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HomeMy WebLinkAboutExhibitMANAGEMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND MIAMI DADE COLLEGE FOR THE USE OF THE TOWER THEATER LOCATED AT 1508 S.W. 8" STREET, MIAMI, FLORIDA TABLE OF CONTENTS ARTICLE I DESCRIPTION AND TERM 1.1 Description of Property 5 1.2 Term of Use 5 1.3 Option to Extend 5 ARTICLE II PURPOSE 2.1 Purpose 6 2.2 Commercial Activities within the Property 6 2.3 Operations 7 2.4 Charges for Services 7 2.5 Continuous Duty to Operate 7 ARTICLE III CONSIDERATION 3.1 Consideration 8 3.2 Fee 8 3.3 Ticket Surcharge 8 3.4 Promotion of City 9 ARTICLE IV COMMUNITY SERVICES 4.1 Community Services 10 4.2 City Use of Property 10 ARTICLE V PROVIDER'S COVENANTS 5.1 Personnel 11 5.2 Certified Financial Statement 11 5.3 Funding of Capital Improvement 12 ARTICLE VI LICENSES; COMPLIANCE WITH LAWS 6.1 Licenses and Permits 12 6.2 Compliance with Laws 12 ARTICLE VII HAZARDOUS MATERIALS 7.1 Hazardous Materials 13 ARTICLE VIII ALTERATIONS AND IMPROVEMENTS 8.1 Alterations 14 8.2 Changes and Additions to Property 14 i ARTICLE IX CITY'S INSPECTION AND RIGHT OF ENTRY 9.1 Inspection by the City 15 9.2 City's Right of Entry 15 ARTICLE X UTILITY CHARGES 21 10.1 Utilities 16 10.2 City Not Liable for Failure of Utilities 16 ARTICLE XI MAINTENANCE AND REPAIR OF PROPERTY 23 11.1 Maintenance and Repair of Property 16 11.2 Service/Maintenance Agreements 17 ARTICLE XII INDEMNIFICATION AND INSURANCE 12.1 Indemnification 18 12.2 Insurance 19 12.3 Damage or Loss to Provider's Property 21 ARTICLE XIII DESTRUCTION OF PROPERTY 13.1 Destruction of Property 22 13.2 Option to Terminate Due to Casualty 23 ARTICLE XIV OWNERSHIP OF IMPROVEMENTS 14.1 Ownership of Improvements 23 ARTICLE XV SIGNAGE 15.1 Signs 24 ARTICLE XVI SPECIAL ASSESSMENTS AND TAXES 16.1 Special Assessments and Taxes 24 ARTICLE XVII NOTICES 17.1 Notices 25 ARTICLE XVIII DEFAULT 18.1 Events of Default - Provider 25 18.2 City's Remedies in Event of Default 27 18.3 Repeated Defaults 27 18.4 Events of Default -City 28 18.5 Provider's Remedies in Event of Default 29 18.6 Repeated Defaults 29 ii ARTICLE XIX HOLDING OVER 19.1 Holding Over 30 19.2 Per Diem Fee 30 ARTICLE XX NON-DISCRIMINATION 20.1 Non-discrimination 30 ARTICLE XXI MISCELLANEOUS PROVISIONS 21.1 Surrender of Property 31 21.2 Amendments 31 21.3 Construction of Agreement 31 21.4 Waiver of Jury Trial 31 21.5 Severability 32 21.6 Waiver 32 21.7 Cancellation by Request of Either of the Parties without Cause 32 21.8 Joint Preparation 32 21.9 Binding Effect 33 21.10 Entire Agreement 33 21.11 Public Record 33 iii MANAGEMENT AGREEMENT This Management Agreement (hereinafter the "Agreement"), is made and entered into this day of , 2015 (the "Effective Date"), by and between the City of Miami, a municipal corporation of the State of Florida (hereinafter the "City") and the District Board of Trustees of Miami Dade College, a State of Florida public educational institution and a political subdivision of the State of Florida (hereinafter the "Provider"), hereinafter collectively referred to as the "Parties". WITNESETH WHEREAS, the City is the owner of the Tower Theater located at 1508 S.W. 8th Street, Miami, Florida, (the "Property"); and WHEREAS, it has been determined that the use of the Property shall be for public purpose and this Agreement fosters and furthers such public purpose; and WHEREAS, the Provider has provided programming in the Property since 2002 and since that time, the Property has served as a major venue for the Miami International Film Festival as well as various other film festivals; recognized by USA Today as one of the "10 great places to see a movie in splendor"; has been the site of major education events and film and documentary premieres; has contributed to the economic development of the area and served as a positive cultural beacon for the City of Miami; and has brought new audiences to the area and has been visited by business, community and cultural leaders. WHEREAS, the Parties agree that the Provider should continue to operate the Property to promote, among other things, cinema and other cultural arts program activities; and WHEREAS, this Management Agreement has been has been negotiated between the City and the Provider; NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the Parties agree as follows: 4 Doe. No;: 583309 ARTICLE I DESCRIPTION AND TERM 1.1 Description of Property The City is the owner of real property known as the Tower Theater located at 150.8 S.W. 8t' Street, Miami, Florida. The Provider is hereby permitted to use the Property including the improvements thereon for the specific purposes hereinafter described and, subject to all of the terms and conditions contained herein. 1.2 Term of Use The term of this Agreement shall be for a five (5) year period (the "Term") commencing on the Effective Date and expiring five (5) years later, unless sooner terminated as provided herein in Article XVIII or Section 21.7. 1.3 Option to Extend This Agreement may be extended for two (2) additional five (5) year periods (hereinafter the "Additional Term"), upon the same terms and conditions contained in this Agreement (as same may be amended from time to time) provided that the Provider complies with the following conditions: (a) The Provider delivers written notice of its request to extend the Agreement to the City of Miami City Manager or "designee" six (6) months in advance of the expiration of the Term, but not earlier than nine (9) months prior to the expiration of the Term ("Option Request") (b) Provider receives the written approval of the City Manager or designee. The City Manager may approve or deny the request for an extension in his or her sole discretion. (c) Provider is not in default of any term or condition of the Agreement at the time of malting such a request to extend the Agreement. 5 Doc. No.: 583309 ARTICLE II PURPOSE 2.1 Purpose The purpose of this Agreement is to have the Provider utilize the Property to promote the cultural arts in all their forms within the context of the City of Miami's multi- cultural, multi-ethnic and international community. The Property will host activities such as: (a) film series/festivals, (b) plays/small performances, (c) educational seminars and courses, (d) lecture series, (e) art exhibitions, (f) selling food, beverage (including alcohol) and retail merchandise (e.g. books, magazines, newspapers, posters, cards, artwork, crafts, DVDs, gifts, novelties) items and (g) other academic, arts and cultural events as determined by the Provider. The Provider shall ensure that the Property and all the Provider's activities thereon, or activities resulting from or relating to the Provider's use of the Property, will be available to all segments of the community except for certain special events which may be by invitation only. The Provider shall operate, manage, supervise and administer the Property, as an. independent contractor and not as an employee of the City, and will respond to the needs of the community by featuring academic, arts and community -oriented activities and events. This Agreement and all rights of the Provider hereunder shall, at the option of the City, cease and terminate, in accordance with the provisions and requirements of this Agreement in the event that the Provider ceases to use and operate the Property for the purposes provided herein. 2.2 Commercial Activities within the Property The Provider shall be required to receive the City Manager or the Manager's authorized designee's prior written approval for conumrcial activities that are ancillary to the Provider's use of the Property. Such approval may be conditioned or withheld for any reason, or no reason whatsoever, including a condition to pay consideration to the City. For purposes of this paragraph, the term "commercial activities" is defined to mean the sale of goods and services to the general public that are unrelated to Provider's approved use and operation of the Property. For example, the College may not agree to authorize a 6 Doe. No.; 583309 hardware store to sell hardware goads to the public at large without receiving the prior written consent of the City. Commercial activities are not defined to include sales of goods and services related to the Provider's operation and use of the Property. For example, the term "commercial activities" would not be defined to include a sale of books from a publisher or bookstore at Provider's literary events or the sale of food and beverage, including wine and beer, in the Property before, during and after events as may be provided by the Provider or a vendor for operating cafe, concessions or other food, beverage and retail merchandise items for events at the Property. Also, the term "commercial activities" is not defined to include Provider entering into Agreements for Temporary Use of the Property for periods of less than ninety (90) days to community organizations for community/educational events and activities. 2.3 Operations The Provider shall conduct its operations in an orderly planner. The Provider agrees that at no time during the ten1i, shall it permit any Adult Entertainment or obscene performances or other obscene material to be exhibited or performed on the Property. For the purposes hereof, the term "obscene" shall be defined in the same manner as such term is defined under applicable law. The term "obscene" shall not be defined to include educational artistic forms of expressions. The term Adult Entertainment shall have the same meaning as in the Miami 21 Zoning Code. 2.4 Charges for Services The Provider agrees to offer certain events or activities at the Property free of charge or at a minimal charge at a minimum of once per quarter to ensure accessibility to all residents, as further provided in Article IV. 2.5 Continuous Duty to Operate Except where the Property is rendered unusable by reason of fire, act of Nature, material building repair or maintenance requirements or other similar events or casualty, the Provider shall at all times during the Term hereof (i) occupy the Property; (ii) regularly conduct operations on the Property in accordance with the teens of this Agreement; (iii) at Doc. No.: 583309 all times keep the Property fully stocked with materials, necessary to operate the Property (e.g. light bulbs and janitorial supplies) and (iv) keep the Property open for operation during scheduled events and activities. ARTICLE III CONSIDERATION 3.1 Consideration The parties agree that the mutual promises and benefits contained herein serve as the adequate consideration for this Agreement. The cost for the Provider to provide such management, routine maintenance, as provided in Article XI, and programming to maintain the operations at the Property as provided in the Section 2.1 and in other provisions serve as the parties' consideration for the Agreement. 3.2 Fee The City agrees that Provider shall not pay an annual administrative fee for the use of this Property to the City for any Agreement Year, defined below, during the Term of this Agreement. 3.3 Ticket Surcharge As defined below, the Provider agrees to collect, or cause to be collected by an authorized user of the Property, all applicable ticket surcharges as stated in Section 53-1 of the Code of the City of Miami, as amended. The ticket surcharge shall apply in addition to the actual admission price and shall be exclusive of any applicable taxes and/or service charges. Each charge shall be itemized and shown separately on each ticket. This ticket surcharge shall commence on Effective Date of this Management Agreement. The Provider shall collect the following amounts per ticket: Ticket Price $1.00 to $14.99 $15.00 to $29.99 $30.00 and up 8 Doc. No.: 583309 Amount of Surcharge 75 cents $1.00 $2.00 The Provider shall collect and have the right to administer and use the money collected by the ticket surcharge. Notwithstanding the above, any money collected and labeled as the Ticket Surcharge shall be used by the Provider towards the Property. The Provider shall use collected ticket surcharges solely for capital improvements, non -routine one-time required major maintenance or repairs of the Property. Any capital improvements or major repairs, which are made using the collected ticket surcharges and costing in excess of $10,000.00, shall require the approval of the Director of the City's Department of Real Estate and Asset Management, which shall not be unreasonably withheld or delayed. Collected Surcharge money can be set aside and used as needed during the calendar/fiscal year or can be rolled over, if not needed in the same fiscal and/or calendar year towards capital improvements, and major repairs or major maintenance. No other expenditures may be made with the proceeds of the Ticket Surcharge. The City shall have the right to review the Provider's Property financials, including but not limited to Profit and loss statements, balance sheets, check registers, check ledgers, and any or all other financial reports related to the Property. The City shall also have the right to audit the Property and/or the financials, at the City's cost, at any time. 3.4 Promotion of the City The Provider ackriowledges the benefits afforded to it by virtue of the City allowing Provider to use the Property. City acknowledges the benefits afforded to it as a result of Provider managing the Property and providing programming for the Property, and in consideration thereof, the Provider agrees to recognize the City of Miami, when appropriate, in its marketing, advertising and promotional materials that exclusively reference Provider's events at the Property as follows: "The Tower Theater is owned by the City of Miami and operated by Miami Dade College Cultural Affairs." 9 Doc, No.: 583309 ARTICLE IV COMMUNITY SERVICES 4.1 Community Services To enhance the public purpose and the benefit to the residents, Provider, either itself or through Provider sponsored events, shall use its best effort to provide the following types of community services on a periodic basis: (a) Tickets may be provided to the City of Miami, in accordance with its ticket distribution policy, for distribution to under -served and/or needy youths or seniors. (b) Provider may also work, with the appropriate service providers located in the City of Miami to provide youths and their families and/or seniors with the benefits of cultural programming presented at the Property. The City acknowledges the Provider's active participation in providing services to the community and considered the same in granting this Agreement. The City encourages the Provider to continue to provide such services to serve primarily the residents and businesses of the City of Miami, particularly those located in Little Havana. 4.2 City Use of Property The City shall be granted the right to reasonably use the Property for the purpose of staging City events. The City acknowledges and agrees that the Provider, as a political subdivision of the State of Florida and an educational institution, must abide by specific public laws and regulations, which limit its operations. For example, the Provider is not authorized to use its resources to lobby or support a particular political candidate or to lobby or support a particular private commercial entity. Therefore, the City agrees that it shall not be authorized to conduct City—sponsored events which would cause the Provider to be in violation of its applicable laws and regulations or the spirit and intent thereof. The Parties agree that: (a) City -sponsored events will be held on mutually agreeable dates and times, and that the Provider will use reasonable efforts to accommodate the 10 Doc, No.: 583309 City's selected dates; (b) the City will give the Provider no more than six (6) months, and no less than thirty (30) days, prior written notice of the proposed date and time for the event(s); (c) the City shall be responsible for all costs not included in the normal usage fee for the Property (by way of example and not limitation, if the cost of security and post - event clean-up are not included in the normal usage fee, the City will be responsible for providing for them separately). Provider agrees, however, to waive the usage charge for use of the Property for those events or activities. ARTICLE V PROVIDER'S COVENANTS 5.1 Personnel The Provider shall provide such personnel as it deems sufficient to operate the Property according to the Agreement terms. For each event, the Provider shall provide identifiable personnel to remain on site and in charge during scheduled activities. The Provider shall employ, train, pay, supervise and discharge all personnel necessary for the operation of the Property. All such persons, including subcontractors, volunteers or employees of Provider, shall be acting solely on behalf of the Provider. The City shall not be liable for their compensation or for the consequences of any act or omission on the pant of any of them. 5.2 Certified Financial Statement Provider shall deliver or cause to be delivered to the Director of the City of Miami Department of Real Estate and Asset Management within one hundred and twenty (120) days after the end of each Fiscal Year, a certified financial statement consisting of a balance sheet, income statement and cash flow statement covering the operation of the Property for the prior Fiscal Year. The Fiscal Year shall mean each twelve-month interval commencing on July 1st and expiring on June 30th The City, at its option and upon reasonable prior notice, may cause, at its sole cost and expense, a complete audit to be made of the Provider's business affairs, records, files, ii Doe. No.: 583309 and sales slips in connection with the Provider's operations on, from or related to the Property for a period covered by any financial statement, report or record furnished by the Provider to the City. The Provider shall allow the City or the auditors of the City, upon reasonable prior notice, to inspect all or any part of the compilation procedures for the aforesaid reports. Records shall be available at the Property, or such other location in Miami approved by the Provider, Monday through Friday, between the hours of 8:00 a.m, and 4:30 p.m. The Provider shall ensure that third parties using the facility follow the City's required procedures. 5.3 Funding of Capital Improvements The Provider and City shall work jointly to prioritize capital improvement projects to be undertaken at the Property. City and Provider will provide best efforts to identify grants to cover the costs associated with any repairs, renewals, revisions, rebuilding, replacements, substitutions and/or improvements to the Property. Provider and City shall each prepare grant applications to be submitted and executed by the City for,potential capital improvement funding for the Property. Neither Party shall have any right whatsoever to obligate the other Party on any grant or similar application. The City shall be responsible for meeting the requirements of any grant obligations associated with grants for capital improvements. The City, as owner, is the responsible party for major capital improvements and repairs to the Property. ARTICLE VI LICENSES; COMPLIANCE WITH LAWS 6.1 Licenses and Permits The Provider shall obtain any and all licenses and permits necessary and in connection with the Provider's use and occupancy of the Property. 6.2 Compliance with Laws Each party to this agreement shall comply with all applicable laws, ordinances, and codes of federal, state, and local governments, now or hereinafter enacted. la Doc. No,: 583309 ARTICLE VII HAZARDOUS MATERIALS 7.1 Hazardous Materials In accordance with Section 6.2 of this Agreement, the Provider shall, 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 regarding hazardous materials under the control of Provider or its agents ("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 Provider shall procure, maintain in effect and comply with all conditions of any and all permits, licenses and other govelmnental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Property required for the Provider's use of any Hazardous Materials in or about the Property in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. The City recognizes and agrees that the Provider may use such materials in quantities appropriate for its use of the Property, for the purposes stated herein and that such use by the Provider shall not be deemed a violation of this section so long as the levels of use of such materials are not in violation of any Hazardous Materials Laws. Upon termination or expiration of this Agreement, the Provider shall cause such Hazardous Materials, including their storage devices, placed in or about the Property by the Provider or at the Provider's direction, to be removed from the Property and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The City aelmowledges that it is not the intent of this Article to prohibit the Provider from operating the Property for the uses described in this Agreement. The City represents that: 13 Doc. No,: 583309 (i) To the best of its knowledge there are no environmental violations, whether under federal, state, or local laws, existing on the Property; (ii) To the best of its knowledge there are no hazardous materials presently existing on the Property. ARTICLE VIII ALTERATIONS AND IMPROVEMENTS 8.1 Alterations Provider shall not make any improvements, construction, or alterations to the Property without prior consultation with the City. Provider acknowledges that the Property has been designated by the City of Miami Commission as a historic site in accordance with Chapter 23 of the Code of the City of Miami. Accordingly, Provider agrees that at all times during the Term, Provider shall ensure that no structural changes or alterations are made, or damage done to the interior or exterior of the Property, except for those which may be made by the City under the terms of this Agreement, The Provider may provide additional equipment and personal property necessary for its operation at the Property. All equipment and personal property provided or used by the Provider at the Property shall be of good quality and suitable for its purpose. Any equipment or personal property of Provider shall contain a College decal and/or property control number. Any changes proposed to the Property at any time are subject to the requirements of Chapter 23, City Code, "Historic Preservation" and all procedures provided for in such Chapter. 8.2 Changes and Additions to the Property The City reserves the right at any time to reasonably: (a) make or permit changes or revisions in its plan for the Property, including additions to, subtractions from, rearrangements of, alterations of, modifications of or supplements to the building areas, walkways, parking areas, or driveways, (b) construct improvements on the Property and to make alterations thereof or additions thereto, and (c) change location, size, content and design of any signage for the Property, subject to the condition that the City will endeavor to minimize any interruption to the Provider's use and operation of the Property under the 14 Doc. No.; 583309 Agreement and City shall provide one hundred eighty (180) days advance notice of any alterations or modifications that will impact the Provider's use of the Property. If City's plans, changes, alterations, rearrangements, subtractions, modification, improvements, construction or disrepair of the property substantially reduce Provider's use of the property as permitted by this Agreement by fifty percent (50%) or more, then Provider may terminate this Agreement in accordance with Article XVIII. ARTICLE IX CITY'S INSPECTION AND RIGHT OF ENTRY 9.1 Inspection by the City The City shall have the authority to make periodic inspections of the Property and improvements thereof. The Provider shall be required to make any modifications reasonably required by the City as long as the requested modifications do not materially increase Provider's costs. Prior to the beginning of each Agreement Year, the Parties shall inspect the Property and. the City's equipment. If the Parties agree that replacement of the equipment is desirable or necessary, then the City shall, at its sole cost and expense, provide such replacements with reasonable diligence. 9.2 City's Right of Entry The Provider agrees to permit the City, to enter upon the Property at all reasonable times, for any purpose the City deems necessary to, incident to, or connected with the performance of the City's duties and obligations hereunder or in the exercise of its municipal functions. 15 Doc. No.: 583309 ARTICLE X UTILITY CHARGES 10.1 Utilities The Provider shall be solely responsible for payment of all costs of consumption, and for the cost of installing any necessary lines and equipment for increased usage, of the following utilities: (a) Electricity; (b) Telephone, telecolmnunications, cable, internet, fax and similar costs or charges; (c) Water; (d) Gas; (e) Sewage disposal; (f) Storm water fees; (g) Trash and garbage removal. 10.2 City Not Liable For Failure of Utilities The City shall not be liable for any loss of performance income to Provider due to any failure of water supply, sewer, gas or electric current. ARTICLE XI MAINTENANCE AND REPAIR OF PROPERTY 11.1 Provider's Maintenance and Repair of Property The Provider shall, at its sole cost and expense, at all times during the Term hereof, provide routine maintenance and custodial services for the Property. The following maintenance and services are required for use of the Property: (a) Cleaning and janitorial services for the Property; (b) Employ, train, pay, supervise, discharge and determine the compensation of all employees necessary for the operation of the Property; 16 Doe. No.: 583309 (c) Purchase supplies required for the operation of the Property, as determined by the Provider in its discretion, including but not limited to, office supplies, cleaning supplies, light bulbs, food and beverages; (d) All marketing and advertising required for its operations; (e) Waste disposal; (f) Landscaping and periodic removal of any rubbish or obstructions from the Property; (g) Cleaning of the interior and exterior glass doors on the Property to be performed as needed but no less than once every month; (h) Interior and exterior lighting; (i) Painting/touch-up of the interior and exterior of the building; 0) Security as is required for similar facilities; (k) Any and all services required for special events; (1) Carpet cleaning and pressure cleaning sidewalk and perimeter areas; (m) Cleaning of the exterior facade to be performed as needed but no less than once every month. 11.2 Service/Maintenance Agreements The Provider shall procure service maintenance agreements for the following items at a level in accordance with good industry practice, but in no event less than that previously provided by the City: (a) Heating, ventilation and air conditioning as required for the comfortable use and occupation of the Property; (b) Elevator service; (c) Burglar and fire alarm monitoring and maintenance services; (d) Projection equipment maintenance; (e) Fire extinguishers inspections; (f) Backflow prevention test; (g) Pest and pigeon control services; (h) Existing interior signage (maintenance and repair). 17 Doe, No., 583309 In addition to the above, the Provider, shall undertake minor repairs deemed appropriate by the Provider of the plumbing and electrical fixtures (e.g. leaking faucets, clogged toilets), as necessary. The Provider shall, promptly advise the City upon obtaining knowledge of any condition of the Property which may present a risk of injury to persons or property. ARTICLE XII INDEMNIFICATION AND INSURANCE 12.1 Indemnification To the extent permitted by Section 768.28, Florida Statutes, as may be amended, Provider shall indemnify and save the City, its officers, employees, and agents harmless from any and all claims, liability, and causes of action which may arise out of the willful, negligent, or unlawful acts or omissions of Provider, its district board of trustees, employees, agents, or subcontractors in its operations, activities, or obligations under this Agreement and shall pay all claims and losses of any nature whatsoever in connection therewith, including all costs, judgments, and attorney's fees, which may issue thereon; provided, however, that nothing herein shall be construed to require Provider to indemnify the City against liability resulting from the willful, negligent, or unlawful acts or omissions of the City. This provision shall survive the termination of this Agreement. To the extent permitted by Section 768.28, Florida Statutes, as may be amended, the City shall indemnify and save the Provider, its district board of trustees, officers, employees, and agents harmless from any and all claims, liability, and causes of action which may arise out of the willful, negligent, or unlawful acts or omissions of the City, its officers, its employees, agents, or subcontractors in its operations, activities or obligations under this Agreement and shall pay all claims and losses of any nature whatsoever in connection therewith, including all costs, judgments; and attorney fees, which may issue thereon; provided, however, that nothing herein shall be construed to require the City to indemnify the Provider against liability resulting from the willful, negligent, or unlawful acts of Provider. This provision shall survive the termination of this Agreement. 18 Doc. No.: 583309 12.2 Insurance The City operates a self-insurance program under the laws of the State of Florida. In addition, the City currently has in force property insurance covering the City's interest in the Property. Nothing in this agreement shall be construed to require the City, or Provider, to maintain such property insurance or require that such insurance inure to the benefit of Provider. Provider represents that it is self-insured for actions to recover for injury or loss of property, personal injury or death caused by the negligent or wrongful act or omissions of its officers and employees. Provider shall provide evidence of its self-insurance program, which is subject to the provisions, limits and limitations as provided for by Section' 768.28,. Florida Statutes, as may be amended, in a form acceptable to the City's Risk Management Administrator. Iii addition, Provider may procure general liability insurance covering its operations at the Property and related liability. If Provider procures general liability insurance, Provider shall request that the City be named as an additional insured. If the insurer imposes a charge to name City as an additional insured, City shall bear such cost or forgo being named as additional insured. Notwithstanding the above, Provider shall require that third parties using the Property furnish Provider with evidence of the following insurance coverages unless this requirement is waived in writing, in advance of such third party use, by the City Manager: (a) Commercial General Liability insurance on a comprehensive general liability coverage form, or its equivalent, including contingent and contractual liability, products and completed operations, Damage to Rented Premises Coverage with limits of $100,000.00, personal injury and advertising liability, and premises and operations coverage protecting against all claims, demands or actions resulting in bodily injury, personal injury, death or property damage occurring in the Property with limits of not less than $1,000,000.00 per occurrence, $2,000,000.00 policy aggregate. The City and Miami Dade College shall appear listed as an additional insured on the policy or policies of insurance. The third party shall also obtain and maintain in force for the length of the agreement a $1,000,000.00 Excess Umbrella listing the City and Miami Dade College as an additional 19 Doc. No.: 583309 inured. Such coverage shall be excess over all applicable liability policies, including liquor liability. (b) 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 $ 1,000,000.00 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. The City and Miami Dade College should be listed as an additional insured. (c) Worker's Compensation in the form and amounts required by Florida law. (d) Liquor liability with limits of $1,000,000.00 per occurrence, $2,000,000.00 policy aggregate. The City and Miami Dade College shall appear listed as an additional insured on this coverage. (e) Business Personal Property The Provider shall maintain and afford coverage for business personal property, including leased hold improvements subject to special form causes of loss (All Risk) including wind and hail with a valuation option of replacement cost, including coverage for business interruption, loss of income and extra expense coverage on an actual loss sustained basis, or alternate coverage form, covering the interruption or suspension of business operations, the necessary extra expense incurred, and any loss of income with consideration to the continuation of all normal charges and continuing expenses, including continuing expenses acquired through contractual obligations, and payroll resulting from a covered cause of loss. The Provider shall also maintain in place coverage for flood insurance, if applicable. 20 Doc. No.: 583309 The City reserves the right to amend the insurance requirements for both the Provider and third parties in accordance with reasonable industry practice by the issuance of notice in writing to the Provider. Should Provider be unable or refuse to comply with the City's amended insurance requirements this Agreement shall terminate thirty (30) days after the changed requirements were to tape effect. 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 Risk Management Administrator. A current Evidence of Insurance and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Risk Management Administrator at least fifteen (15) days prior to the commencement of a third party's usage of the Property. The City shall be deemed to have approved the third party insurance if it fails to request any changes within ten (10) days after the evidence of insurance has been received by the City's Department of Asset Management. 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 Provider's obligation to require the insurance requirements herein. Failure to require third parties to procure the insurance required by this section shall constitute a default of this Agreement as provided in Article XIII of this Agreement entitled "Default." The Provider's failure to require third parties to procure insurance shall in no way release the Provider from its obligations and responsibilities as provided herein. 12.3 Damage or Loss to Provider's Property Neither party shall be liable for injury or damage which may be sustained by the Property or sustained by goods, wares, merchandise or other property of the Provider, or 21 Doe. No,: 583309 the Provider's employees, agents, contractors, invitees, and guests or of any other person in or about the Property caused by or resulting from any peril whatsoever which may affect the Property, including, without limitation, fire, steam, electricity, gas, water, or rain which may leak or flow from or into any part of the Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Property, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Property unless caused by the negligence of the City or the Provider, their officers, employees, agents or representatives. ARTICLE XIII DESTRUCTION OF PROPERTY 13.1 Destruction of Property Except as provided in Section 13.2, if the Property shall be damaged by fire, the elements, accident or other casualty (any of such causes being referred to herein as a "Casualty"), but the Property shall not be rendered wholly or partially unusable, the City shall promptly cause such damage to be repaired, subject to collection of sufficient insurance proceeds. If, as a result of Casualty, the Property shall be rendered partially unusable, then, subject to the provisions of the Section 13.2 of this Agreement, the City shall cause such damage to be repaired. In such event, such repairs shall be made at the expense of the City, subject to the Provider's responsibilities set forth herein. The City shall not be liable for interruption to the Provider's business or for damage to or replacement or repair of Provider's personal property (including, without limitation, inventory, trade fixtures, floor coverings, furniture and other property removable by the Provider under the provisions of this Agreement) or for damage to or replacement or repair of any improvements installed by Provider at the Property. 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, to the extent funds are not available to fully restore the Property to its pre -Casualty condition, the City's repair of the Property may not result in the Property being restored to its condition 22 Doc, No.: 583309 prior to any such Casualty. In the event the cost to repair the Property is less than the net insurance proceeds received by the City, all excess insurance proceeds shall inure to the City. 13.2 Option to Terminate Due to Casualty If the Property is (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 Property to a condition reasonably necessary to carry out the purposes described in this Agreement, or (d) damaged or destroyed in whole or in part during the last three (3) years of the Term, or (e) if the building is damaged to the extent that it cannot be used for Provider's intended purpose for a period of ninety (90) or more consecutive days, then, either the City or the Provider may elect to terminate this Agreement by giving to the other party notice of such election within ninety (90) days after the occurrence of such event. If such notice is given, the rights and obligations of the Parties shall cease as of the date specified in such notice. Upon termination of this Agreement pursuant to this section, the Provider and the City shall be released from any further obligations hereunder, except that such release shall not apply to any sums then accrued or due, or to the Provider's obligations under the Section 21.1 of this Agreement entitled "Surrender of the Property" or to any obligation otherwise surviving the termination of this Agreement. ARTICLE XIV OWNERSHIP OF IMPROVEMENTS 14.1 Ownership of Improvements As of the Commencement Date and throughout the Term, title to the Property, and all buildings and improvements thereon shall be vested in the City. Furthermore, title to all improvements and alterations made in or to the Property during the Term, whether or not by or at the expense of the City or Provider, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain and be surrendered with the Property. 23 Doc. No.: 583309 Certain furniture, furnishing, equipment or other articles of personal property owned by the Provider and located on the Property, shall be and shall remain the property of the Provider and may be removed by it at any time during the Term so long as the Provider is not in default of any of its obligations under this Agreement; the same have not become a fixture; and removal does not materially affect the use the Property and conduct operations as provided herein. If, however, any of the Provider's property is removed and such removal causes damage to the Property, the Provider shall repair such damage at its sole cost and expense in accordance with the provisions of this Agreement. Any property belonging to the Provider and not removed by the Provider at the expiration or earlier termination of the Agreement shall be deemed to have been abandoned by the Provider, and the City may keep or dispose of such property. At the expiration of the Term the Provider shall deliver to the City the keys and combination to all safes, cabinets, vaults, doors and other locks left by the Provider on the Property. ARTICLE XV SIGNAGE 15.1 Signs The Provider shall be permitted to place signs or posters related to the Provider's operation on the areas designated on the exterior and interior of the Property. Upon the expiration or earlier termination of this Agreement, for any reason, the Provider shall, at its sole cost and expense, remove and dispose of all signs, advertising materials or other objects of Provider located on the Property. All signage is subject to compliance with the applicable provisions of the City of Miami and Miami -Dade County Sign Codes. ARTICLE XVI SPECIAL ASSESSMENTS AND TAXES 16.1 Special Assessments and Taxes The Provider represents that it is immune from taxation as a State of Florida educational institution and political subdivision of the State of Florida. However, if any taxes, special assessments, levies, charges or other impositions by a govermnental agency 24 Doc. No.: 583309 ("Assessment") are imposed on the Property or the City by virtue as a result of Provider's act or omissions in its use of the Property, then Provider shall promptly contest or pay such Assessment within a reasonable time or it shall be considered a default of this Agreement. ARTICLE XVII NOTICES 17.1 Notices All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service or by 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 Office of the City Manager 444 S.W. 2nd Avenue, 10th Floor Miami, Florida 33130 And NOTICE TO PROVIDER: Miami Dade College College President Office of the College President 300 N.E. 2"d Avenue Miami, Florida 33132 City of Miami Department of Real Estate and Asset Management Attn: Director 444 S.W. 2nd Avenue, 3rd Floor Miami, Florida 33130 ARTICLE XIII DEFAULT 18.1 Events of Default - Provider Each of following events is defined as an Event of Default: (a) The failure of the Provider to perform any of the covenants, conditions and agreements of this Agreement on the part of the Provider to be 25 Doe. No.: 583309 performed and the continuance of the failure for a period of sixty (60) days after written notice (which notice shall specify the nature of the default) from the City to the Provider, unless with respect to any default which cannot be cured within sixty (60) days, the Provider, 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; (b) The filing of an application by the Provider; (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; (c) The entry of an order, judgment or decree by any court of competent jurisdiction, adjudicating the Provider as bankrupt, or appointing a receiver, trustee or liquidator of it or of its assets, and this order, judgment or decree continuing un - stayed and in effect for any period of sixty (60) consecutive days, or if this Agreement is taken under a writ of execution; or In the event this Agreement is assumed by or assigned to a trustee pursuant to the provisions of the U.S. 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 to immediate possession of the Property and shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or termination of this Agreement. The failure to pay or contest special assessment, taxes or other impositions arising by virtue of this Agreement as provided in Article XVI. 26 Doc, No.: 583309 18.2 City's Remedies in Event of Default The City may treat any one or more of the Event(s) of Default as a breach of this Agreement, and thereupon at its option, the City shall have, in addition to every other right or remedy existing at law or in equity, the right to do any one or more of the following; (a) Elect to cancel and terminate this Agreement and dispossess the Provider by giving a ten (10) day notice of such election to the Provider, and reenter the Property. In the event of such termination, the City shall have the right to seek any damages sustained by it by reason of the Provider's actions or inactions and the resulting termination of this Agreement. Upon termination of this Agreement, the Provider shall immediately cease all operations at the Property and surrender the Property in accordance with the provisions contained herein. (b) 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 clause (b) and regardless of whether an Event of Default shall have occurred, the City may exercise the remedy described in clause (b) without any notice to the Provider if the City, in the exercise of its good faith judgment, believes it would be injured by failure to take rapid action or if the unperformed obligation of the Provider constitutes an emergency. (c) 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. 18.3 Reheated Defaults If more than twice during any twelve (12) month period the Provider fails to satisfy or comply with the same or substantially the same material requirements or provisions of this Agreement (except where such repeated default arises from acts of God or results from causes or conditions not attributable, directly or indirectly, to the Provider, its guests, employees, agents or others within the Provider's control), then at the City's election, the Provider shall not have any right to cure such repeated default. In the event of the City's election not to allow the 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 immediately upon the occurrence of such repeated failure to satisfy or comply. 27 Doc. No.: 583309 18.4 Events of Default - City Each of following events is defined as an Event of Default: (a) The failure of the City to perform any of the material covenants, conditions and agreements of this Agreement on the part of the City to be performed and the continuance of the failure for a period of fifteen (15) days after written notice (which notice shall specify the nature of the default) from the Provider to the City, unless with respect to any default which cannot be cured within fifteen (15) days, the City, in good faith, promptly after receipt of written notice, shall have cominenced and continued diligently to reasonably prosecute all action necessary to cure the default and shall have so notified the Provider in writing; (b) The filing of an application by the City: (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; (c) The entry of an order, judgment or decree by any court of competent jurisdiction, adjudicating the City as bankrupt, or appointing a receiver, trustee or liquidator of it or of its assets, and this order, judgment or decree continuing un -stayed and in effect for any period of sixty (60) consecutive days, or if this Agreement is taken under a writ of execution. In the event this Agreement is assumed by or assigned to a trustee pursuant to the provisions of the U.S. 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 Provider 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 Provider shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or termination of this Agreement. 28 Doc. No,: 583309 18.5 Provider's Remedies in Event of Default The Provider may treat any one or more of the Event(s) of Default as a breach of this Agreement, and thereupon at its option, the Provider shall have, in addition to every other right or remedy existing at law or in equity, the right to do any one or more of the following: (a) Elect to cancel and terminate this Agreement by giving a ten (10) day notice of such election to the City. In the event of such termination, the Provider shall have the right to seek any damages sustained by it by reason of the City's actions or inactions and the resulting termination of this Agreement. Upon termination of this Agreement, the Provider shall immediately cease all operations at the Property and surrender the Property in accordance with the provisions contained herein. (b) Exercise any other legal or equitable right or remedy, which it may have under this Agreement, at law or in equity. (c) All of the remedies of the Provider 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. 18.6 Repeated Defaults If more than twice during any twelve (12) month period the City fails to satisfy or comply with the same or substantially the same material requirements or provisions of this Agreement (except where such repeated default arises from acts of God or results from causes or conditions not attributable, directly or indirectly, to the City, its guests, employees, agents or others within the City's control), then at the Provider's election, the City shall not have any right to cure such repeated default. In the event of the Provider's election not to allow the cure of a repeated failure to satisfy or comply, the Provider shall have all of the rights and remedies provided in this Agreement relative to an Event of Default immediately upon the occurrence of such repeated failure to satisfy or comply. 29 Doc. No.; 583309 ARTICLE XIX HOLDING OVER 19.1 Holding Over The Provider shall vacate the Property upon the expiration or earlier termination of this Agreement. The Provider shall reimburse the City for all damages proven to be incurred by the City from any delay by the Provider in vacating the Property. Under no circumstances shall Provider be entitled to hold over without the express written consent of the City. If the Provider remains in possession of all or any part of the Property after the expiration of the Term, with or without the express or implied consent of City, such occupancy shall be from month-to-month only and not a renewal hereof or an extension for any further term, and shall be subject to all conditions, provisions and obligations of this Agreement in effect on the last day of the Term, except that the month-to-month occupancy will be terminable on fifteen (15) days' notice given at any time by either party. 19.2 Per Diem In the event that the Provider fails to peacefully surrender the Property at the expiration or earlier termination of this Agreement, then the City shall, in addition to all other remedies, shall be entitled to collect from the Provider, and the Provider shall pay to the City, a per diem fee of One Hundred Dollars ($100.00) for each day that the Provider remains in the Property in violation of this Agreement (the "Per Diem Fee"). Acceptance of the Per Diem Fee by City shall, in no event, constitute a waiver of the City's rights under this Agreement and shall not prevent the City from pursuing all other remedies to which is entitled including but not limited to the right to seek injunctive relief to eject the Provider from the Property. ARTICLE XX NON-DISCRIMINATION 20.1 Non-discrimination The Provider agrees that it will not discriminate against any person based upon race, sex, national origin, or handicap in its performance under this Agreement. It is 30 Doc. No.: 583309 expressly understood that upon a determination by a court of competent jurisdiction that Provider has engaged in such discrimination, the City shall have the right to immediately terminate this Agreement without penalty to the City. ARTICLE XXI MISCELLANEOUS PROVISIONS 21.1 Surrender of Property Upon the expiration or earlier termination of this Agreement by lapse of time or otherwise, the Provider shall promptly and peacefully surrender and deliver possession of the Property to the City in accordance with the covenants herein contained. 21.2 Amendments No amendment or modification of this agreement shall be effective unless in writing and signed by the parties hereto. The City Manager is authorized to amend or modify this agreement on behalf of the City without further approval of the City . Commission. 21.3 Construction of Agreement This Agreement shall be construed and enforced according to the laws of the State of Florida and venue for any litigation shall be in Miami -Dade County, Florida. 21.4 Waiver of Jury 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 Agreement, or any other agreement executed by and between the Parties in connection with this Agreement, or any course of conduct, course of dealing, statements or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and the Provider entering into the subject transaction. 31 Doc. No.: 583309 21.5 Severability If any provision of the Agreement, or the application thereof, is held invalid, the remainder of the Agreement shall be construed as if such invalid part were never included herein and the Agreement shall be and remain valid and enforceable to the fullest extent permitted by law. 21.6 Waiver No waiver of any provision of this Agreement shall be deemed to have been made unless such waiver is in writing and signed by the parties to this Agreement. The acceptance of additional payments by the City, with knowledge of any breach of this Agreement by the Provider or of any default on the part of the Provider in the observance or performance of any of the conditions, agreements or covenants of this Agreement, shall not deemed to be a waiver of any provision of this Agreement. 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. 21.7 Cancellation by Request of Either of the Parties without Cause Either party may cancel this Agreement at any time, without cause or reason, by giving one hundred eighty (18 0) days written notice to the non -canceling party prior to the effective date of the cancellation. Upon the effective date of such cancellation, the parties shall be relieved from any further obligations under this Agreement except for those specifically stated to survive the expiration or termination of this Agreement. 21.8 Joint 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. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which 32 Doc, No.: 583309 itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. 21.9 BindingEffect This Agreement shall not be binding on the Provider until such time as the District Board of Trustees of Miami Dade College approves this Agreement and it is fully executed by the parties. 21.10 Entire Agreement This instrument and its attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 21.11 Public Records The parties shall each comply with Chapter 119, Florida Statutes, the Public Records Laws, as amended, including without limitation Section 119.070 1, Fla. Statute, as may be amended. [INTENTIONALLY LEFT BLANK) 33 Doc, No.: 583309 IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed by their respective, duly authorized, officials, the day and year above written. ATTEST: Todd Hannon, City Cleric APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez, City Attorney ATTEST: By: Print Name: Print Title: APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY: Carmen Dominguez College Legal Counsel 34 Doc. No.: 583309 THE CITY OF MIAMI, a municipal corporation of the State of Florida IM Daniel J. Alfonso, City Manager APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Risk Manager THE DISTRICT BOARD OF TRUSTEES OF MIAMI-DADE COLLEGE, a State of Florida public educational institution and a political sub -division of the State of Florida IC Rolando Montoya, Ed. D. Provost for Operations