause to be provided to the CITY, a certified audit report on the accounts and records as kept by the
FIRM for the FACILITY to be paid from appropriate funds set aside in the operating budget. The FIRM
shall utilize an external auditor approved by the CITY to conduct an audit on the accounts and records of the
FACILITY in accordance with generally accepted auditing standards. A letter from said accounting firm
expressing its opinion as to the effectiveness of internal controls and a management letter will accompany the
audit report. At the option of the CITY at its expense, additional audits may be performed.
13.4 The FIRM agrees to use forms, accounting methods, internal controls and procedures for its reports that are
acceptable to the CITY..
13.5 The CITY MANAGER may request additional financial or statistical reports with respect to the FACILITY,
and FIRM shall promptly provide same. It is agreed that such requests by the CITY MANAGER will be
reasonable with respect to timing and frequency. Any and all costs for such reports shall be included as an
operating expense.
13.6 The CITY will make available to the FIRM for the operation, maintenance, supervision, and management of
the FACILITY, all funds necessary to pay all budgeted items of expenses. To the extent the FIRM is unable
to perform under this Agreement due to the fact that required budgeted funds are not made available by the
CITY, the FIRM will not be considered in breach of this Agreement nor shall be considered an event of
default.
13.7 Operating expenses to be paid from FACILITY Operating Accounts, subject to CITY approved budget, shall
include, but not limited to:
1) Appropriate personnel, including costs for payroll and benefits (relocation and bonus payments shall be
approved by the City prior to any disbursement);
2) Advertising costs;
3) Cleaning expenses;
4) Data processing costs;
5) Operating supplies;
6) Dues, subscriptions and membership costs;
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7) All insurance costs, including but not limited to property, liability, workmen's compensation;
8) Professional and Management fees, including the Management Fee under this Agreement;
9) Printing and stationery costs;
10) Postage and freight costs;
11) Equipment rental costs;
12) Minor repairs and maintenance, not inclusive of expenses relating to performing capital improvements; as
further defined in Article 15;
13) Security expenses;
14) Cost of office supplies;
15) Telephone and telecommunication charges;
16) Travel expenses as allowed by applicable law and in a manner similar to Section 112.061, Florida
Statutes, as amended;
All travel and professional expenses of FIRM employees shall be paid when included in the approved annual
budget of the FACILITY, and will pro -rate these expenses if the FIRM's employees conduct business on
behalf of the FIRM or other FACILITIES. Except that such Travel expenses shall be allocable to operating
expenses only in an amount not to exceed $10,000 per year.
18) Exterminator, trash removal costs;
19) Utility expenses;
20) Audit;
21) Office expenses limited to on site office;
22) And other FACILITY expenses as determined by both parties
13.8 Any data, equipment or materials furnished by the CITY to the FIRM and any such data, equipment or
materials that may be acquired for the CITY by the FIRM used at the FACILITY shall remain the property of
the CITY, and when no longer needed for the performance of this Agreement, shall be returned to the CITY.
13.9 The parties agree that in the event the FIRM requests a capital improvement, the CITY will give reasonable
consideration to such request(s) in formulating its budget, but shall not be obligated to approve such
recommendations.
13.10 All FIRM employees handling monies or designated as authorized signatories on any FACILITY accounts
shall be sufficiently bonded as an expense to the CITY to protect the FIRM's and CITY's interests. Such
bonds shall be in an amount not less than $500,000 and shall name the CITY as loss payee as its interest may
appear.
ARTICLE 14
PROCEDURE FOR HANDLING INCOME
14.1 Income derived from FACILITY events will be deposited by the FIRM into the CITY's FACILITY operating
account within one (1) business day of receipt of such income. Income derived from other operations, such
as rental fees, advertising, exhibitor services, box office, etc. will also be deposited into the CITY's
FACILITY operating accounts within one (1) business day of receipt. The FIRM shall use funds from these
accounts to cover the operation of the FACILITY. Within sixty (60) days after the end of each year, the
FIRM will provide to the CITY a complete, audited financial statement for each account, which accounts
shall be subject to audit.
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14.2 The CITY's FACILITY operating account will be in the CITY's FACILITY's name and have two authorized
signatories; however, the FIRM shall have access to such accounts and shall designate up to four (4) FIRM
employees to be authorized signatories on the account.
14.3 Cash control for CITY's FACILITY operations shall be accomplished through a combination of rigid
accounting procedures. Separate bank accounts shall be utilized for payroll operating funds and box office
receipts. The box office account shall be a trust account. Reimbursable expenses for each event shall be
coded for accurate accumulation to ensure all applicable costs shall be paid by the users of the FACILITY.
Advanced deposits covering rentals and estimated costs shall be required to minimize collection programs.
ARTICLE 15
CAPITAL IMPROVEMENTS, CAPITAL REPAIRS & MAINTENANCE
15.1 The CITY will retain the responsibility for capital improvements and capital, repairs and maintenance to the
FACILITY, however, the CITY is under no obligation to make such improvements. The CITY shall, at its
reasonable discretion, define Capital Expenditures for repairs, improvements and maintenance. The FIRM
agrees to provide to the CITY MANAGER, in accordance with the FIRM's requirements, a schedule of items
that can be reasonably anticipated as necessary capital expenditures. The purpose of such a schedule is to
allow the CITY MANAGER to consider for inclusion such projects in its budget for the ensuing year and to
prepare and update a long range (five year) capital expenditure budget. The FIRM's failure to list particular
items or projects shall not be deemed a waiver of CITY's responsibility to make such capital improvements.
"Capital Expenditures" means all expenditures for building additions, alteration, or improvements and for
purchases or additional replacement furniture, machinery, or equipment, the depreciable life of which,
according to accepted accounting principles, is in excess of one (1) year. All routine repairs, maintenance,
and equipment servicing shall be the responsibility of the FIRM as an operating expense in accordance with
the approved budget.
15.2 FIRM shall obtain approval of the CITY MANAGER for Capital Improvements which are made to the
FACILITY. FIRM shall further cause all necessary repairs and improvements to be made to the FACILITY
from those monies available in the annual operating budget.
15.3 The cost of such repairs shall be paid by FIRM from that line of the operating budget allocated for repairs. In
the event repairs exceed the above stated amount, such repairs must be pre -approved by the CITY
MANAGER as an amendment to the approved budget. Additionally, FIRM shall be responsible for assuring
that all repairs, replacements and maintenance shall be of a quality and class at least equal to the original
work. Any replacement of an item contained on the inventory schedule or any new item added to the
inventory shall be deemed the property of the CITY.
15.4 HOWEVER, IF REPAIRS ARE OF AN EMERGENCY NATURE, FIRM SHALL MAKE SUCH REPAIRS
IN ACCORDANCE WITH THE FOLLOWING PROVISIONS:
An emergency repair is defined herein as the repair of a condition which, if not perfonned immediately,
creates an imminent danger to persons or property and/or an unsafe condition at the FACILITY threatening
persons or property. The payment of any emergency repairs shall be made from the capital or operating
budgets.
ARTICLE 16
EXPENDABLE SUPPLIES
16.1 The FIRM will be responsible for purchasing all expendable supplies for the operation of the FACILITY.
The FIRM will exercise prudent judgment in the purchase of said supplies within budget guidelines provided
to FIRM.
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16.2 FIRM will be provided opportunity by CITY to purchase items for use at FACILITY, from the CITY and
Purchasing Department consistent with the Purchasing Department's Rules and Regulations.
16.3 To the extent the prices are competitive and it is cost effective, the FIRM shall, whenever feasible, use its
best effort to purchase such supplies from certified small or minority businesses consistent with the
Purchasing Department's Rules and Regulations.
ARTICLE 17
OPERATING BUDGET
17.1 The FIRM agrees that it will each year, on a date specified by the CITY and in a format established by the
CITY, prepare and present to the CITY a line item budget for the FACILITY. Said budget shall include, at a
minimum, a projected income and expense statement and projected year-end balance sheet and statement of
projected sources and applications of funds. Additionally, the budget shall include but not be limited to the
following detailed projections:
It is understood that the operating budget for the FACILITY for the INITIAL contract year has received the
prior approval of the CITY. The FIRM acknowledges such approval.
17.1.1 Gross revenues by department sources;
17.1.2 Operating expenses by department;
17.1.3 Departmental incomes;
17.1.4 Administrative and general expenses;
17.1.5 Marketing, advertising, and promotion expenses;
17.1.6 Repairs and maintenance, and
17.1.7 Energy costs
The FIRM shall assure that its representatives are present at all necessary meetings of the budget approval
process related to the FACILILTY.
17.2 If the FIRM desires amending the approved budget, it shall do so in accordance with established procedures
for budget amendments.
17.3 The FIRM shall be given a budget effective October 1 of each year. The FIRM shall not exceed any sums in
excess of the total expenditure amount allowed in the approved budget of the CITY. The FIRM shall also
make every effort to meet their approved revenue budget. In the event that the FIRM does so overspend, it
shall be responsible for said sum; and shall reimburse the CITY for said sum within thirty (30) days after the
end of the contract year, or the CITY may withhold said sum from the fees due the FIRM. However, FIRM
shall not be responsible for exceeding the budget if any of these two conditions occur:
First: In the event that an event occurs, which is beyond the FIRM's control, such as floods, hurricanes, etc.,
which requires FIRM to take action with the approval of the Executive Director. In such cases, FIRM shall
provide adequate documentation for matters beyond its control.
Second: If there are changes in expenses completely and totally beyond the control of the FIRM.
ARTICLE 18
OPERATING FUNDS
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18.1 The CITY will make available to the FIRM sufficient operating funds pursuant to the approved budget for the
FACILITY to the extent that such funds are not available in the FACILITY operating accounts.
18.2 The CITY will advance to the FIRM; at the beginning of each contract year, an amount equal to one -sixth of
the approved annual operating budget for the FACILITY. Thereafter, CITY will advance to FIRM, on a
monthly basis, such sums as are necessary to operate the FACILITY as provided for in the operating budget.
18.3 It is understood that the FIRM, in accordance with provisions to be agreed upon, shall be given a budget
effective (October 1) of each year. It is the intention of the CITY to fund adequately the operation of the
FACILITY in accordance with the level of activities generated and the FIRM is not obligated to fund the
operations from the management fee. The FIRM's responsibility to manage, operate maintain and perform
its other obligations shall be dependent on the CITY's responsibility to approve and provide sufficient
operating funds. CITY further agrees that its failure to provide such funding will relieve the FIRM from its
responsibilities and obligations to perform under this Agreement.
18.4 FIRM may transfer funds within the total budget with approval from the CITY MANAGER or designee with
advanced written notice, which approval shall not be unreasonably withheld.
ARTICLE 19
INDEMNIFICATION AND INSURANCE
19.1 INDEMNIFICATION: Provider shall indemnify, defend and hold harmless the City to and its officials,
employees and agents (collectively referred to as "Indemnities") and each of them from and against all loss,
costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively
referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or
loss of any property arising out of resulting from, or connection with (i) the performance or non-performance
of the services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in
whole or in part, by any act, omission, default or negligence (whether active or passive) of Provider or its
employees, agents or subcontractors (collectively referred to as "Provider"), regardless of whether it is, or is
alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default
or negligence (whether active or passive) or of the Indemnities, or any of them or (ii) the failure of the
Provider to comply with any of the paragraphs herein or the failure of the Provider to conform to statutes,
ordinances or other regulations or requirements of any governmental authority, federal or state, in connection
with the performance of this Agreement. Provider expressly agrees to indemnity and hold harmless the
Indemnities, or any of them, from and against all Liabilities which may be asserted by an employee or former
employee of Provider, or any of its subcontractors, as provided above, for which the Provider's liability to
such employee or former employee would otherwise be limited
Provider further agrees to indemnify, defend and hold harmless the Indemnities from and against (i) any and
all Liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, or
requirement in any way related, directly or indirectly, to Provider's performance hereunder, compliance with
which is left by this Agreement to the Provider, and (ii) any and all claims liens and/or suits for labor and
materials furnished by the Provider or utilized in the performance of this contract or otherwise.
Where not specifically prohibited by law, Provider further specifically agrees to indemnify, defend and hold
harmless the Indemnities from all claims and suits. For any liability, including but not limited to, injury,
death, or damage to any person or property whatsoever, caused by, arising from, incident to, connected with
or growing out of the performance or non-performance of this Agreement which is, or is alleged to be, caused
in part (whether joint, concurrent or contribution) or in whole by any act, omission, default, or negligence
(whether active or passive) of the Indemnities.
19.2 INSURANCE:
(a) The Provider shall take out, pay for, as an operating expense of the FACILITY, and at all times during
the performance of work hereunder maintain, such public, contingent (where applicable, professional
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malpractice) and employer's liability insurance as will satisfy the foregoing indemnity requirements of the
Agreement and protect Provider and the City from claims under Workers' Compensation and other employee
benefit acts. Such insurance shall include Comprehensive General Liability and property and damage,
including automobile products completed operations and broad form contractual covering liability assumed
by the Provider under this Agreement.
(b) Such insurance shall: (i) include City as an additional insured; (ii) be primary insurance written on an
occurrence basis to the full limits of liability hereinafter stated and should the City have other valid insurance,
the City's insurance shall be excess insurance only; (iii) include a severability clause substantially in the
following form:
"The insurance afforded applies separately to each insured against whom claim is made or suit is brought, but
the inclusion hereunder of more than one insured shall not operate to increase the limits of the insurance
carrier's liability. The inclusion of any person or organization as an insured shall not affect any right that
such person/organization would have as a claimant if not so included, and (iv) contain an endorsement
substantially stating:
"Cancellation or expiration of the policy to which this endorsement is attached shall not become effective
until after thirty (30) days advance written notice has been delivered to the City".
To the CITY: Department of Public Facilities
400 S.E. 2nd Avenue
Miami, FL 33131
(c) Without limitation of the requirements set forth in this Article, Provider shall maintain insurance with
coverage and minimal limits of liability as follows:
(1) Workers' Compensation and Employer's Liability providing statutory coverage under the
Workers' Compensation and Occupational Disease Laws of the state where operations are being performed
under this Contract; and Employer's Liability coverage with limits of $1,000,000 bodily injury per accident
and $300,000 annual aggregate bodily injury.
(2) Comprehensive General Liability affording i) Bodily Injury Liability (or death) with limits of
$1,000,000 for each person and where applicable, $2,000,000 in the aggregate; and (ii) Property Damage
Liability with limits of $250,000 for each occurrence and $250,000 in the aggregate, such coverage to
include: Products Completed Operations, Broad Form Contractual Liability covering liability assumed under
this Contract, and Provider's Contingent (Protective) Liability with respect to work subcontracted by the
Provider.
(d) In no event shall the provisions of this Article be construed in any way to limit Provider's obligations
under any provision of this Agreement, including, but not limited to, Provider's obligations to indemnify,
defend and hold harmless the City.
(e) The insurance coverage required herein shall be through policies issued by companies authorized to do
business under the laws of the state where the work is performed, with these qualifications:
The Company must be rated by the latest edition of Best's Insurance Guide, published by Alfred M.
Best Company, Inc. (or other recognized organization) at no Less than an "A" Best Policyholders Rating and
no less than an "X" rating in Best's Financial Size Category.
(f) All of such insurance, including renewals, shall be subject to the approval of the City for adequacy of
protection, and evidence of such coverage shall be furnished to the City on Certificates of Insurance
indicating such insurance to be in force and effect and providing that it will not be canceled during the
performance of the services under this contract without thirty (30) calendar days prior written notice to the
City. Completed Certificates of Insurance shall be filed with the City prior to the performance of services
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hereunder, provided, however that Provider shall at any time upon request file duplicate copies of the policies
of such insurance with the City.
(g) if, in the judgment of the City, prevailing conditions warrant the provision by Provider of Additional
liability insurance coverage or coverage which is different in kind, the City reserves the right to require the
provision by Provider of an amount of coverage different from the above stated amounts or kind and shall
afford written notice of such change in requirements thirty (30) days prior to the date on which the
requirements shall take effect. Should the Provider fail or refuse to satisfy the requirement of changed
coverage within thirty (30) days following the City's written notice, this Contract shall be considered
terminated on the date that the required change in policy coverage would otherwise take effect.
ARTICLE 20 INTENTIONALLY DELETED
ARTICLE 21
CONFLICTS OF INTERESTS
21.1 The FIRM hereby certifies that it will make a complete disclosure to the CITY of all facts bearing upon any
possible conflict, direct or indirect, with its performance that it believes any officer or employee of the FIRM
now has or will have. Said disclosure shall be made by the FIRM contemporaneously with the execution of
this Agreement and at any time thereafter that such facts become known to the FIRM, but shall not limit the
CITY's municipal process to enact laws in conflict with this requirement.
21.2 The CITY recognizes that the FIRM, or its affiliates, may enjoy indirect economic benefits from the
operation of the FACILITY. However, the FIRM agrees that it will perform its obligation under this
Agreement in a manner consistent with the best interest of the CITY.
21.3 The FIRM agrees that it shall not materially alter the nature of the services that its company offers in a
manner that might impact on the operation at the FACILITY without prior written approval of the CITY
MANAGER.
21.4 The FIRM agrees, in all instances when Miami is in convention solicitation competition with other cities in
which the FIRM has convention center operations not to become corporately involved on behalf of another
City in attempts to influence the decision -making process regarding selection of a convention site.
Conversely, the FIRM will use best efforts in supporting the Department in all attempts to obtain exhibition
and convention bookings for the FACILITY.
21.5 The FIRM agrees that the divulging or disclosure of any lead for future bookings at the FACILITY by
personnel of the FIRM to other competing public assembly facilities or individuals, including any public
assembly facilities owned or operated by FIRM, is prohibited. The FIRM shall place in effect stringent
policies and procedures designed to prevent such occurrence. In the event the CITY MANAGER submits a
written finding of fact of a specific disclosure of a lead by FACILITY personnel supported by reasonable
evidence, the culpable individual(s) shall be immediately terminated or transferred from the FACILITY
without any severance pay due from the CITY. CITY agrees that the transfer of an event to another venue
shall not be sufficient cause to justify such termination.
ARTICLE 22
COMPLIANCE WITH LAWS
22.1 The FIRM agrees to comply with all local, state and federal ordinances and laws, statutes, rules, and
regulations; provided the CITY will cooperate to the extent necessary to enable compliance by the•FIRM.
22.2 APPLICABILITY OF CHARTER AND CODE PROVISIONS
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This Agreement is subject to the budget and fiscal provisions of the CITY's Charter and Code. This
requirement shall be controlling against any and all of the other provisions of this Agreement.
' ARTICLE 23
TERMINATION OF AGREEMENT
23.1 FIRM shall be in a default hereunder and CITY shall thereafter have the right to terminate this Agreement if
(i) FIRM shall fail to pay any sum payable herein with five (5) business days after same is due and payable;
or (ii) FIRM shall fail to perform or comply with any of the other terms, covenants, agreements or conditions
hereof and such failure shall continue for more than thirty (30) days after written notice thereof from CITY
MANAGER. In the event that the FIRM reasonably determines that an event of default is not susceptible to
being cured within the thirty (30) day period, FIRM shall not be considered in default if FIRM shall within
such thirty (30) day period have commenced with due diligence and dispatch to cure such default and shall
thereafter complete with dispatch and due diligence the curing of such default.
23.2 The City shall have the right to terminate this Agreement in whole or in part for convenience; by giving the
FIRM no less than ninety (90) days written notice (delivered by certified mail, return receipt requested) of
intent to terminate. In event of notice of termination, the FIRM shall take all necessary measure to mitigate
termination expenses.
23.2.1 If termination is effected by the CITY, the FIRM will be paid for work actually performed to the date of
termination, plus any fee earned to date of termination, less the cost to the CITY of making good any
deficiencies, correcting all work improperly performed, and any reasonable additional cost to the CITY for
removing or replacing the FIRM, exclusive of fees paid to firm(s) hired to replace the FIRM.
23.2.2 If termination pursuant to paragraph 23.2 above is effected by the CITY, the CITY will pay for:
1. A termination fee equal to compensation earned to date of termination plus balance of 50% of
management fees if terminated in year one, two or three of contract, or in any EXTENSION TERM
if the CITY has exercised its extension option under Section 11.2.
2. Any cost of lease cancellation for automobile and office equipment;
3. Any existing obligations to the FIRM resulting from wages not to exceed and limited to the
following:
(a) The equivalent of three (3) weeks of salary for the General/Facility Manager,
plus accrued vacation compensation.
(b) The equivalent of two (2) weeks of salary for all other Full Time employees, plus any accrued
vacation compensation; and
4. Reasonable charges incun-ed in the removal of the FIRM's property from the FACILITY.
23.2.3 Notwithstanding anything herein to the contrary, the City shall have the right to terminate this agreement
without the payment of a termination fee, as set forth above, or any other penalty, in connection with the sale
of the property, by giving the FIRM sixty (60) days prior written notice.
23.3 Upon the effective date of a termination notice pursuant to Section 23.1 above, the FIRM shall (unless the
notice directs otherwise): (i) promptly discontinue all services effected, and (ii) deliver or otherwise make
available to the CITY all data, documents, procedures, reports, estimates, summaries and other such
information and materials as may have been accumulated by the FIRM in performing its obligations whether
completed or in process unless said information is considered proprietary for the FIRM.
15
23.4 In the event of termination pursuant to Section 23.1 above, the CITY may, in its reasonable discretion,
assume the work and see that the same is completed by agreement with another party, including
subcontractors of FIRM, or otherwise, all without liability to the FIRM.
23.5 In addition to the events of default set forth in Section 23.1 the following shall constitute events of default
which will grant the CITY the right to terminate this Agreement.
23.5.1 The occurrence of any act or omission on the part of the FIRM that deprives it of the rights, powers, licenses,
permits, and authorizations necessary for the lawful and proper conduct and operation of the services and
activities authorized.
23.5.2 The filing by or against the FIRM of any petitions in bankruptcy either voluntary or involuntary, or the
making by which the actions shall automatically be a basis for termination and bar the passing of any benefits
to creditors, assignees, or transferees of the FIRM.
23.5.3
23.5.4
23.5.5
The abandonment or discontinuance by the FIRM, without written consent of the CITY, of any or all of the
operations and services permitted or required.
The failure of the FIRM to account for, and pay to the CITY , as provided herein any and all amounts of
gross revenue due and owing to the CITY from the FIRM: or
The cessation or deterioration of services for a period that in the reasonable opinion of the CITY, materially
and adversely affects the operation of the public services required to be performed by the FIRM.
23.6 The exercise by the CITY or FIRM of remedies and rights provided herein shall in no way affect any other
right or remedy available to the CITY or FIRM.
ARTICLE 24
FORCE MAJEURE
24.1 Except as otherwise provided herein, neither party shall be obligated to perform and neither party shall be
deemed to be in default of its performance if prevented by; (a) fire not caused by negligence of either party,
earthquake, hurricane, wind, flood, act of God, riot, or civil commotion including the unavailability of
sufficient fuel, energy or funds to operate the FACILITY occurring at the FACILITY, or; (b) any law,
ordinance, rule, regulation, or order of any public or military Authority stemming from the existence of
economic or energy controls, hostilities, war, or governmental law and regulation; or labor dispute which
results in a strike or work stoppage affecting the FACILITY or services described in this Agreement other
than those occurring as a result of an act or omission of the FIRM.
Notwithstanding the above, in the event of an emergency threatening damage to persons or property as
determined by the FIRM, the FIRM shall act in an expeditious manner to protect said persons or property.
ARTICLE 25
ASSIGNMENT
25.1 The CITY is entering into this Agreement in recognition of and in reliance on the expertise, reliability, and
competence of the FIRM and its management in matters pertinent thereto. The performance of the
obligations imposed upon the FIRM under the Agreement will not be assignable by it to any other party
unless the CITY, within its sole discretion, consents to said assignment in writing. Any purported assignment
in contravention of this Article shall be void. In the event of any assignment by FIRM to an affiliate, parent
or subsidiary which is an entity which is substantially owned or controlled by FIRM or which retains
substantially similar management and directors and where such assignment is intended to accomplish and
internal corporate purpose of FIRM as opposed to materially and substantially altering the method of delivery
of services to CITY, the CITY agrees not to withhold its consent for such assignment.
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25.2
The foregoing does not preclude assignment by SMG of its rights to receive its management and incentive
fees hereunder to its lender(s) as collateral security for SMG's obligations under any credit facilities provided
to it by such lender(s), provided that such collateral assignment shall not in any event cover SMG's rights to
manage, promote or operate the FACILITY.
ARTICLE 26
NOTICES
26.1 All notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered
personally or sent by registered or certified mail, return receipt requested, or by generally recognized,
prepaid, overnight air courier services. All such notices to either party shall be deemed to have been
provided when delivered, if delivered personally or refused by those individuals or entities addressed below.
The designation of the individuals to be so notified and the addresses of such persons or entities for the
purpose of notice may be changed from time to time by a written notice to the other party which shall be
deemed effective ten (10) days after such notice of change is furnished to the other party.
FOR CITY: FOR FIRM:
City of Miami SMG
400 S.E. 2nd Avenue
Miami, FL 33131
305.416.1461 (Telephone)
305.416.2156 (Facsimile)
With copy to:
City Attorney
City of Miami
444 S.W. 2nd Avenue
Miami, FL 33130
305.416-1800 (Telephone)
305.416-1801 (Facsimile)
ARTICLE 27
300 Four Falls Corporate Center
300 Conshohocken State Road
West Conshohocken, PA.19428
Attention: President
EQUAL OPPORTUNITY EMPLOYMENT AND W/MBE REQUIREMENTS
27.1 FIRM agrees that it will not discriminate against any employee or applicant for employment for work under
this Agreement because of race, color, religion, sex, age, ancestry, physical handicap or national origin, and
will take affirmative steps to ensure that applicants are employed and employees are treated during
employment without regard to race, color, religion, sex, age, ancestry, physical handicap, or national origin.
27.2 The FIRM shall make reasonable and good faith efforts to recruit employees to achieve a representative work
force so that the percentage of each minority/sex group within each level of employment reasonably
approximates or equals the racial and ethnic composition of the CITY. "Each level of employment", as used
in the preceding sentence, includes management, supervisory, permanent and temporary personnel.
ARTICLE 28
SEVERABILITY/RESOLUTION OF DISPUTES
17
28.1 If any term, covenant, condition, or provision of this Agreement is held by any court of competent
jurisdiction to be invalid or unenforceable then the same as so applied shall no longer be a part of this
Agreement, but such invalidity shall in/no way affect any other term, covenant, condition, or provision
provided, however, that the invalidity of such term, covenant, condition, or provision does not, in the opinion
of the CITY and the FIRM, materially prejudice either the CITY or the FIRM as they shall mutually agree in
its rights and obligations under this Agreement. If the validity of any such tern, covenant, condition, or
provision should be determined materially to prejudice the FIRM or CITY in its rights or obligations
contained in the valid terms, covenants, conditions, or provisions, or if the consequence or effect of the
invalidity of any term covenant, condition, or provision contained will be or may be to reduce any of the
areas, spaces, facilities, benefits, or privileges that the FIRM or the CITY has, the FIRM or CITY may,
consequently, at their option, elect either to terminate entirely or to continue in full force and effect with any
said invalid terms, covenants, conditions, or provisions eliminated.
ARTICLE 29
ALL PRIOR AGREEMENTS SUPERSEDED; GOVERNING LAW AND VENUE
This document incorporates and includes al] prior negotiations, correspondence, conversations, agreements,
or understanding applicable to the matter contained herein; and the parties agree that there are no
commitment, agreements, or understandings conceming the subject matter of this Agreement that are not
contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be
predicated upon any prior representations or agreements whether oral or written.
This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of
Florida and venue for any litigation hereunder shall lie in Miami, Florida.
ARTICLE 30
AMENDMENTS TO AGREEMENT
No alteration or variation of terns shall be valid unless made in writing and signed by both parties, and no
oral understanding or agreement not incorporated therein shall be binding on any of the parties.
ARTICLE 31
FACILITY NAMES AND LOGOS
The FIRM shall have the right to use, for the term of this Agreement, the FACILITY'S name and logo on
stationery, in advertising and whenever conducting business for the FACILITY and in the FIRM's
promotional material.
ARTICLE 32
TRUTH -IN -NEGOTIATION CERTIFICATE
Signature of this Agreement by FIRM shall act as the execution of a truth -in negotiation certificate stating
that wage rates and other factual unit costs supporting the compensation of this Agreement are accurate,
complete, and current at the time of contracting. The original contract price and any additions thereto shall
be adjusted to exclude any significant sums by which CITY determines the contract price was increased due
to inaccurate, incomplete, or non -current wage rates and other factual unit costs. All such contract
adjustments shall be made within one (1) year following the end of this Agreement.
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ARTICLE 33 INTENTIONALLY DELETED
ARTICLE 34
COVENANTS OF THE CITY
34.1 CITY agrees that prior to the effective date of this Agreement, it will provide to the FIRM a full and
complete furniture, fixtures and equipment audit and certifications of warranties governing all equipment
contained in the CENTER. The CITY further agrees that as of the effective date of this Agreement all of its
warranties on said equipment shall be enforced by the FIRM on the CITY's behalf.
34.2 CITY agrees that if, and to the extent, any possessory interest tax or taxes which may be imposed or levied
upon the FIRM in connection with this Agreement, said taxes shall be reimbursable to the FIRM as an
operating expense to the extent permitted by law. This shall not include corporate business taxes.
34.3 CITY warrants and represents that there are- no other arrangements or agreements, verbal or written that
affect the rights or obligations of the FIRM other than the agreements referred to in this Agreement and/or the
Trust's indenture.
ARTICLE 35
AUDIT AND INSPECTION RIGHTS
A. The CITY may, at reasonable times, and for a period of up to three (3) years following the date of final payment
by the CITY to FIRM under this Agreement, audit, or cause to be audited, those books and records of FIRM
which are related to FIRM's performance under this Agreement. FIRM agrees to maintain all such books and
records at its principal place of business for a period of three (3) years after final payment is made under this
Agreement.
B. The CITY may, at reasonable times during the term hereof, inspect FIRM's facilities and perform such tests, as
the CITY deems reasonably necessary, to determine whether the goods or services required to be provided by
FIRM under this Agreement conform to the terms hereof and/or the terms of the Solicitation Documents, if
applicable. FIRM shall make available to the CITY all reasonable facilities and assistance to facilitate the
performance of tests or inspections by CITY representatives. All tests and inspections shall be subject to, and
made in accordance with the provision of Section 18-55.2 of the Code of the CITY of Miami, Florida, as same
may be amended or supplemented, from time to time.
ARTICLE 36
AWARD OF AGREEMENT
FIRM represents and warrants to the CITY that it has not employed or retained any person or company
employed by the CITY to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to
pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in
connection with the award of this Agreement.
ARTICLE 37
PUBLIC RECORDS
FIRM understands that the public shall have access, at all reasonable times, to all documents and information
pertaining to CITY contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow
access by the CITY and the public to all documents subject to disclosure under applicable law. FIRM's
failure or refusal to comply with the provisions of this section shall constitute an event of default under this
Agreement.
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ARTICLE 38
NON-DISCRIMINATION
FIRM represents and warrants to the CITY that FIRM does not and will not engage in discriminatory
practices and that there shall be no discrimination in connection with the FIRM's performance under this
Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. FIRM
further covenants that no otherwise qualified individual shall solely by reason of his/her race, color, sex,
religion, age, handicap, marital status or national origin, be excluded from participation in, be denied
services, or be subject to discrimination under any provision of this Agreement.
ARTICLE 39
MISCELLANEOUS PROVISIONS
A. This Agreement shall be construed and enforced according to the laws of the State of Florida.
B. Title and paragraph headings are for convenient reference and are not a part of this Agreement.
C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the
same or any other provision hereof, and no waiver shall be effective unless made in writing.
ARTICLE 40
INDEPENDENT CONTRACTOR
The CITY and the FIRM agree that the only relationship to be created is one for supplying management
services and that the FIRM is an independent contractor and not an agent, employee or partner of the CITY.
FIRM has been procured and is being engaged to provide services to the CITY as an independent contractor,
and not as an agent or employee of the CITY. Accordingly, FIRM shall not attain, nor be entitled to, any
rights or benefits under the Civil Service or Pension Ordinances of the CITY, nor any rights generally
afforded classified or unclassified employees. FIRM further understands that Florida Worker's
Compensation benefits available to employees of the CITY are not available to FIRM and agrees to provide
workers' compensation insurance for any employee or agent of FIRM rendering services to the CITY under
this Agreement.
ARTICLE 41
CONTINGENCY CLAUSE
Funding for this Agreement is contingent on the availability of funds and continued authorization for
program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction
of funds and/or change in regulations, upon thirty (30) days notice.
ARTICLE 42
REAFFIRMATION OF REPRESENTATIONS
FIRM hereby reaffirms all of the representations contained in the Solicitation Documents.
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[The remainder of this page is intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials
. thereunto duly authorized, this the day and year above written.
"CITY"
ATTEST: CITY OF MIAMI, a municipal
corporation
Priscilla A. Thompson, City Clerk Johnny Martinez, P.E., City Manager
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
J CORRECTNESS:
Julie O. Bru
City Attorney
REQUIREMENTS:
Calvin Ellis, Director
Risk Management Department
"FIRM"
SMG, a Pennsylvania general partnership
John Bums, CFO
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EXHIBIT A
[list of all use/rental occupancy agreements or contracts for attractions, events, and services in the FACILITY existing at the time
of execution of this Agreement which are hereby be assigned to the FIRM]
22
EXHIBIT B
[a copy of an inventory of all expendable supplies, equipment and fixed assets of the FACILITY, signed by an authorized
representative of each party to this Agreement.]
23