MANAGEMENT OPERATING AGREEMENT
THIS AGREEMENT, made and entered into as of the 27th day of May, 1992,
by and between the City of North Miami, Florida (hereinafter called the ~CITY"),
a body corporate and a political subdivision of the State of Florida, duly
organized and existing under the laws of said State, and PERFORMING ARTS
MANAGEMENT OF NORTH MIAMI, INC., a corporation organized under the laws of the
State of Florida (hereinafter sometimes referred to as "OPERATOR");
WHEREAS, the CITY desires to contract with OPERATOR for OPERATOR to
develop and construct thereon, and manage pursuant to the terms hereof, a
cultural facility for the performing and visual arts (hereinafter sometimes
referred to as the "Facility" or "Premises"); and
WHEREAS, CITY desires the OPERATOR to prepare plans and specifications
and arrange the financing for the construction of a modern performing arts
facility and related facilities on the Site (the Site and Facilities together
are sometimes hereinafter referred to as the "ProJect"); and
WHEREAS, it in the intention of the CITY that the ProJect be acquired,
financed, constructed and operated so that the citizens of the City of North
Miami and the South Florida area shall have the benefit of the finest performing
and visual arts programs and events essential to the educational, recreational,
historical, political and cultural development of the community to be served;
and
WHEREAS, the parties acknowledge that the development, operation and
management of the ProJect must be undertaken in a manner which will produce the
desired results and anticipated benefits for the CITY and the community, and
that such undertaking presents unusual and difficult problems demanding
extraordinary and specialized knowledge and experience;
NOW, THEREFORE, in consideration of the payments hereinafter required
to be made and the performance of the mutual promises herein contained at the
time and in the manner specified, the parties hereto agree as follows:
SECTION 1. GENERAL OBLIGATIONS OF OPERATOR
1.1. The OPERATOR shall, undertake the following obligations and
undertakings, all of which shall 1.1.t theThe OPERATOR shall, undertake the
following obligations and undertakings, all of which shall be at the sole cost
and expense of the OPERATOR:
a. Design the ProJect subject to the approval of CITY to
accommodate and fulfill the purpose and intent of this
Agreement. OPERATOR is directed to design a ProJect on
behalf of CITY which ProJect is to be a first class
state-of-the-art outdoor performing arts facility with a
capacity of 7,900 permanent seats and additional room to
accommodate temporary and berm seating.
b. Obtain, with the approval and cooperation of CITY, all
necessary governmental regulatory approvals and
authorizations required to permit the development of the
ProJect in accordance with the plans at no cost to CITY.
OPERATOR shall prepare all plans and specifications for
the construction of the Facility and obtain all required
building permits for the construction of all improvements
specified by the plans and specifications. OPERATOR shall
not be charged fees for building permits required and
issued by CITY.
All plans and specifications shall be subject to review
and approval by CITY, and no substantial modification
thereto shall be made once-so approved without CITY
Council approval which approvals shall not be arbitrarily
or capriciously denied.
CITY may, at its expense, utilize an outside consultant to
review and monitor such plans and specifications including
but not limited to structural, electrical, plumbing, etc.,
and to monitor construction activities for compliance with
such Plans. CITY Council review shall be in addition to
review and approval by CITY'S building official. It is
understood and agreed that CITY'S costs for construction
review and monitoring shall be an item eligible for soft
cost reimbursement to CITY in the event a bond issue
financing mechanism is utilized under Section l.l(d) and
Section 29, of this Agreement, to the extent allowed by
law.
c. Develop and construct the Facility on a site of up to
fifteen (15) acres, the location of which is to be
indicated by CITY within thirty (30) days of execution of
this Agreement, with the location to be designated within
the Site Plan required under Section 1.1(c)(5) below; and
to develop and construct all parking areas referenced in
Section 7.8 upon an area to be designated in the Site Plan
referenced above. Such development and construction shall
be in accordance with the plans and specifications to be
prepared by OPERATOR.
Both the Facility location and the parking area location
shall be subject to final designation within CITY'S
Landfill Closure Plan. The total ProJect Site size (made
available from CITY land) shall be of sufficient size to
enable OPERATOR to provide parking areas for at least
6,500 vehicles (2,000 to serve the
Facility and 4,500 to serve all authorized users of the
former Landfill Site), if necessary.
In the event that the OPERATOR finds the Facility location
or parking area location, as established by the above
procedure, to be unacceptable, this Agreement shall
immediately be terminated upon written notice by either
party to the other, with no party being obligated to the
other.
It is recognized that a sufficient roadway segment within
the four (4) acres + entrance way delineated on Exhibit
"A" shall remain preserved as an ingress/egress for this
ProJect as well as for an ingress/egress for any other
uses which May be hereafter constructed on land adjacent
to the ProJect or upon the landfill.
c.1 It is acknowledged by OPERATOR and CITY that in
OPERATOR'S planning, development and management of
the facility that N.E. 135 Street shall not now,
or ever, be used or developed as an ingress or
egress to the Facility. OPERATOR shall construct
and develop the entrance road area depicted on
Exhibit ~A" as the primary access to the ProJect
and shall likewise develop and construct road
access in the vicinity of ▇.▇. ▇▇▇ ▇▇▇▇▇▇ if so
designated.
c.2 CITY shall make available (at no charge to
OPERATOR) enough non-exclusive property (from
available CITY lands) to the OPERATOR and OPERATOR
shall provide thereon for two (2) separate ingress
and egress entrances for locations as described in
c.1. above. OPERATOR agrees that, at its expense,
it shall pay for all improvements related to the
ingress and egress. OPERATOR further agrees that
during the course of the Contract, it shall pay
for all maintenance required during the time that
it is the exclusive user of the ingress and
egress. At such time that additional users are
incorporated into the landsite, each new user may
be assessed a portion of such initial cost for
development, operation and maintenance of the
ingress and egress as determined by the CITY
Council based upon such additional user's,
pro-rata of CITY owned land.
c.3 OPERATOR shall commence the construction of the
Facility and related improvements and site work
within ninety (90) days after obtaining CITY'S
approvals and authorizations of CITY pursuant to
l.l(b), l.l(c)(4) and l.l(d) hereof and approval
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of an applicable funding program, which
construction shall be completed within one (1)
year of said commencement. SubJect to the terms of
Section l.l(c)(6), if such construction is not so
commenced, the contract shall be deemed terminated
immediately upon the written notice from either
party to the other, and no party shall have any
obligation to the other.
c.4 As a component of OPERATOR'S Facility design work,
OPERATOR, through its engineering and
architectural consultants, shall provide all
necessary information, data and plans to enable
CITY'S Munisport Landfill Site closure Project
Manager, to include the Facility and all parking
areas, as a component of CITY'S Munisport Landfill
closure design, which CITY is preparing under
D.E.R. Contract SW-48. CITY shall include the
Facility in its Landfill Closure Design. CITY
shall use its best efforts to obtain government
approval of CITY'S Landfill Closure Design.
Once the Landfill Closure Design is approved by
all government entities with Jurisdiction thereof,
OPERATOR shall be responsible for providing for
the building and construction of the Facility into
the Landfill Closure. OPERATOR shall be
responsible for the cost of site preparation,
clearing of brush, drainage, grading, methane gas
control and venting, application of clean fill
material, construction of foundation and all other
components and appurtenances of the Facility. The
above described responsibility of OPERATOR shall
not extend to other portions of the 170 acre
Landfill site which are not used either for the
Facility or not used for the parking space" to be
constructed hereunder.
The OPERATOR'S responsibilities described above
shall be fulfilled directly by OPERATOR'S
construction of such item. in coordination with
CITY'S construction of closure of the entire 170
acre landfill (exclusive of the Facility and
parking sites). At CITY'S option, if required by
any regulatory authority, the OPERATOR shall pay
the CITY, in advance, all necessary funds for CITY
to complete those items which are OPERATOR'S
responsibility regarding the closure of OPERATOR'S
segment of the 170 acre landfill site and
including the Facility Site location and parking
areas referred to in Section 7.8. The
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term "necessary funds" shall include all actual
construction costs, as well as the fees and costs
paid by CITY for an engineer to supervise such
construction. In exercising this option, CITY
shall take into consideration OPERATOR'S
construction costs and shall seek to obtain and
use the best cost factors available. In either
event, all work shall be subject to the approval
of CITY'S Landfill Closure Project Manager, all
items shall be accomplished, and no reimbursement
shall be made or owing to OPERATOR. The option
provision of this section shall apply only to
aspects of closure and not general construction of
the Facility.
CITY shall furnish OPERATOR with closure cost
estimates relating to OPERATOR'S landfill closure
construction responsibilities under this Section
prior to any closure work being done at OPERATOR'S
expense. No construction on the Amphitheater
project will commence prior to OPERATOR and CITY
mutually agreeing to OPERATOR'S closure cost
responsibilities under this Agreement. If the CITY
and OPERATOR fail to agree, this Agreement shall
immediately be terminated upon written notice from
either party to the other, and no party shall have
any obligation to the other.
c.5 OPERATOR recognizes that the adoption of a site
approval ordinance of the CITY, pursuant to
Section 29.12.1 of the City code is a condition
precedent to the development of the property under
this Agreement, and that OPERATOR shall apply to
CITY for such site approval and diligently pursue
same.
c.6 Upon commencement of construction said
construction shall be diligently prosecuted to
completion, excepting only~delays caused by acts
of God which OPERATOR could not have reasonably
foreseen and provided for, or strikes, boycotts or
like obstructive action" by employee or labor
organizations which are beyond the control of
OPERATOR and which OPERATOR cannot overcome with
reasonable effort and could not reasonably have
foreseen and provided for, or any war or
declaration of a state of national emergency, or
the imposition by government action or authority
of restrictions upon the procurement of labor or
materials necessary for the completion of the
ProJect, or any litigation (which litigation is
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not initiated or directly caused by actions of
OPERATOR) relating to the validity of this
Agreement or the proposed plan of financing,
acquisition, construction, equipping and operation
of the Project. It is recognized by OPERATOR and
the CITY that the ProJect or a portion of the
Project will be constructed on a former sanitary
landfill site, and that construction problems,
which problems, if any, are currently unknown and
hence as of this date are not herein capable of
definition, that reasonable delay in completion of
the Project due to its construction on or near
said sanitary landfill will be considered an "Act
of God H " Any act or event not within the
reasonable control of either party shall be deemed
an "Act of God". Provided, however, no extension
of time to perform shall be granted for more than
a two (2) year period.
c.7 All improvements constructed pursuant to this
Agreement shall be so constructed that upon
completion they will fully comply with the
requirements of all applicable laws, rules,
orders, codes, ordinances, requirements and
regulations of municipal, regional, state, federal
and other governmental authorities having
Jurisdiction, whether or not the same are now in
the contemplation of the parties or require
amendments to the plans or specifications or
require reconstruction of work in progress or work
in place, and whether the same be structural or
otherwise.
c.8 OPERATOR shall promptly obtain any and all
certificates of occupancy and permits which are
required to be obtained to permit the improvements
to be used for the purposes contemplated by this
Agreement. CITY shall not charge OPERATOR for any
City of North Miami required permits.
c.9 Upon the completion of the construction OPERATOR
shall provide the CITY with two complete sets of
"as built plans" of facility, along with a survey
of the project.
d. Within thirty (30) days after all governmental approvals
of CITY 'So landfill closure design, OPERATOR shall
arrange a financing package so as to finance the costs of
the construction and development of the Project. Any
financing shall be in form satisfactory to
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the governing body of the CITY and the CITY'S attorney. It
being acknowledged that an express condition of such
financing shall be that the CITY shall have no general
fiscal obligation pursuant thereto, and that the financing
arranged shall have guarantees satisfactory to the CITY
and its counsel so as to insure that the CITY in not
obligated pursuant thereto or encumbered thereby. The CITY
shall cooperate with the OPERATOR in arranging any such
financing including therein, issuing a thirty (30) year
Industrial/Development revenue bond pursuant to Chapter
159, Florida Statutes, or other applicable statutory
provisions, upon confirmation by the City Council and City
Attorney that the CITY is not liable thereon and that no
recourse to the CITY is created by such financing. The
attorney may require the opinion of Bond Counsel prior to
issuance of such Bonds. OPERATOR may apply in CITY'S name,
with approval of the CITY for participation in any grant
or tax sharing revenue programs which might include but
not be limited to tourist development packages or State or
Federal packages so long a" there is no recourse or
reimbursement required on behalf of CITY. The financing
package shall include a demolition bond in favor of CITY
should OPERATOR or its approved successors abandon the
ProJect prior to successful completion. It is recognized
that construction shall not commence unless and until the
financing plan is approved by the CITY Council, which
approval shall not be arbitrarily or capriciously denied.
Once construction commences, OPERATOR shall provide weekly
written progress reports to the City Council in a format
approved by the City Manager. The parties agree that if a
financing package is not approved in accordance herewith
or in the event funds to be provided by the approved
financing are not provided within six (6) months after
approval, either party may immediately terminate this
contract upon written notice to the other, and no party
shall be obligated to the other.
e. To manage and operate the Facility pursuant to the terms
of this Agreement.
SECTION 2. TERM OF AGREEMENT
2.1. CITY and OPERATOR hereby agree that OPERATOR shall be the
exclusive Operator of the ProJect for and during the term of this Agreement in
furtherance of the public purpose for which the Project is to be built, to wit:
performing and visual arts facility and exhibit hall. Such use shall include,
without limitation the presentation of performing artists, shows, concerts,
cultural displays, exhibits and other types of similar performances and all
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other incidental and related uses. The term of this Agreement shall commence on
the date hereof and the OPERATOR'S management and the operation term shall
commence on the date of occupancy of the 2.1.ect aCITY and OPERATOR hereby agree
that OPERATOR shall be the exclusive Operator of the ProJect for and during the
term of this Agreement in furtherance of the public purpose for which the
Project is to be built, to wit: performing and visual arts facility and exhibit
hall. Such use shall include, without limitation the presentation of performing
artists, shows, concerts, cultural displays, exhibits and other types of similar
performances and all other incidental and related uses. The term of this
Agreement shall commence on the date hereof and the OPERATOR'S management and
the operation term shall commence on the date of occupancy of the Project and
shall continue for a period of thirty (30) years thereafter. .
2.2. date of occupancy of Project" or Date of occupancy" shall mean the
date the ProJect is completed and ready for operation as evidenced by a
Certificate of Occupancy and a written notice thereof (pursuant to Section 2.3)
has been served on OPERATOR or the date when OPERATOR commences operation of the
ProJect, or January 1, 1996, whichever shall first occur.
2.3. When the Project is completed and ready for occupancy, CITY shall
give notice of the same to OPERATOR in writing and the term hereof shall
commence pursuant to the terms hereof.
SECTION 3. OPERATING POLICY AND INTENT
3.1. CITY and OPERATOR hereby agree that the Project shall be managed
so as to furnish educational, recreational, athletic, historical, political and
cultural benefits to the community, without 3.1.ncialCITY and OPERATOR hereby
agree that the Project shall be managed so as to furnish educational,
recreational, athletic, historical, political and cultural benefits to the
community, without financial burden to the taxpayer. of the City of North Miami,
Florida.
3.2. The CITY agrees that during the term of this Agreement it will
not, without the OPERATOR'S consent, levy any special tax or assessment on the
Facility and/or the use of said Facility and will in all ways, endeavor to
cooperate with OPERATOR in carrying out the terms and intent of this Agreement,
as determined reasonably by City Council. The OPERATOR recognizes that CITY may
levy a special tax or assessment authorized by law if it is a prerequisite to
CITY'S authority to levy such special tax or assessment against other similarly
situated Facilities or uses that such special tax or assessment be levied on the
Facility or the use of said Facility.
SECTION 4. SCOPE OF OPERATOR SERVICES
4.1. In operating and managing the Facility, the OPERATOR shall provide
to the CITY, at 4.1.ATOR'In operating and managing the Facility, the OPERATOR
shall provide to the CITY, at OPERATOR'S sole cost and expense, the following
services:
a. OPERATOR shall provide all day to day and general
management policy making and implementation thereof for
the ProJect, and all necessary personnel and equipment to
handle the day to day management, operation and
maintenance of the Facility including therein the
dispensing of food and beverage service, the ▇▇▇▇▇▇▇ of
all concession and ticket booths, accounting and
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budgeting, advertising, the booking and acquisition of
entertainment, maintenance, security, market research,
parking, supervision of ushers and insurance.
b. Performance and payment bonds and other financing
guaranty. in form satisfactory to the CITY fully insuring
the development and construction of the Facility and
further guaranteeing the CITY the minimum payment, a.
defined herein, together with assurance in form
satisfactory to the CITY that the CITY will be held
harmless as not liable for the costs of acquisition,
construction, operation and management of the Facility.
All surety companies shall meet the standards applicable
to sureties acceptable for CITY public works construction
projects. All bonds and guarantees shall be subject to
approval of CITY attorney and CITY Risk Management
Division. The maintenance and repair of the Facility shall
be further assured by the escrow fund to be established
under Section 18.4 hereof. No building permit shall be
issued until all necessary performance and payment bonds
are posted pertaining to such construction activities.
SECTION 5. PAYMENT TO CITY
5 1
5.1.1 MINIMUM RETURN ON CITY INVESTMENT: OPERATOR agrees to pay to CITY
in equal quarterly installments in arrears, beginning on or before the tenth
(10th) day of the third full calendar month next following the Commencement Date
and by the tenth (10th) day of each quarter thereafter, an annual minimum return
on CITY investment of Two Hundred Thousand ($200,000.00) Dollars, which sum
shall be adjusted annually to reflect any changes occasioned by cost of living
increases as shown by the Consumer Price Index prepared by the Department of
Labor for the local geographic area with a maximum cap of said minimum return
not to exceed Five Hundred Thousand ($500,000.00) Dollars per annum during the
term hereof. It is recognized that this Consumer Price Index cap shall not, in
any way, operate to reduce payments due to CITY directly udder Section 5.1.2 or
Section 5.1.3 of this Agreement.
5.1.2 PER TICKET USE CHARGE DUE CITY: OPERATOR shall collect and pay to
the CITY by OPERATOR as a use fee charge a sum equivalent to five (5%) percent
of the box office ticket sale revenues, less any sales, use or excise tax
thereon. This fee shall be added to the established box office sales price of
the ticket. The use fees collected by the OPERATOR pursuant to this provision
shall be totally due to the CITY and shall be remitted to the CITY by OPERATOR
on a quarterly bases. This remittance to CITY pursuant to this provision shall
be credited against payments due pursuant to section 5.1.1. Except for tickets
donated to or used by charitable, educational or philanthropic organizations and
for
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tickets distributed for promotional purposes not exceeding 7.5% (percent) of
the total number of tickets available for any show or event, (which promotional
tickets shall be used exclusively to market the Facility or to promote an event
at the Facility and as to which promotional tickets, no trade or barter not
benefiting the Facility occurs), OPERATOR shall account for and pay to CITY the
use fee charge provided herein for all tickets used for admission.
OPERATOR shall facilitate compliance with these provisions pertaining
to promotional tickets by placing contractual provisions reflecting such in its
contracts with third parties, an necessary.
5.1.3 PERCENTAGE PAYMENT FROM OPERATIONS; In addition, during the term
of this Agreement, OPERATOR shall pay CITY on or before the tenth (10th) day of
each third calendar month, a percentage from the operations of the Facility in
an amount equal to five (5%) percent of the gross monies actually received by
OPERATOR, as defined in section 5.2 of this Agreement. Any remittance to CITY
pursuant to this provision shall be credited against payments due pursuant to
section 5.1.1.
5.1.4 INITIAL PAYMENT: OPERATOR shall deposit with CITY, immediately
upon the approval by all Federal, State, County and local regulatory and
administrative agencies with Jurisdiction of a closure plan for the entire 170
acre landfill site including therein authority for construction of this ProJect,
as an approved part of said closure, and approval by the CITY of OPERATOR'S
financing package pursuant to the terms hereof, a sum of One Million Five
Hundred Thousand ($1,500,000.00) Dollars which money shall be used by CITY
toward payment of construction, operation and monitoring costs associated with
the landfill site, exclusive of OPERATOR'S responsibilities under section
1.1.(c)(4) above. CITY may additionally use such funds towards CITY'S C.E.R.C.
L.A. site remediation after paying all of its cost of closure.
5.1.5 OPERATOR REIMBURSEMENT: With reference to that payment made by
OPERATOR pursuant to 5.1.4 OPERATOR shall be entitled to a repayment from CITY'S
share of Facility revenues of said sum as follows:
a. In years one (1) through ten (10) of the term thereof,
CITY shall be responsible for payment of interest only on
that sum set forth in section 5.1.4 above at the prime
rate, not to exceed a rate of eight (8%) percent.
b. In years eleven (11) through thirty (30), CITY shall pay
interest and principal amortized over the twenty (20) year
term at the prime rate, not to exceed the rate of eight
(8%) percent.
c. All payments as set forth in "a" and "b" above shall be
paid quarterly.
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d. The CITY may reduce the amount to be reimbursed pursuant
to this provision from contributions or reimbursements
from third parties which third parties may include but not
be limited to other users of CITY owned property. Any such
third party user may be required as a condition of its USE
to pro-rata contribute to the CITY funds to reduce the
CITY'S obligation to OPERATOR, as determined by CITY. The
CITY shall reserve the right to pre-pay principal at any
time with no penalty.
e. In the case of any third party contributions or
reimbursements OF the obligations of the CITY to the
OPERATOR a. set forth in this subsection, CITY'S
obligation shall be reduced by said sums so paid to the
OPERATOR and the amortized payments as set forth above
shall be proportionately reduced over the remaining term
of said amortization.
5.1.6 PAYMENT OF DEBT SERVICE: If required by any lender as a segment
of OPERATOR'S approved financing package and notwithstanding and in addition to
the other terms of this Agreement, OPERATOR shall, on or before the tenth (10th)
day of each calendar month, pay the bond trustee or lender an amount equal to
1/12th of the annual debt service of any financing packages, including revenue
bonds, which are issued under the name of CITY. The CITY and the OPERATOR
acknowledge that the payment of debt service is to be undertaken and made by
OPERATOR before any distribution to the OPERATOR is made from the revenues of
the Project.
5.2. DEFINITION OF GROSS REVENUES:OSS REVENUES:
Gross Revenues are defined as follows:
a. All food, beverages and novelty sales, (except that food
provided to the performers which shall not be included),
derived from direct sales made by OPERATOR and monies
received by OPERATOR from concessionaires engaged in the
sale of food, beverage or novelties.
b. Miscellaneous income, including all other gross monies
received by OPERATOR relating to the Facility, and related
improvements (such as, but not limited to, parking,
advertising contracts, off-site video and corporate
sponsorships, telecast, project, performances, flat rental
fees, broadcast and video production payments and
corporate and other sponsorships, all less applicable tax
and outside commission.
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c. Revenues expressly not included in definition of Gross
Revenues are Box Office ticket sales revenues, taxes, CITY
Use Fees, money escrowed pursuant to section 18.4 and
reimbursable equipment and labor fees.
5.3. PLACE OF PAYMENTS: All payments due and payable by OPERATOR to
CITY shall be paid to the office of the City Manager of the CITY during the
regular working hours at ▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, unless
otherwise authorized in writing by the CITY.
5.4. ANNUAL RECONCILIATION: Within ninety (90) days after the close of
each calendar year, an annual reconciliation of Gross Revenues for such calendar
year shall be provided to CITY by OPERATOR for determination of compliance with
this Agreement and determine what, if any, remaining funds are due and owing
CITY based upon the provisions of this Agreement. If such reconciliation
reflects an overpayment, then that amount shall be deducted from the next
payment due CITY from OPERATOR, if OPERATOR has underpaid CITY during such
calendar year, then, in that event, OPERATOR shall forthwith pay CITY said
funds, and if such underpayment was the result of fraud, gross negligence or
willful neglect on the part of OPERATOR, the OPERATOR shall additionally pay to
CITY such underpayment amount together with interest at twelve (12%) percent per
annum, calculated from the date reconciliation reflects such funds are due.
Each annual reconciliation provided by OPERATOR to CITY pursuant to the
provisions of this section shall be accompanied with an "Opinion as to Accuracy
and Sufficiency" prepared by a certified public accounting firm retained by
OPERATOR, subject to the approval of CITY, based upon a review of OPERATOR'S
books, records and accounting procedures. The parties recognize that material
underpayments caused directly by the fraud or willful act of OPERATOR'S
principals shall constitute a breach of this Agreement by OPERATOR.
5.4.1 OPERATOR agrees to keep within Dade County, Florida, full,
complete and proper accounts of all gross sales, which books and accounts shall
be at all reasonable times open to inspection by CITY or its auditors or other
authorized representative or agent. Acceptance by CITY of any monies paid by
OPERATOR in accordance with such statement shall not be an admission of the
accuracy of such statement nor of the sufficiency of the amount of such
additional percentage payment, but CITY shall be entitled at any time within two
(2) years after receipt of such statement to question the sufficiency thereof or
the accuracy of such statement. OPERATOR shall accordingly, for a period of two
(2) years after furnishing such statement, keep safe and intact all of its gross
sales and any authorized deduction therefrom. If CITY does not question the
amount of any such payment so paid by OPERATOR by giving OPERATOR written demand
for an audit within said two (2)
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years and proceeding therewith within sixty (60) days after the end of such two
(2) years, CITY shall be 'deemed finally and conclusively to have accepted the
amount paid by OPERATOR as full performance of OPERATOR!S obligation. for
additional percentage payment for the year(s) involved.
5.4.2 OPERATOR shall maintain and shall require OPERATOR'S
subcontractors, concessionaires and licensees to maintain at the premises, or at
such other addresses within Dade County, Florida, as OPERATOR from time to time
shall designate, complete, permanent, and accurate financial record" including
books of account and records of all gross sales upon the Premises, together with
all supporting records. Such books and record. shall be preserved intact for at
least two (2) years following the close of this calendar year to which they
relate. CITY and its agents may at any reasonable time inspect and audit any of
said books and records.
5.4.3 Any audit made by CITY pursuant to Section 5.5.1 shall be at the
expense of CITY, except that if CITY makes any such audit for any year and if
the gross sales shown by OPERATOR'S statement (including statements of
any-subcontractor, concessionaire or licensees) for such are found to be
understated by more than five (5%) percent, OPERATOR shall pay to CITY the
reasonable expense of such audit. Any willful or fraudulent understatement made
directly by OPERATOR'S principals shall constitute a breach of this Agreement.
5.4.4 All statements and accounting procedures of OPERATOR shall be
prepared in accordance with generally accepted accounting principles. OPERATOR
shall utilize procedures in conformance with industry standards for like
Facilities to assure accuracy of records and secure revenue handling and
reporting procedures.
SECTION 6. PROHIBITION AGAINST WASTE
OPERATOR shall not keep, use, sell or offer for Male at the Premises
any article which may be prohibited by the standard form of fire insurance
policies or other applicable provisions of law. OPERATOR shall not commit or
suffer to be committed any waste upon the Premises.
SECTION 7. USE OF FACILITY OR PREMISES
7.1. OPERATOR may use the Premises only for the purpose of producing
and staging entertainment, cultural events and special events (including
recording, filming, broadcasting, etc.) to be held in the Facility or the Site
and conducting food, beverage and merchandise sales incidental to said events.
CITY will cooperate with OPERATOR in any effort of OPERATOR to obtain an
alcoholic beverage license for the Facility. OPERATOR shall develop and
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implement a comprehensive program to control alcohol consumption so as to
maintain decorum at the Facility subject to CITY'S approval. No part of the
Premises may be used for any purpose other than as specified in this section
without prior written consent of CITY, which consent shall not be arbitrarily or
capriciously denied or withheld.
7.2. For each year of the Management and Operating term of this
Agreement, an to the then current calendar year only, at least two (2) months
prior to the opening of any event at the Facility the OPERATOR shall provide in
writing to the CITY a calendar of tentative operating days. OPERATOR shall
continuously advise CITY of any changes in ! the calendar.
7.3. CITY DAYS AND OTHER COMMUNITY USES: The CITY may, if it so
desires, schedule CITY sponsored non-commercial events seven (7) days a year at
the ProJect, with all operating maintenance and repair costs (excluding any debt
service and cost of road maintenance) attributable to CITY'S use to be at the
CITY'S expense ("CITY DAYS"), but at no use charge for the Facility and all
parking areas. Unless expressly approved by OPERATOR, no more than two (2)
calendar days of "City Days" shall be consecutive. No later than January 1st of
each year, CITY shall give OPERATOR written notice of the seven (7) days which
CITY desires to designate as City Days" during the current year. OPERATOR agrees
to reserve for CITY the 4th of July each year as "City Day". CITY shall not
designate Labor Day Weekend or the days November 25 -January 2, March 25 - April
7; May 20 - 27 for "City Days". All costs and expenses of operating the Facility
during "City Days" (except as provided above as to debt service and road
maintenance) shall be borne by City, including CITY'S Special Event liability
insurance premium, if any, traffic and crowd control, clean-up, and employee
salaries and benefits, catering, and entertainers used. CITY shall be permitted
to assess patrons a nominal charge for noncommercial City Days.
OPERATOR and CITY shall establish a fund into which each year both
parties shall contribute a sum based on a 60/40 OPERATOR/CITY ratio for the sum
of $50,000 per year which funds shall be used by the parties for the purpose of
having OPERATOR produce at least two community events which can provide free
admission for the young or disadvantaged members of the North Miami Community.
7.4. OTHER OPERATIONS: OPERATOR agrees that OPERATOR shall not, without
CITY'S prior written consent, during the term of this Agreement engage in any
business which directly competes with the Facility with respect to entertainment
facilities with a seating capacity (fixed plus lawn) of more than 7,000 people
located within a 35 mile radius of the Facility. This provision shall apply even
in the event OPERATOR sells or otherwise hypothecates its interest under this
Agreement. In its proprietary capacity, CITY shall not authorize or engage in
any other performing arts arena or similar
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performing arts entertainment facility which would directly or indirectly
compete with the ProJect or Facility. This provision shall not apply to
performances held at CITY community centers or stadium, or to sporting
exhibitions.
7.5. BALANCING OF PROGRAMMING: Part of the consideration inherent in
CITY executing this Agreement is the fact that CITY considers the Facility a
significant community asset, but only so long as programming at the Facility is
balanced in substantially the manner hereinafter provided. Facility programming
shall be balanced so as to ensure a reasonably proportioned blend of special
events, cultural experiences, recognizing and accepting the fact that some
(e.g., so called, "high arts) may not be as profitable an others (e.g.,"rock and
roll"). For the purpose of this Agreement, "balance" shall mean in addition to
dance, drama, symphony, comedy and theater a reasonable assortment of varied
types of music events appealing to the varied tastes of the general population
including, without limitation, popular, rock and roll, blues, soul, Jazz, folk,
classical, country and western music, dance, comedy and theater. CITY and
OPERATOR acknowledge that the examples contained in this section, though
applicable to 1992 tastes may not so exist during the entire term of this
Agreement. It is the intent of the parties throughout the term of this Agreement
to appeal to the varied entertainment tastes of the general public as such
tastes change over time. Failure to provide balanced programming shall
constitute a BREACH.
7.6. HIRING PRACTICES: OPERATOR shall, when reasonably possible, hire
its personnel from City of North Miami residents. Further, OPERATOR shall
develop and implement an unpaid internship program to benefit students and
residents of the community.
7.7. SOUND: OPERATOR shall design, construct and operate the Facility
in a reasonable manner such that sound emanating from the Facility, parking or
related improvements shall not create a nuisance or annoyance to nearby homes.
In this regard the CITY and OPERATOR realize that the placement of the Facility
on the site is of primary importance. CITY reserves the right to impose by
resolution of the City Council specific reasonable operational and/or sound
level limitations on the operation of the Facility, including, but not limited
to, restricting hours of operation of the Facility should any decibel sound
emanating from the Facility exceed an average performance reading of 50 decibels
as established by the current code of CITY, at the property line of any
homeowner's property.
7.8. PARKING: The primary parking area to be built by OPERATOR on CITY
land designated by CITY, at OPERATOR'S sole cost and expense, to serve the
Facility shall be a parking area of 2,000 parking spaces in close proximity to
the Facility. Except as provided below in this Section and except as to the CITY
or
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community days under Section 7.3, these 2,000 spaces are intended to exclusively
serve the Facility.
In addition, OPERATOR shall provide to the CITY as additional
consideration under this Agreement, at OPERATOR'S sole cost and expense, the
design and construction, including all necessary permits and regulatory
approval, of a supplemental parking area consisting of an additional 4,500
parking spaces on other land of the CITY (in reasonable close proximity)
situated upon the Munisport Landfill Site, which land shall be designated by
CITY and provided at no cost to OPERATOR.
This supplemental parking area shall be so designed and constructed as
to primarily serve as a component of the Landfill Closure, while incidentally
serving as a supplemental parking area. Moreover, OPERATOR recognizes that CITY
may use (at no charge) the 4,500 parking space area for multiple or other uses,
so long as such does not conflict with the use of such area for parking
purposes.
The CITY may use this supplemental parking area at no charge during the
term hereof on a non-exclusive basin for parking purposes for other facilities
or uses to be placed on other CITY owned property or on the former Landfill
Site. Except as otherwise provided below as to CITY'S reservation, OPERATOR
shall have a first priority use of the supplemental parking spaces for any
performance, function or events conducted by the OPERATOR at the Facility and
OPERATOR shall notify the CITY, except as may otherwise be mutually agreed upon,
at least thirty (30) days in advance of OPERATOR'S use of said additional
parking.
CITY may reserve, upon at least ninety ( 90) days prior notice to
OPERATOR, fifteen (15) days per year (not more than ten (10) days in any month
and not more than two (2) weekends in any month) for CITY'S use of all the
primary and supplemental parking areas described above for special events
conducted by the CITY or operators of other facilities which may be built on
CITY land. These fifteen (15) days shall be in addition to the seven (7)
potential days to be utilized by CITY under Section 7.3, and are intended to
accommodate substantial exhibitions or attractions that may be located on the
CITY'S lands.
OPERATOR shall cooperate with all other lawful users of other portions
of the former Landfill Site, including CITY and other operators authorized by
CITY to operate on other CITY lands or premises. OPERATOR shall not claim the
priority use of the parking at the Project under Section 7.8, unless OPERATOR
actually has a regularly scheduled show, so as to assure that such parking will
be available to CITY or operators of other facilities on CITY'S lands.
Under those circumstances in which CITY or other operator of CITY
(other than OPERATOR hereunder) uses the primary or
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supplemental parking described above for an event or exhibition for CITY or such
other operator, CITY'S covenant of indemnification under Section 12.B of this
agreement shall be applicable (a" to CITY'S events), and CITY shall require any
such other operators to provide a Special Events Insurance policy in the minimum
amount of One Million ($1,000,000.00) Dollars combined single limit, for
personal injury and property damage, with CITY and OPERATOR named an additional
insured. CITY may, in its discretion, require a higher limit from third party
users. In lieu of such Special Events policy, CITY may require a covenant of
indemnification from such other operator, so as to protect CITY and OPERATOR.
These indemnification and Special Event policy provisions are intended to
protect OPERATOR from liability to third persons for incidents which occur when
such other operators or CITY are using and are in control of these parking areas
as to damage. or injuries which are solely caused by CITY'S or by such other
operator's activities.
7.9. TRAFFIC CROWD CONTROL AND CLEANUP: OPERATOR, at its expense, shall
be responsible for cleanup of the Facility and related parking areas, as well as
crowd control, security and traffic control satisfactory to the Chief of Police.
OPERATOR shall also pay CITY no more than fifteen (15) days after billing, any
and all extra costs actually incurred by CITY related to any performance at the
Facility. If not otherwise provided by OPERATOR, CITY shall provide at
OPERATOR'S sole cost, those services, which according to industry standards, are
provided by a municipality at levels which are consistent with said industry
standards. It shall be the primary responsibility of OPERATOR to provide the
above services at its costs relating to any event occurring at the Facility. The
Chief of Police may establish guidelines for public safety purposes, which may
include, at OPERATOR'S expense, the hiring of City of North Miami Police
officers for assistance in traffic and crowd control. OPERATOR agree's to use at
least one North Miami Police officer per scheduled event to coordinate security
at the facility.
SECTION 8. ASSIGNMENT
8.1. OPERATOR may transfer or assign this Agreement or any interest
therein held by OPERATOR to any person or entity whomsoever only with the
consent in writing of CITY; provided however, the CITY shall not unreasonably
withhold consent to any proposed assignment. Prior to determining whether
consent shall be given, the CITY may hold two (2) public hearings directed
solely to determine as to whether the proposed assignee or transferee is
qualified to perform this Agreement. The determination of the qualifications of
the transferee or assignee shall be based on experience, financial resources and
track record at similar facilities. Such consent shall be deemed given or waived
unless written objection is made within sixty (60) days of receipt of written
notice by CITY of OPERATOR'S intent to assign hereunder.
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Upon presentation of its financing package, OPERATOR shall disclose to CITY the
identity and address of all directors and officers of OPERATOR and those
shareholders owning five (5~) percent or greater of the outstanding shares of
stock in the corporate entity. Each year, at the time for filing its corporate
report with the Secretary of State, OPERATOR shall advise CITY of the latest
officer, director and shareholder information as initially required above.
Subsequent to approval of financing, a sale or transfer of in excess of
thirty-five (35%) percent of outstanding shares of stock or a transfer or sale
which shifts the controlling interest from one shareholder to another
shareholder (outside of the shareholders on the date of execution of this
Agreement) shall be considered to be an assignment or transfer under Section 8.1
of this Agreement.
8.2. Any consent given by CITY to OPERATOR to transfer or assign the
Agreement or any portion thereof or to assign this Agreement shall not be
construed as a consent to any other assignment or transfer, or a. a wolves of
CITY'S right to object to any assignment or transfer to which CITY'S consent in
writing has not been obtained. Any assignment contrary to the provisions of thin
Agreement shall be null and void.
8.3. OPERATOR shall not have the right to assignment if in default.
8.4. Any assignee or transferee shall assume the responsibility for any
past obligations of the OPERATOR, unless otherwise agreed in writing by CITY.
SECTION 9. ENCUMBRANCE OF OPERATOR'S CONTRACT
9.1. OPERATOR, as part of its financing package, may encumber to a
lender its interest in this Management Operating Agreement. The holder of any
encumbrance or lien against thin Contract shall effectuate and hold same with no
recourse to the CITY and shall at the time of the creation of said encumbrance
or lien notify the CITY in writing that said encumbrance or lien holder agrees
to be bound by this Management Operating Agreement, and shall perform all terms
and provisions and obligations contained herein, should said lien or encumbrance
holder inure to, or by any means whatsoever, take over position of the OPERATOR
in this Agreement.
9.2. The CITY shall recognize such lien or encumbrance holder as above
set forth as successor to OPERATOR subject to the terms and provisions as
hereinabove set forth and the full and faith performance of all of the
OPERATOR'S obligations as set forth herein by such lien or encumbrance holder.
Any lien or encumbrance shall be subject to CITY'S interests hereunder as owner,
and CITY'S interests shall not be subordinated to such lien or encumbrances.
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9.3. CITY shall send any lien or encumbrance holder (i) a copy of all
notices sent by CITY to OPERATOR or received by CITY from OPERATOR pertaining to
an event of default and (ii) a copy of all notices pertaining to an event of
default received by the CITY from, or sent by the CITY to, any other party. CITY
shall not have any duty to send a copy of any notice to any lien holder or
encumbrance holder who doe" not by written notice to CITY specify the address to
which copies are to be sent. All notices and copies required to be sent or
delivered pursuant to thy subsection shall be sent certified or registered mall,
return receipt requested. Failure by CITY to send any notice required hereunder
shall have no effect if the lien or encumbrance holder has actual notice of the
event of default.
9.4. Lien or encumbrance holders shall have the same curative rights
after written notice as OPERATOR except such lien or encumbrance holders shall
have ninety (90) days to cure or in the event of a material breach which cannot
be cured within said ninety (90) day period, to commence such cure within such
ninety (90) day period and diligently prosecute to completion a cure of said
breach, as set forth in Section 12.
9.5. Any lien or encumbrance holder shall have the right to cure any
default of OPERATOR under this Agreement, and CITY shall accept such performance
by or at the instance of such lien or encumbrance holder as if the same had been
made by OPERATOR. Upon the failure of lien or encumbrance holder to cure such
default, all outstanding interests and rights of such lien or encumbrance
holders shall be terminated.
9.6. In the event that a lien or encumbrance holder shall succeed to
the interest of OPERATOR, any further transfer or assignment by such lien or
encumbrance holder shall be subject to the provisions of Section " 8 n hereof.
SECTION 10. DEBT SERVICE AND UTILITY PAYMENTS
AND PERSONAL PROPERTY TAXES
10.1. OPERATOR shall pay, throughout the term of this Agreement and
before delinquency, all charges for water, power and other utilities or
necessary services supplied to the Premises and any or all of debt service
payments relevant to the Project. Said utilities shall be separately metered for
the Premises ▇▇.▇.▇▇ mOPERATOR shall pay, throughout the term of this Agreement
and before delinquency, all charges for water, power and other utilities or
necessary services supplied to the Premises and any or all of debt service
payments relevant to the Project. Said utilities shall be separately metered for
the Premises through meters to be installed and paid for by OPERATOR.
10.2. OPERATOR shall also pay prior to delinquency any and all taxes
and assessments levied or assessed, and becoming payable during the term hereof,
upon OPERATOR'S personal property, possessory or other interests located upon or
in connection with the Premises.
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SECTION 11. RIGHT OF INSPECTION
CITY shall have the right to enter upon the Premises for the purposes
of inspection, serving or posting notices, making any necessary repairs to the
Premises, complying with laws, ordinances or regulations, including, but not
limited to, all landfill closure monitoring, protecting the Premises or any
other lawful purpose. CITY shall exercise such rights reasonably, at any time,
and in such manner as not to interfere with the business or security of
OPERATOR.
SECTION 12. OPERATOR'S DEFAULT
12.1. In the event of any material breach of this Agreement by
OPERATOR, which breach is not cured within sixty (60) days after giving of
written notice thereof from CITY to OPERATOR, and any approved lien or
encumbrance holder, or in the event of a material breach which cannot be cured
within said sixty (60) day period, if OPERATOR has not commenced within sixty
(60) days of written notice and thereafter diligently prosecuted a cure of such
breach, or upon OPERATOR'S abandonment of the property, CITY, along with all
other rights and remedies it may have, shall have the following rights:
a. To elect to allow thin Agreement to continue in full force
and effect without terminating OPERATOR'S right of
possession and to enforce all of CITY'S rights and
remedies under this Agreement, including the right to
recover payment as it becomes due under the Agreement.
b. To elect to terminate the Agreement, to reenter and remove
all persons and property from the Premises, and to store
at OPERATOR'S cost all of OPERATOR'S property on the
Premises, and to recover from OPERATOR the following
amounts, less any amounts received by CITY on account of
retaining the Premises after the date of Agreement
termination during the balance of the Agreement term
specified herein:
(1) Any unpaid sums which had been earned at the time
of termination, and
(2) Any other ascertainable and calculable amounts
necessary to compensate CITY for all damages
proximately caused by OPERATOR'S failure to
perform its obligations under the Agreement.
12.2. An a precondition to pursuing any remedy for an alleged default
by OPERATOR, CITY shall, before pursuing any such remedy, give notice of default
to OPERATOR and to all qualifying subcontractor. whose names and addresses were
previously given to CITY in a notice or notices from OPERATOR or any qualifying
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encumbrance stating that the notice was for the purpose of notice under this
provision. A qualifying subcontractor is a subcontractor in possession under an
existing agreement which is proper under this Agreement. A qualifying
encumbrance is an encumbrance under any documented securing device then existing
and relating to construction or financing of improvements to or in connection
with the Premises or any part thereof, which encumbrance has been approved or
authorized by the CITY. Each notice of default shall describe the alleged
default. CITY shall afford any such qualified lien or encumbrance holder all
rights to cure OPERATOR'S default as set forth in this Agreement.
12.3. If OPERATORS principals are found upon clear and convincing
evidence by Judgment of a Court of Law to have committed a willful or fraudulent
understatement of gross revenues it shall be deemed that such finding is a
default.
12.4. Notwithstanding the above, the CITY shall have all rights and
remedies as provided by law. Any damage award shall not exceed revenues which
the CITY would have received.
SECTION 12.A. CITY'S DEFAULT
12.A.1 In the event of any material breach of this Agreement by CITY,
which breach is not cured within ninety (90) days after giving of written notice
thereof from OPERATOR to CITY, or in the event of a material breach which cannot
be cured within said ninety (90) day period,,!if CITY has not commenced within
ninety (90) days of written notice and thereafter diligently prosecuted a cure
of such breach, OPERATOR shall have all rights and remedies at law or equity
subsequent to completion of construction. Subsequent to completion of
construction, CITY shall not be liable for damages in excess of total revenues
received by CITY over prior years of this Agreement, not to exceed the total
actual revenues received over the prior seven and one-half (7 1/2) year period.
SECTION 12.B. CITY INDEMNIFICATION
Subject to the monetary limits of section 768.28 Florida Statute., CITY
shall hold OPERATOR, and its respective agents, employees, officers, lien and/or
encumbrance holders harmless and defend OPERATOR and said parties against any
and all losses, damages, claims and/or liabilities for any damage to any
property or person caused solely by reason of the gross negligence or willful
misconduct which may hereafter be caused by CITY, its employees or agents.
Throughout the term of this Agreement, CITY covenants to defend and indemnify
the OPERATOR for any claim made against OPERATOR to the extent such claim is
made against OPERATOR on a technical basis as a result of the status of OPERATOR
as the present operator of this Facility situated upon a portion of the
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property which constituted a portion of the former Munisport Landfill site, if
such claim i" solely predicated or based upon those operations and activities
which occurred at the landfill site prior to the execution of this Agreement,
and subject to the limitation and restriction that this covenant shall not
operate to expand the CITY'S liability exposure which already results from the
CITY'S status as owner of the former landfill site during the course of disposal
activities which previously occurred at the site at such time that the site was
an active landfill and that would exist as a result of CITY'S status as owner
during the term of this Agreement. Thin provision shall survive the termination
of this Agreement.
SECTION 12.C. HOLD HARMLESS
OPERATOR does further expressly agree to indemnify and defend and save
the CITY, its officers, agents and employees harmless from any and all claims
for loss, damage, injury including death or liability of whatsoever nature and
howsoever or to whomsoever the same may be caused or may arise resulting
directly or indirectly from the exercise of this Agreement, the condition of the
Facility or Project site, including all parking areas used by OPERATOR, or the
occupation of the Premises herein permitted to be used or the Premises of the
CITY to which the OPERATOR, its agents, employees, or licensees may have access
by reason of this Agreement, except only as to matters arising from the sole
gross negligence or willful acts of the CITY.
SECTION 13. OPERATOR'S LIABILITY INSURANCE
13.1. During the entire term of this Agreement, OPERATOR shall maintain
and pay all premiums for a policy or policies of comprehensive public Liability
insurance in an amount of not less than Five Million ($5,000,000.00) Dollars,
combined single limit covering any occurrence on or adjacent to the Project
resulting in property damage or bodily injury or death to person or persons.
Insurance shall be re-evaluated no more frequently then every five (5) years of
the term and mutually readjusted upon such reevaluation. Such insurance shall
never be less than the monetary limits of section 768.28(5) Florida Statutes.
13.2. All such policies shall name the CITY, and at OPERATOR'S option
the holder of any encumbrance covering the Premises, as additional insureds with
respect to the operations and activities of OPERATOR on or in any way connected
with the Premises, including the parking and access areas.
13.3. Each such policy shall include as a condition that before any
such action can be taken by the insurer, the insurer must give CITY thirty (30)
days prior written notice of any cancellation or change in scope or amount of
coverage of such
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policy. CITY shall be furnished a certificate of insurance and an endorsement to
the insurance policies evidencing OPERATOR'S compliance with the requirements of
this section. CITY will not be liable for any premiums or assessments on
insurance required. OPERATOR shall not open the facility to the public on any
day in which the insurance is not in full force and effect, unless agreed to in
writing by CITY.
SECTION 13A. WORKERS' COMPENSATION INSURANCE
OPERATOR and each of its subcontractors shall comply with the Florida
Workers' Compensation Law, Chapter 440, Florida Statutes, as applicable, and
provide proof of current compliance therewith at all time-, throughout the term
hereof.
SECTION 14. BUILDING INSURANCE AND CASUALTY DAMAGE
14.1. At all times during the term of this Agreement and any extension
hereof, OPERATOR shall cause to be effected upon the improvements upon the
Premise" installed or constructed, fire insurance with extended coverage
provisions (including Builder's Risk Insurance during any term of construction
of the Facility) in the amount not less than full replacement cost of said
Facility. CITY and OPERATOR shall be named as insureds in any policy above
provided for, and the loss under any such policy, if any, shall be payable to
CITY and OPERATOR Jointly for the purpose of the repair and restoration of said
building and improvements subject to the provisions of this Section 14. Any
portion of the proceeds of such insurance not required to be used to repair and
restore or to payoff any approved debt as aforesaid shall be paid to and be
equally divided between OPERATOR and CITY, but only to the extent CITY is not
otherwise fully compensated for lost revenues. Excess proceeds payable to
OPERATOR shall be used for the marketing or improvement of the Facility.
OPERATOR agrees to provide CITY with certificates of insurance issued by the
insurance carriers, which certificates shall show compliance with the
requirements of this section and shall provide that such insurance may not be
altered or canceled except after thirty (30) days notice in writing to CITY.
14.2. If by reason of the provisions of any lawful encumbrance on the
Facility, fire insurance is required to be made payable to the Lien holder
and/or the policies of insurance placed in its custody, CITY hereby consents
thereto, provided that the Lien holder in question shall first agree in writing
that the proceeds of said insurance shall be available for the repair and
restoration of the improvements.
14.3. The failure of OPERATOR to effect or maintain said insurance in
the names and amounts herein called for, or to pay the premiums therefor, or to
deliver said policies or a certificate of
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insurance unto CITY, shall permit CITY itself to effect said insurance and pay
the requisite premiums therefore, which premiums shall be repayable unto CITY
with the next installment of payment. This shall not excuse any breach.
14.4. Any premiums paid by OPERATOR on insurance, the term of which
extends beyond the term of this Agreement, shall be, upon the termination of the
Agreement, due OPERATOR and CITY shall have no obligation thereon.
14.5. Unless this Agreement is terminated as provided in Section 14.7,
if the Premises or any improvements thereon made or installed by OPERATOR, are
damaged or destroyed by an insured casualty during the term of this Agreement or
any extensions or renewals thereof, OPERATOR, to the extent insurance proceeds
are available therefor, shall commence within sixty (60) days after the
occurrence of such casualty and shall thereafter diligently prosecute the
restoration sod the replacement of the same substantially to the condition
thereof immediately prior to such damage or destruction.
14.6. INTERRUPTION OF BUSINESS POLICY: The OPERATOR shall carry at its
expense a business interruption insurance policy, if available, to at least the
extent any debt service with any lien or encumbrance holder being the payee on
the policy to the extent of said debt.
14.7. If any casualty occurs within the last ten (10) years of the term
hereof to the extent of twenty (201) percent or more of the then replacement
costs thereof, and which damages OPERATOR is obligated to restore, then, and in
any such event, within thirty (30) days after the event of casualty, OPERATOR
may terminate this Agreement by giving written notice to CITY. In the event of
such termination any insurance proceeds shall be paid to and be the exclusive
property of CITY and OPERATOR and shall be used to pay off any indebtedness of
the ProJect, and at CITY'S option to demolish facility, with the balance after
such payment to be equitably divided between OPERATOR and CITY upon the basis
that OPERATOR'S share shall be in proportion to the balance of the remaining
term of this Agreement and any renewals hereto.
SECTION 15. WAIVER OF SUBROGATION RIGHTS
CITY and OPERATOR shall each, forthwith after the execution of this
Agreement, procure from and cause each of the insurers under all policies of
insurance, including but not limited to liability, fire and property, now or
hereafter during the term hereof existing and purchased by either or both
insuring or covering the Premises, or any part of the Facility and/or any
improvements thereon, a waiver of all rights of subrogation which the insurer
under said
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policies might otherwise, if at all, have as against the other hereto, said
waiver to be in writing and for the express benefit of the other. Said waiver
shall extend only to claims arising within the Facility and the areas adjacent
thereto including parking and access areas used in connection with the Facility.
SECTION 16. CONDEMNATION
16.1. TOTAL CONDEMNATION: In the event of condemnation of the Premises,
the award made shall first be paid to lien holders then to CITY for value of
CITY land and the balance divided between CITY and OPERATOR as they may mutually
agree or if they fail to reach such agreement within forty-five (45) days of the
making of the 16.1., thTOTAL CONDEMNATION: In the event of condemnation of the
Premises, the award made shall first be paid to lien holders then to CITY for
value of CITY land and the balance divided between CITY and OPERATOR as they may
mutually agree or if they fail to reach such agreement within forty-five (45)
days of the making of the award, then as a court of competent jurisdiction may
decree.
16.2. PARTIAL CONDEMNATION: In the event proceedings be taken, on one
or more occasions, by any lawful authority to condemn or otherwise acquire by
eminent domain, a substantial part of the Premises or, in the aggregate, in
excess of twenty-five (25%) percent of the parking area available to, or
reserved for OPERATOR, the OPERATOR shall have the option at any time after such
proceedings are instituted, and prior to thirty (30) days after such taking of
acquisition, to terminate this Agreement upon giving fifteen (15) days notice in
writing to CITY. Said termination shall be effective as of the date possession
of the building or Premises is taken by the condemning authority. In the event
of such termination, any unearned payment shall be refunded to OPERATOR and the
award for the condemnation shall be appropriated in the manner set forth in
Section 16.1 hereof.
16.2.A. CITY may avoid a termination by OPERATOR by supplying
comparable additional parking in replacement of parking taken.
Should OPERATOR not elect to so terminate this Agreement, or should any
taking not be sufficient to allow OPERATOR such option to terminate, thin
Agreement shall continue in full force and effect, and OPERATOR, at its own cost
and expense, but only to the extent the condemnation award is made available
therefor, shall restore, repair and remodel the improvements to the Premises to
a condition suitable for the business of OPERATOR permitted to be conducted
therein under the provisions of this Agreement. Provided OPERATOR demonstrates
that the revenue production capabilities of the Facility are reduced by the
taking, OPERATOR shall be entitled to a reasonable reduction in the annual
minimum payment provided for in the Agreement, thereafter required to be paid
hereunder taking into consideration the potential revenue loss. OPERATOR shall
also be entitled to a reasonable suspension or diminution of the payment
required to be paid hereunder during the time required for any restoration and
repair required by reason of the exercise of eminent domain according to the
portion of the Premises rendered
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unusable, taking into consideration the time and extent of interference with
OPERATOR'S business therein.
Should OPERATOR not elect to terminate this Agreement, or should any
taking not be Sufficient to allow OPERATOR the option to terminate, all sums,
including damages and interest awarded shall be deposited promptly with a
federally insured depository and shall be distributed and disbursed in the
following order of priority:
First, to OPERATOR the cost of restoring the improvements;
Second, to OPERATOR, the cost of restoring any and all improvements
originally installed by OPERATOR, plus any amount awarded for detriment to
business and/or for the reduction in the value of OPERATOR'S Agreement;
Third, to CITY a sum equal to the value of the Premises taken, valued
as land exclusive of improvements and unburdened by all Agreements;
Fourth, to CITY any expenses or disbursements reasonably and
necessarily incurred or paid by or on behalf of CITY or in connection with the
condemnation proceedings;
Fifth, to OPERATOR any expenses or disbursements reasonably and
necessarily incurred or paid by or on behalf of OPERATOR for or in connection
with the condemnation proceedings;
Sixth, to CITY any residue.
16.3. APPLICABILITY. This Section 16, shall only apply to formal
eminent domain proceedings, and shall not apply to actions for inverse
condemnation or regulatory taking litigation.
SECTION 17. ALTERATIONS BY CITY OR OPERATOR
17.1. OPERATOR with the written approval of the CITY shall have the
right to make any alterations or additions to the improvements to be constructed
on the Facility which OPERATOR deems necessary or desirable in the exercise of
prudent business Judgment, for the purpose of fulfilling the purposes for which
this Agreement was granted. CITY shall not unreasonably withhold it" approval.
CITY'S approval shall not be required for any alteration or addition costing
less than Twenty-Five Thousand ($25,000.00) Dollars.
17.2. Except as otherwise required by this Agreement, CITY shall not,
without the prior written consent of OPERATOR, which consent shall not be
unreasonably withheld, make or perform or suffer to be made or performed any of
the following:
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a. Any alterations or additions to any of the improvements on
or to the ProJect, except the non-exclusive parking areas.
b. Any mayor alterations to any elements or item. of
landscaping to the ProJect (excluding the non-exclusive
parking area). Provided, however, CITY may modify
landscaping provided that CITY pays for such
modifications. Such alteration. or modifications shall not
disrupt the functioning of the Facility.
SECTION 18. REPAIRS AND MAINTENANCE
18.1. OPERATOR during the entire term of this Agreement shall keep,
maintain and repair all improvements to the ProJect, including all parking areas
and access roads made or installed by CITY or OPERATOR, including but without
being limited to, structure, fixtures and furnishings, in good order, condition
and repair, and upon termination of this Agreement by lapse of time or
otherwise, OPERATOR shall deliver up said improvement-, including but without
being limited to, structure, fixtures and furnishings, in good condition and
repair, ordinary wear and tear thereof from reasonable and normal use and wear
excepted. OPERATOR and CITY shall mutually agree on a formula for CITY or other
parties to contribute a fair share to the cost of maintaining access roads and
parking area. based on the extent of such parties use thereof. However, upon
failure of the parties to agree on a fair share formula, the matter shall be
subject to the CITY'S reasonable discretion as to a fair pro-ration for a period
of one (1) year. At the conclusion of one (1) year if OPERATOR is not satisfied
with CITY'S formula, OPERATOR may ask for binding arbitration to set a formula
for future years.
18.2. Should OPERATOR, after notice from CITY, fail to make with
reasonable promptness any repairs which are the obligation of OPERATOR
hereunder, CITY may (but shall not be required to do so) enter the ProJect and
put the same in good order, condition and repair; and the reasonable cost
thereof shall become due and payable by OPERATOR to CITY upon demand. When CITY
makes such demand for payment, CITY shall furnish OPERATOR an itemized statement
of the repairs and charges at the time such demand is made and thereafter shall
substantiate such demand by proper invoices.
18.3. OPERATOR shall during the term of this Agreement and any
extensions or renewals thereof maintain or cause to be maintained in a manner
befitting a first-class public facility all of the land and improvements under
OPERATOR'S control.
18.4. Commencing in year two (2) of the term, the first two (2~)
percent of Gross Revenue. as hereinabove defined shall
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annually be escrowed by OPERATOR as a reserve against the necessity for mayor
repairs or maintenance. The conditions of the escrow and the depository shall be
subject to the approval of the CITY, which approval shall not be unreasonably
withheld. For the period after the first five (5) years of the term, OPERATOR
may present to CITY an adjustable mechanism to cap or limit accrual of funds in
this account so as to adequately address potential or scheduled mayor repair
items. Said reserve fund shall be accounted for in accordance with the terms
hereof and be used by OPERATOR to accomplish any mayor repairs that are
required. This reserve fund shall not be deemed part of Gross Revenues as
defined herein for distribution purposes. All unexpended funds shall be
distributed to CITY upon termination of this Agreement. Funds in this account
shall not be used for any purpose other than repairs and maintenance. The
account shall be an interest bearing account.
SECTION 19. GOVERNMENTAL COMPLIANCE
19.1. OPERATOR shall duly observe, conform to and comply with all valid
requirements of any governmental authority relative to the ProJect and shall
require all persons using the same or attending events therein to conform to and
comply with all such requirements. This provision shall not in any way shift
OPERATOR'S management and operational duties to CITY nor shall any rights be
created hereby for the benefit of any third party.
19.2. CITY represents that it will comply with all terms and provisions
of a certain Consent Agreement and Decree entered into on the 24th day of
September, 1991, between CITY and the Environmental Protection Agency, sad all
provisions and obligations contained therein. Further, CITY represents that it
will comply with all lawful regulatory and administrative directions, orders and
laws, and otherwise fully comply with all applicable federal, state and local
laws and regulations dealing with, or having to do with, the former landfill
site. The above representations shall not prejudice CITY'S right to contest any
administrative or regulatory orders or directives. This shall not release
OPERATOR of its responsibilities under 1.1.(c)(4).
SECTION 20. OPERATOR'S RIGHT TO SUBCONTRACT
OPERATOR may perform any obligation or duty required of it pursuant to
this Agreement by itself through its own personnel or by contracting for the
performance thereof by others. This provision shall not supersede restriction on
assignment. Any subcontractor must be bonded and insured to same extent as
OPERATOR and shall likewise name the CITY as additional insured, and provide
evidence of compliance to CITY.
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SECTION 21. OPERATOR'S RIGHT TO CONTRACT
SubJect to the limitations, conditions and restrictions of this
Agreement, all agreements relating to the use of the Project, or any part
thereof, including specifically but without limitation, advertising contracts,
contracts with restaurant or club operators, contracts or agreements with
persons conducting events in the Project, shall be negotiated solely by OPERATOR
and shall be executed by OPERATOR without recourse to the CITY.
CITY shall receive a copy of any such agreement. from OPERATOR, upon
CITY'S request.
All such Contracts shall specifically state that CITY has no liability
thereunder.
No such contract shall be entered into that would be detrimental to
CITY'S image a. a prominent and progressive municipality.
SECTION 22. NAME OF FACILITY, SIGNAGE AND LANDSCAPE
OPERATOR shall conspicuously use the name and term "North Miami. in all
advertising of the Facility and events to be held at the Facility.
OPERATOR shall develop with the approval of CITY appropriate
directional and identifying signage and landscaping for the Project and shall
maintain same at OPERATOR'S cost during the term hereof. The CITY shall not
unreasonably withhold approval of the signage and landscaping plans upon their
submission to CITY.
SECTION 23. LIENS
OPERATOR will not permit any Liens or encumbrances of whatsoever nature
or kind to stand against the Premises for any labor or material furnished in
connection with any work performed by or at the direction of OPERATOR. OPERATOR
shall secure a completion bond for any construction done by or at OPERATOR'S
direction, for any construction over Twenty-Five Thousand ($25,000.00) Dollars.
Only encumbrances approved by CITY shall be permitted.
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SECTION 24. NOTICES
24.1. All notices or demands of any kind which either party is required
or desires to give or make upon the other in connection with the Agreement or
arising out of the relationship created hereby, shall be in writing and shall be
given or made (subject to the right of either party to designate a different
address by notice given as provided herein) by United States registered or
certified mail, postage prepaid, addressed in the case of CITY to:
City of North Miami
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: City Manager and City Attorney
and addressed in the case of OPERATOR to:
PERFORMING ARTS MANAGEMENT OF NORTH MIAMI, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
24.2. Any notice so sent shall be deemed to have been given forty-eight
(48) hours after the same has been deposited in the United States mail,
registered or certified mail, within the State of Florida with postage thereof
fully prepaid.
SECTION 25. VALIDITY OF AMENDMENTS
No amendment, nor modification, nor interpretation of this Agreement
shall be valid unless signed by both of the parties hereto. Unless otherwise
provided for, the City Council shall act for CITY. CITY Council action on an
amendment shall be by resolution at a duly advertised public hearing.
SECTION 26. RENEWAL PROVISION
If this Agreement is otherwise in full force and effect and not
otherwise in material default upon the conclusion of the thirty (30) year term
hereof, the OPERATOR may, by giving written notice to CITY at least six (6)
months before the termination of the term, shall be granted an extension of this
Agreement for an additional ten (10) year term upon the terms as contained
herein. OPERATOR shall likewise have a second and final ten (10) year extension
after conclusion of first extension. Provided, however, that notwithstanding any
other provision of this Section, the renewal period shall be provided upon a
revision to Section 5 "Payments to CITY," so that CITY is paid 25% of the
additional monies made available as a result of the retiring and extinguishment
of the initial debt service by OPERATOR, in addition to other funds paid to CITY
under Section 5. Such additional monies shall be paid to
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CITY by OPERATOR each month. Each month subsequent to the thirty (30) year
initial term, OPERATOR shall provide at least one (1) show per month during any
renewal term(s).
SECTION 27. MISCELLANEOUS PROVISIONS
27.1. Captions of sections and parts of this Agreement are for
convenience only and shall not be 27.1.dereCaptions of sections and parts of
this Agreement are for convenience only and shall not be considered in resolving
any questions of interpretation or construction.
27.2. Whenever in this Agreement words of obligation or duty are used,
such words shall have the force and effect of covenants; subject in each case to
grace periods provided. Any obligation imposed on either party hereto shall
included the imposition on such party of the obligations to pay all costs and
expenses necessary to perform such obligation. The timely and complete
performance of every duty, and the-trust and accuracy of each and every warranty
and representation made by either party hereunder, shall be a condition
precedent to the other parties' obligations hereunder; and the complete
performance of every provision of this Agreement to be performed by the OPERATOR
shall be a condition precedent to its right to retain operation and management
of the Premises.
27.3. Each and all of the covenants, provision. and conditions of this
Agreement are to be performed by or on the part of the CITY or OPERATOR, whether
affirmative or negative in nature, are intended to and shall bind CITY or
OPERATOR, its Successors and assigns at any time and from time to time, and
shall inure to the benefit of OPERATOR or CITY, its successors and assigns.
27.4. Both parties certify to their full familiarity with the
provisions hereof and agree that the provisions hereof are not to be construed
either for or against either party.
27.5. Nothing herein contained shall be deemed for any purpose as
creating any relation between the parties hereto other than the relationship of
independent contracting parties. A landlord-tenant relationship is not hereby
created.
27.6. This Agreement and Exhibits hereto contain all the terms,
covenants and conditions between CITY and OPERATOR relating in any manner to the
payments, use and occupancy of the Premises, and shall supersede any prior
discussions or negotiations, specifically the Agreement of January 22, 1991 as
approved by Resolution R-91-5 is hereby canceled and superseded.
27.7. This Agreement shall be governed exclusively by the provisions
hereof and by the laws of the State of Florida as the same from time to time may
exist.
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27.8. As used in this Agreement and when required by the context, each
number (singular or plural) shall include all numbers, and each gender shall
include all genders.
27.9. Time is and shall be of the essence of this Agreement and of each
term and provision hereof.
27.10. Should any provision of this Agreement be held as illegal,
unconstitutional or unenforceable, all other terms and provisions not so held
shall remain in full force and effect.
27.11. All disputes that may occur between CITY and OPERATOR if not
amicably resolved by said parties shall be submitted to binding arbitration in
accordance with the rules of the American Arbitration Association. Either party
may withdraw dispute from arbitration by written notice to the other party
within fifteen (15) days of receipt of notice of the demand for arbitration from
(or notice of exercise of Jurisdiction by) the American Arbitration Association.
Thereupon, arbitration shall not be applicable as to such dispute.
27.12. Nothing in this Agreement shall be construed to waive or limit
CITY'S governmental authority an a political subdivision of the State of
Florida. Unless specified otherwise, where approval or consent of CITY is
required under this Agreement, such consent or approval shall be deemed to refer
to the CITY'S consent or approval as owner, and such consent or approval shall
be contractual in nature and shall not be in lieu of any required governmental
approval of CITY. It in understood that CITY'S approval shall be at its
discretion (unless otherwise specified herein) and denial of such approval shall
not be the basis for a cause of action by OPERATOR. The City Council shall act
for CITY in matters relating to contractual approvals hereunder, except as
otherwise provided by the City Council or specified herein. The City Council in
exercising its discretion shall not act in an arbitrary and/or capricious
manner.
27.13. OPERATOR shall allow a representative of CITY Finance Department
to be present at show" to monitor the receipt and handling of monies.
27.14. OPERATOR shall post a sufficient demolition bond to assure
removal and demolition at CITY'S option only, of the facility in the event the
facility ceases or abandons regular operations during the first five (5) years
of the term. CITY must exercise such option within six (6) months of any such
abandonment.
27.15. OPERATOR recognizes that CITY shall not issue building permits
for the project unless OPERATOR shall make necessary improvements if required to
Biscayne Boulevard access required for efficient ingress and egress to facility.
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27.16. OPERATOR agrees that under any circumstances in which OPERATOR
shall make any claim against CITY for any matter in any way arising under this
Agreement prior to completion of construction, CITY shall not be liable for
OPERATOR'S loss of time, profit or incidental or consequential damage, and
OPERATOR'S claim shall solely be limited to actual out-of-pocket loss or
expense. This provision shall not waive any limitation on CITY'S liability
provided under other provisions of this Agreement or law.
27.17. CITY shall have the right to relocate all the nonexclusive
parking areas for the ProJect to another location on the Landfill Site, at any
time, at CITY'S sole cost and expense without disruption of the Facility.
27.18. Subject to final resolution by Judicial action, CITY shall have
the authority to fairly settle and resolve any dispute between OPERATOR and
other operators of other facilities developed upon the former Landfill Site.
CITY'S decision shall control unless arbitrary or capricious.
27.19. SubJect to CITY imposing the same restriction on other operators
of commercial facilities developed on the CITY'S Landfill Site, OPERATOR agrees
that OPERATOR shall not conduct concession sales on dates upon which it does not
have a show upon those days which operator's of other facilities on CITY lands
do have an event or exhibition, so that such other operators will have the
exclusive opportunity to make concession sale. to patrons of its events. It is
the intent of this provision that each operator of a facility have the exclusive
opportunity to make concession sales to the patrons of its events. This shall
not preclude concession sales from any public park facility, if any, to visitors
of such facility.
27.20. CITY shall not enter into contracts with third parties for
development of projects upon the former Munisport Landfill Site, which would
directly disrupt and interfere with OPERATOR'S activities under this Agreement
and would be directly in conflict with the purposes of this Agreement. Any Claim
hereunder shall be subject to resolution by the City Manager, and if unresolved,
shall be subject to arbitration, with no right of withdrawal from arbitration.
SECTION 28. NONDISCRIMINATION
OPERATOR and its employees shall not discriminate because of race, age,
religion, color, ancestry, sex, physical handicap or national origin against any
person by refusing to furnish such person any accommodation, facility, service
or privilege offered to or enjoyed by the general public. Nor shall OPERATOR or
its employees publicize the accommodations, facilities, services or privileges
in any manner that would directly or inferentially
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reflect upon or question the unacceptability of the patronage of any person
because of race, age, religion, color, ancestry, sex, physical handicap or
national origin.
In the performance of this contract, OPERATOR will not discriminate
against any employee or applicant for employment because of race, age, color,
religion, ancestry, sex, physical handicap or national origin. OPERATOR will
take affirmative action to ensure that applicants are employed and that
employees are treated during employment, without regard to their race, color,
religion, age, ancestry, sex, physical handicap or national origin. Such action
shall include, but not be limited to the following: employment upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff or
termination, rates of pay or other forms of compensation and selection for
training, including apprenticeship.
OPERATOR will permit access to his records of employment, employment
advertising, application form" and other pertinent data and records by the CITY.
SECTION 29. SOFT COSTS REIMBURSEMENT
OPERATOR shall be entitled, if applicable, to receive reasonable
reimbursement for such out-of-pocket soft costs as defined in Florida Statute
159.02(13) for soft costs incurred in the acquisition, development or
construction of the Project from the proceeds of any revenue bond issued and
CITY shall cooperate with OPERATOR in obtaining such reimbursement to the extent
of funds available.
SECTION 30. TITLE TO PROPERTY
Title to the ProJect shall remain in CITY. Title of all personal
property and fixtures placed in the ProJect by OPERATOR shall remain in
OPERATOR. Title to all fixtures placed in the ProJect by OPERATOR which replace
fixtures owned by CITY shall belong to CITY. Title to personal property and
fixtures placed in ProJect by OPERATOR'S suboperators or concessionaires shall,
subject to the provisions of this Agreement, be controlled by OPERATOR'S
contract with any such suboperator or concessionaire, as the case may be, but
shall not be deemed property of CITY. CITY shall have a lien on all personal
property and fixtures owned by OPERATOR, which lien shall be subordinate to
OPERATORS lender. This lien shall secure OPERATORS compliance with the
provisions of this agreement.
IN WITNESS WHEREOF, this Agreement in executed as of the date hereto:
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ MANAGEMENT OF
Attest: NORTH MIAMI, INC.
______________________________ By:__________________________
Secretary President
CITY OF NORTH MIAMI
By:__________________________
City Manager
APPROVED BY:
Attest:
______________________________ _____________________________
CITY ATTORNEY City Clerk
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