Agreement between CMB & Canas Tennis AcademeyDocuSign Envelope ID: OE654334-C98C-4BCA-A5E9-518F4D8BF239
ID: 81 CD9FB9-937D-4453-8403-B 1 EF7711 C2B4
No. 23-073-01
AGREEMENT BETWEEN CITY OF MIAMI BEACH
AND
CANAS TENNIS ACADEMY, LLC.
PURSUANT TO
REQUEST FOR PROPOSALS (RFP)
NO. 2023-073-WG FOR
PROFESSIONAL TENNIS MANAGEMENT AND
OPERATIONS SERVICES AT
THE CITY'S FLAMINGO PARK TENNIS CENTER
DocuSign Envelope ID: OE654334-C98C-4BCA-A5E9-518F4D8BF239
DocuSign Envelope ID: 81CD9FB9-937D-4453-8403-B1EF7711C2B4
INDEX
TITLE PAGE
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SECTION1. TERM.........................................................................................................4
SECTION 2. CENTER TO BE MANAGED......................................................................5
SECTION3. USE(S)........................................................................................................6
3.1 Public Tennis Facility..........................................................................................6
3.2 Prohibited Activities............................................................................................7
3.3 Food and Beverage Service...............................................................................7
3.4 Prohibitions Regarding Sale Or Use Of Expanded Polystyrene Food Service .......
8
Articles.............................................................................................................................
8
3.5 Management of Tennis Pro Shop Related Items and Services ..........................9
3.6 Hurricane Evacuation Plan.................................................................................9
3.7 Personnel Background Checks ............. .....10
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SECTION 4. FINANCIAL REQUIREMENTS.................................................................11
4.1 Performance Bond or Alternative Security.......................................................11
4.2 Payment of Expenses, City's Minimum Guarantee, Payment to Contractor,
.
Reports. ................................ ..... ...............................................................................11
4.3 Sales and Use Tax...........................................................................................14
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS ............................14
SECTION 6. INSPECTION AND AUDIT.......................................................................14
SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES.............................................15
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS ...........................16
SECTION 9. HOURS OF OPERATION & COURTS USAGE.......................................17
9.3 Court's Usage...................................................................................................17
9.4 Public Benefits..................................................................................................18
SECTION 10. TENNIS FEES, CHARGES AND PROGRAMS & RELATED SERVICES
TOBE PROVIDED........................................................................................................19
SECTION 11. ALTERATIONS, MAINTENANCE, AND REPAIRS & SECURITY ..... ...
20
11.1 Building and Facilities Alterations.....................................................................20
11.2 Building(s) and Facilities Maintenance.............................................................21
11.3 Courts and Related Facilities Maintenance Standards.....................................22
11.4 Recycling, Litter, Garbage and Debris Removal...............................................22
11.5 Equipment.......................................................................................................22
11.6 Orderly Operation.............................................................................................23
11.7 No Dangerous Materials...................................................................................24
11.8 Security. .............. .............................................................................................24
11.9 Inspection... ... ........................................................ .........................................
24
SECTION 12. INSURANCE..........................................................................................24
SECTION 13. FINES AND PENALTIES.......................................................................26
SECTION14. INDEMNITY............................................................................................27
14.4 Subrogation.....................................................................................................28
14.5 Force Majeure............................................................................................
28
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14.6
Labor Dispute ....................
14.7
Waiver of Loss from Hazar
ds.
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ATION............................................................30
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TOR'S Default .......................
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Consents........................................................
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TY...................................................................37
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ORDSLAW....................................................38
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AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA
AND CANAS TENNIS ACADEMY, LLC.
TO PROVIDE PROFESSIONAL TENNIS MANAGEMENT AND OPERATIONS
SERVICES AT THE CITY'S FLAMINGO PARK TENNIS CENTER
THIS AGREEMENT made the day of _ , 2023 ("Effective Date"), between the
CITY OF MIAMI BEACH, a municipal corporation of the State of Florida (hereinafter called the
"City").. having its principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139,
and CANAS TENNIS ACADEMY, LLC., a Florida limited liability company, having its principal
offices at 19735 Turnberry Way, Aventura, Florida, 33180 (hereinafter called "CONTRACTOR").
WITNESSETH
WHEREAS, on November 16, 2022, the City issued a Request for Proposals No. 2023-
073-WG, for Professional Tennis Management and Operation Services at the City's Flamingo Park
Tennis Center (the "RFP" ); and
WHEREAS, on May 17, 2023, the Mayor and City Commission accepted the
recommendation of the City Manager and authorized the Administration to enter into negotiations
with Canas Tennis Academy, LLC., as the most qualified proposer pursuant to the RFP, to manage
and operate the Flamingo Park Tennis Center (the "Center').
WHEREAS, on May 17, 2023, the Mayor and City Commission adopted Resolution
Number 2023-32597. further authorizing the City Manager and City Clerk to execute an agreement
upon conclusion of successful negotiations with Canas Tennis Academy, LLC., for professional
management and operation services at the City's Flamingo Park Tennis Center.
NOW THEREFORE, in consideration of the Premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and adequacy
of which are hereby conclusively acknowledged, it is agreed by the parties hereto follows.
The City hereby grants to the CONTRACTOR, and the CONTRACTOR hereby accepts from
the City, the exclusive right to operate and manage the Center, in conformance with the purposes
and for the period stated herein, and subject to all the terms and conditions herein contained -
SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of three (3) years (the "Term"). The Agreement
shall be deemed by the parties hereto to have commenced on the Effective Date (the
"Commencement Date"). The first contract year shall commence on the Commencement
Date and expire at the end of one-year, with each subsequent contract year following
consecutively thereafter during the Term, each a "Contract Year". All prices shall be fixed
during the initial term.
1.2 OPTION TO RENEW WITH PRICE ADJUSTMENT: The Agreement may be
extended for two (2) additional, one (1) year terms (each, a "Renewal Term"), on a year-to-
year basis, at the sole discretion of the City Manager. Prior to completion of each exercised
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Renewal Term, the City may consider an adjustment to price based on Consumer Price
Index (CPI) increase. A change shall not be more than the percentage increase ordecrease
in the CPI Index (all urban areas), as described below.
It is the CONTRACTOR's responsibility to request any pricing adjustment under this
provision. For any adjustment to commence on the first day of any approved Renewal Term,
the CONTRACTOR 's request for adjustment must be submitted at least sixty (60) days
prior to the expiration of the then -current contract term.
The CPI increase shall be determined by using the applicable Bureau of Labor Statistics
(www.bls.gov) CPI-U index and computing the percentage of increase from the
Commencement Date, as the base month and year, as compared to the month and year
that is sixty (60) days prior to the first day of each Renewal Term. During the Renewal
Term(s), the City may also, at its sole option and discretion, consider price increases based
on increases mandated by the City's Living Wage Ordinance (as codified in Sections 2-407
through 2-410 of the City Code, and (as may be amended from time to time) whichever is
less-, provided, however, that in considering cost escalations due to Living Wage increases,
the City shall only consider the direct costs related to such increases, at the exclusion of
overhead, profit, or any other related costs.
The adjustment request must clearly substantiate the requested increase. If no adjustment
request is received from the CONTRACTOR, the City will assume that the CONTRACTOR
has agreed that the optional term may be exercised without pricing adjustment. Any
adjustment request received after the commencement of a new option period may not be
considered. Continuation of the Agreement beyond the initial term, and any option
subsequently exercised, is a City prerogative, and not a right of the successful
CONTRACTOR. In the event of the approval of a Renewal Term, the reference to "Term"
shall also include such approved Renewal Term.
SECTION 2. CENTER TO BE MANAGED.
2.1 The City has employed the CONTRACTOR, and CONTRACTOR agrees, to operate,
manage and maintain, the following City -owned recreational facilities (hereinafter such
recreational facility may be referred to as the "Center"):
2 1.1 That certain City -owned recreational facility commonly known as the Flamingo Park
Tennis Center, located at 1200 Meridian Avenue, Miami Beach, Florida 33139,
together with all buildings, improvements and fixtures located thereon.
2.2 CONTRACTOR herein accepts the Center, including, without limitation, all buildings,
improvements, and fixtures located thereon, in their "as is", "where is" condition, and
agrees that the City shall have no obligation to improve, repair, restore, refurbish, or
f otherwise Incur any expense in improving or changing the condition of the Center at any
f time during the Term of this Agreement.
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Thirty (30) days prior to the Commencement Date, City and CONTRACTOR shall conduct a
site inspection of the Center. CONTRACTOR shall, within ten (10) days of such inspection,
notify the City of any necessary repairs, and the City shall make such repairs if, in its sole
w
rj and reasonable discretion, it deems necessary. Notwithstanding the preceding, nothing in 1,
" this Subsection 2.2 shall be deemed to release and/or excuse CONTRACTOR from its
I t,
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ongoing maintenance responsibilities throughout the Term of this Agreement including,
without limitation, those prescribed in Section 11 hereof and Exhibit E attached hereto.
2.3 This Agreement is subject to all existing utility lines or facilities, rights of way, and ingress
and egress to City -retained areas, and the City's right to replace and/or maintain same,
whether or not such matters have been recorded in the Public Records of Miami -Dade
County, Florida. This shall include, but not be limited to, any and all underground and
aboveground utilities located on the Center. The City also reserves the right to construct,
install and maintain utilities that it deems, in its sole discretion, to be necessary or beneficial
to the operation of the City. City agrees to give CONTRACTOR reasonable notice prior to
commencing any such construction, installation, or maintenance of utilities that may result in
a temporary closure of a court or courts, or any other portion of the Center. CONTRACTOR
reserves the right to cancel or otherwise close all other portions of the Center including
specific banks of courts, until such time as the work is completed or the closed Center or
portion thereof can be re -opened, whichever comes first. Any disturbance or damage to
City -owned or City -authorized utilities located on, under, or over the Center, caused as a
result of CONTRACTOR'S negligence, shall be promptly repaired at CONTRACTOR'S
expense. Notwithstanding, City shall be liable for any repairs due to its gross negligence.
SECTION 3. USE(S) .
The CONTRACTOR is hereby authorized to conduct the following kind(s) of businesses and
provide the following kind(s) of services within the Center, all at its sole cost and expense except as
otherwise provided in this Agreement:
3.1 Public Tennis Facility.
CONTRACTOR agrees it will use the Center solely for the operation of first-class public
tennis facilities. This use shall include the operation of the tennis courts, pro shop; food and
beverage concession facilities that do not infringe on the City Vending Contracts (as defined
in Section 3.3.6 herein) and which shall also require the prior written approval of the City,.
and CONTRACTOR's office. CONTRACTOR's services in connection with the uses set
forth herein shall include those services proposed by CONTRACTOR in its response to the
RFP, as attached and incorporated in Exhibit A hereto, and permitted Special Events (as
defined in Section 17) related to such public tennis center activities; provided, however, that
in the event of a conflict between Exhibit A and the terms of this Agreement, the terms of
this Agreement shall take precedence.
No other use, business, or services shall be conducted by CONTRACTOR at the Center
without the prior written consent of the City Manager or City Manager's Designee, who shall
be the Assistant Director of the Parks and Recreation Department (the "City Manager's
Designee").
CONTRACTOR agrees, acknowledges, covenants and represents to the City that the
Center are for the use by the public; that such public use is a prime consideration: and must
be balanced accordingly with the services to be provided by the CONTRACTOR, without
restricting, or in any way limiting, the public access, nature, or ambiance of the Center.
Accordingly, CONTRACTOR agrees, acknowledges, covenants, and represents to City that
the public's right to use the Center shall not be infringed upon by any activity of
l CONTRACTOR. This includes, without limitation, the monopolization of courts for lessons
t during identified "peak times".
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CONTRACTOR hereby agrees, acknowledges, covenants, and represents to City that,
during the term of this Agreement, it shall continually provide high -quality, first-class
affordable tennis services to the City's residents and visitors; to meet the demands of the
City's hotel community for access to high quality, first-class tennis facilities within Miami
Beach, and to progressively upgrade tennis service at the Center throughout such Term.
3.2 Prohibited Activities.
CONTRACTOR will conduct its operations so as to maintain a reasonably quiet and tranquil
environment for the adjacent areas and make no public disturbances.
CONTRACTOR shall not use the Center for any unlawful purpose and shall comply with all
laws and permitting requirements now in force or hereafter adopted, applicable to the
Center, and/ or uses and businesses conducted on the Center. CONTRACTOR agrees not
to use the Center for, or to permit the operation of, any offensive, noisy, or dangerous
activity, nuisance, or anything against public policy. There shall be no living quarters at the
Center, nor shall anyone be permitted to live at the Center. Except as may result from acts
of force majeure, CONTRACTOR agrees that it will not allow the Center to become
unoccupied or vacant. CONTRACTOR shall take appropriate precautions to prevent fire on
the Center, maintaining existing fire detection devices and extinguishing equipment at all
times. CONTRACTOR will not permit the outside use of any musical instrument or noise -
making device at the Center, which would be in violation of the City's Noise Ordinance, as
same may be amended from time to time.
Pursuant to Section 46-232 of the Code of the City of Miami Beach (the "City Code"),
CONTRACTOR shall not use gas powered leaf blowers in the maintenance of the Center.
Battery- and electric -powered leaf blowers may be used within the City, consistent with the
regulations set forth in section 46-152 of the City Code.
3.3 Food and Beverage Service.
3.3.1 CONTRACTOR may prepare or cause to be prepared for sale within City -approved
locations within the Center, such cooked, prepared, and/or prepackaged foods and
such non-alcoholic beverages available for sale, as approved by the City Manager.
As referred to herein, 'prepared" foods and/or beverages shall be defined as
including food that is prepared or re -heated in a microwave and/or hot beverages
such as coffee and tea but shall exclude cooking/heating of food through the use of
conventional cooking methods, such as stove top/conventional oven.
3.3.2 All food and beverage service to be offered must obtain the prior written approval of
the City Manager. The City Manager shall also approve, in writing, the types of food
and beverages, and prices for same, to be sold at the Center, prior to such sale; and
shall further approve any changes, whether as to type of food and beverages to be
sold, or as to changes in prices, in writing, prior to implementing a change.
CONTRACTOR shall be solely responsible for updating and maintaining a current
list (Menu) of all food and beverages, and prices for same, throughout the term of
this Agreement. As of the Commencement Date, the City and CONTRACTOR have
hereby approved the Menu, attached hereto, and made a part hereof as Exhibit A.
3.3.3 All food and beverages sold at the Center will be properly prepared and served in
compliance with all applicable health and sanitary standards. The quality of food.
food costs, and service shall be comparable to other municipal tennis center in the
Miami -Dade County area. All food and beverage dispensing facilities shall be
approved by the City and shall be maintained in a clean and sanitary manner. All
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food and beverages sold are intended for consumption on the Center's premises
and shall be dispensed from inside the Center. Food and beverage containers for
items permitted to be taken outside approved dispensing facilities will be subject to
regulation by the CONTRACTOR for the purpose of controlling and preventing litter
and promoting sustainability and subject to the polystyrene prohibitions described in
subsection 3.4 and any other applicable law.
3.3.4 Food and beverage services shall be offered to patrons at all times as a reasonable
demand for such service exists. All required licenses permits, and other
certifications necessary to provide food and beverage services must be obtained
and maintained by the CONTRACTOR at its sole cost.
3.3.5 At least one supervisory employee of CONTRACTOR must possess a Food Service
Management Certification issued by a County Public Health Department in Florida,
as required by law. In addition, CONTRACTOR must obtain all licenses required by
the Florida Department of Business and Professional Regulation, Division of Hotels
and Restaurants, the Department of Agriculture and/or as may further be required
by State law, and as required by corresponding agencies to sell the food or
beverages that CONTRACTOR is authorized to sell
3.3.6 Cooking and heating of food at the Center shall be considered by the City Manager, "
in writing, on a case by case basis and, if approved, such approval shall be in writing
and shall only be permitted for Special Events (as defined in Section 17). For
purposes of this subsection 3.3, "cooking and heating" shall not include a prohibition
against food that is prepared or re -heated in a microwave and/or hot beverages
such as coffee and tea.
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3.3.7 Notwithstanding anything to the contrary contained in this Section 3 or anywhere
else in the Agreement, CONTRACTOR's food and beverage service shall be subject
to, and shall not, in any event, conflict with or otherwise violate the City's exclusive
vending contracts, as may be amended from time to time, which currently include
the City's exclusive pouring rights agreement with PepsiCod/b/a PepsiCo Beverage
Sales, LLC, for all non-alcoholic beverage categories, including but not limited soda,
water, juice, iced tea, isotonics; and an exclusive pouring rights agreement with Red
Bull for the energy drink beverage category; as such, the dispensing or sale of any
competing products is prohibited under this Agreement. Additionally,
CONTRACTOR shall be required to utilize the services of the City's exclusive
vending contract with Bettoli Trading Corp. ("Bettoli Contract") for snacks. All of the
City's vending contracts shall be collectively referred to herein as the "City Vending
Contracts"), copies of which are attached hereto and made a part hereof as
composite Exhibit G. The City will provide CONTRACTOR with written notice of
any changes to, or terminations of, the City Vending Contracts.
3.4 Prohibitions Reoardina Sale Or Use Of Expanded Polvstvrene Food Service
Articles.
Pursuant to Section 82-7 of the City Code, as may be amended from time to time, effective
August 2, 2014, the City has prohibited the use of expanded polystyrene food service
articles by City contractors, in connection with any City contract, lease, concession
agreement or Special event permit. Additionally, pursuant to Section 82-385 of the City
Code, as may be amended from time to time, no polystyrene food service articles will be
allowed in the right-of-way, and no polystyrene food service articles can be provided to
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sidewalk cafi& patrons.
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded
polystyrene is more particularly defined as blown polystyrene and expanded and extruded
foams that are thermoplastic petrochemical materials utilizing a styrene monomer and
processed by any number of techniques including, but not limited to, fusion of polymer
spheres (expandable bead foam), injection molding, foam molding, and extrusion -blown
molding (extruded foam polystyrene).
Expanded polystyrene food service articles means plates, bowls, cups, containers, lids,
trays, coolers, ice chests, and all similar articles that consist of expanded polystyrene.
CONTRACTOR agrees not to sell, use, provide food in, or offer the use of expanded
polystyrene food service articles at the Center. A violation of this Section shall be deemed a
default under the terms of this Agreement. This subsection shall not apply to expanded
polystyrene food service articles used for prepackaged food that have been filled and sealed
prior to receipt by the CONTRACTOR.
Additionally, CONTRACTOR agrees to comply, and ensure compliance with Section 46-92
(c) of the City Code, which states that it is unlawful for any person to carry any expanded
polystyrene product onto any beach or into any park within the City or for any business to
provide plastic straws with the service or delivery of any beverage to patrons on the beach.
3.5 Management of Tennis Pro Shop Related Items and Services.
CONTRACTOR may offer for sale those tennis related Items including, but not limited to,
tennis balls, tennis racquets, shoes, shirts, hats, and towels, and offer related services such
as equipment and ball machine rentals, racquet restringing, and grip replacement. Prices
shall be substantially in accordance with the price ranges of other similar public tennis
centers.
CONTRACTOR, at its own cost and expense, shall also be responsible for purchasing and
stocking the pro -shop with snacks and beverages.
CONTRACTOR will provide a club basket (the "Basket") available for use on a first come
first serve basis for members and resident nonmembers. The Basket shall not be used for
coaching purposes, except that the Basket may be used by licensed coaches in their
capacity as Personnel (as defined below) at the Center. The Basket will be for a fee of
$10.00 per hour for members and 520.00 per hour plus court fees for nonmembers. Usage
of the Basket will be limited to no more than two (2) players on a court.
3.6 Hurricane Evacuation Plan.
CONTRACTOR agrees to comply with the City's Hurricane Evacuation Plan and will
cooperate fully with the instructions given by the City's representative to initiate the plan
immediately upon notice of the issuance of a Hurricane Warning by the Miami -Dade County
Office of Emergency Management. CONTRACTOR shall, at a minimum, secure the Center
and all related materials and be responsible for the removal and reinstalling of windscreens
in accordance with the procedures included in the City's Recreation Division Hurricane
Evacuation Plan. I'
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3.7 Personnel Background Checks.
CONTRACTOR shall comply with the requirements of Sections 1012.32 and 1012.465,
Florida Statutes, requiring that only those employees who have successfully passed the
background screening required by the referenced statutes, and who meet the standards
established by the statutes, be allowed access to the Center and/or allowed to perform
services under this Agreement. This requirement shall also extend to all Contractor
representatives, agents, independent contractors, sub -contractors, or volunteers (such
employees, representatives, agents, independent contractors, sub -contractors, or
volunteers of CONTRACTOR shall be collectively referred to herein as "Personnel")
performing duties under this Agreement. CONTRACTOR must provide a list of Personnel
working at the Center monthly.
The Personnel shall undergo the aforestated background screening and a drug screening,
as well as a credit history check for those positions that require the handling of money
(collectively referred to herein as "Background Check Process") prior to entering the Center
to begin employment and/or deliver services. The Background Check Process will be the
responsibility of the CONTRACTOR. The level of background screening is to be determined
by the City of Miami Beach. CONTRACTOR or such Personnel undergoing the Background
Check Process will bear the cost of acquiring the required Background Check Process, and
any fee imposed by the Florida Department of Law Enforcement to maintain the records
related to the background screening provided with respect to CONTRACTOR and its
Personnel. A listing of Personnel who have cleared the backgrounding process must be
submitted to the City when requested. Employment may be contingent upon satisfactory
results as determined by the City.
The Personnel shall not be permitted to work at the Center until such time as the
Background Check Process has been completed and the Personnel cleared to
perform duties under this Agreement. If any Personnel is away from the job for a period
of 45 or more days, the City will require a new Background Check Process.
The CITY and CONTRACTOR agree and acknowledge that the failure of CONTRACTOR to
perform any of the duties described in Subsection 3.7 shall constitute a material breach of
this Agreement, for which the City reserves the right to terminate immediately and without
further liability to the City. CONTRACTOR agrees to indemnify defend and hold harmless
the City, its officers and employees of any liability in the form of physical or mental injury,
death or property damage, resulting in CONTRACTOR's failure to comply with the
requirements of this Subsection 3.7, or Sections 1012.32 and 1012.465, Florida Statutes.
CONTRACTOR agrees to require all of its Personnel to notify the CONTRACTOR and the
City of any arrest(s) or conviction(s) of any offense within 24 hours of its occurrence.
CONTRACTOR further agrees to immediately notify the City upon becoming aware that one
of its Personnel, who was previously certified as completing the Background Check
Process, is subsequently arrested, or convicted of any disqualifying offense. Failure by
CONTRACTOR to notify the City of such arrest or conviction within 24 hours of being
put on notice shall constitute a material breach of this Agreement entitling the City to
terminate this Agreement immediately, without further liability to the City.
3.8 Business Tax Receipts.
CONTRACTOR shall obtain, at its sole cost and expense, any and all business tax receipts
required by law for the proposed uses contemplated in this Agreement.
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Without limiting the generality of the foregoing, securing the requisite business tax receipts,
in addition to completing the Background Check Process in accordance with Subsection 3.6
hereof, shalt be required and obtained for each individual professional tennis instructor
providing lessons and/or clinics at the Center. y
SECTION 4. FINANCIAL REQUIREMENTS,
4.1 Performance Bond or Alternative Security.
On or before the Commencement Date, CONTRACTOR shall furnish the City Manager with
one of the following:
(i) A Performance Bond, in the amount of Fifty Thousand Dollars ($50,000.00),
to secure the faithful performance of this Agreement. A cash deposit,
irrevocable letter of credit, the establishment of a joint trust or certificate of
deposit (collectively, the "Alternate Security") may also suffice, as
determined by the City in its discretion. The form of the Performance Bond
or Alternate Security shall be as required and pre -approved by the City's
Chief Financial Officer. In the event that a Certificate of Deposit is approved,
it shall be a Fifty Thousand Dollar ($50,000.00) one-year Certificate of
Deposit in favor of the City, which shall be automatically renewed, the
original of which shall be held by City. The CONTRACTOR shall be required
to maintain said Performance Bond or Alternate Security, as accepted by
City, in full force and effect throughout the Term of this Agreement.
A letter, in a form satisfactory to the City's Chief Financial Officer, from a
federally insured financial institution evidencing, as of the date of the letter,
CONTRACTOR'S ability to provide the necessary funds to perform pursuant
to the Agreement.
The parties agree and acknowledge that the preceding conditions (i)-(ii) are intended
to be conditions subsequent to the City's approval of this Agreement. Accordingly, in
the event that CONTRACTOR does not satisfy the aforestated conditions on or before
the Commencement Date, then the City Manager may immediately, without further
demand or notice, and without liability to the City, terminate this Agreement without
being prejudiced as to any remedies which may be available to the City for breach of
contract.
4.2 Pavment of Exoenses. Cltv's Minimum Guarantee. Pavment to Contractor. Reoorts.
In consideration of the rights granted to the CONTRACTOR pursuant to this Agreement,
and CONTRACTOR'S further agreement and acknowledgement to perform and furnish the
management and operational services, professional skills and qualified personnel, systems,
and materials consistent with the management and operations of other first-class, high
quality public tennis center, the City and CONTRACTOR herein agree that the
CONTRACTOR shall collect and maintain (in accordance with generally acceptable
accounting principles) on behalf of the City, all revenues, as said term is defined in
subsection 4.2.2 , generated at and from the Center including, but not limited to, all tennis
instruction, lessons and clinics; court rental fees, sales, equipment rental, pro shop sales,
and the sale and operation of food and beverage concessions.
All said revenues collected by the CONTRACTOR shall be deposited into an account of the
CONTRACTOR, established pursuant to this Agreement, and to be maintained solely for the
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sole and exclusive purpose(s) of the management, operation and maintenance of the
Center, pursuant to this Agreement (including, without limitation, to pay for all budgeted
operational expenses arising from the management or operation of the Center pursuant to
this Agreement). Interest accrued in the account shall be part of the operating income.
CONTRACTOR shall submit, within ten (10) days from the last day of each month, copies of
records and reports related to the receipts and expenditures with respect to all expenses
and revenues generated during such month at the Center ("Monthly Financial
Documentation"). Such Financial Documentation shall be in a form satisfactory to the City's
Chief Financial Officer. The City shall have no obligation whatsoever to reimburse
CONTRACTOR for any cash flow deficiencies.
As part of the Monthly Financial Documentation, the CONTRACTOR shall provide a
monthly activity report/revenue report which shall be submitted to the City by the tenth
day of each month. These monthly reports shall include, but not be limited to, the
following information:
(A) a comprehensive description of the work performed, profit/loss reports for
clinics, tournaments, and Lessons detailing revenues generated in the prior month,
expenses incurred in the prior month, and other performance measures as
determined by the City.
(B) a comparison of revenues and expenses accrued for each month from the
Commencement Date of the Agreement through the end of the applicable month
being submitted, with a cumulative total through the end of the applicable month
being submitted.
(C) a work plan to adequately address Continuous Quality Improvement goals in
the CONTRACTOR's management plan.
(D) a maintenance plan to adequately address court and facility maintenance in
the CONTRACTOR's management plan and as it relates to the maintenance
subcontractor Welch for a timely schedule of court refurbishments and overall court
maintenance.
(E) the City reserves the right to add or modify the items required in the monthly
report, as the City deems necessary, in its sole and reasonable discretion, in order
to adequately monitor performance of the CONTRACTOR.
CONTRACTOR, upon receipt thereof from the depository bank, shall submit to the City
copies of all deposits, withdrawals, and bank statements concerning the account
established for the Center pursuant to this subsection 4.2. Additionally, there shall be a
reconciliation of all accounting within 15 working days following the completion of each
Contract year during the Term hereof.
4.2.1 Notwithstanding anything to the contrary in this Subsection 4.2, the City shall,
without limitation, be paid electronically from the CONTRACTOR's established bank
account to the City account, on the last workday of each month during the Term of
this Agreement, the following amounts:
1) A minimum guaranteed annual concession fee of no less than $282,000 to
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be paid monthly in the amount of $23,500 a month due on or before the 1s'
r day of each month ("Minimum Guarantee" or "MG"); and
2) In addition to the Minimum Guarantee, within fifteen (15) days from the last
day of each month, the City shall be entitled to receive an additional monthly
payment, equal to 5% of the total Gross Revenues (as defined herein)
cumulatively earned during a Contract Year as of the last day of each month
("Contract Year Gross Revenues"): said monthly payments commencing
once the Contract Year Gross Revenues through the end of any given
f month exceeding the threshold of $750,000.00 ("Percentage Gross" or
"PG"), as follows: A) a payment equal to 2% of Contract Year Gross
Revenue when said Contract Year Gross Revenues exceed the total sum of
$750,000.00, but are less than the total sum of $1,000,000.00; B). a
payment equal to 3% of Contract Year Gross Revenues when said Contract
Year Gross Revenues total at least $1,000,000.00 but are less than
$1,500,000.00; C). payment equal to 4% of Contract Year Gross Revenues,
when said Contract Year Gross Revenues total $1,500,000.00 but are less
than $2,000,000.00; or D). payment equal to 5% of Contract Year Gross
Revenues, when said Contract Year Gross Revenues total $2,000,000.00 or
greater. Commencing on the first day of each Contract Year, Contract Year
Gross Revenues reset to zero and start to accrue again for the purposes of
calculating PG.
4.2.2 The term "Gross Revenues" or "Revenues", as used herein, is understood to mean
all Income, whether collected or accrued, derived by the CONTRACTOR under the
privileges of this Agreement, including, without limitation, tennis instruction, Lessons
and clinic, court rental fees, sales, equipment rental, pro shop sales, and the sale
and operation of food and beverage concessions, excluding amounts of Federal.
State, or City sales tax. or other tax, government imposition, assessment, charge
or expense of any kind, collected by the CONTRACTOR pursuant to this Agreement
and required by law to be remitted to the taxing or other government authority.
4.2.3 During the Term of this Agreement, CONTRACTOR shall prepare and submit to the
City, prior to October 1s' of each year (or portion thereof) that is within the Term, a
proposed, detailed line -item annual operating budget for the Center, in compliance
with a format reasonably requested by the City's Chief Financial Officer.
CONTRACTOR shall also prepare and submit, prior to October 1s' of each year (or
portion thereof) that is within the Term, a cash flow budget, based on its submitted
operating budget for the upcoming Contract year. The operating budget and the
cash flow budget shall be approved by the Chief Financial Officer, with such
modifications as the parties shall agree to.
The CONTRACTOR shall provide a monthly activity report/revenue report which
shall be submitted to the City by the 10" day of each month. The monthly reports
shall include, but not be limited to, the following information:
(C) a comprehensive description of the work performed, profit/loss reports for
clinics, tournaments, lessons, etc. detailing revenues generated in the prior
` month, expenses incurred in the prior month, and other performance
measures as determined by the City.
(B) a work plan to adequately address Continuous Quality Improvement goals in
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the CONTRACTOR's management plan.
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ii (C) a maintenance plan to adequately address court and facility maintenance in it
fl the CONTRACTOR's management plan and as it relates to the maintenance
subcontractor Welch for a timely schedule of court refurbishments and
overall court maintenance.
(D) the City reserves the right to add or modify the items required in the monthly
report, as the City deems necessary, in its sole and reasonable discretion, in
order to adequately monitor performance of the CONTRACTOR.
4.2.4 Costs incurred by CONTRACTOR that are required to be covered by the City
pursuant to this Agreement, if any ("City Cost(s)"), may be reimbursed from the
deposit account, at City's sole discretion, upon prior written notice to the City, and
prior written consent from City Manager to process said reimbursement. A
reimbursement for a City Cost shall not be deemed to be gross revenue of the
Center for purposes of Section 4.2.2.
4.3 Sales and Use Tax.
Payment of any required Florida State Sales and Use Tax shall be the responsibility of
CONTRACTOR. Any payments due to the City from CONTRACTOR shall include the
required Florida State Sales and Use Tax, as it is the City's intent that it is to receive all
payments due from the CONTRACTOR (as contemplated in 4.2.1) as net of such Florida
State Sales and Use Tax.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
CONTRACTOR shall maintain current, accurate, and complete financial records on an accrual
basis of accounting related to its operations pursuant to this Agreement. Systems and procedures
used to maintain these records shall include a system of internal controls and all accounting records
shall be maintained in accordance with generally accepted accounting principles and shall be open
to inspection and audit, by the City Manager upon reasonable prior notice, whether verbal or
written, and during normal business hours. Such records and accounts shall include a breakdown of
revenues, expenses, and profit and loss statements. CONTRACTOR shall maintain accurate
receipt -printing cash registers or a like alternative at the Center which will record and show the
payment for every sale made or service provided at the Center; and such other records shall be
maintained as would normally be required by an independent CPA in order to audit a statement of
annual revenues and profit and loss statement pursuant to generally accepted accounting
principles.
SECTION 6. INSPECTION AND AUDIT.
CONTRACTOR shall maintain its financial records pertaining to its operations for a period of three
(3) years after the conclusion of any Contract Year and such records shall be open and available to
the City Manager or his designee, as deemed necessary by the City Manager or his designee, but
shall not be subject to photocopying.
CONTRACTOR shall maintain all such records at its principal office, currently located at 19735 ;f
Turnberry Way, Aventura, Florida 33180 if moved to another location outside the City of Miami
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Beach, all such records shall be relocated, at CONTRACTOR'S expense, to a location in Miami
Beach, within ten (10) days' written notice from the City.
The City Manager or its designee shall be entitled to audit, but not photocopy, CONTRACTOR'S
records pertaining to its operation as often as the City Manager deems reasonably necessary
throughout the term of this Agreement, and three (3) times within the three (3) year period following
termination of the Agreement, regardless of whether such termination results from the natural
expiration of the term or for any other reason. The City shall be responsible for paying all costs
associated with such audits, unless the audit(s) reveals a deficiency of five percent (5%) or more in
CONTRACTOR'S statement of revenues for any year or years audited, in which case
CONTRACTOR shall pay to the City, within thirty (30) days of the audit being deemed final (as
specified below), the cost of the audit and a sum equal to the amount of the deficiency revealed by
the audit, plus interest; provided, however, that the City shall not finalize the audit until
CONTRACTOR has received the audit and has had thirty (30) days to review and respond to the
audit. Nothing contained within this Section shall preclude the City's audit rights for resort tax
collection purposes. CONTRACTOR shall submit, within sixty (60) days from the end of each
Contract Year, an audited annual statement of revenues. in a form consistent with generally
accepted accounting principles.
It is CONTRACTOR'S intent to stay informed of comments from and suggestions by the City
regarding CONTRACTOR'S performance under the Agreement. Within thirty (30) days after the
end of each Contract Year, CONTRACTOR and City shall meet to review CONTRACTOR's
performance under the Agreement for the previous Contract Year. At the meeting, CONTRACTOR
and City may discuss quality, operational, maintenance and any other issues regarding
CONTRACTOR's performance under the Agreement.
SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES.
7.1 CONTRACTOR agrees and shall pay before delinquency all taxes (including but not limited
to Resort Taxes) and assessments of any kind levied or assessed upon the Center and/or
on CONTRACTOR by reason of this Agreement, or by reason of CONTRACTOR's business
and/or operations at the Center. The CONTRACTOR will have the right, at its own expense,
to contest the amount or validity, in whole or in part, of any tax by appropriate proceedings
diligently conducted in good faith. CONTRACTOR may refrain from paying a tax to the
extent it is contesting the imposition of same in a manner that is in accordance with law.
However, if, as a result of such contest, additional delinquency charges become due,
CONTRACTOR shall be responsible for such delinquency charges, in addition to payment
of the contested tax, if so ordered.
7.2 CONTRACTOR shall also be solely responsible (at its sole cost and expense) for obtaining
and maintaining current any applicable licenses or permits, as required for the operations
contemplated in this Agreement.
7.3 Procedure If Ad Valorem Taxes Assessed. If ad valorem taxes are assessed against the
Center (or any portion thereof) by reason of CONTRACTOR's business and/or operations
thereon. CONTRACTOR shall be solely responsible for prompt and timely payment of
same.
7.4 The City shall be responsible for payment of utilities used by, for, or on behalf of the
operations contemplated herein, including, telephone, basic cable, electricity and waterand
sewer.
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SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 CONTRACTOR agrees that during the Term of this Agreement, Gustavo Oribe (the
"Principal") and Nicolas Maidana ("Co -Principal') shall have active, ongoing direct
participation in the day to day operation, maintenance, and management of the Center. In
the event that the Principals are no longer associated with CONTRACTOR, or otherwise
ceases to participate in the day to day operation, maintenance, and management of the
Center pursuant to this Agreement, then the City, at its sole option, may terminate this
Agreement for cause pursuant to Section 15. In the alternative, should the City not opt to
terminate this Agreement as provided therein, it shall have prior written approval as to any
replacement of the Principal subsequently offered by the CONTRACTOR.
In connection with the performance of its responsibilities hereunder, CONTRACTOR may
hire Personnel (as defined in Subsection 3.6 herein), who will be the Personnel of the
CONTRACTOR and not of the City, and who will be subject to a background Check
Process, as set forth in Subsection 3.6 herein, at the expense of the CONTRACTOR.
CONTRACTOR shall provide an adequate number of Personnel and man-hours in order to
perform the services required under this Agreement to the satisfaction of the City.
CONTRACTOR shall select the number, function, qualifications (as stated in the Job
Descriptions provided in the attached Exhibit F), compensation. including benefits (if any),
and may, at its discretion and at any time, adjust or revise the terms and conditions relating
to such Personnel, in order to ensure an adequate number of Personnel and man-hours to
the satisfaction of the City. The CONTRACTOR must provide the City a copy of the
Personnel Contract detailing the terms of employment for coaches, instructors,
maintenance, and office personnel. It is the expectation of the City that all of the
CONTRACTOR'S personnel are paid in a timely and consistent manner based on the
detailed specifications of the Personnel Contract.
8.2 The CONTRACTOR agrees that the Head Tennis Professional, who as of the
Commencement Date is and all Teaching Assistants including
Third Party Professionals (as defined below) for the Center, shall be certified Tennis
Professionals by USPTA, USTA, or USPTR or equivalent. The CONTRACTOR and
Personnel must demonstrate knowledge and experience in tennis instruction and related
activities, facility management, tennis court maintenance and related activities. There must
be onsite management by the CONTRACTOR at the Center during operating hours by
either the Principal, Head Tennis Professional, Tennis Director or equivalent. A Third -Party
Professional is defined as a non-resident who teaches or gives tennis lessons for a fee
more than once per week or with more than one customer per week on behalf of the
CONTRACTOR.
8.3 CONTRACTOR's Personnel shall wear clean appropriate apparel to include uniforms/name
tags, such that Center patrons can easily identify CONTRACTOR and its Personnel. All
Personnel furnished to the City of Miami Beach must be uniformed. Each uniform shall
display CONTRACTOR's name and logo, which logo shall be subject to approval by the City.
Uniforms must be provided at the CONTRACTOR's expense and may not be charged to an
employee or deducted from an employees' paycheck, therefore reducing the hourly pay rate to
less than the living wage rate required under the City's Living Wage Ordinance, as same may
be amended from time to time.
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8.4 Independent/Sub-contractors/Third Party Professionals outside of those of the
CONTRACTOR shall not be permitted at the Center to provide instruction, and the
CONTRACTOR reserves the right to remove any such Independent/Sub-contractor/Third
Party Professional. Independent/Sub-contractors/Third Party Professionals include, but are
not limited to, a resident/nonresident:
(A) Who teaches or gives tennis lessons for a fee independent of CONTRACTOR,
(B) Who teaches on a court with a ball basket and with more than three balls with one or
more players independent of CONTRACTOR; and
(C) Who collects money for instruction and/or lesson independent of the City.
8.5 All Personnel shall observe all the graces of personal grooming. The CONTRACTOR shall
hire Personnel to work in its operation who are neat, clean, qualified and efficient and shall
comport themselves in a professional and courteous manner and be in conformity with the
City's Customer Service standards, as set forth in the attached Exhibit D. If the City deems it
appropriate, the CONTRACTOR and its Personnel may be required to attend Customer
Service training as conducted by the City. The CONTRACTOR and any Personnel hired by
same shall comply with the pre -employment requirements and standards as established by
the City of Miami Beach's Human Resources Department. If CONTRACTOR materially fails
to comply with these provisions, the City may send notice of default. The CONTRACTOR
shall have an experienced manager or managers overseeing the Center and related
operations at all times the Center are open to the general public.
SECTION 9. HOURS OF OPERATION & COURTS USAGE.
9.1 The CONTRACTOR shall open and operate the Center for play from 7:30 A.M. to 9:00 P.M.
Monday through Friday and 7:30 A.M. to 8:00 P.M. Saturday and Sunday, with the
exception of closures due to weather conditions or events of force majeure permitting, and
certain holiday agreed upon by the CONTRACTOR and the City of which proper signage
and notification to patrons must be adhered to, or any other event for which CONTRACTOR
requests and receives prior written approval from the City .
9.2 Any change in the hours of operation shall be at the City`s sole option and discretion, and
any request by CONTRACTOR for an increase or decrease in same shall be subject to the
prior written approval of the City Manager provided that prior to the permanent
implementation of any change to the hours of operation, a trial period for the amended
hours of operation shall occur for one (1) week, pending a determination of the impact on
costs and revenues, after which the amended hours of operation will be continued on a
permanent basis upon the agreement of the City.
9.3 Court's Usage.
9.3.1 The CONTRACTOR acknowledges and agrees to prioritize utilization of courts for
public usage by restricting lesson/clinic/programming courts not to exceed 50% of
available courts (8 clay courts), during peak hours of play (7:00 AM to 11:00 AM and
4:00 PM to 7.00 PM). The 8 courts are not to be booked or reserved by the
professional tennis instructors for lessons more than one (1) day in advance. Courts
are not to be booked in blocks exceeding the eight (8) court rule during peak hours
through the online court reservation system. In the event that some or all of the 8
courts are not needed, CONTRACTOR will release the courts in a timely manner.
The term "Lesson" shall mean a unit of instruction on an individual or group basis for
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which payment is received by the CONTRACTOR in addition to the agreed upon
court fees referenced in Exhibit B.
9.3.2 Additional court usage for lessons, programs, tournaments, and clinics during non -
peak hours shall be subject to the prior written approval of the City Manager or
Designee. At no time shall more than 50% of all courts be utilized for lessons,
programs, and clinics until 10 minutes after any non -peak hour and there are no
tennis patrons waiting for a court, without the prior written approval of the City.
CONTRACTOR must use due diligence when assigning courts for open play and
Lessons to include: (a) alternating courts where lessons are taught to avoid
overplaying a court or battery of courts and (b) separating open play courts from
Lesson courts to avoid injury. CONTRACTOR can allow for court reservations to be
made on hour or half hour intervals as appropriate. Reservations for doubles play
shall be for up to two (2) hours at a time and reservations for singles play shall not
be longer than one (1) hour at a time
9.4 Public Benefits.
9.4.1 The CONTRACTOR agrees that the City's Parks and Recreation Department
programs or co -sponsored programs will have use of at least 2 courts at the Center,
at no charge to the City, twice per week, for a minimum of two hours for each court,
between the hours of 11:00 a.m. and 5:00 p-m., and any time after 7:00 p.m., to
provide free instructional lessons to after -school participants. Use of courts
pursuant to the immediately preceding sentence shall be deemed to be the
utilization of courts for public usage.
9.4.2 The CONTRACTOR also agrees to provide fee waivers and/or fee reductions in
pricing for programs (i.e. clinics, academies, lessons, camps, etc.) for those City of
Miami Beach residents from low socio-economic backgrounds who qualify. The
CONTRACTOR agrees to utilize the same criteria for determining eligibility for fee
waivers or reductions as being used by the City of Miami Beach Parks and
Recreation Department at the time of the request. Fee waivers do not apply to
private lessons unless agreed upon by CONTRACTOR.
9.4.3 The CONTRACTOR shall also offer free and/or affordable programming for Miami
Beach residents with disabilities (i.e. Wheelchair Tennis) and for Miami Beach
Senior residents. The CONTRACTOR will make provisions for summer and
specialty camps, which camp programs will include, without limitation, camp
programs for people with disabilities and for Seniors based on the established Parks
and Recreation Department format.
9.4.4 The CONTRACTOR shall also offer academies, tournaments, special events and
community activations that attract and engage the diverse Miami Beach community.
CONTRACTOR will provide junior team tennis and will also coach Miami Beach
school teams upon the advance written request of the City Manager's Designee. All
tournament requests made by the CONTRACTOR to the City, must be made no
later than one month prior to the requested tournament date.
9.4.5 Additionally, in connection with the Parks and Recreation Department summer camp
program ("Parks Summer Program"), Contractor agrees to provide two instructors,
who will directly be supervised and under the direction of Contractor, who will
provide tennis classes for the participants enrolled in the Parks Summer Program,
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for one week during the scheduled Parks Summer Program, for a total of ten (10)
hours, typically between the hours of 9:30 am and 12*00 pm, for the total fee of
$850.00 ("Parks Tennis Camp"). CONTRACTOR and City shall reach an agreement
with respect to the dates, times, and location for the Parks Tennis Camp.
9.4.6 CON RACTOR shall provide the community of Miami Beach with programs including:
A. Community
Junior Programs:
1.
Development After -School
a. Tiny Tots (ages 3-5)
b. Quick Start (ages 5-8)
c. Junior (Ages 9 & up)
2.
Competitive After -school
a. Pre -Academy (ages 9 & under)
b. Academy (ages 10 & up)
3.
Private & Group Lessons
4.
Adaptive Tennis
5.
Free Social Community Programs
B. Community Junior Camo Programs:
1. Development Camp
a. Tiny Tots Camp (ages 3-5)
b. Quick Start (ages 5-8)
c. Junior Ages (9 & up)
2. Competitive Camp
a. Pre -Academy (ages 10 & up)
b. Academy (ages 10 & up)
C. Community Adult Proarams:
1. Private & Semi -Private Lessons
2 Group Clinics
a. Cardio Tennis
b. Tennis Express
3. Social Events for Residents — Leagues
4. Free social community programs
5. Adaptive Tennis
At CONTRACTOR's discretion, Contractor may host weekly activities for Miami Beach residents
and visitors including, but not limited to, barbecues following clinics, and tennis competitions with
accompanying themed parties for participants and guests. Additionally, CONRACTOR shall offer an
additional 5% discount to all Miami Beach Residents on all programs pursuant to Section 9.4.6.
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SECTION 10. TENNIS FEES CHARGES AND PROGRAMS & RELATED SERVICES TO BE
PROVIDED.
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10.1 Prices charged shall comply with the City's established fees for hourly tennis court play,
annual permits, other specialized play, and shall be in accordance with the pricing included
in Exhibit B attached hereto. If the play time of a tennis court user (for a lesson, clinic, etc.)
f is interrupted due to weather, resulting in less than 30 minutes of play, the tennis court user
will be entitled to a reimbursement/pay-out/raincheck If there is a weather interruption, but
the play time exceeded 30 minutes, it will be at the discretion of the CONTRACTOR to offer
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a reimbursement/pay-out/raincheck. Furthermore, light fees (if any) will only be charged to
non-members. Those purchasing memberships will not be required to pay light fees. The
City reserves the right to limit the number of memberships in their sole discretion.
10.2 The Contractor must comply with the fee schedule for the professional tennis instruction that
offers the tennis patron a choice in instructor level and hourly fee commensurate with the
instructors level, as agreed upon and listed in Exhibit B, attached hereto. Any change of
this said fee and instructor levels shall be approved by the City Manager or Designee prior
to implementation of fees.
10.3 Fees for hourly court rentals, lessons, clinics, merchandise, equipment rental, racket
stringing or gripping, and food and beverage sales and any other related items or services
to be sold must be prominently posted at the Center at those location(s) where such fees
are normally paid. All fees and charges shall be competitive with those charged by
comparable public tennis facilities in Miami -Dade and Broward Counties. Initial fees for
programs, clinics and lessons are set forth in Exhibit B attached hereto.
10.4 All increases in the fees described in Exhibit B shall be subject to the prior written approval
of the City Manager or Designee. However, the CONTRACTOR may increase its fee under
Exhibit B in an amount equal to the amount of any sales and use tax increase enacted after
the effective date herein upon receiving the prior written consent of the City Manager or
Designee.
10.5 The CONTRACTOR agrees to provide the programs set forth in Exhibit A. An
implementation schedule of said services shall be provided by the CONTRACTOR within
sixty (60) days of the Commencement Date. Said schedule and any modifications, additions
or deletions to the list are subject to the prior approval of the City.
10.6 The CONTRACTOR shall be authorized to provide courts. free of charge, during
professional tennis demonstrations, promotional events, clinics, and lessons being offered
to the public at no charge, subject to the prior written approval of the City.
10.7 The CONTRACTOR shall utilize a tennis approved software system approved by the City
for the purposes of tracking reservations, financials, memberships, concessions,
merchandise, etc. Additionally, phone and in -person reservations must be provided for by
the CONTRACTOR all of which must be cross referenced to avoid overbookings, no-shows,
and adherence to prioritization and utilization of courts for public usage by restricting
lesson/clinic/programming courts during peak hours. All revenue collected at the Center
must go through the City's secured systems that are PCI.
10.8 Any print materials prepared by the CONTRACTOR for use of the Center shall require the
approval of the City prior to printing. Materials must include the City designation/ logo and
appropriate ADA (Americans with Disabilities Act) disclaimer.
SECTION 11. ALTERATIONS, MAINTENANCE, AND REPAIRS & SECURITY.
11.1 Building and Facilities Alterations.
Without the City's prior written approval, CONTRACTOR may not make alterations or
additions to the Center. In the event of an emergency to prevent injury to persons or
property. CONTRACTOR shall use reasonable efforts to secure the affected area and will
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immediately notify the City's Parks and Recreation Department to advise of said emergency.
At that time the City will assess the situation, further secure the area in question, and
determine means and method of repairs.
Any other alterations or additions shall be made at the CONTRACTOR'S sole cost and
expense and shall become the property of the City upon termination of this Agreement
unless otherwise agreed to by the City Manager in writing. CONTRACTOR shall not have
the right to create or permit the creation of any lien attaching to City's interest in the Center
as a result of any such alterations or additions.
11.2 Building(s) and Facilities Maintenance.
The City further acknowledges that the CONTRACTOR shall not be required to improve,
repair, restore, refurbish, or otherwise incur any expense in improving or changing the
condition of the Center, except for all costs in connection with the fulfillment of this
Agreement including, without limitation, costs in connection with operating and furnishing
the Center; costs in connection with the maintenance of the equipment; costs in connection
with the upkeep of the tennis courts, to include surface clay purchase; and costs in
connection with the daily maintenance and janitorial services of the Center including, without
limitation, the following
(A) Windscreens
(B) Nets (includes hardware)
(C) Lines (includes hardware)
(D) Algae and Weeds on courts
(E) Restrooms (clean and stocked)
(F) Pro Shop and facility cleanliness
(G) Litter Control
(H) Water coolers, ice, water, and cups on the courts for patron use.
(1) Interior Landscaping based on City standards
(J) Interior Furniture
(K) Exterior Furniture (including but not limited to benches, umbrellas, and
tables)
(L) Treadblaster
(M) Water Coolers
(N) Ice Machine
(0) Hose
(P) Extension Cords
(0) Court Maintenance Equipment
(R) Food and Beverage Concession
Notwithstanding the forgoing, the City shall continue to maintain all electrical, HVAC,
plumbing and foundation and structural systems, roofs, exterior walls, and sports lighting at
the Center at its sole cost.
The City will maintain the grass areas in those portions surrounding the Center but not
within the Center. The CONTRACTOR is responsible for servicing the landscaped area
within the Center. The City shall conduct monthly inspections to ensure landscaped areas
such as grass, shrubbery, and trees in accordance with City standards to include but not
limited to healthy, green, and vigorous plant material.
CONTRACTOR shall submit to the City (for review and approval prior to the initiation of
contract activities), a communication plan addressing routine. scheduled, and emergency
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maintenance and repair activities that may impact the operation of the Center. The
communication shall include the dates/times of the closures, how many courts will be
affected, the proposed signage to be displayed, and a draft of the email tennis center
patrons will receive. All communications shall be directed to the appropriate City Manager's
Designee.
11.3 Courts and Related Facilities Maintenance Standards.
The parties herein acknowledge, and CONTRACTOR agrees to be bound by the Minimum
Maintenance Standards which include Tennis Court Maintenance Standards, as well as the
Extremely Clean standards set forth in the City's Cleanliness Index, attached hereto as
Exhibit C (collectively, the 'Maintenance Standards"). The CONTRACTOR also agrees to
comply with minimum standards set forth for the underground watering systems, as set forth
by the builder of the Center (Fast -Dry at Flamingo) and shall attend all training necessary as
required to accomplish this. The City shall conduct monthly maintenance inspections to
ensure courts are up to industry standards. The CONTRACTOR will be responsible for
corrective actions when identified within a reasonable amount of time based on industry
standards for such repairs, or immediate corrective action shall be taken when it addresses
life safety issues. If court maintenance deficiencies are found by City staff, the City may
require court inspections from an outside vendor at the expense of the CONTRACTOR. The
City will advise the CONTRACTOR of the findings and the CONTRACTOR must promptly
respond to the findings in writing, addressing all findings including an action plan and
timeline for correcting any discrepancies identified in said findings. It is further understood
that upon the request of the City, CONTRACTOR shall periodically, or upon the City's
written request, provide the City Manager or his designee, with a maintenance report in a
format approved by the City. CONTRACTOR is also responsible for yearly court
refurbishments as stated in the CONTRACTOR's RFP on a date agreed upon by the City.
11.4 Recycling, Litter, Garbage and Debris Removal.
With respect to recycling. litter, garbage and debris removal, the CONTRACTOR shall
provide, at its sole cost and expense, receptacles within the confines of the Centers and
shall provide a sufficient number of these receptacles for its own use and for the use of the
public. Disposal of the contents of said receptacles and removal of litter, garbage and debris
within the Center as well as recycling (collectively referred to herein as "Waste Removal
Procedures"), shall be done on a daily basis, and shall be the sole cost and responsibility of
the CONTRACTOR. Notwithstanding the foregoing, the CONTRACTOR shall be permitted
to utilize the City's Waste Removal Procedures, which the City is currently receiving at the
Center, as an in -kind service ('In -Kind Service"), at no additional cost to CONTRACTOR.
Should the current In -Kind Service terminate at any time during the Term of this Agreement
or should CONTRACTOR's use exceed the current In -Kind Service being provided at the
Center, CONTRACTOR shall be responsible for securing and paying for separate and/or
additional Waste Removal Procedures, which may include, without limitation, routine bulk
trash pick-ups and labor costs associated therewith. The dumping ordisposal of any refuse,
discards, trash or garbage, generated by, or as a result of the operations on the Center, into
any of the Miami Beach trash receptacles located within Flamingo Park, by the
CONTRACTOR (including its staff and employees), shall be strictly prohibited unless
previously agreed to by the City Manager or his designee.
11.5 Equipment.
The CONTRACTOR must provide and maintain, at its own cost and expense, all materials,
labor, and any and all equipment required to operate the Center. Such equipment to be
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included as part of the CONTRACTOR's expense are.
(A) Electric Blowers 2017-29867 Reso (miamibeachfl.gov)
(B) Trimmers
(C) Hot/Water/Pressure Washing
(D) Trash cans with Rollers
(E) Brooms and Pans
(F) Rakes
(G) Ice Machine
(H) Giliberti Tennis Court Grooming Cart
(1) Court grooming materials (i.e. Aussie Sweeps, rollers, etc.)
(J) Benches
(K) Umbrellas
(L) Outdoor Furniture
(M) Indoor Furniture
(N) Televisions
(0) Ball Caddies
(P) Racquets
(Q) Stringing Machine
(R) Ball Machine
(S) Tennis Balls
(T) Computers
(U) Office Supplies
(V) Janitorial Supplies
(W) 8-foot ladder (at least 2)
The City has supplied the Center with equipment such as a Gilliberti, drag rakes and tines,
line brushes. Aussie sweep mats, etc. that will be left for the CONTRACTOR at the center in
"as is" condition. Any maintenance to such equipment or the replacement of the equipment
shall be at the sole expense of the CONTRACTOR. All equipment purchased for this
Agreement shall be used by CONTRACTOR for performance of this Agreement, shall be
owned by the City and shall have a prominently displayed standardized logo to be approved
the City. In the event any of the Center's equipment or materials are lost, stolen, or
damaged through no fault or gross negligence of the City or, the equipment or materials
shall be replaced or repaired at the sole cost and expense of the CONTRACTOR in no more
than five (5) days from date of loss, or if not possible, within such time frame, as promptly as
reasonably possible, but in no event to exceed fifteen (15) days. The CONTRACTOR shall
maintain, in accordance with the manufacturer's specifications and maintenance
requirements, all equipment, whether City owned or owned by the CONTRACTOR, herein
specified, and purchased. CONTRACTOR shall keep all equipment clean, fully functional,
and free of damage. CONTRACTOR shall maintain a current inventory of all equipment at
the Center.
11.6 Orderly Operation.
The CONTRACTOR shall have a neat and orderly operation at all times and shall be solely
responsible for the necessary housekeeping services for the Center to include bathroom
supplies at interior bathrooms. Exterior bathroom will be maintained by the City. The
CONTRACTOR shall provide the City a list of all cleaning solvents, solutions, agents,
chemicals, detergents, and any other fluids or materials used in the provision of the
maintenance services, and their corresponding OSHA Material Safety Data Sheets, where
applicable. There shall be no living quarters, nor shall anyone be permitted to live within the
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t
r
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Center. CONTRACTOR shall make available all facilities within the Center under its control
for examination during hours of operation by the City Manager or his designee.
11.7 No Dangerous Materials.
The CONTRACTOR agrees not to use or permit at the Center the storage and/or use of
gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity
producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar
substances, combustible materials, or explosives of any kind, or any substance or thing
prohibited in the standard policies of fire insurance companies in the State of Florida. Any
such substances or materials found within the Center shall be immediately removed.
Notwithstanding any contrary provisions of this Agreement, CONTRACTOR, after the
Commencement Date. shall indemnify, defend and hold City harmless from any loss,
damage cost, or expense of the City, including, without limitation, reasonable attorney's
fees, incurred as a result of, arising from, or connected with the placement by
CONTRACTOR, after the Commencement Date, but during the term of this Agreement, of
any hazardous substance, or petroleum products on, under, in or upon the Center as those
terms are defined by applicable Federal and State Statute, or any environmental rules and
environmental regulations promulgated thereunder-, provided, however, CONTRACTOR
shall have no liability for any violation arising or damage incurred as a result of the willful
misconduct or gross negligence of the City, its agents, servants or employees. The
provisions of this Subsection shall survive the termination or earlier expiration of this
Agreement.
11.8 Security.
The CONTRACTOR shall be responsible for and provide reasonable security measures that
may be required to protect the Center and any of the equipment, materials, and facilities
thereon. Under no circumstances shall the City be responsible for any stolen or damaged
equipment, materials, and supplies, nor shall the City be responsible for any stolen or
damaged personal property of CONTRACTOR'S patrons, guests, invitees, and/or other third
parties.
11.9 Inspection.
The CONTRACTOR agrees that the Center and all facilities, equipment, and operations
thereon may be inspected at any time during hours of operation by the City Manager or
his/her designee, or by any other Municipal, County, State officer, or agency having
responsibilities for inspections of such operations. The CONTRACTOR hereby waives all
claims against the City for compensation for loss or damage sustained by reason of any
interference unless caused by the gross negligence of CITY, (which interference, if by the
City, must be reasonable) with the operations by any public agency or official in enforcing its
or his duties or any laws or ordinances. Any such interference (which interference, if by the
City, must be reasonable) shall not relieve the CONTRACTOR from any obligation
hereunder unless City's interference materially impacts the day to day operation of
Contractor.
SECTION 12. INSURANCE.
CONTRACTOR shall maintain the below required insurance (as the named insured) in
effect prior to the Commencement Date and for the duration of the Agreement. The i
maintenance of proper insurance coverage is a material element of the Agreement and
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failure to maintain or renew coverage may be treated as a material breach of the contract,
which could result in withholding of payments or termination of the Agreement.
A. Worker's Compensation Insurance for all employees of the CONTRACTOR as
required by Florida Statute 440, and Employer Liability Insurance for bodily injury or
disease.
B. Commercial General Liability Insurance on an occurrence basis, including products
and completed operations, property damage, bodily injury, and personal & advertising injury
with limits no less than $1,000,000 per occurrence, and $2,000,000 general aggregate.
C. Automobile Liability Insurance covering any automobile, if CONTRACTOR has no
owned automobiles, then coverage for hired and non -owned automobiles, with limit no less
than $1,000,000 combined per accident for bodily injury and property damage.
Additional Insured — City of Miami Beach must be included by endorsement as an
additional insured with respect to all liability policies (except Professional Liability and
Workers' Compensation) arising out of work or operations performed on behalf of the
CONTRACTOR.
Notice of Cancellation — Each insurance policy required above shall provide that coverage
shall not be cancelled, except with notice to the City of Miami Beach c/o EXIGIS Insurance
Compliance Services.
Waiver of Subrogation — CONTRACTOR agrees to obtain any endorsement that may be
necessary to affect the waiver of subrogation on the coverages required. However, this
provision applies regardless of whether the City has received a waiver of subrogation
endorsement from the insurer.
Acceptability of Insurers — Insurance must be placed with insurers with a current A.M.
Best rating of A:VII or higher. If not rated, exceptions may be made for members of the
Florida Insurance Funds (i.e. FWCIGA, FAJUA). Carriers may also be considered if they
are licensed and authorized to do insurance business in the State of Florida.
Exemptions — A letter from the CONTRACTOR is required stating that there are 3 or less
employees in order to waive Workers' Compensation insurance requirement. If there are no
automobiles being used in connection with the Agreement, then the CONTRACTOR shall
confirm this information in a letter. If the CONTRACTOR will be using automobiles, but
does not owned any autos, then a letter from the CONTRACTOR shall be submitted along
with hired and non -owned automobile liability coverage.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
c/o EXIGIS Insurance Compliance Services
P.O. Box 947
Murrieta, CA 92564
Kindly submit all certificates of insurance, endorsements, exemption letters to our servicing
agent, EXIGIS, at:
Certificates-miamibeach�a riskworks.com
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The City of Miami Beach reserves the right to modify these requirements, including limits,
based on the nature of the risk, prior experience, insurer, coverage, or other special
circumstances.
Compliance with the foregoing requirements shall not relieve the vendor of his liability and
obligation under this section or under any other section of this agreement.
SECTION 13. FINES AND PENALTIES.
The City reserves the right to levy fines against the CONTRACTOR when the City determines that
CONTRACTOR is not meeting the necessary work requirements. The following table below depicts
areas where fines will be levied:
Work Activity
Grace Period
Quality of Operations
24 hours
Personnel Shortages
4 hours
Personnel Payroll
24 hours
Personnel External Instruction
24 hours
Personnel Dress Code
8 hours
Reporting
24 hours
Payments
24 hours
Equipment Deficiencies
72 hours
Supplies
8 hours
Program Management
24 hours
Communications
48 hours
Life Safety Maintenance
2 hours
Fines for failures to complete corrective action for any of the work activities listed above are as
follows:
- $100 after failing to complete corrective action after two (2) notifications
- $200 after three (3) notifications
- $500 after four (4) notifications
If additional time is required to complete corrective action, a written request must be submitted for
approval to the City prior to the end of the grace period. The basis for the implementation of fines
and penalties includes but is not limited to the following:
Quality of Operations — Inability to provide service in a workmanlike and
professional manner. failure to conform to professional and industry
standards; unable to provide maintenance services in a manner in clean
orderly and safe condition; and inability to meet the City's established tennis
court maintenance standards in accordance with the Tennis Court
Manufacturer's standards and guidelines for hydro -courts or other similar
tennis court system as set forth in Exhibit E (Hydro -Court Maintenance)
attached hereto.
b. Personnel Shortages — Failure to provide a staffing plan that meets the
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maintenance coverage requirements of the service area, and/or failure to
provide the necessary on -site personnel in accordance to the staffing plan
approved by the City
C. Personnel Payroll — Failure to pay personnel in a timely manner and based
on the terms specified in the Personnel Contract.
d. Personnel External Instruction —CONTRACTOR is responsible for ensuring
that any external instruction engaged in by personnel must be such as to not
directly or indirectly compete with the Tennis Center's business which
includes private coaching and/or instruction at other City -owned
neighborhood tennis courts.
e. Personnel Dress Code — Failure of employees to meet uniform
requirements, including wearing clean uniforms.
f. Reporting — Failure to submit required maintenance and financial reports on
monthly due dates_
g. Payments — Failure to submit required monthly payments and thresholds on
due dates.
h. Equipment Deficiencies — Inability to fully operate; in non-functional
condition, in state of disrepair and or visibly damaged; lacking maintenance;
and not generally maintained and in clean condition.
i. Supplies — Failure to provide the supplies necessary for the proper execution
of the program or maintenance service specified.
�. Program Management - Failure to implement a comprehensive management
program to respond to City and/ or stakeholder requests for services and
maintenance issues covered by the Contract.
k. Communications — Failure to submit an approved communications plan
addressing routine, scheduled, and emergency maintenance and repair
activities, and failure to provide timely notifications as previous prescribed.
I. Safety Regulations — Failure to adhere to OSHA's most recently published
Safety and Health Regulations and general Occupational Safety and Health
Standards.
SECTION 14. INDEMNITY.
14.1 In consideration of a separate and specific consideration of $10.00 and other good and
valuable consideration the receipt and sufficiency of which are hereby acknowledged,
CONTRACTOR shall indemnify, hold harmless and defend the City, its agents, servants and
employees from and against any claim, demand or cause of action of whatsoever kind or
nature arising out of (1) wholly or in part from the negligent acts, errors, or omissions of
CONTRACTOR, its officers, director, members, employees, agents, contractors,
subcontractors, or any other person or entity acting under CONTRACTOR's control or
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supervision; (2) CONTRACTOR's breach of the terms of this Agreement or its
representations and warranties herein; and/or (3) Company's operation and/or use of
the Center unless such claim, demand or cause of action arises as a result of the City's
gross negligence or willful misconduct.
14.2 In addition, in consideration of a separate and specific consideration of $10.00 and other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, CONTRACTOR shall indemnify, hold harmless and defend the City, its
agents, servants and employees from and against any claim, demand or cause of action of
whatever kind or nature arising out of any misconduct of CONTRACTOR unless such claim,
demand or cause of action arises as a result of the City's gross negligence or willful
misconduct.
14.3 Subsections 14.1 and 14.2 shall survive the termination or expiration of this Agreement.
Subsections 14.1 and 14.2 shall not apply to CONTRACTOR, however, to any such liability,
that arises as a result of the willful misconduct or gross negligence of the City, its agents,
servants, or employees.
14.4 Subrogation.
The terms of insurance policies referred to in Section 12 shall preclude subrogation claims
against CONTRACTOR, the City and their respective officers, employees, and agents.
14.5 Force Maieure .
(A) A "Force Majeure" event is an event that (i) in fact causes a delay in the performance of the
CONTRACTOR or the City's obligations under the Agreement, and (ii) is beyond the
reasonable control of such party unable to perform the obligation, and (iii) is not due to an
intentional act, error, omission, or negligence of such party, and (iv) could not have
reasonably been foreseen and prepared for by such party at any time prior to the
occurrence of the event. Subject to the foregoing criteria, Force Majeure may include events
such as war, civil insurrection, riot, fires, epidemics, pandemics, terrorism, sabotage,
explosions, embargo restrictions, quarantine restrictions, transportation accidents, strikes,
strong hurricanes or tornadoes, earthquakes, or other acts of God which prevent
performance. Force Majeure shall not include technological impossibility, inclement weather,
or failure to secure any of the required permits pursuant to the Agreement.
(B) If the City or CONTRACTOR's performance of its contractual obligations is prevented or
delayed by an event believed by to be Force Majeure, such party shall immediately, upon
learning of the occurrence of the event or of the commencement of any such delay, but in
any case within fifteen (15) business days thereof, provide notice: (i) of the occurrence of
event of Force Majeure, (ii) of the nature of the event and the cause thereof, (iii) of the
anticipated impact on the Agreement, (iv) of the anticipated period of the delay, and (v) of
what course of action such party plans to take in order to mitigate the detrimental effects of
the event. The timely delivery of the notice of the occurrence of a Force Majeure event is a
condition precedent to allowance of any relief pursuant to this section; however, receipt of
such notice shall not constitute acceptance that the event claimed to be a Force Majeure
event is in fact Force Majeure, and the burden of proof of the occurrence of a Force Majeure
event shall be on the requesting party.
(C) No parry hereto shall be liable for its failure to carry out its obligations under the Agreement
during a period when such party is rendered unable, in whole or in part, by Force Majeure to
4.
carry out such obligations. The suspension of any of the obligations under this Agreement
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due to a Force Majeure event shall be of no greater scope and no longer duration than is
required. The party shall use its reasonable best efforts to continue to perform its obligations
hereunder to the extent such obligations are not affected or are only partially affected by the
Force Majeure event, and use its reasonable best efforts to correct or cure the event or
condition excusing performance and otherwise to remedy its inability to perform to the
extent its inability to perform is the direct result of the Force Majeure event with all
reasonable dispatch.
(D) Obligations pursuant to the Agreement that arose before the occurrence of a Force Majeure
event, causing the suspension of performance, shall not be excused as a result of such
occurrence unless such occurrence makes such performance not reasonably possible. The
obligation to pay money in a timely manner for obligations and liabilities which matured prior
to the occurrence of a Force Majeure event shall not be subject to the Force Majeure
provisions.
(E) Should, for reasons unrelated to CONTRACTOR's negligence or intentional misconduct or
Force Majeure event, thirty percent (30%) or more of the Center or thirty (30%) or more of
the courts be closed due to repairs for a time period greater than thirty (30) days, the parties
shall agree to negotiate, in good faith, to an appropriate modification to the
CONTRACTOR's payment obligations for the applicable time period, based upon the
proportionate loss of revenue or proportionate loss of use of the Center. If the parties cannot
reach an agreement, the current terms and conditions of the Agreement shall remain in
place and either party may terminate the Agreement upon providing the other with a
minimum of sixty (60) days' notice. If the Agreement is terminated pursuant to this section,
CONTRACTOR shall be paid for any services performed up to the date of termination;
following which the City shall be discharged from any and all liabilities, duties, and terms
arising out of, or by virtue of, this Agreement. In no event will any condition of Force
Majeure extend this Agreement beyond its stated term.
14.6 Labor Dispute.
In the event of a labor dispute which results in a strike, picket or boycott affecting the Center
or operation described in this Agreement, CONTRACTOR shall not thereby be deemed to
be in default or to have breached any part of this Agreement, unless such dispute shall have
been caused by illegal labor practices or violations by CONTRACTOR of applicable
collective bargaining agreements and there has been a final determination of such fact
which is not cured by CONTRACTOR within thirty (30) days.
14.7 Waiver of Loss from Hazards.
The CONTRACTOR hereby expressly waives all claims against the City for loss or damage
sustained by the CONTRACTOR resulting from fire, water, natural disasters/acts of God
(e.g. hurricane, tornado, etc.), civil commotion, riot, or any other Force Majeure
contemplated in Subsection 14.5 and Labor Dispute in Subsection 14.6 above, and the
CONTRACTOR hereby expressly waives all rights, claims, and demands against the City
and forever releases and discharges the City from all demands, claims, actions and causes
of action arising from any of the aforesaid causes unless the damage resulting from fire,
water, natural disasters/acts of God (e.g. hurricane, tornado. etc.), civil commotion, riot, or
any other Force Majeure contemplated in Subsection 14.5 and Labor Dispute in Subsection
14.6 above was caused by the Gross Negligence of the CITY or its agents.
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SECTION 15. DEFAULT AND TERMINATION.
Subsections 15.1 through 15.3 shall constitute events of default under this Agreement. An event of
default by CONTRACTOR shall entitle City to exercise any and all remedies described as City's
remedies under this Agreement, including but not limited to those set forth in Subsection 15.4. An
event of default by City shall entitle CONTRACTOR to exercise any and all remedies described as
CONTRACTOR'S remedies under this Agreement, including but not limited to those set forth in
Subsection 15.5.
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15.1 Bankruptcy.
If either the City or CONTRACTOR shall be adjudged bankrupt or insolvent, or if any
receiver or trustee of all or any part of the business property of either party shall be
appointed, or if any receiver of all or any part of the business property shall be appointed
and shall not be discharged within sixty (60) days after appointment, or if either party shall
make an assignment of its property for the benefit of creditors, or shall file a voluntary
petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its
creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted,
Federal, State, or otherwise, or if such petitions shall be filed against either party and shall
not be dismissed within sixty (60) days after such filing, then the other party may
immediately, or at any time thereafter, and without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available to it for
breach of contract.
15.2 Default in Payment.
In the event CONTRACTOR fails to submit any payment within five (5) days of its due date,
there shall be a late charge of $50.00 per day for such late payment, in addition to interest
at the highest rate allowable by law (currently 18% per annum) If any payment and
accumulated penalties are not received within fifteen (15) days after the payment due date,
and such failure continues three (3) days after receipt of written notice thereof then the City
may, without further demand or notice, terminate this Agreement without being prejudiced
as to any remedies which may be available to it for breach of contract-, and may begin
procedures to collect the Performance Bond or Alternative Security required in Section 4 1
herein.
15.3 Non -Monetary Default.
In the event that CONTRACTOR or the City fails to perform or observe any of the
covenants, terms or provisions under this Agreement, and such failure continues thirty (30)
days afterwritten notice thereof rom the other party hereto, such non -defaulting party may
immediately or at any time thereafter, and without further demand or notice, terminate this g
Agreement without being prejudiced as to any remedies which may be available to it for
breach of contract. In the event that a default is not reasonably susceptible to being cured
within such period, the defaulting party shall not be considered in default if it shall, within
such period, commence with due diligence and dispatch to cure such default and thereafter
completes with dispatch and due diligence the curing of such default, but in no event shall
such extended cure period exceed ninety (90) days from the date of written notice thereof.
In the event a defaulting party cures any default pursuant to this subsection. it shall promptly
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provide the other party with written notice of same
15.4 City's Remedies for CONTRACTOR'S Default.
If any of the events of default, as set forth in this Section, by CONTRACTOR shall occur, the
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City may, after notice (if required) and the expiration of cure periods, as provided above, at
its sole option and discretion, institute such proceedings as in its opinion are necessary to
cure such defaults and to compensate City for damages resulting from such defaults,
including but not limited to the right to give to CONTRACTOR a notice of termination of this
Agreement. If such notice is given, the term of this Agreement shall terminate upon the date
specified in such notice from City to CONTRACTOR. On the date so specified,
CONTRACTOR shall then quit and surrender the Center to City pursuant to the provisions
of Subsection 15.6. Upon the termination of this Agreement, all rights and interest of
CONTRACTOR in and to the Center and to this Agreement, and every part thereof, shall
cease and terminate and City may, in addition to any other rights and remedies it may have,
retain all sums paid to it by CONTRACTOR under this Agreement, including but not limited
to, beginning procedures to collect the Performance Bond or Alternate Security required in
Section 4.1 herein. In addition to the rights set forth above, City shall have the rights to
pursue any and all of the following:
a. The right to injunction or other similar relief available to it under Florida law
against CONTRACTOR; and or
The right to maintain any and all actions at law or suits in equity or other
proper proceedings to obtain damages resulting from CONTRACTOR'S
default.
15.5 If any of the events of default, as set forth in this Section, by the City shall occur, the �.
CONTRACTOR may, after notice (if required) and the expiration of the cure periods, as
provided above, at its sole option and discretion, terminate this Agreement upon written
notice to the City and/or sue for damages. Said termination shall become effective upon
receipt of a written notice of termination by the City, but in no event shall CONTRACTOR
specify a termination date that is less than sixty (60) days from the date of the written
termination notice. On the date specified in the notice, CONTRACTOR shall quit and
surrender the Center, to City pursuant to the provisions of Subsection 15.6.
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15.6 Surrender of Center.
At the expiration of this Agreement, or earlier termination in accordance with the terms of
this Agreement, CONTRACTOR shall surrender the Center in the same condition as the
Center was prior to the commencement of this Agreement, reasonable wear and tear, and
City maintenance and repair obligations, excepted. CONTRACTOR shall remove all its
equipment, fixtures, personal property, etc. upon five (5)-business days written notice from
the City Manager unless a longer time period is agreed to by the City. The
CONTRACTOR'S obligation to observe or perform this covenant shall survive the expiration
or other termination of this Agreement. Continued occupancy of the Center after termination
of the Agreement without the City's approval shall constitute trespass by the
CONTRACTOR and may be prosecuted as such. In addition, the CONTRACTOR shall pay
to the City two hundred dollars ($200) per day as liquidated damages for such breach of this
Agreement.
15.7 Termination for Convenience.
Except for the first Contract Year during the Term of this Agreement, during which the City
may only terminate this Agreement for cause, the City may terminate this Agreement at any
time, at its convenience and without cause, upon providing the Contractor with sixty (60)
days written notice. In the event of termination for convenience pursuant to this subsection,
CONTRACTOR shall quit and surrender the Center to City pursuant to the provisions of
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Subsection 15.6 hereof.
SECTION 16. ASSIGNMENT.
Except as otherwise provided in this subsection, CONTRACTOR shall not assign, sublease; grant
any concession or license; permit the use of by any other person other than CONTRACTOR; or
otherwise transfer all or any portion of this Agreement and/or of the Center (all of the forgoing are
herein after referred to collectively as "transfers"), without the prior written consent of the City
Commission, in the City Commission's sole discretion.
If there is a change in control of CONTRACTOR, then any such change in control shall constitute a
"transfer" for purposes of this Agreement and shall be approved by the City Commission, in the City
Commission's sole discretion, prior to consummation of such change in control. "Change in control",
for purposes hereof, shall mean a change of the ownership, directly or indirectly, of greater than
10% of the voting or ownership interest or right to profits in such CONTRACTOR, by means of one
or more transfers, sales, mergers, consolidations, dissolutions or otherwise; provided that the
foregoing shall not be deemed to include (1) a pledge or collateral assignment of the profits of
CONTRACTOR in connection with any financing, provided such pledge or collateral assignment is
subordinate to the rights of the City to the fees payable to the City pursuant to subsection 4.2.1
hereof; (ii) any transfer to other owners of CONTRACTOR or to trusts the beneficiaries of which are
any owner(s) of CONTRACTOR or member(s) of their immediate family; or (Iii) a change in the
ownership of CONTRACTOR through a registered public offering of shares in CONTRACTOR ((I),
(ii) and (iii) above collectively are referred to herein as the "Transfer Exclusions"). Except for the
Transfer Exclusions, any change of the ownership, directly or indirectly, of 10% or less of the voting
or ownership interest or right to profits in such CONTRACTOR (a "Minor Change"), by means of
one or more transfers, sales, mergers, consolidations, dissolutions or otherwise, shall be subject to
the approval of the City Manager, in the City Manager's sole discretion.
CONTRACTOR shall notify the City of any proposed transfer and shall notify the City Manager of
any proposed Minor Change, prior to consummation of same and the City or the City Manager, as
applicable, shall respond within ninety (90) days. In the event that any such transfer or Minor
Change is approved, the transferee shall agree to be bound by all the covenants of this Agreement
required of the transferor hereunder. Any transfer or Minor Change made without complying with
this Section shall be null, void, and of no effect and shall constitute an act of default under this
Agreement. Notwithstanding any such consent, or any permitted transfer or Minor Change under
any provision of this Section, unless expressly released by the City, CONTRACTOR shall remain
jointly and severally liable (along with each approved transferee, who shall automatically become
liable for all obligations of the transferor hereunder with respect to that portion of the Agreement so
transferred), and the City shall be permitted to enforce the provisions of this Agreement directly
against CONTRACTOR or any transferee of the CONTRACTOR without proceeding in any way
against any other person.
SECTION 17. SPECIAL EVENTS.
17.1 CONTRACTOR'S proposed uses, as defined in Section 3 herein, contemplates the
production, promotion, or sponsorship by the CONTRACTOR of tennis related special
events at the Center. For purpose of this subsection 17.1 only, CONTRACTOR'S "Special
Event" shall mean any event in which CONTRACTOR shall dedicate, and close to the
general public, 50% or more of the Center's tennis courts. In the event CONTRACTOR does
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produce. promote, or sponsor a Special Event at the Center, other than those provided for in
this Agreement; it shall abide by the City's Special Events Permit Requirements and
Guidelines. For any use, other than those provided for in this Agreement, a Special Events
Permit may be required, and if required, shall be obtained through the City's Office of
Tourism and Culture. The prior written authorization of the City Manager or the City
Manager's designee must be obtained for any such Special Event. The City Administration
shall evaluate requests for Special Events Permits on a case by case basis, in accordance
with the City's Special Event Permit Requirements and Guidelines.
17.2 City Special Events.
Notwithstanding Subsection 17.1 above, and in the event that the City, at its sole discretion,
deems that it would be in the best interest of the City, the City reserves the right to utilize the
Center for City produced tennis related special events and/or other City sponsored special
events productions such as local and international tennis tournaments. In such cases, the
City will coordinate with the CONTRACTOR to cooperatively produce such events.
CONTRACTOR agrees that the number of courts utilized shall be determined by the City.
CONTRACTOR will provide, at no charge, a minimum of 224 court days for City sanctioned
events. If additional courts are required that exceed the minimum of 224 court days, a usage
fee of $138.50 per court, per day shall be applied. This usage fee shall be subject to CPI
increase. The City at any time may require the use of all courts at no cost to the City with
the approval of the City Commission. Paid members of the Flamingo Park Tennis Center will
have access to play at the Miami Beach Tennis Center throughout the duration in which
courts are impacted from the City sanctioned special event. The City grants the
CONTRACTOR a first right of refusal to retain any income related to the special event
and/or production as it pertains to food and beverage concessions, stringing and
merchandise sales. CONTRACTOR agrees that facility usage for events may include use
of locker rooms, activity rooms and office space, umpire chairs, umbrellas, coolers,
scoreboards, net -sticks, and the like. If negotiations between the City and the
CONTRACTOR prove to be unsuccessful, the CONTRATOR shall cease and desist
operations during the term of, and in the area of the special event and/or production.
Notwithstanding Subsection 17.1 above, and in the event that the City, at its sole discretion,
deems that it would be in the best interest of the City, the City reserves the right to utilize the
Center for City produced tennis related special events and/or other City -produced special
events productions. In such cases, the City will coordinate with the CONTRACTOR to
cooperatively produce such events. The City shall make its best effort to negotiate with
CONTACTOR but if unsuccessful the CONTRACTOR shall cease and desist operations
during the term of, and in the area of the special event and/or production. If the
CONTRACTOR is not required to close or chooses to remain open without interference to
the special event and/or production, CONTRACTOR agrees to cooperate with the City. If
the CONTRACTOR is allowed to remain open during special events and/or productions, the
CONTRACTOR may be allowed to have in operation its normal daily complement of
equipment and staff. "Normal" shall be defined as equipment and staff, approved by the
City, that the CONTRACTOR has available for the public on a normal day, 365 days per
year. Such equipment or staff shall not be increased or altered during special events and/or
productions without the prior written permission of the City Manager. To the extent that the
normal daily complement of equipment and staff is displaced by the special event and/or
production, the CONTRACTOR may reallocate such displaced equipment and staff on a
pro-rata basis within the Center not being utilized by the special event.
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SECTION 18. NO IMPROPER USE.
The CONTRACTOR will not use, nor allow any third party to use in any manner whatsoever, the
Center or any facilities herein for any improper, immoral or offensive purpose, or for any purpose in
violation of any Federal, State, County, or Municipal ordinance, rule, order or regulation, or of any
governmental rule or regulation now in effect or hereafter enacted or adopted. The CONTRACTOR
will protect, indemnify, defend, and forever save and keep harmless the City, its agents, employees
and contractors from and against damage, penalty, fine, judgment, expense or charge suffered,
imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or
regulation occasioned by any act, neglect or omission of the CONTRACTOR, or any of its
subcontractors, employees or agents. In the event of any violation by the CONTRACTOR or if the
City or its authorized representative shall deem any conduct on the part of the CONTRACTOR to be
objectionable or improper, CONTRACTOR shall be deemed to be in default of this Agreement
should CONTRACTOR fail to correct any such violation, conduct, or practice to the satisfaction of
the City within twenty-four (24) hours after receiving written notice of the nature and extent of such
violation, conduct, or practice.
SECTION 19. NOTICES.
All notices, consents, waivers, directions, requests or other instruments of communications provided
for under this Agreement, shall be deemed properly given if, and only if, delivered personally or sent
by registered or certified U.S. mail, postage pre -paid, as follows:
IF TO THE CITY: Alina T. Hudak
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Ph. 305-673-7000
Email: alinahudak(a)-mlamibeachfi.gov
WITH COPIES TO: John Rebar, Director
Parks and Recreation
2100 Washington Avenue
Miami Beach, Florida 33139
Ph: 305-673-7000
Email: iohnrebarta m:amibeachfl.gov
IF TO CONTRACTOR: Canas Tennis Academy LLC
Gustavo Oribe
19735 Turnberry Way
Aventura, Florida. 33180
Ph: 347-833-3526
Email: goribe(a)canastennis.com
Contractor Attorney Law Offices Sanchez & Vadillo LLP
3105 NW 107'1 Ave. Suite 103
Doral, FL 33172
The CONTRACTOR and the City may change the above mailing address at any tim
the other party written notification. All notices under this Agreement must be in writi
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SECTION 20. LAWS.
20.1 Compliance.
CONTRACTOR shall comply with all applicable City, County, State, and Federal
ordinances, statutes, rules, and regulations, including but not limited to all applicable
environmental City, County, State, and Federal ordinances, statutes, rules, and regulations.
20.2 Governing Law.
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. In case of any inconsistency
between the terms of this Agreement, and any applicable general or special law, said
general, special law shall prevail.
20.3 Equal Employment Opportunity.
Neither CONTRACTOR nor any affiliate of CONTRACTOR performing services hereunder,
or pursuant hereto, will discriminate against any employee or applicant for employment
because of race, creed, sex, color, national origin, sexual orientation, and disability, as
defined in Title I of ADA.
20.4 No Discrimination.
The CONTRACTOR agrees that there shall be no discrimination as to race, color, national
origin, sex, age, disability, religion, income or family status, in its employment practices or in
the operations referred to by this Agreement; and further, there shall be no discrimination
regarding any use, service, maintenance, or operation within the Center. All services offered
at the Center shall be made available to the public, subject to the right of the
CONTRACTOR and the City to establish and enforce rules and regulations to provide for
the safety, orderly operation, and security of the Center.
Additionally, CONTRACTOR shall comply fully with the City of Miami Beach Human Rights
Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to time,
prohibiting discrimination in employment (including independent contractors), housing,
public accommodations, and public services and in connection with its membership or
policies because of actual or perceived race, color, national origin, religion, sex,
intersexuality, gender identity, sexual orientation, marital and familial status, age, disability,
ancestry, height, weight, hair texture and/or hairstyle, domestic partner status, labor
organization membership, familial situation, or political affiliation.
SECTION 21. MISCELLANEOUS.
21.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or create a
partnership or joint venture between the City and CONTRACTOR.
21.2 Modifications.
This Agreement cannot be changed or modified except by agreement in writing executed by
all parties hereto. CONTRACTOR acknowledges that no modification to this Agreement
shall be binding on the City unless approved by the Mayor and City Commission except
where such authority has been expressly provided herein to the City Manager or his/her
designee.
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21.3
Complete Agreement.
This Agreement, together with all exhibits attached hereto, constitutes all the
understandings and agreements of whatsoever nature or kind existing between the parties
with respect to the matters as contemplated herein.
21.4 Headings.
The section, subsection and paragraph headings contained herein are for convenience of
reference only and are not intended to define, limit, or describe the scope or intent of any
provision of this Agreement.
21.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
21.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall not affect the
validity of the remainder of the Agreement, and the Agreement shall remain in full force and
effect as if such illegal or invalid term or clause were not contained herein unless the
elimination of such provision detrimentally reduces the consideration or benefits that either
party is to receive under this Agreement or materially affects the continuing operation of this
Agreement.
21.7 Severability.
If any provision of this Agreement or any portion of such provision or the application thereof
to any person or circumstance shall be held to be invalid or unenforceable, or shall become
a violation of any local, State, or Federal laws, then the same as so applied shall no longer
be a part of this Agreement but the remainder of the Agreement shall not be affected
thereby and this Agreement as so modified shall remain in full force and effect.
21.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during hours of operation,
have the right to enter into and upon any and all parts of the Center for the purposes of
examining the same for any reason relating to the obligations of parties to this Agreement.
21.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, facility, equipment or
space is leased to the CONTRACTOR, that CONTRACTOR is a contractor providing
management services for the City and not a lessee-, and that the CONTRACTOR'S right to
manage and operate the Center for the City shall continue only so long as this Agreement
remains in effect.
21.10 Signage .
CONTRACTOR shall provide, at its sole cost and expense, any required signs on the
Center. All advertising, signage and postings shall be approved by the City, and shall be in
accordance with all applicable Municipal, County, State and Federal laws and regulations.
Any signage posted by CONTRACTOR at the Center shall be subject to the prior written
approval of the City as to size, shape, and placement of same.
21.11 Conflict of Interest.
CONTRACTOR shall perform its services under this Agreement and conduct the
professional tennis management and operations contemplated herein, in a manner so as to
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show no preference for other tennis operations/facilities owned, operated, managed, or
otherwise controlled by CONTRACTOR with regard to its responsibilities pursuant to this
Agreement.
21.12 Procedure for Approvals and/or Consents.
In each instance in which the approval or consent of the City Manager or his designee is
allowed or required in this Agreement, it is acknowledged that such authority has been
expressly provided herein to the City Manager or his/her designee by the Mayor and City
Commission of the City. In each instance in which the approval or consent of the City
Manager or his designee is allowed or required in this Agreement, CONTRACTOR shall
send to the City Manager a written request for approval or consent (the "Approval
Request"). The City Manager or his designee shall have up to sixty (60) days from the date
of Approval Request to provide written notice to CONTRACTOR approving of, consenting
to, or disapproving of the request. However, the City Manager or his designee's failure to
consider such request within this time provided shall not be deemed a waiver, nor shall
CONTRACTOR assume that the request is automatically approved and consented to. The
Subsection shall not apply to approvals required herein by the Mayor and City Commission.
21.13 No Waiver.
No waiver of any covenant or condition of this Agreement by either party shall be deemed to
imply or constitute a waiver in the future of the same covenant or condition or of any other
covenant or condition of this Agreement.
21.14 No Third -Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, including, but not limited
to subcontractors, other than the parties hereto and their respective successors and
permitted assigns, any rights, or remedies by reason of this Agreement.
SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement placing the operation and management of the Center
in the hands of a private management entity only if so doing the City can place a limit on its liability
for any cause of action for breach of this Agreement, so that its liability for any such breach never
exceeds the sum of $100,000.00. CONTRACTOR hereby expresses its willingness to enter into
this Agreement with a $100,000.00 limitation on recovery for any action for breach of contract.
Accordingly, and in consideration of the separate consideration of $100,000.00, the receipt of which
is hereby acknowledged, the City shall not be liable to CONTRACTOR for damages to
CONTRACTOR in an amount in excess of $100,000.00, for any action for breach of contract arising
out of the performance or non-performance of any obligations imposed upon the City by this
Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way
intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes,
Section 768.28.
SECTION 23. VENUE.
This Agreement shall be enforceable in Miami -Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any and all the terms or conditions
herein, exclusive venue for the enforcement of same shall lie in Miami -Dade County, Florida. CITY
AND CONTRACTOR HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND CONTRACTOR MAY
HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER
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ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE CENTER.
SECTION 22. FLORIDA PUBLIC RECORDS LAW.
(A) Consultant shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
(8) The term "public records` shall have the meaning set forth in Section 119.011(12), which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to law or ordinance or
in connection with the transaction of official business of the City.
(C) Pursuant to Section 119.0701 of the Florida Statutes, if the Consultant meets the definition
of "Contractor" as defined in Section 119.0701(1)(a), the Consultant shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) Upon request from the City's custodian of public records, provide the City with a
copy of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in Chapter 119,
Florida Statutes or as otherwise provided by law;
(3) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed, except as authorized by law, for
the duration of the contract tens and following completion of the Agreement if the
Consultant does not transfer the records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to the City, all public records
in possession of the Consultant or keep and maintain public records required by the
City to perform the service. If the Consultant transfers all public records to the City
upon completion of the Agreement, the Consultant shall destroy any duplicate public
records that are exempt or confidential and exempt from public records disclosure
requirements. If the Consultant keeps and maintains public records upon completion
of the Agreement, the Consultant shall meet all applicable requirements for retaining
public records. All records stored electronically must be provided to the City, upon
request from the City's custodian of public records, in a format that is compatible
with the information technology systems of the City.
(D) REQUEST FOR RECORDS; NONCOMPLIANCE.
(1) A request to inspect or copy public records relating to the City's contract for services
must be made directly to the City. If the City does not possess the requested
records, the City shall immediately notify the Consultant of the request, and the
Consultant must provide the records to the City or allow the records to be inspected
or copied within a reasonable time.
(2) Consultant's failure to comply with the City's request for records shall constitute a
breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally
terminate the Agreement; (2) avail itself of the remedies set forth under the
Agreement; and/or (3) avail itself of any available remedies at law or in equity.
(3) A Consultant who fails to provide the public records to the City within a reasonable
time may be subject to penalties under s. 1 19.10.
(E) CIVIL ACTION
(1) If a civil action is filed against a Consultant to compel production of public records
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relating to the City's contract for services, the court shall assess and award against
the Consultant the reasonable costs of enforcement, including reasonable attorneys'
fees, if:
a. The court determines that the Consultant unlawfully refused to comply with
the public records request within a reasonable time; and
b. At least 8 business days before filing the action, the plaintiff provided written I
notice of the public records request, including a statement that the Consultant
has not complied with the request, to the City and to the Consultant.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to the Consultant at the Consultant's address listed on its k
contract with the City or to the Consultant's registered agent. Such notices must be
sent by common carrier delivery service or by registered, Global Express
Guaranteed, or certified mail, with postage or shipping paid by the sender and with
evidence of delivery, which may be in an electronic format.
(3) A Consultant who complies with a public records request within 8 business days
after the notice is sent is not liable for the reasonable costs of enforcement. i
{F) IF THE CONSULTANT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, OR AS TO
THE CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO( MIAMIBEACHFL.GOV
PHONE: 305-673-7411
SECTION 23. INSPECTOR GENERAL AUDIT RIGHTS
(A) Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has established
the Office of the Inspector General which may, on a random basis, perform reviews, audits,
inspections and investigations on all City contracts, throughout the duration of said
contracts. This random audit is separate and distinct from any other audit performed by or
on behalf of the City.
(B) The Office of the Inspector General is authorized to Investigate City affairs and empowered
to review past, present, and proposed City programs, accounts, records, contracts, and
transactions. In addition, the Inspector General has the power to subpoena witnesses,
administer oaths, require the production of witnesses and monitor City projects and
programs. Monitoring of an existing City project or program may include a report concerning
whether the project is on time, within budget and in conformance with the contract
documents and applicable law. The Inspector General shall have the power to audit,
Investigate, monitor, oversee, inspect and review operations, activities, performance and
procurement process including but not limited to project design, bid specifications,
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(bid/proposal) submittals, activities of the CONTRACTOR, its officers, agents and
employees, lobbyists, City staff and elected officials to ensure compliance with the contract
documents and to detect fraud and corruption. Pursuant to Section 2-378 of the City Code,
the City is allocating a percentage of its overall annual contract expenditures to fund the
activities and operations of the Office of Inspector General.
(C) Upon ten (10) days written notice to the CONTRACTOR, the CONTRACTOR shall make all
requested records and documents available to the Inspector General for inspection and $
copying. The Inspector General is empowered to retain the services of independent private
sector auditors to audit, investigate, monitor, oversee, inspect and review operations '
activities, performance and procurement process including but not limited to project design,
bid specifications, (bid/proposal) submittals, activities of the CONTRACTOR its officers,
agents and employees, lobbyists, City staff and elected officials to ensure compliance with
the contract documents and to detect fraud and corruption. i
a
(D) The Inspector General shall have the right to inspect and copy all documents and records in
the CONTRACTOR's possession, custody or control which in the Inspector General's sole
judgment, pertain to performance of the contract, including, but not limited to original
estimate files, change order estimate files, worksheets, proposals and agreements from and
with successful subcontractors and suppliers, all project -related correspondence.
memoranda, instructions, financial documents, construction documents, (bid/proposal)and
contract documents, back -change documents, all documents and records which involve
cash, trade or volume discounts, insurance proceeds, rebates, or dividends received, payroll
and personnel records and supporting documentation for the aforesaid documents and
records.
(E) The CONTRACTOR shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and performance
of this Agreement, for examination, audit, or reproduction, until three (3) years after final
payment under this Agreement or for any longer period required by statute or by other
clauses of this Agreement. In additton:
If this Agreement is completely or partially terminated, the CONTRACTOR shall
make available records relating to the work terminated until three (3) years after any
resulting final termination settlement, and
The CONTRACTOR shall make available records relating to appeals or to litigation
or the settlement of claims arising under or relating to this Agreement until such
appeals. litigation, or claims are finally resolved.
(F) The provisions in this section shall apply to the CONTRACTOR, its officers, agents,
employees, subcontractors, and suppliers. The CONTRACTOR shall incorporate the
provisions in this section in all subcontracts and all other agreements executed by the
CONTRACTOR in connection with the performance of this Agreement.
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(G) Nothing in this section shall impair any independent right to the City to conduct audits or
investigative activities. The provisions of this section are neither intended nor shall they be
construed to impose any liability on the City by the CONTRACTOR or third parties.
SECTION 24. E-VERIFY
(A) CONTRACTOR shall comply with Section 448.095, Florida Statutes, "Employment
Eligibility" ("E-Verify Statute"), as may be amended from time to time. Pursuant to the E-
Verify Statute, commencing on January 1, 2021, CONTRACTOR shall registerwith and use
the E-Verify system to verify the work authorization status of all newly hired employees
during the Term of the Agreement. Additionally, CONTRACTOR shall expressly require any
subconsultant performing work or providing services pursuant to the Agreement to likewise
utilize the U.S. Department of Homeland Security's E-Verify system to verify the
employment eligibility of all new employees hired by the subconsultant during the contract
Term. If CONTRACTOR enters into a contract with an approved subconsultant, the
subconsultant must provide the CONTRACTOR with an affidavit stating that the
subconsultant does not employ, contract with, or subcontract with an unauthorized alien.
CONTRACTOR shall maintain a copy of such affidavit for the duration of the Agreement or
such other extended period as may be required under this Agreement.
(B) TERMINATION RIGHTS.
(1) If the City has a good faith belief that CONTRACTOR has knowingly violated
Section 448.09(1), Florida Statutes, the City shall terminate this Agreement with
CONTRACTOR for cause, and the City shall thereafter have or owe no further
obligation or liability to CONTRACTOR.
(2) If the City has a good faith belief that a subconsultant has knowingly violated the
foregoing Subsection 10.9(A), but the CONTRACTOR otherwise complied with such
subsection, the City will promptly notify the CONTRACTOR and order the
CONTRACTOR to immediately terminate the Agreement with the subconsultant.
CONTRACTOR's failure to terminate a subconsultant shall be an event of default
under this Agreement, entitling City to terminate the CONTRACTOR's contract for
cause.
(3) A contract terminated under the foregoing Subsection (13)(1) or (Bx2) is not in
breach of contract and may not be considered as such.
(4) The City or CONTRACTOR or a subconsultant may file an action with the Circuit or
County Court to challenge a termination under the foregoing Subsection (13)(1) or
(13)(2) no later than 20 calendar days after the date on which the contract was
terminated.
(5) If the City terminates the Agreement with CONTRACTOR under the foregoing
Subsection (B)(1), CONTRACTOR may not be awarded a public contract for at least
1 year after the date of termination of this Agreement.
(6) CONTRACTOR is liable for any additional costs incurred by the City as a result of
the termination of this Agreement under this Section 10.9.
[BALANCE OF PAGE INTENTIONALLYLEFT BLNK]
DocuSign Envelope ID: OE654334-C98C-4BCA-A5E9-518F4D8BF239
DocuSign Envelope ID: 81C09F139-937D-4453-8403-81EF7711C2B4
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed, all as of the day and year first above written, indicating their agreement.
FOR CITY:
ATTEST:
ned by:
By: rf4 f. 1 raNA�
Ra ae ranado, City Clerk
10/19/2023 1 5:54 PM EDT
Date
FOR CONTRACTOR:
CANAS TENNIS ACADEMY, LLC
By: C& -
Director of Programming
Gustavo Oribe - Director
Print Name and Title
10/03/2023
Date
CITY OF MIAMI BEACH, FLORIDA
AfW T Hudak, City Manager
APPROVED AS TO
FORM & LANGUAGE
B&F�OR EXECS?IONIf
City Attomey
Date
Post Execution Attachments to be inserted.
ATTACHMENT A RESOLUTION & COMMISSION AWARD MEMO
ATTACHMENT B ADDENDA & SOLICITATION
ATTACHMENT C SUNBIZ & PROPOSAL RESPONSE TO RFP
42
DocuSign Envelope ID: OE654334-C98C-4BCA-A5E9-518F4D8BF239
DocuS,gn Envelope ID: 81CD9F139-93713-4453-8403-B1EF7711C2B4
MIAMIBEACH
23-073-01
PROFESSIONAL TENNIS MANAGEMENT AND OPERATION SERVICES AT THE CITYS FLAMINGO
PARK TENNIS CENTER
Canas Tennis Academy LLC PARKS AND RECREATION
l
John Rebar �
Mark Taxis
bJ h" M 1 i ►�
X
Type 1 — Contract, amendment, change order, or task order resulting from a procurement -issued competitive solicitation
Type 2 — Other contract, amendment, change order, or task order not resulting from a procurement -issued competitive solicitation.
Type 3 — Independent Contractor Agreement (ICA)
Type 6 —Tenant Agreement
Type 4 — Grant agreements with the City as the recipient
Type 7 —1 nter-govern mental agency agreement
Type 5 — Grant agreements with the City as the grantor
Type 8 — Other.
On May 17, 2023, the Mayor and City Commission adopted Resolution 2023-32597 accepting the
recommendation pursuant to Request for Proposals (RFP) 2023-073-WG for Professional Tennis Management
and Operation Services at the City's Flamingo Park Tennis Center, authorizing the Administration to negotiate
with Canas Tennis Academy LLC, the top -ranked proposer; and, further authorizing the City Manager and City
Clerk to execute an agreement upon successful negotiations by the Administration. The Administration
successfully negotiated an agreement with Canas Tennis Academy LLC, and it was form approved by the City
Attorney's Office and fully executed by the company. Pursuant to the authority established in Resolution 2023-
32597, this item seeks the City Manager's approval to finalize the contract execution process.
Three (3) years I Two (2) additional One (1) year periods I Five (5) Years
Grant Funded: ! Yes I X I No TState Federal Other:
1
1 $282,000
Minimum Guarantee Annual Concession Fee, plus a
payment equal to 5% of the total Gross Revenues as
defined inthe contract documents.
Yes
No
2
$282,000
Yes
No
$282,000
Yes
No
contracts longer than five years, contact the Procurement Department. 2. Attach any supporting explanation neededget approval indicates approval for the current fiscal year only. Future years are subject to City Commission approval
r3B
annual adopted operating budget.
City Commission Approved
X ' Yes
No
Resolution No.: CC Agenda Item No.:
CC Meeting Date:
2023-32597 C2 A
05-17-2023
If no, explain why CC approval is not required:
Legal Form Approved: X I Yes No If no, explain below why form approval is not necessary:
U.—b,g—d by. ----
Procurement: Alex Denis
Ate. iJ
DocuSMned by:
Grants:
N/A
Budget: Tameka Otto -Stewart
ypllo
ormation Technology:
N/A
Risk Management:
N/A
Fleet & Facilities:
N/A
Human Resources:
N A
%
vsgn.d by:
� Kristy Bada
f 1 4AIy�Estevez
"( a ma Iglesias
I by'
12E472