Global Spectrum Management Agreement MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
GLOBAL SPECTRUM, L.P.
FOR THE MIAMI BEACH CONVENTION CENTER
AND
COLONY THEATRE
Dated as of her- , 2013
MANAGEMENT AGREEMENT
H /
IS/MANAGEMENT AGREEMENT (this "Agreement") is dated as of the 7
day of be 2013, by and between the CITY OF MIAMI BEACH, a
Florida municipal corporation, having its principal office at City Hall, 1700 Convention
Center Drive, Miami Beach, Florida 33139 (the City), and GLOBAL SPECTRUM, L.P., a
Delaware limited partnership, whose current address is 3601 S. Broad Street,
Philadelphia, Pennsylvania 19148 (Global).
RECITALS
Whereas, the City is the owner of the Miami Beach Convention Center
(the Convention Center), and the Colony Theatre (the Colony), including therein,
without limitation, all respective adjacent grounds, sidewalks, rights-of-way and
marshaling areas; located in the City of Miami Beach, Florida (individually, the
Convention Center and the Colony may also be referred to herein, as a Facility or,
collectively, as the Facilities).
Whereas, the City and Global are parties to a Management Agreement
dated 046ber 1 , 2008, pursuant to which the City engaged Global to manage and
operate the Facilities through September 30, 2013 ("Original Agreement").
WHEREAS, on July 17, 2013, the Mayor and City Commission adopted Resolution No.
2013-28276, waiving by 5/7ths vote, the competitive bidding requirement finding such waiver to be
in the best interest of the City, and authorizing the City and Global to negotiate and execute a
new Management Agreement (the "New Agreement" or the "Agreement"); and
Whereas, accordingly, the City and Global have negotiated the following
Agreement, whereby the City wishes to again engage Global, and Global hereby
accepts such engagement, to provide management services for the Facilities on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual premises, covenants
and agreements herein contained, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Definitions
For purposes of this Agreement, the following terms have the meanings
referred to in this Section 1:
"Advisory Board" -- the Miami Beach Convention Center Advisory Board,
or such other successor entity as may be established by the City Commission.
"Affiliate" -- a person or entity that directly or indirectly, through one or
more intermediaries, controls or is controlled by, or is under common control with, a
specified person. For purposes of this definition, "control" means ownership of equity
securities or other ownership interests which represent more than 10% of the voting
power in the controlled person or entity. Notwithstanding the preceding definition, for
purposes of this Agreement, Messe Schweiz of Basel Switzerland (hereinafter, Messe
Schweiz or M.S.), and/or its successors or assigns, shall also be deemed to be an
Affiliate.
"Applicable Percentage" -- as defined in Section 4.3 of this Agreement.
"Approved Budget" -- any budget submitted by Global, as approved by the
City pursuant to Section 5 hereof.
"Capital Contribution — as defined in Section 5.10(a).
"Capital Equipment" -- any and all furniture, fixtures, machinery or
equipment, either additional or replacement, having a per item original cost of $500 or
more or an expected useful life of more than one year.
"Capital Improvements" -- any and all building additions, alterations,
renovations, repairs or improvements that have an initial dollar cost of not less than
$500 per project.
"City" -- as defined in the first paragraph of this Agreement.
"City Agreements" -- those agreements between the City and a third party
relating to the Facilities and listed in Exhibit "A" attached hereto.
"City Commission" —the governing legislative body of the City.
"City Manager" -- the chief executive officer of the City, or such person as
may from time to time be authorized in writing by such administrative official to act for
him/her with respect to any or all matters pertaining to this Agreement.
"Colony Theatre" (Colony) -- as defined in the Recitals section of this
Agreement.
"Commencement Date" — as defined in Section 3.1 hereof.
"Contract Year" — each one (1) year period during the Term of this
Agreement, beginning on October 1, and ending on September 30.
"Convention Center" -- as defined in the Recitals section of this
Agreement.
"Event" — all uses of a Facility which involve a scheduled beginning and
ending time. For Events at the Convention Center this shall typically mean the period
commencing upon "load-in" of the Event; the Event itself; and ending upon conclusion of
"load-out" of the Event. For Events at the Colony, this shall mean Events occurring all
within the same day (or for evening Events, commencing in the evening and concluding
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before 1:00 AM of the succeeding day, unless otherwise approved, in writing, by the
City Manager.
"Event Expenses" -- any and all expenses incurred or payments made by
Global in connection with the occurrence of Events at the Facilities, including, without
limitation, costs for Event staffing (including ushers, ticket takers, security and other
Event staff), and costs relating to set-up and clean-up.
"Executive Compensation Amount" -- as defined in Section 4.2(a).
"Executive Employee Benefit/Bonus Amount" — the aggregate amount of
bonuses payable to, and the cost of benefits accruing to, Executive Level Employees of
Global and any Related Party of Global at the Facilities for a Fiscal Year, which amount
shall be mutually determined and agreed upon, in writing, by the City and Global as part
of the development of each annual operating budget for a Fiscal Year pursuant to
Section 5.3.
"Executive Employee Salaries" — salaries and wages of Executive Level
Employees of Global and any Related Party of Global at the Facility for a Fiscal Year.
"Executive Level Employees" — unless otherwise determined by bond
counsel for the City that the term "Executive Level Employees" shall include and/or
exclude other employees, "Executive Level Employees" shall mean the General
Manager, Assistant General Manager, Director of Operations, Director of Finance,
Director of Marketing, Director of Sales, and Director of Event Services.
"Facility" and/or "Facilities" -- as defined in the Recitals section of this
Agreement, and which, further, (i) as to the Convention Center, shall include the entire
Facility complex including, without limitation, the exhibit halls, meeting rooms, common
areas, lobby areas, executive offices, storage and utility facilities, and the entrances
and loading dock areas; and (ii) as to the Colony, shall include, without limitation, the
lobby areas, common areas, audience chambers, backstage areas, dressing rooms,
stage areas, rehearsal halls, entrances, and loading areas. If, during the Term, the City
elects to have Global manage, promote, and operate other City facilities pursuant to
Section 2.2(b) hereof (the "Additional Facilities"), such other facilities shall also be
deemed included within the definition of Facility and/or Facilities hereunder.
"Fiscal Year" -- a one year period beginning October 1, and ending
September 30.
"Global Spectrum, L.P. (Global) — as defined in the first paragraph of this
Agreement.
"Global Capital Contributions" — collectively, the Capital Contribution, the
scholarship contribution, as defined in Section 5.10(c), and any other capital
contributions as may be mutually agreed to by Global and the City.
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"Management Fee" —as defined in Section 4.1(a).
"Net Operating Loss/Profit" -- with respect to a Fiscal Year, the excess, if
any, of Operating Expenses for such Fiscal Year over Operating Revenues for such
Fiscal Year, in the case of a loss; and the excess, if any, of Operating Revenues for
such Fiscal Year over Operating Expenses for such Fiscal Year, in the case of a profit.
"Operating Expenses" — (a) any and all expenses and expenditures of
whatever kind or nature incurred, directly or indirectly, by Global in managing, operating,
maintaining, promoting and marketing the Facilities, including, without limitation:
employee compensation and related expenses (e.g., base salaries, bonuses, car
allowances and severance pay [in accordance with Global's established policy, a copy
of which will be provided to the City on or before the Commencement Date of this
Agreement, except that severance pay shall not be considered an Operating Expense if
paid by Global to its employees as a result of early termination of this Agreement due to
a default by Global]); employee benefits and related costs (e.g., relocation and other
related expenses pursuant to Global's relocation policy (a copy of which will be provided
to the City on or before the Commencement Date of this Agreement); parking and other
fringe benefits) (including, without limitation, Executive Employee Salaries and the
Executive Employee Benefit/Bonus Amount); supplies, material and parts costs; costs
of any contractors; advertising, marketing and public relations costs and commissions;
janitorial and cleaning expenses; data processing costs; dues, subscriptions and
membership costs; the amortized amount of the Capital Contribution; the costs of
procuring and maintaining the insurance required to be obtained by Global under this
Agreement; amounts expended to procure and maintain permits and licenses; taxes
and excises; professional fees; printing and stationery costs; Event Expenses; postage
and freight costs; equipment rental costs; computer equipment leases and line charges;
telephone switch and telecommunications services; repairs and maintenance costs
(e.g., elevators and HVAC); security expenses; utility and telephone charges; travel and
entertainment expenses (in accordance with the "Runzheimer Meal-Lodging Cost Index"
or a comparable index); the cost of employee uniforms; safety and medical expenses;
exterminator and waste disposal costs; costs relating to the maintenance of signage
inventory and systems; the cost of annual independent audits of the Facilities; the cost
of compliance with Laws (as defined in Section 11.2); the internal service charges
assessed by the City to the Facilities pursuant to Approved Budgets (which charges
include, without limitation, property insurance premium costs, sewer charges, and
communication/information technology charges); costs incurred under agreements,
commitments, licenses and contracts executed as provided in Sections 2.3(b), (d), and
(e) hereof; and the Management Fee payable to Global pursuant to Section 4.1(a)
hereof, all as determined in accordance with generally accepted accounting principles
and recognized on a full accrual basis; (provided that Operating Expenses shall not
include expenses or expenditures in connection with Capital Improvements and Capital
Equipment purchases, the Incentive Fee payable to Global pursuant to Section 4.3
hereof, and any expenses relating to Global personnel based in Global's corporate
headquarters in Philadelphia, Pennsylvania, or its regional field locations (other than the
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reasonable costs of travel by such corporate or regional personnel in connection with
Global's management of the Facilities, which costs shall be Operating Expenses).
(b) Solely for purposes of calculating Net Operating Loss/Profit
hereunder, (i) the internal service charges assessed by the City to the Facilities
pursuant to Approved Budgets, and (ii) emergency expenditures pursuant to Section
2.3(v) hereof, to the extent not included in the Approved Budgets, shall not be deemed
Operating Expenses hereunder. In addition, and soley for purposes of (i) calculating
Net Operating Loss/Profit hereunder, and (ii) identifying Operating Expenses which will
be budgeted in Approved Budgets, (A) all extraordinary expenses and all interest,
income tax, depreciation and amortization expenses including, without limitation,
depreciation and amortization on Global's Capital Contribution, and (B) the
Management Fee, shall not be deemed Operating Expenses hereunder.
"Operating Revenues" — (a) any and all revenues of every kind or nature
derived from owning, operating, managing, maintaining, promoting, or marketing the
Facilities including, without limitation: license, lease and concession fees and rentals;
service revenues; revenues from merchandise sales; advertising sales; naming and
sponsorship rights (as provided in Section 2.3(0)); equipment rentals; utility revenues;
revenues from operation of the Convention Center's telephone switch and
telecommunications services; box office revenues; food and beverage service and
concession revenues; commissions or other revenues from decoration and set-up;
security and other subcontractors; miscellaneous operating revenues; and interest
revenues, all as determined in accordance with generally accepted accounting
principles and recognized on a full accrual basis. The parties acknowledge that
revenues from the sale of tickets for Events at the Facilities are not Operating
Revenues, but are instead revenues of the promoter and/or performer of each such
Event (as the case may be); provided, however, that to the extent that Global collects
such ticket sale revenues on behalf of Event promoters and/or performers, such ticket
sale revenues shall be the source of funds from which Global collects the rental charges
and other Event reimbursements due by such promoters and/or performers for use of
the Facility (which such charges and reimbursements are deemed Operating Revenues
hereunder).
(b) Solely for purposes of (i) calculating Net Operating
Loss/Profit, and (ii) identifying Operating Revenues which will be budgeted in Approved
Budgets, Operating Revenues from all Events at the Facilities will be calculated to
exclude sales taxes generated in connection with such Events. In addition, soley for
purposes of calculating Net Operating Loss/Profit, any Convention Development Tax
monies and any interest earned thereon, shall not be deemed Operating Revenues
hereunder.
"Related Party" or "Related Parties" has the meaning provided in § 1.150-
1 of the Income Tax Regulations promulgated by the United States Department of the
Treasury pursuant to the Code.
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"Renewal Term"— as defined in Section 3.2 of this Agreement.
"Term" — as defined in Section 3.1 of this Agreement; provided however, if
this Agreement is extended for a Renewal Term, all references to "Term" contained
herein shall also include such Renewal Term.
2. Engagement of Global; Scope of Services.
2.1 Engagement.
(a) General Scope. The City hereby engages Global to manage,
operate, maintain, promote, and market the Facilities during the Term, upon the terms
and conditions set forth in this Agreement. Global hereby accepts such engagement
and shall perform the services described herein, subject to the terms and conditions in
this Agreement.
(b) Manager of the Facilities. Subject to the terms and conditions of
this Agreement, Global shall be the sole and exclusive manager of the City to manage,
operate, maintain, promote, and market the Facilities during the Term. In such capacity,
and except as otherwise expressly reserved under this Agreement to the City, and/or
except for such matters as are subject to the approval of the City Commission or City
Manager, Global shall have exclusive authority over the day-to-day operation of the
Facilities and all activities therein; provided that Global shall follow all policies and
guidelines of the City, as may exist as of the Commencement Date of this Agreement,
and as may be hereinafter established or amended by the City, in its sole judgment and
discretion.
2.2 Scope of Services.
(a) General. Global shall perform and furnish such services,
personnel, and systems, supplies, and materials, as necessary to manage, operate,
maintain, promote, and market the Facilities in a manner consistent with the
management, operation, maintenance, promotion, and marketing of other first-class
facilities comparable to the Facilities.
(b) Additional Facilities. Subject to Section 4.1(d) hereof, the City may
elect, upon sixty (60) days prior written notice to Global, at any time during the Term, to
have Global operate, manage, maintain, promote, and market other City facilities. Such
facilities are referred to herein, as elected by the City, as the "Additional Facilities".
(c) Convention Center Booking Policies. The Greater Miami
Convention and Visitors Bureau (GMCVB) has the primary responsibility for marketing
the Convention Center for conventions and trade shows and, to carry out this
responsibility, the GMCVB shall have control over bookings more than twenty-four (24)
months in advance (i.e. long term bookings). However, all such long term bookings
shall be coordinated with Global before commitment. Global will work pro-actively with
the GMCVB in connection with the long term bookings. The GMCVB may also book
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conventions and trade shows into the Convention Center with less than twenty-four (24)
months' lead time (i) if the dates have not been confirmed to other users; and (ii) subject
to the prior written approval of Global. Additionally, subject to compliance with the
Convention Center Booking Policies, attached as Exhibit "B" hereto, and as same may
be amended from time to time in the City's sole judgment and discretion (Exhibit "B" and
any amendments thereto, hereinafter referred to as the "Convention Center Booking
Policies"), Global may book conventions, trade shows and any other Event at the
Convention Center with more than twenty-four (24) months' lead time if the dates have
not been confirmed to other users. Global shall first consult with the GMCVB to verify
whether a specific date (or dates) has(or have) not been confirmed (by the GMCVB) to
another user, prior to Global booking such conventions, trade shows, and/or other
Events.
Global shall have the primary responsibility and sole authority, subject to the
Convention Center Booking Policies, to approve the scheduling of any Event in the
Convention Center within the twenty-four (24) month booking window.
(d) Colony Booking Policies. Global shall have the primary
responsibility and sole authority for booking Events into the Colony, subject to
compliance with the booking policies for the Colony, attached as Exhibit "C" hereto,
and as same may be amended from time to time, in the City's sole judgment and
discretion (Exhibit "C" and any amendments thereto, hereinafter referred to as the
"Colony Booking Policies").
2.3 Specific Services.
Without limiting the generality of the foregoing, and except as otherwise
expressly noted in this Agreement, Global shall have the primary responsibility and sole
authority to:
(a) Hire or otherwise engage, pay, train, supervise, and direct all
employees and personnel it deems necessary for the management, operation,
maintenance, promotion, and marketing of the Facilities in accordance with the
provisions of this Agreement, and in a manner consistent with the management,
operation, maintenance, promotion, and marketing of other first-class facilities
comparable to the Facilities;
(b) Administer, manage, and assure compliance with all City
Agreements (including, without limitation, the City's agreement with the food and
beverage concessionaire at the Convention Center) and, to the extent the City Manager
deems necessary or desirable, participate in any and all negotiations, renewals and
extensions relating to such City Agreements;
(c) Provide, or cause to be provided, to the Advisory Board, periodic
status reports as to the food and beverage concessionaire's performance, and provide
(or cause to be provided) recommendations for improvements. The City Manager shall
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require that, during the Term of this Agreement, a member of Global's Executive Level
Employees, have food & beverage experience and be charged (among his/her duties)
with supervising, monitoring, and ensuring consistent performance, quality standards,
and compliance under the City's agreement with the food and beverage concessionaire;
(d) Except as otherwise provided in subsection 10.2(c), negotiate;
execute in its name, as agent for the City; deliver; administer; manage; and assure
compliance with any and all leases, license agreements, occupancy agreements, rental
agreements, booking commitments, concession agreements, supplier agreements,
service contracts (including, without limitation, contracts for cleaning, decorating, set-up,
emergency services, general maintenance, maintenance and inspection of HVAC
systems, elevators, stage equipment, fire control panels and other safety equipment,
staffing and personnel needs, including guards and ushers, telephone, extermination,
and other services which are necessary or appropriate), and any and all other contracts
and agreements in connection with the management, operation, promotion, and
marketing of the Facilities. For purposes of the following subsections 2.3 (d) (1) and (2),
the preceding agreements shall be referred to as the "Facilities Agreements."
(1) Provided that (A) if any such Facilities Agreement or Agreements
(other than those involving the license, lease, or rental of the Facilities for Events) has a
term that extends beyond the remaining Term, and/or is of a non-traditional nature
(such as, by example, co-promotion agreements), such Facilities Agreement (or
Agreements) must be approved and executed by the City Manager; and (B) if any
Facilities Agreement or Agreements (other than those involving the license, lease or
rental of the Facilities for Events) is to be renewed or entered into at the
commencement of a Fiscal Year, such Facilities Agreement (or Agreements) shall be
reviewed in conjunction with the annual budget review process described in Section 5.3
hereof
(2) Provided further, that any contract entered into between Global and
an Affiliate of Global, and/or a subsidiary, parent company, and/or sister company (i.e.
a company owned by an entity which is an owner or Affiliate of Global) of Global shall
be: (A) subject to the prior written approval of the City Manager; (B) shall be at terms
and for prices customarily charged for comparable goods and/or services elsewhere;
and (C) shall be competitive within the industry, subject to submittal of documentation
evidencing the competitive nature of the goods and/or services submitted.
(3) Bond Financing. Global acknowledges that the Convention Center
is financed in part with the proceeds of one or more series of tax-exempt bonds, and
that, during the Term hereof, the City may choose, at its option, to finance additional
improvements (whether to the Convention Center or to any or all of the other Facilities)
with tax-exempt bonds (collectively, any present and future tax-exempt bonds
encumbering a Facility or the Facilities shall be referred to as the "Bonds"). In order for
the City to ensure that it is preserving the tax-exempt nature of the Bonds and
complying with applicable Treasury regulations (the "Treasury Regulations")
promulgated under the Internal Revenue Code of 1986, as amended (the "Code"),
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Global acknowledges and agrees that in addition to any other contracts requiring the
approval of the City Manager, each of the following described contracts must be
approved by the City Manager, in writing, before execution thereof by Global:
(i) Any contract relating to the Facilities which grants a
leasehold interest or other real estate interest in the Facilities (other than a short term
lease, license or rental for an Event at a Facility), or grants a right to use the Facilities
on a basis different from that of the general public, unless such use satisfies a
short-term use exception as described in Section 1.141-3(d)(3) of the Treasury
Regulations.
(ii) Any contract for the use of the Facilities for Events where the
term of such use exceeds fifty (50) days in the aggregate, including all renewal options.
(iii) Any other contract relating to the Facilities which grants
special legal entitlements to beneficial use of the Facilities or special economic benefits,
within the meaning of Section 1.141-3(b)(7) of the Treasury Regulations, unless such
contract satisfies an exception set forth in the Treasury Regulations.
(e) To the extent the City Agreements, and such other licenses,
agreements, commitments, and/or contracts, as contemplated in Section 2.3 (d) hereof,
are not already procured, or if such existing contracts expire or are terminated, procure,
negotiate, execute (as agent for the City), administer, and assure compliance with all
subsequent new licenses, agreements, commitments, and/or contracts with respect to
the Facilities.
(f) Notwithstanding Sections 2.3 (b), (d), and (e) hereof, or any other
provision of the Agreement, Global shall obtain the prior written approval of the City
Manager before entering into any contract that is a Material Contract. For purposes of
this Agreement, a "Material Contract" is defined as (1) any agreement that requires
payments in excess of Twenty Five Thousand Dollars ($25,000) in any Fiscal Year; (2)
any contract that permits or grants to any vendor or other party any right to (A)
exclusively provide goods or services to a Facility or to the Facilities; or (B) advertise or
market its role as an exclusive or official provider of goods or services for a Facility or
the Facilities; (3) any contract that has a term that expires after the end of the Term; (4)
contracts for Events that are owned, operated, promoted, or co-promoted by Global or
any of its Affiliates or subsidiaries, its parent company, or a sister company, or wherein
the revenues generated by an Event are otherwise shared with Global or any of its
Affiliates or subsidiaries, its parent company, or a sister company; (5) any contract
between Global and any of its Affiliates or subsidiaries, its parent company, or a sister
company; (6) a contract for the use, rental or occupancy of space in a Facility that is not
substantially in the form of the City's standard form agreement for each Facility
(attached as Exhibit "E" hereto); and (7) a contract for an M.S. owned show or Event
and/or any show or Event brought to the City by M.S., in accordance with the provisions
of Section 10.2(c) hereof (which contract shall also be executed by the City Manager).
Additionally, a Material Contract shall also include any contract pursuant to which
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Global is sub-contracting with a third party for goods or services which Global is
charged with supplying and/or performing under this Agreement;
(g) Follow each Facility's booking policies and hold the master set of all
booking records and schedules (for each Facility). Global shall, from time to time,
review the booking policies for each Facility and recommend changes, if any, to the
City. Global's recommended changes to the Convention Center Booking Policies shall
be subject to the review and recommendation of the Advisory Board. Notwithstanding
the preceding, any changes and or other amendments to any Facility's booking policies
shall be subject to prior review by the City Manager and final approval by the City
Commission;
(h) (1) Maintain the Facilities (including, without limitation, all structural
components thereof and all electrical, HVAC, life safety, mechanical, plumbing and
other systems and equipment) in a good and clean condition consistent with other
similar first class facilities managed by Global, and in compliance with all Laws, ordinary
wear and tear excepted. Maintenance responsibilities shall include, without limitation,
repairs and replacements (structural, non-structural capital, and non-capital, but not
including Capital Equipment and Capital Improvements unless funded by the City), and
preventive maintenance, and equipment servicing.
(2) Global shall be responsible for ensuring that all maintenance,
repairs, and replacements, shall be of a quality and class at least equal to that of the
item being maintained, repaired, or replaced; provided that the City shall be responsible
for, with cooperation and assistance of Global, undertaking all Capital Improvements
and Capital Equipment purchases, as provided in Section 5.8.
(3) Notwithstanding anything in this subsection 2.3(h) or in the
Agreement, at no time shall the maintenance of a Facility fall below the minimum
standards required by Exhibit "F", attached hereto.
(4) At all times during the Term hereof, Global shall maintain in full
force and effect service contracts with qualified and licensed service providers with
respect to HVAC, roof, and elevator systems.
(5) Global shall keep on-site maintenance manuals and records
reflecting its maintenance activities at each Facility, all of which shall be available for
inspection, upon request, by the City Manager.
(6) Global shall submit to the City Manager, as part of its reporting
requirements pursuant to Section 6.3 hereof, monthly reports specifying all maintenance
work performed during such period, which reports shall be used and relied upon by the
City (through its Property Management Division or an independent consultant retained
by the City) as part of annual Facility maintenance inspections and reviews.
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(7) Global warrants and represents to the City that, prior to the
Commencement Date, Global has inspected each Facility and hereby accepts each
Facility "AS-IS, WHERE-IS and with ALL FAULTS."
(i) Rent, lease, or purchase all equipment and maintenance supplies
necessary for the operation and maintenance of the Facilities; provided that the City
shall be responsible for, with direction, cooperation and assistance of Global,
undertaking all Capital Improvements and Capital Equipment purchases as provided in
Section 5.8;
(j) Establish and adjust prices, rates, and rate schedules, for the
aforesaid licenses, agreements and contracts, and any other commitments relating to
the Facilities and to be negotiated by Global in the course of its management, operation,
maintenance, promotion and marketing of the Facilities. In determining such prices,
rates, and rate schedules, Global shall evaluate comparable charges for similar goods
and services at similar and/or competing facilities in order to establish a range of prices
and rates.
Global shall consult with the City Manager about any proposed
adjustments to the rate schedules at the Facilities. Global shall also consult with the
Advisory Board and the GMCVB on any Global-proposed adjustments to the rate
schedules at the Convention Center. The current rate schedules for the Convention
Center (including the Convention Center Rent Waiver/Discount Policy) and Colony are
attached as Exhibit "G" hereto. Notwithstanding the preceding sentence or anything
contained in this Agreement, any change in the rate schedules for any of the Facilities
shall be subject to the prior review and approval of the Mayor and City Commission, and
no proposed change shall be effective unless approved by the City Commission;
(k) Pay, when due, on behalf of the City, all Operating Expenses from
accounts established pursuant to Sections 5.6 and 5.7 hereof;
(1) After consultation with the City Manager and the City Attorney, and
subject to the prior written approval of the City Attorney, institute, as agent for the City,
and at the reasonable expense of the City, such legal actions or proceedings necessary
or appropriate in connection with the operation of the Facilities, including, without
limitation, to collect charges, rents or other revenues due to the City, or to cancel,
terminate or sue for damages under any license, agreement, commitment or contract,
for the breach thereof or default thereunder;
(m) Provide day-to-day administrative services in support of its
management activities consistent with such supervisory services as necessary to
ensure that the Facilities shall be operated in a first class manner and with standards
comparable to other first class facilities comparable to the Facilities including, without
limitation, the acquisition of services, equipment, supplies and facilities, internal
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budgeting and accounting, maintenance and property management, personnel
management, record-keeping, collections and billing, and similar services;
(n) Engage in such advertising, solicitation, and such other marketing
and promotional activities, as Global deems necessary to promote and market the
Facilities for, as to the Convention Center, conventions, trade shows, and other Events,
and, as to the Colony, public entertainment shows and other Events. Global shall work
with the GMCVB (as to the Convention Center), Facility users, and/or such City boards,
agencies, and committees as may be determined by the City Manager, in his sole
judgment and discretion, to market and promote the Facilities, and engage in all future
activities necessary to develop and maintain current and relevant strategic marketing
plans. Global also shall submit to the City, no later than October 1 of each Contract
Year, an update to the strategic five (5) year plan for marketing and promotion of each
Facility, as required in Section 6.4 hereof;
(o) Notwithstanding subsection (n) above, or any other provision of this
Agreement, Global shall not engage in the selling of sponsorships, advertising
inventory, product rights, or naming rights for the Facilities without the prior written
approval of the City Manager or (if required pursuant to the City Code) of the City
Commission. The City reserves all name-in-title rights (i.e. the right to name the
Facilities or portions thereof), and all revenues derived therefrom, to any and all exterior
portions of the Facilities including, without limitation, any sponsorship names and/or
rights in connection with such name-in-title rights. The City also reserves approval over
all name-in-title-rights to any and all interior portions of the Facilities including, without
limitation, any sponsorship names and/or rights in connection with such name-in-title
rights, and all revenues derived therefrom; except that revenues from interior naming
rights and/or sponsorship agreements negotiated by Global which (as provided in the
terms contained therein) are intended to be effective for a limited number of years (as
opposed to on an indefinite or permanent basis), which may or may not exceed the
Term , may be included by Global as Operating Revenues, but only as received, on a
year to year basis. Notwithstanding anything in this subsection (o), Global shall not be
precluded from allowing Event sponsors from using temporary banners and temporary
signage in the exterior and/or interior portions of the Facilities throughout the duration of
the Event, subject to the prior written approval of the City Manager. Notwithstanding
anything in this subsection (o) or in this Agreement, no sponsorships, advertising,
product rights, and/or naming rights negotiated by Global, and/or temporary banners or
temporary signage negotiated by Global for Event sponsors, shall include the names of
any company selling the following types of products ("Prohibited Names"): guns,
tobacco, or sexual products;
(p) Operate the Convention Center's telephone switch and
telecommunications services;
(q) As required by and provided in the City's standard form agreement
for each Facility, provide to the City Manager complementary tickets for each Event at a
Facility as follows:
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(i) Convention Center— a minimum of twenty—six (26) tickets; and
(ii) Colony— minimum of fourteen (14) tickets;
(r) Maintain ongoing relationships with various boards and committees
of the City, including, without limitation, the Advisory Board;
(s) Maintain on ongoing relationship with the GMCVB;
(t) Act as a collection agent for the City on sales taxes, and remit such
sales taxes to the State of Florida such;
(u) Immediately inform the City of any condition of which Global
becomes aware which Global believes impairs the structural soundness or sound
operating condition of a Facility. It is understood that the City will make its own
determination as to the structural soundness of a Facility, or any other defect that might
be noted by Global, and as to the necessity for repair. The City may, subject to
appropriation, make available funds necessary to correct such a condition, as, where, if,
and to the extent that the City deems any repair or correction is necessary; provided,
however, that to the extent that such a condition materially interferes with Global's
ability to manage the Facility, Global shall have the right to terminate the Agreement
pursuant to Section 12.2 hereof;
(v) Global shall have the right to act without consent of the City in
situations which Global determines to be an emergency with respect to the health,
safety, welfare, and protection of the general public, including spending or committing
funds held in a Facility account described in Section 5.6 hereof, even if such expenses
are not budgeted; provided, however, Global shall have no obligation under any
circumstance to spend or commit funds, other than funds then available in such Facility
account, for any such purpose. Immediately following such action, Global shall inform
the City Manager of the emergency situation and the action taken, and the City shall
pay Global, or deposit into such Facility account, the amount of funds, if any, spent or
committed by Global pursuant to this subsection (v), in excess of budgeted amounts.
(w) Global shall not sub-lease or license any portion of a Facility to
other than short-term users. Without limiting Global's and/or the City's rights to require
any and all necessary agreements and documentation from users of a Facility, Global
shall require that all users of the Facility provide certificates of insurance evidencing
appropriate insurance, as required by "Insurance Requirements for Users/Lessees of
the Facilities," attached as Exhibit "H" hereto. Copies of these certificates are to be
furnished to the City Manager. Such insurance is to be kept in force at all times by all
lessees, licensees, users, and concessionaires. All such liability policies shall name the
City of Miami Beach, Florida, and Global as additional insureds. Without limiting
Global's and/or the City's rights to require any and all necessary agreements and
documentation from users of a Facility, Global shall utilize the City's standard form
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agreements for the use, rental or occupancy of space in each Facility (as attached in
Exhibit "E" hereto).
2.4 [Intentionally Omitted]
2.5 Right of Entry Reserved.
Representatives of the City shall have the right, upon reasonable notice to
Global, to enter all portions of a Facility to inspect same; to observe the performance of
Global of its obligations under this Agreement; to install, remove, adjust, repair, replace
or otherwise handle any equipment, utility lines, or other matters in, on, or about the
Facilities; or to do any act or thing which the City may be obligated or have the right to
do under this Agreement or otherwise (i.e. acting in its proprietary and/or regulatory
capacity). The City shall not unreasonably interfere with the operations of Global
hereunder, and the City shall use reasonable commercial efforts to ensure that its
actions are conducted such that disruption of Global's operations shall be kept to a
minimum. Nothing contained in this Section is intended or shall be construed to limit
any other rights of the City under this Agreement. Nothing in this Section shall impose
or be construed to impose upon the City any independent obligation to construct,
maintain or make repairs, replacements, alterations, additions or improvements, or
create any independent liability for any failure to do so.
3. Term and Renewal Term.
3.1 Term.
The Term of this Agreement shall commence at 12:01 A.M. on October 1,
2013 (Commencement Date), and end at midnight on September 30, 2016, unless
earlier terminated pursuant to the provisions of this Agreement.
3.2 Renewal Term.
The City shall have the right, at its sole option and discretion, to extend
this Agreement for two (2) successive one (1) year terms (each, a "Renewal Term") by
giving written notice to Global of such intention not less than ninety (90) days prior to
the expiration of the Term or an exercised Renewal Term (as the case may be).
4. Global's Compensation.
4.1 Management Fee
(a) As consideration to Global for providing the services herein, the
City shall pay Global during the Term hereof, an annual management fee for the
performance of the services hereunder with respect to each Fiscal Year, in the amount
of $258,300 (the "Management Fee"). The Management Fee shall be adjusted upward
on the first day of each Fiscal Year during the Term hereof (other than the first Fiscal
Year ending September 30, 2009), by the percentage change in the Consumer Price
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Index — All Urban Consumers (CPI-U) — U.S. City Average — All Items, during the one
year period ending September 30, immediately preceding such Fiscal Year, as
published by the Bureau of Labor Statistics of the U.S. Department of Labor, or of any
revised or successor index hereafter published by the Bureau of Labor Statistics or
other agency of the United States Government succeeding to its functions ("CPI"), but in
no event exceeding three percent (3%) in any one Fiscal Year.
(b) The Management Fee will be allocated for each Facility as follows:
(i) Convention Center- $241,600; and
(ii) Colony - $16,700.
(c) The Management Fee shall be payable in equal monthly
installments due on or before the last day of each month during the Fiscal Year, and
Global shall be entitled to draw such amounts from the account described in Section
5.6.
(d) The Management Fee shall be subject to further upward
adjustment, as mutually agreed to by the parties, in the event the City elects to have
Global operate, manage, maintenance, market, and promote Additional Facilities, as
provided in Section 2.2(b) hereof.
4.2 Executive Compensation.
(a) Executive Compensation Amount. As part of the development of
each annual operating budget for a Fiscal Year pursuant to Section 5.3 hereof, the City
and Global agree to determine and set, in writing, the amounts of Executive Employee
Salaries for Executive Level Employees of Global and any Related Party of Global at
the Facilities to be paid in any such Fiscal Year, which amounts shall be binding against
the City and Global (the "Executive Compensation Amount"); provided that the
compensation amounts in subsequent Fiscal Years shall not exceed the amounts for
the immediately preceding Fiscal Year by more than ten (10%) percent.
The Executive Compensation Amount shall be paid to applicable Executive Level
Employees from the account described in Section 5.6 on the same basis as those of
other employees of Global at the Facilities are paid.
(b) Executive Employee Benefit/Bonus Amount. The Executive Level
Employees of Global and any Related Party of Global at the Facilities shall be entitled to
receive the Executive Employee Benefit/Bonus Amount, which Amount shall be paid or
shall accrue, as applicable, to the Executive Level Employees, on the same basis as
those of other employees of Global at the Facilities are paid or accrue. Under no
circumstances shall any portion of the Executive Employee Benefit/Bonus Amount be
based to any extent on the net profits of any Facility managed by Global pursuant to
this Agreement.
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4.3 Incentive Fee.
(a) Amount. In addition to the Management Fee, and provided Global has
met the criteria, as set forth in subsection (b) below, and subject further to Section 8.4
(b) hereof, Global shall be entitled to receive an annual incentive fee (Incentive Fee)
during the Term of the Agreement, in an amount equal to the product of (i) the
aggregate amount of the Management Fee for a Contract Year, and (ii) the Applicable
Percentage. The Applicable Percentage shall be defined as a percentage equal to the
sum of the percentage points which Global earns based on the criteria in Section 4.3
(b) below for such Contract Year; provided that in no event shall the Applicable
Percentage exceed 100%.
Promptly following the end of a Contract Year during the Term hereof, the City
Manager, shall assess and total the percentage points which the City Manager has
determined that Global has earned during the preceding Contract Year, based on the
criteria in Section 4.3(b) below. The City Manager shall provide Global with a written
report with respect thereto.
(b) Incentive Fee Criteria/Calculation.
1. Customer Satisfaction.
A. Customer Satisfaction. A total of up to thirty (30) percentage points
will be awarded subject to the following criteria:
(i) Survey Results. A total of up to twenty-five (25) percentage points will
be awarded based on the average survey score for each of the following ten (10)
departments (Global shall be awarded up to 2.5 points per department, for a total
possible score of 25):
- Sales
- Event Management
- Operations
- Food & Beverage
- IT/Telecommunications
- Audio Visual
- Valet Parking Services
- Business Center
- Visit Miami Beach
- Fire Inspector
If a department's average survey score is 93% or higher, Global shall be
awarded 2.5 points for such department (out of 25)
If a departments' average survey score is from 90% to 92.99%, Global shall
be awarded 1 point for such department (out of 25)
If a departments' average survey score is less than 90%, Global shall be
awarded 0 points for such department (out of 25)
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The survey shall be administered by an independent third party jointly
selected by the City, the GMCVB, and Global (the cost of which shall be an
Operating Expense).
(ii) Completion of evaluations by clients: A total of up to five (5) percentage
points will be awarded based upon the percentage of completed customer
satisfaction surveys (which survey form shall be subject to the prior written
approval of the City Manager) out of total potential surveys (of which there shall
be one per Event) received from all Events that use the Facilities as detailed
below:
70% completed 5 points
65% completed 3 points
55% completed 1 points
Less than 55% 0 points.
2. Financial Performance. A total of up to fifty (50) percentage points
will be awarded based upon the percentage of annual Operating Revenue
generated as detailed below:
$17,500,000 or more 50 points
17,250,000 to 17,499,999 35 points
17,000,000 to 17,249,999 25 points
16,999,999 or less 0 points
3. Maintenance and Improvement of Facility and its Capital
Equipment. A total of up to fifteen (15) percentage points will be awarded if
Global has met or exceeded the maintenance standards set forth in Section
2.3(h) and Exhibit F hereof (including, without limitation, the Comprehensive
Preventive Maintenance Program and maintenance of Capital Equipment, as
may be amended from time to time during the Term by the City). The City
Manager's evaluation pursuant to this subsection shall also, without limitation,
take into account the annual review by the City's Property Management Division
and/or a yearly review by an outside independent consultant retained by the City
Manager.
4. Discretionary. A total of up to 5 percentage points may be awarded,
as determined by the City Manager, in his sole and absolute discretion.
(c) Payment. The Incentive Fee shall be payable to Global within 120 days of
the end of a Fiscal Year. Global will thereupon be entitled to deduct the amount of such
Fee from the account described in Section 5.6 hereof; provided that, to the extent that
Global projects that such a deduction would leave insufficient funds in such account to
cover Operating Expenses for the remainder of the then-current fiscal quarter, Global
shall be entitled not to deduct all or a portion of such fee from such account, and, upon
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notice thereof from Global, the City shall promptly pay Global the amount of the Fee that
has not been deducted from such account.
4.4 Limitation. Notwithstanding anything to the contrary set forth herein, in no event
shall the sum of (i) the Incentive Fee, plus (ii) the Executive Employee Benefit/Bonus
Amount payable with respect to any Fiscal Year, exceed the sum of (x) the
Management Fee, plus (y) the Executive Compensation Amount payable with respect to
such Fiscal Year.
5. Funding; Budgets; Bank Accounts.
5.1 Operating Funds.
Subject to Section 5.2 hereof, following the approval of the annual
operating budget for a Fiscal Year (including, without limitation, any annual operating
budget applicable to the first Fiscal Year during the Term hereof), the City shall make
available to Global funds necessary to pay all Operating Expenses incurred or accrued
in such Fiscal Year. To the extent that Operating Revenues during a calendar month
are insufficient, , to cover Operating Expenses and with respect to the first quarter of a
Fiscal Year, the amount of the projected Incentive Fee payable pursuant to Section 4.3
hereof for the prior Fiscal Year ("Cash Flow Shortfall") for such period, the City shall
advance funds to Global as follows: Within thirty (30) days following the end of a
month, Global will submit to the City Manager, for his approval, a statement/invoice
summarizing the deficit or surplus in a Facility account (described in Section 5.6 hereof)
over the agreed upon imprest combined Facility account balance for the Convention
Center and Colony. Such imprest amount will be $500,000, and will represent the
combined balance of all Facility accounts (Convention Center and Colony) at the end of
each month. If, at the end of such month, the combined operating balance is greater
than $500,000, the surplus amount over $500,000 will be given back to the City in the
form of a check, accompanied by a statement/invoice with appropriate bank
reconciliations for both operating accounts as back up. If, at the end of such month, the
combined operating balance is less than $500,000, the deficit and the appropriate bank
reconciliations documenting such deficit will be invoiced to the City for payment.
5.2 Non-Funding.
(a) The City shall have no obligation to provide funds for the payment
of Operating Expenses incurred or committed for after the date Global receives written
notice (an "Appropriation Deficiency Notice") of the fact that insufficient funds or no
funds have been appropriated for a Facility or Facilities.
(b) If the Appropriation Deficiency Notice is of insufficient funds, the
City shall pay all Operating Expenses incurred or committed for after such date which
are within the aggregate level of appropriated funds specified in the Appropriation
Deficiency Notice. The City shall pay all Operating Expenses incurred or committed for
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I
prior to the date Global receives the Appropriation Deficiency Notice. Any failure by the
City to provide funds (beyond the aggregate level of appropriated funds) for the
payment of Operating Expenses incurred or committed for after Global receives an
Appropriation Deficiency Notice shall not be a breach of or default under this Agreement
by the City.
(c) If the City appropriates funds at (or reduces appropriated funds to)
a level that, in Global's reasonable business judgment and discretion, materially renders
its continued management of a Facility not economically viable for Global, Global may,
at its option, either (i) continue management of the Facility at the appropriated reduced
funding reduced level; or (ii) terminate this Agreement pursuant to Section 12.2 (a) (with
the effect set forth in Section 12.3).
5.3 Annual Budget, Cash Flow Budget.
(a) As part of the Annual Management Plan described in Section 6.2
hereof, on or before the date specified by the City Manager each year, , Global will
prepare an annual operating budget for each Facility for the next Fiscal Year to meet
the scope of services under this Agreement. Such budget shall contain appropriate line
items for revenues and expenses and the projected net operating deficit or surplus.
Each such budget shall be submitted together with details, including, without limitation,
salary ranges for each Fiscal Year, and the benefits package's to be offered to Global
employees and funded by the City as an Operating Expense.
(b) Global shall prepare and submit to the City Manager, prior to June
1St of each Fiscal Year, an annual cash flow budget for the succeeding Fiscal Year
9 9
based upon the approved operating budget for such Fiscal Year. The City shall transfer
to Global, on a monthly basis, those funds so approved and necessary for the
operation, management, maintenance, marketing, and promotion of each Facility
(including, without limitation, the Operating Expenses for such month), and Global shall
deposit such funds, together with Operating Revenues of the respective Facility
collected by Global, in that Facility's account.
(c) The annual budgets referred to in Sections 5.3 (a) and (b) hereof
shall be reviewed by, and are subject to the approval of, the City Manager, and the
Mayor and the City Commission, respectively. Global recognizes that the City is a
municipal corporation created pursuant to the laws of the State of Florida and is bound
by general and special laws pertaining to its budget process and the appropriation and
expenditure of funds. Therefore, Global shall participate in the City's budget process,
including, without limitation, an administrative review, a review by the City's Budget
Advisory Committee, City Commission review, and review and comment by citizens at
two(2) public hearings in the month of September, prior to approval of any proposed
Facility operating budget. During the Term of this Agreement, the City Manager shall
notify Global of any changes to the annual operating budget and the cash flow funding
budget of a Facility for the succeeding Fiscal Year, proposed by Global (and with such
changes, if any, as are made by the City prior to October 1St of each Fiscal Year). Such
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budgets shall be the Approved Budgets for the following Fiscal Year; provided that if the
annual operating budget or the annual cash flow budget of a Facility, as proposed by
Global, is modified or reduced by the City in a manner which, in Global's reasonable
business judgment and discretion, would materially impair Global's ability to manage the
Facility, then Global shall have the right to terminate this Agreement pursuant to Section
12.2 (a) (with the effect set forth in Section 12.3).
(d) The parties acknowledge that, prior to the Commencement Date of
this Agreement, Global has provided to the City a proposed Operating Budget for the
first Fiscal Year. Such proposed budget shall be treated in the same manner and
create the same rights as obtained following the submission of annual budgets as
described in Section 5.3(c) hereof, including the approval rights set forth in such
section. Once approved, such budget (with such changes as are made to such budget
through the approval process) shall become the Operating Budget for the first Fiscal
Year.
5.4 Budget Modifications Initiated by Global.
Global may submit to the City Manager, for review and approval by the
City Manager and the Mayor and the City Commission, respectively, at any time prior to
the close of a Fiscal Year, a supplemental or revised annual operating budget or cash
flow budget for such Fiscal Year. Upon the approval of the City Manager and the Mayor
and the City Commission of such supplemental or revised budget, the Approved Budget
for such Fiscal Year shall be deemed amended to incorporate such supplemental or
revised budget. The Approved Budget may only be amended as set forth in Sections
5.3 (e) and 5.5 hereof, or in the two preceding sentences, except that Global shall have
the right to amend the Approved Budget as may be necessary or appropriate as the
result of the scheduling by Global of additional Events at a Facility (and the incurrence
of additional Operating Expenses arising from the scheduling of additional Events at
that Facility) as long as, prior to the scheduling of such Event(s), Global has a
reasonable expectation that the projected Net Operating Loss for the Fiscal Year, as set
forth in the Approved Budget, would not be increased, or that the Net Operating Profit
for the Fiscal Year, as set forth in the Approved Budgets, would not be decreased, as a
result of such additional Event(s).
5.5 Budget Modifications Initiated by the City.
In the event that it appears reasonably likely, in any Fiscal Year during the
Term hereof, that the actual Net Operating Loss for such Fiscal Year will be larger than
projected in the annual operating budget for such Fiscal Year, or that the actual Net
Operating Profit for such Fiscal Year will be less than projected in the annual operating
budget for such Fiscal Year, the City Manager may request from Global a plan for
reduction of Operating Expenses to a level consistent with the budgeted Net Operating
Loss/Profit amounts. Global shall forthwith comply with any such expense reduction
requested by the City Manager, and the Approved Budget for such Fiscal Year shall be
modified accordingly; provided that if the annual operating budget or annual cash flow
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budget is modified in a manner which, in Global's reasonable business judgment and
discretion, would materially impair Global's ability to manage the Facility, Global shall
have the right to terminate this Agreement pursuant to Section 12.2(a) (with the effect
set forth in Section 12.3), and provided further that Global shall not be construed to
have breached its obligations under this Agreement if such alleged breach has been
caused by the limitations in the Fiscal Year's budget.
5.6 Receipts and Disbursements.
Global shall establish and maintain, in one or more depositories of a
banking institution in Miami Beach designated by the City Manager, one or more
operating bank accounts for each Facility, in the name of the City, with Global as agent,
and with signature authority in such employees of Global as Global shall determine. All
revenues collected by Global from the operation of a respective Facility shall be
deposited into such accounts and Operating Expenses (other than Operating Expenses
to be paid from an account described in Section 5.7 hereof) shall be paid by Global as
agent for the City from such accounts. All revenues collected by Global arising from
operation of a Facility, including, without limitation, revenues from box office sales,
Facility or equipment rentals, utility rental agreements, food and beverage concessions,
or any other source, are the sole property of the City (except for box office sale
revenues from third party Events, which are not deemed property of the City), held in
trust by Global for the City for application as provided herein. Any amounts remaining in
such accounts upon termination of this Agreement (for any reason), after payment of all
outstanding Operating Expenses, shall be promptly paid by Global to the City.
5.7 Ticket Sales Revenues.
Global shall establish, maintain, and hold, for each Facility, in a separate
interest-bearing account in a depository of a banking institution in Miami Beach
designated by the City Manager, any ticket sale revenues which it receives with respect
to an Event to be held at the Facility, pending the completion of the Event. Such
monies are to be held for the protection of ticket purchasers, the City and Global, and to
provide a source of funds, as required for payments to performers and promoters and
for payments of Operating Expenses in connection with the presentation of the Events,
as may be required to be paid contemporaneously with the Event. Following the
satisfactory completion of the Event, Global shall make a deposit into the operating
account(s) established pursuant to Section 5.6 hereof of the amount in such account,
and shall pay from the operating account Event Expenses and provide the City with a
full Event settlement report. Interest which accrues on amounts deposited in the
operating account(s) referred to in Section 5.6 hereof, and the ticket account referred to
herein, shall be considered Operating Revenues. Bank service charges, if any, on such
account(s) shall be considered Operating Expenses. Upon receipt thereof from the
depository bank, Global shall promptly submit to the City, copies of all bank statements
concerning the account(s) established by Global pursuant to Section 5.6 hereof and the
ticket account referred to herein.
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5.8 Capital Improvements; Capital Equipment.
The obligation to pay for, and authority to perform, direct and supervise, Capital
Improvements and Capital Equipment purchases shall remain with the City (except for
Global's obligation to pay the Capital Contribution in Section 5.10 hereof), and will not
be considered Operating Expenses. The Annual Management Plan submitted pursuant
to Section 6.2 hereof shall include Global's recommendation for Capital Improvements
and Capital Equipment purchases to be accomplished during the year and shall be
accompanied by an estimate of the cost of all such items and projects and a request
that the City budget funds therefore. Notwithstanding the preceding or anything
contained in this Agreement, the City shall retain the sole discretion and authority to
determine whether, and to what level, to fund Capital Improvements and Capital
Equipment purchases for a Facility.
Notwithstanding the preceding paragraph or anything contained in this
Agreement, Global shall, at the request of the City Manager, pro-actively participate, at
a corporate level, and including.the general manager, with (and/or, where requested, on
behalf of) the City in future discussions relating to any proposed long term expansion
and/or improvements for the Convention Center.
5.9 Limitation of Global Liability.
Notwithstanding any provision herein to the contrary, and except for
Global's express indemnification undertakings in Section 8.1 hereof, its express
reimbursement undertakings in Section 6.1(b), and the Global Capital Contribution and
scholarship fund contribution in Section 5.10, Global shall have no obligation to fund
any cost, expense or liability with respect to the operation, management, marketing, and
promotion of the Facilities. Furthermore, the parties agree that Global's obligations
under this Agreement are subject in all respects to the limitations of the City approved
Operating and Capital Budgets, and are contingent upon and subject to the City making
i available, in a timely fashion, the funds budgeted for and/or reasonably required by
Global to carry out such obligations during the Term. Furthermore, Global shall have no
liability with respect to the failure of the terms of this Agreement to comply with the
Code or the Treasury Regulations. Notwithstanding the preceding sentence, nothing in
this Section 5.9 shall be deemed to waive any liability that Global may have as a result
of any act, omission, or failure to perform by Global under this Agreement, which results
in non-compliance with the Code or the Treasury Regulations.
5.10 Global Capital Contribution/Scholarship Contribution/Public Benefits/Green
Initiatives.
(a) Within thirty (30) days of execution of the Agreement by the parties,
Global shall pay to the City the sum of Two Hundred Thousand Dollars ($200,000) (the
Capital Contribution), which sum shall be used at the sole discretion of the City.
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(b) Amortization of the Global Capital Contribution. The amount of the
Capital Contribution shall be amortized on a straight-line, non-cash basis over a period
of sixty (60) months, commencing on the Commencement Date (the Amortization
Period). In the event of expiration or termination of this Agreement prior to completion
of the Amortization Period, the City shall pay to Global, upon such expiration or
termination, the un-amortized portion of the Capital Contribution.
(c) Scholarships. Global shall contribute Fifteen Thousand Dollars
($15,000) annually during the Term hereof toward the establishment of a scholarship
fund for qualifying in-need Miami Beach residents pursuing a career in facility
management and/or the hospitality and tourism industry (the Scholarship Contribution).
Said fund will be administered by the City and applicants will be reviewed and
recommended by Global. Payment of the Scholarship Contribution shall be made, as to
the first payment, within thirty (30) days of execution of the Agreement by the parties
and, as to subsequent payments, within thirty (30) days of the commencement of each
Contract Year during the Term hereof.
(d) Other Public Benefit(s) to be Provided by Global/"Senior Dances".
(1) Global shall produce a minimum of four (4) dances each Contract
Year during the Term hereof targeted to City of Miami Beach senior citizens (a "Senior
Dance" or the "Senior Dances").
A. Senior Dances shall be considered a City Use pursuant to
Section 13.1(a), except that, additionally the City shall not be
responsible for any direct out-of-pocket (or other) expenses
incurred in connection with these events; provided, however, Global
shall not be charged any expense for utilities in connection with
these events.
(2) Senior Dances shall be free and open to the public.
(3) Global shall provide all staffing for the Dances.
(4) Each Senior Dance shall be counted as a Use Day.
(5) Global shall have the ability to secure sponsors or other revenue
generating activities or events which would be considered Operating Revenue; provided
that such activities and/or events are ancillary to, related to, and/or otherwise
compliment the Senior Dances (i.e. senior lifestyle exhibits, health and fitness expo,
etc.),.
(e) Green Initiatives.
(1) Global shall implement the "Use of Green" cleaning chemicals.
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(2) Global shall replace paper products with products manufactured from
recycled waste.
(3) Global shall maintain a full recycling program including paper,
cardboard, glass, cans, and plastics.
(4) Global shall work with the food and beverage provider on using bio-
degradable food and beverage products and reuse of cooking oils.
(5) Global shall establish strategic marketing relationship(s) with energy
provider(s) to reduce energy costs at the Facilities, in return for advertising and
marketing consideration.
(6) Global shall maintain its "Step-Up" Program.
(f) If requested by the City, Global agrees to participate, at a corporate
level, including the Convention Center's General Manager, in discussions with the City
relating to the City's proposed expansion and renovation of the Convention Center.
6. Records, Audits and Reports.
6.1 Records and Audits.
(a) Global shall keep full and accurate accounting records relating to its
activities at the Facilities, in accordance with generally accepted accounting principles.
Global shall maintain a system of bookkeeping adequate for its operations hereunder.
Global shall give the City's authorized representatives access to such books and
records, all of which will be maintained at the Convention Center, during reasonable
business hours and upon reasonable advance notice. Global shall keep and preserve
for at least three (3) years following each Fiscal Year, or for as long as such records are
required to be retained pursuant to Florida Public Records Law (whichever is longer), all
sales slips, rental and/or other use agreements, purchase orders, sales books, credit
card invoices, bank books or duplicate deposit slips, and other evidence of Operating
Revenues and Operating Expenses for such period. In addition, on or before October
31St following each Fiscal Year during the Term hereof, and as required by the City
pursuant to its annual financial audit(s) of the Facilities, Global shall furnish to the City
unaudited financial statements, including a balance sheet, a statement of profit and
loss, and a statement of cash flow, for each Facility, for the preceding Fiscal Year,
prepared in accordance with generally accepted accounting principles. The City shall
thereafter cause such statements to be audited by, or on behalf of, the City, which audit
shall contain an opinion expressed by the independent auditor of the accuracy of the
financial records kept by Global and of amounts due to the City. The audit shall also
provide a certification of Operating Revenues and Operating Expenses for such Fiscal
Year. The City audit shall be conducted by a reputable firm selected by the City.
Notwithstanding anything to the contrary herein, the cost of such audit shall be deemed
an Operating Expense.
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(b) Notwithstanding subsection (a) above, the City Manager shall have
the right, at any time (and from time to time), to cause nationally recognized
independent auditors to audit all of the books of Global relating to Operating Revenues
and Operating Expenses, including, without limitation, cash register tapes, credit card
invoices, duplicate deposit tapes, and invoices. The costs incurred by the City in
conducting such audit shall be for the City's account and shall not be considered an
Operating Expense, except as otherwise provided in the remainder of this paragraph. If
any such audit demonstrates that the Operating Revenues or Operating Expenses
reflected in any financial statements prepared by Global and audited as specified in
subsection (a) above, are understated (in the case of Operating Expenses) or
overstated (in the case of Operating Revenues), in either case by more than five
percent (5%), Global shall promptly pay to the City the reasonable cost of such audit
and shall promptly refund to the City any portion which is attributable to the
overstatement or understatement, or both, as the case may be. The City specifically
reserves the right to withhold or delay any funds to Global if the previous audited
findings have not been satisfactorily resolved.
6.2 Annual Management Plan.
(a) Global shall provide to the City, on or before June 1 of each Fiscal
Year during the Term hereof, an Annual Management Plan addressing each Facility,
which shall include, without limitation, the annual operating budget (described in Section
5.3 hereof) for the next Fiscal Year, information regarding Global's anticipated
operations for such Fiscal Year, including revenue projections, planned operating
maintenance activities by Global, requested Capital Improvements and Capital
Equipment purchases (and an anticipated budget therefore), anticipated Events,
anticipated sales, marketing and promotional activities; planned equipment and
furnishings purchases; and an updated inventory of all Capital Equipment (including,
without limitation, furniture, fixtures and equipment) at each Facility.
The Annual Plan shall be subject to review, comment, and approval by the
City Manager. Global shall have thirty (30) days from receipt of the revised Plan from
the City to incorporate the City's comments into the Plan. Upon approval by the City
Manager of the final Plan, such Annual Management Plan shall constitute the operating
program for Global for the following Fiscal Year.
6.3 Reports.
(a) By the twenty-fifth day of each month during the Term hereof,
Global shall provide to the City a written monthly report, in a form approved by the City
Manager (which form may be similar to that used in other Global-managed facilities),
setting forth each Facility's anticipated activities and financial condition for the upcoming
month, and reporting on the prior month's activities and finances. Such monthly report
shall include, without limitation:
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(i) A balance sheet, aging report on accounts receivable, and
statement of revenues and expenditures (budget to actual) for such month, and year to
date, in accordance with generally accepted accounting principles. Such records and
reports shall also include a comparison of Operating Revenues and Operating
Expenses for the corresponding months in the prior two (2) Fiscal Years;
(ii) Summary of Events held and future bookings scheduled for
such month, and separate cash receipts and disbursements reports for each Event held
at a Facility during such month. In addition, a summary of all exit conferences for
Events at the Convention Center, and House Manager reports following each Event at
the Colony ; completed customer satisfaction surveys; and sales and marketing reports,
and any updates thereto, as also required pursuant to the Marketing and Promotion
Plan in Section 6.4 hereof. A copy of the portion of the monthly report pertaining to the
Convention Center also shall be provided to the Advisory Board.
(iii) A report specifying all maintenance work performed at each
Facility during such period including, without limitation, with respect to the
Comprehensive Preventive Maintenance Program and the maintenance of Capital
Equipment, in accordance with the Minimum Operating and Maintenance Standards
(attached hereto as Exhibit "F"). A copy of the portion of the monthly report pertaining
to the Convention Center shall also be provided to the Advisory Board.
(iv) A listing of any incentives given, or fees waived, by Event,
at each Facility; and
(v) Disclosure of any third party commissions (whether paid or
exchanged for in-kind services) and report of any trades and/or barters.
(b) Quarterly status reports as to the Convention Center food and
beverage concessionaire's performance under its agreement with the City.
(c) On or before June 1st of each Fiscal Year during the Term hereof,
Global shall provide, or cause to be provided, to the City, as part of its Annual
Management Plan required pursuant to Section 6.2 hereof, an inventory of Capital
Equipment for each Facility.
(d) Upon receipt thereof from the depository bank(s) described in
Sections 5.6 and 5.7 hereof, Global shall provide, or cause to be provided, to the City
(on a monthly basis), copies of all bank statements concerning (respectively) a Facility
operating account and the ticket sale revenues account.
6.4 Five Year Marketing/Promotion Plan.
(a) On or before January 1, 2014, Global shall submit, for review, comment,
and approval by the City Manager, a strategic Five (5) Year Marketing and Promotion
Plan that individually addresses each Facility's marketing and promotional strategy.
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An update of the Marketing and Promotion Plan shall be submitted to the City
annually on October 1 St of each Contract Year.
Global will collaborate with the City on the development of (and all updates to)
the Marketing and Promotion Plan, and shall solicit comments from the City Manager,
as well as the Advisory Board and the GMCVB (as to the portion of the Plan addressing
the Convention Center), and such other agencies, boards and committees as the City
Manager may deem necessary, in his sole discretion and judgment.
(b) The Marketing and Promotion Plan shall address, in detail, Global's
approaches, efforts, and timelines for accomplishing the following marketing and
promotional obligations (as part of Global's comprehensive approach to marketing the
Facilities):
1) Global to provide continuously during the Term hereof, an in-house
ad-agency capability to place Event-related advertising.
2) Global to provide a report on sales and marketing efforts, as
provided for in Section 6.3.
3) Global to develop an advertising buy program that will offer
preferred (discount) pricing for each Facility's users on select
Comcast services including, without limitation:
A. In-market ROS advertising on Comcast channels;
B. On Demand;
C. Comcast.net; and
D. Cross-channel marketing opportunities.
4) Global to provide assistance in obtaining discount pricing for
advertising buys for the City and Facility users in out-of-market
Comcast service areas.
5) Global to secure CNN Headline News Comcast - "Newsmakers" for
Facilities including, without limitation:
A. A minimum of four (4) "Newsmaker" shows per
Contract Year during the Term hereof. Each
"Newsmaker" show shall consist of a five (5) minute
interview format of approximately 21 airings during a
one-week period (42 total times per month) on CNN
Headline News; and
B. Segments provided to the Convention Center, to be
used by the City and Convention Center users.
C. Best efforts to secure additional Newsmaker show
opportunities.
6) Global to secure Comcast Bill Envelope Messaging including,
without limitation:
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A. A minimum of two (2) times per Contract Year, the
City or Convention Center users shall be provided
with the ability to send messaging to Comcast
subscribers in Miami-Dade, Broward and Monroe
Counties on the monthly Comcast Bill Envelope
(900,000 bills per month); and
B. Best efforts to secure additional Comcast Bill
Envelope Messaging opportunities.
7) Global to secure Comcast Bill Messaging including, without
limitation:
A. A minimum of four (4) times per Contract Year, the
City or Convention Center users will be provided the
ability to send messaging to Comcast subscribers in
Miami-Dade, Broward and Monroe Counties on the
monthly Comcast Bill (900,000 bills per month); and
B. Best efforts to secure additional Comcast Bill
Messaging opportunities.
6.5 Special Reports.
Global shall prepare special reports from time to time, at the request of the City
Manager, to the extent that such reports shall cover subject matter which is/are within
the normal scope of Global's services under this Agreement.
7. Employees.
7.1 Global Employ
(a) Global shall select, hire, train, and employ such number of
employees as Global deems necessary or appropriate to satisfy its responsibilities
under this Agreement. Global shall use its best efforts to recruit employees who will be
proficient, productive, and courteous to patrons consistent with standards employed at
comparable first class facilities. Global shall have authority to hire, terminate and
discipline any and all such personnel working at the Facilities.
(b) General Manager. Global shall assign a competent, full-time
general manager to oversee Global's responsibilities under this Agreement, who shall
be based at the Convention Center. As of the Commencement Date, the general
manager shall be Bob Balsam. Prior to Global's appointment of any replacement
general manager, Global shall consult with the City Manager with respect to the
qualifications of any proposed candidate(s). The City Manager shall have prior written
approval of any replacement general manager hired by Global (prior to Global finalizing
any such hiring).
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(c) Neither the general manager nor any and all other Global
employees (whether based at the Facilities or not) shall, for any purpose, be considered
to be employees of the City, and Global shall be solely responsible for their supervision
and daily direction and control, and for setting and paying (as an Operating Expense)
their compensation, federal income tax withholding, and any employee benefits.
8. Indemnification and Insurance.
8.1 Indemnification.
(a) Global shall indemnify, hold harmless and defend the City, its
officers, agents, servants, and employees, from and against any claim, demand or
cause of action of whatsoever kind or nature arising out of error, omission or negligent
act of Global, its officers, agents, servants or employees, in the performance of services
under this Agreement.
(b) In addition, Global shall indemnify, hold harmless and defend the
City, its officers, agents, servants and employees, from and against any claim, demand
or cause of action of whatsoever kind or nature arising out of any misconduct of Global,
its officers, agents, servants or employees, not included in subsection (a) above and for
which the City, its officers, agents, servants or employees, are alleged to be liable.
(c) The indemnification provisions of this subsection 8.1 shall survive
termination and/or expiration of this Agreement.
8.2 Liability Insurance.
(a) For each Facility covered under this Agreement, Global shall
secure and deliver to the City Manager on or before the Commencement Date, and
shall keep in force at all times during the Term of this Agreement, a commercial liability
insurance policy, including public liability and property damage, covering the premises
and the operations thereunder, in the amount of One Million Dollars ($1,000,000.00) for
bodily injury, and One Million Dollars ($1,000,000.00) for property damage, including
products and completed operations and independent contractors. Global shall also
maintain Umbrella liability insurance with a limit of Five Million Dollars ($5,000,000).
(b) Global shall also maintain comprehensive automotive bodily injury
and property damage insurance for business use covering all vehicles operated by
Global, and/or its officers, agents, and employees, in connection with the Facilities,
whether owned by Global, the City, or otherwise, with a combined single limit of not less
than One Million Dollars ($1,000,000.00) per occurrence (including an extension of
hired and non-owned coverage).
(c) On or before the Commencement Date, and continuing thereafter
during the Term hereof, Global shall also maintain:
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(i) professional liability insurance with coverage of at least One
Million Dollars $1,000,000.00) for claims of negligent errors, acts or omissions by
Global;
(ii) employment practices liability insurance with coverage of at
least One Million Dollars $1,000,000.00) for claims relating to the employment practices
of Global at the Facilities pertaining to its employees;
(iii) contingent liquor liability insurance, in the amount of One
Million Dollars ($1,000,000.00); and
(iv) personal advertising liability insurance, in the amount of One
Million Dollars ($1,000,000.00).
(d) Global shall be the named insured under all such insurance
policies. The City of Miami Beach, Florida shall be an additional insured under the
insurance policies described in Sections 8.2(a) and (b) hereof, as its interests may
appear. All of the insurance policies described in this Section 8.2 shall contain a
provision affirming Global's indemnification obligations under Section 8.1 hereof.
(e) Certificates evidencing the existence of the above insurance
policies, all in such form as the City Manager may reasonably require, shall be delivered
to the City Manager on or before the Commencement Date.
(f) Notwithstanding the provisions of this Section 8.2, the parties
hereto acknowledge that the above insurance policies may contain exclusions from
coverage which are reasonable and customs for policies of such type.
9 customary P yp
(g) Each such insurance policy or certificate shall contain a valid
provision or endorsement stating, "This policy will not be canceled or materially changed
or altered without first giving thirty (30) days' written notice thereof to the City Manager,
1700 Convention Center Drive, Miami Beach, FL 33139, sent by certified mail, return
receipt requested."
(h) A renewal binder of coverage (or satisfactory evidence of such
renewal) shall be delivered to the City Manager at least twenty (20) days after an
insurance policy's expiration date except for any policy expiring on the termination date
of this Agreement or thereafter.
(i) Except as provided in Sections 8.5(b) and 8.6 hereof, all insurance
procured by Global in accordance with the requirements of this Agreement shall be
primary over any insurance carried by the City and not require contribution by the City.
8.3 Workers Compensation Insurance.
Global shall at all times during the Term hereof maintain worker's
compensation insurance (including occupational disease hazards) with an authorized
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insurance company, through the Florida State Compensation Insurance Fund, or
through an authorized self-insurance plan approved by the State of Florida, insuring its
employees at the Facilities in amounts equal to or greater than required under law.
8.4 Crime Insurance and Performance Guarantees.
(a) Crime Insurance. Global shall provide to the City, during the Term
of this Agreement, crime insurance coverage covering all of Global's employees under
this Agreement, in the amount of Five Hundred Thousand Dollars ($500,000.00) for
each loss, to reimburse the City for losses experienced due to the dishonest acts of
Global's employees.
(b) For any Contract Year in which (a) a Net Operating Profit is projected
in the Approved Budget, if the actual Net Operating Profit achieved for
such year is more than $50,000 less than the Net Operating Profit
projected in such Approved Budget; or (b) a Net Operating Loss is
projected in the Approved Budget, if the actual Net Operating Loss
achieved for such year is more than $50,000 greater than the Net
Operating Loss projected in the Approved Budget, then the Incentive Fee
earned by Global for such Contract Year shall be reduced by fifty cents
($.50) for every dollar of Shortfall, up to the Cap. For purposes of this
subsection, "Shortfall", with respect to any Contract Year, shall mean
either (i) if the Approved Budget reflects a projected Net Operating Profit,
the amount by which the Net Operating Profit projected in the Approved
Budget, less $50,000, exceeds the actual Net Operating Profit in such
year; or (ii) if the Approved Budget reflects a projected Net Operating
Loss, the amount by which the actual Net Operating Loss projected in the
Approved Budget, plus an additional $50,000 of Net Operating Loss,
exceeds the actual Net Operating Loss in such year. The "Cap" shall
0
mean fifty percent (50%) of the Incentive Fee actually earned by Global in
the applicable Contract Year. Notwithstanding the foregoing, the Incentive
Fee shall not be reduced to the extent Global's failure to achieve the
applicable benchmark is due to reasons outside Global's reasonable
control, such as a Force Majeure (as defined in Section 13.5 hereof)
affecting the Facility, or new operating or maintenance requirements
imposed by the City after finalization of the Approved Budget.
8.5 Property Insurance.
(a) The City shall, subject to Section 5.2 hereof, maintain its current
property and hazard insurance covering the premises of each Facility and the City's
personal property located thereon. In addition, the City shall, with respect to the losses
covered by such property and hazard insurance , waive any subrogation rights that it
may have against Global, and its officers, employees and agents, whether or not the
City self-insures for the losses covered by such insurance. Nothing in this Agreement is
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intended to require Global to maintain property and hazard insurance covering the
premises at the Facilities or the City's personal property thereon.
(b) The original or a certified copies of the policies referred to in
Section 8.5(a) (with all required policy endorsements), plus certificates evidencing the
existence thereof, shall be delivered to Global on or prior to the Commencement Date.
Notwithstanding the provisions of Section 8.5(a), the parties hereto acknowledge that
the above policies may contain exclusions from coverage which are reasonable and
customary for policies of such type. Each such policy or certificate shall contain a valid
provision or endorsement stating, "This policy will not be canceled or materially changed
or altered without first giving thirty (30) days' written notice thereof to "Global Spectrum,
L.P., Risk Management Director, 3601 South Broad Street, Philadelphia, PA, 19148,
sent by certified mail, return receipt requested."
(c) A renewal binder of coverage (or satisfactory evidence of such
renewal) shall be delivered to Global at least twenty (20) days after a policy's expiration
date, except for any policy expiring on the termination date of this Agreement or
thereafter.
8.6 Certain Other Insurance.
If any of the City Agreements consist of agreements with independent
contractors to provide services at a Facility (or at the Facilities), in renewing any such
City Agreement, the City Manager shall use reasonable efforts to cause such
contractors to name Global as an additional insured under any insurance maintained by
such contractors pursuant to the terms of such City Agreements and, in such event, to
deliver to Global promptly after request therefore a certified copy of such policy and a
certificate evidencing the existence thereof. In addition, if Global enters into any
agreements during the Term of this Agreement with any independent contractors for the
provision of services at a Facility (or at the Facilities), Global shall have the right to
reasonably require such contractors to name Global (in addition to naming the City of
Miami Beach, Florida) as an additional insured under any insurance required by Global
thereunder and to deliver to Global, prior to the performance of such services, a certified
copy of such policy, and a certificate evidencing the existence thereof.
9. Ownership of Assets.
9.1 Ownership.
The ownership of buildings and real estate, technical and office equipment
and facilities, furniture, displays, fixtures, vehicles and similar tangible property located
at each Facility shall remain with the City. Ownership of and title to 'all intellectual
property rights of whatsoever value, held in the City's name, shall remain in the name of
the City. The ownership of consumable assets (such as office supplies and cleaning
materials) purchased with Operating Revenues or City funds shall remain with the City,
but such assets may be utilized and consumed by Global in its performance of services
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under this Agreement. The ownership of data processing programs and software
owned by the City shall remain with the City, and the ownership of data processing
programs and software owned by Global shall remain with Global. Global shall not take
or use, for its own purposes, customer or exhibitor lists or similar materials developed
by, or on behalf of, the City for the use of the Facilities, unless prior written consent is
granted by the City Manager. Ownership of equipment, furnishings, materials, or
fixtures not considered to be real property and other personal property purchased by
Global with City funds for use at (and for) a Facility, shall vest in the City automatically
and immediately upon purchase or acquisition. Any assets of the City including, without
limitation, those described herein, shall not be pledged, liened, encumbered or
otherwise alienated or assigned.
9.2 City Obligations.
(a) Throughout the Term of this Agreement, the City will maintain full
beneficial use and ownership of the Facilities and will pay, keep, observe and perform
all payments, terms, covenants, conditions and obligations under any bonds,
debentures or other security agreements or contracts, relating to a respective Facility, to
which the City may be bound.
(b) The City shall provide Global with necessary office space at the
Convention Center and such furniture, fixtures, and equipment as is available as of the
Commencement Date in that Facility.
(c) The City shall provide Global with unrestricted egress and ingress
to each Facility and shall make available to Global, at no cost, parking spaces adjacent
to the Convention Center, or located on City property in the immediate environs.
10. Assignment; Affiliates.
10.1 Assignment.
10.2 Neither this Agreement nor any of the rights or obligations hereunder may be
assigned by either party hereto without the prior written consent of the other party
hereto. For purposes of this subsection 10.1, the City's consent shall be defined as
requiring the consent of the Mayor and City Commission.
10.3 Global Affiliates.
(a) Transactions with Affiliates, Subsidiaries, Parent Company, or
Sister Companies. In connection with its management responsibilities hereunder
relating to the purchase and/or procurement of equipment, materials, supplies,
inventories, and/or services for a Facility, Global shall have the right, but not the
obligation, to purchase and/or,procure from an Affiliate, subsidiary, parent company, or
sister company of Global. In the event Global purchases and/or procures from an
Affiliate, subsidiary, parent company, or sister company of Global, the City Manager's
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prior written approval must be obtained. In determining whether to grant his consent or
not, the City Manager may, at a minimum, require that the prices charged for such
goods and/or services be competitive with those obtainable from others providing
comparable goods and/or rendering comparable services. To ensure compliance in this
respect, the City Manager may require Global to obtain at least two (2) other
competitive bids from persons (other than an Affiliate, subsidiaries, parent company, or
sister companies of Global) whenever Global proposes to transact business with an
Affiliate, subsidiary, parent company, or sister company for the provision of goods
and/or services hereunder.
(b) Conflicts of Interest. The City acknowledges that Global manages
other public assembly facilities which may, from time to time, be in competition with a
Facility or the Facilities. The management of competing facilities will not, in and of itself,
be deemed a conflict of interest or breach of Global's duties hereunder; provided,
however, in all instances in which a Facility is in competition with other public assembly
facilities managed by Global for the solicitation of certain events, Global shall not
involve its corporate or regional offices on behalf of any such other facility in an attempt
to influence the decision-making process regarding the selection of a site by such
events.
The primary purpose of this Agreement is for the management, operation, promotion
and marketing of the Facilities. Global shall not use and/or otherwise exploit the logo,
trademark, identity, and overall "brand" of the Facilities and/or of the City of Miami
Beach, without the prior written consent of the City Manager. This shall include, without
limitation, the use of the Convention Center, Colony, and/or any City logo, trademark,
identity, and/or "brand."
(c) Messe Schweiz (M.S.) Participation and Obligations.
1. M.S. required to actively participate in Agreement. "Active
participation" shall be defined as and, at a minimum, shall include:
a) Provide Global with on-going advice, as requested,
regarding the management, marketing and operation of the
Convention Center;
b) Participation by M.S. on a Convention Center user
group;
C) Continued cooperation by M.S. in providing
international sales and referrals of interested
European/International show producers to Global during the Term;
d) Continue to explore the possibility of producing
additional M.S. shows at the Convention Center subject to date
availability and commercial viability as determined solely by Global
and M.S.) M.S. shall be responsible for its air fare and any other
travel costs for travel to Miami Beach related to its participation in
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this Agreement, as set forth herein, and any and all such costs shall
not be considered as Operating Expenses.
2. City shall have principal oversight, supervision, and control
over certain M.S. activities at the Facilities as follows:
(a) City shall have primary and final
oversight/review/approval of any proposed business terms,
including without limitation, Convention Center (and/or any of the
other Facilities) lease terms and/or any and all other incentives
and/or City proposals, commitments, initiations, etc., related to Art
Basel Miami Beach.
(b) Same provisions in subsection (a) above would apply
to new M.S. owned shows or events and/or any shows or events
(including international shows) brought to the City by M.S.
(c) M.S. shall be required to submit any proposed
business and/or other terms for proposed M.S. owned and/or new
(including international) shows or events to City Manager, for his
prior approval of said business and other terms, prior to any such
deal being made (provided City Manager shall not veto any shows
or events .based on show/event content or theme, and that City
Manager review is limited to business terms).
3. No City Compensation to M.S.: It is understood the City is
not entering into an Agreement with M.S. All compensation to M.S.
(if any) shall be made by Global from the Management Fee. MS is
not entitled to sales commissions.
11. Laws and Permits.
11.1 Permits, Licenses, Taxes and Liens.
Global shall be solely responsible for procuring any permits and licenses
required for the business to be conducted by it hereunder. The City shall reasonably
cooperate with Global in applying for such permits and licenses. Global shall deliver
copies of all such permits and licenses to the City Manager. Global shall promptly pay,
out of the accounts specified in Section 5.6 hereof, all taxes, excises, license fees and
permit fees of whatever nature arising from its operation, management, maintenance,
promotion, and marketing of the Facilities. Global shall not let any mechanic's or
materialman's or any other lien become attached to any premises or improvements at a
Facility, or any part or parcel thereof, by reason of any work or labor performed or
materials furnished by any mechanic or materialman, so long as the work, labor or
material was provided at Global's direction.
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11.2 Governmental Compliance.
Global, shall comply with all federal, State, Miami-Dade County and City
regulations, ordinances, statutes, rules, laws and constitutional provisions (collectively,
Laws) applicable to Global's management of the Facilities hereunder, including, without
limitation, Title III of the ADA and the provision of such auxiliary aids or alternate
services as may be required by the ADA.
Nothing in this Section 11.2 or elsewhere in this Agreement shall,
however, require Global to undertake any ADA compliance activity, nor shall Global
have any liability under this Agreement therefore, if (a) such activity requires any Capital
Improvements or Capital Equipment purchases, unless the City provides funds for same
pursuant to Section 5.8 hereof, or (b) any City Agreement for use, occupancy, rental,
and/or lease of a Facility fails to require lessee, tenant, promoter or user (collectively, a
"user") of the Facility to comply, and to be financially responsible for compliance, with
Title III of the ADA, in connection with any activities of user at that Facility.
Furthermore, Global shall have the right to require any user of a Facility to comply, and
to be financially responsible for compliance, with Title III of the ADA in connection with
any activities of such user at that Facility.
11.3 No Discrimination in Employment.
In connection with the performance of work/services under this
Agreement, Global shall not refuse to hire, discharge, refuse to promote, demote, or
discriminate in matters of compensation against, any person otherwise qualified, solely
because of race, color, religion, gender, age, national origin, military status, sexual
orientation, marital status, or physical or mental disability.
11.4 Ling Wage.
This Agreement is subject to, and Global shall be required to comply
throughout the Term hereof with, the provisions of the City's Living Wage requirements,
as codified in Sections 2-407 through 2-410 of the City Code (as same may be
amended from time to time).
11.5 Equal Benefits for Domestic Partners.
This Agreement is subject to, and Global shall be required to comply
throughout the Term hereof with, the requirements of Section 2-373 of the City Code
entitled, "Requirement for city contractors to provide equal benefits for domestic
partners" (as same may be amended from time to time). The Agreement is deemed to
be a "covered contract," as defined in Section 2-373(a)(6) of the City Code, and shall
require Global to provide its employees working pursuant to this Agreement (whether
working within the City of Miami Beach city limits, or within the United States, but
outside the City limits, if such employees are directly performing work pursuant to this
Agreement) "Equal Benefits" (as defined in Section 2-373(a)(8) of the City Code) to its
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employees with spouses and its employees with "domestic partners" (as defined in
Section 2-373(a)(7) of the City Code). Failure by Global to comply with the
requirements of Section 2-373 of the City Code (as same may be amended from time to
time) shall be deemed to be a material breach of this Agreement which may result in
termination of the Agreement, with all monies due or to become due under the
Agreement to be returned by the City. The City may also pursue any and all remedies
at law or in equity for such breach. Failure to comply with Section 2-373 may also
subject Global to debarment, in accordance with the procedures provided in Sections 2-
397 through 2-406 of the City Code.
12. Termination.
12.1 Termination Upon Default.
Either party may terminate this Agreement upon a default by the other
party hereunder. A party shall be in default hereunder if (i) such party fails to pay any
sum payable hereunder within thirty (30) days after same is due and payable, or (ii)
such party fails in any material respect to perform or comply with any of the other terms,
covenants, agreements or conditions hereof and such failure continues for more than
sixty (60) days after written notice thereof from the other party. In the event that a
default (other than a default in the payment of money) is not reasonably susceptible to
being cured within the sixty (60) day period, the defaulting party shall not be considered
in default if it shall, within such sixty (60) day period, have commenced with due
diligence and dispatch to cure such default and thereafter completes with dispatch and
due diligence in the curing of such default; provided, however, that in no event shall a
cure period pursuant to this Section 12.1 exceed a maximum total of 120 days after the
initial notice of default therefore.
12.2 Termination Other than Upon Default.
(a) Global shall have the right to terminate this Agreement upon sixty
(60) days written notice to the City (i) under the circumstances described in Sections
5.2, 5.3 or 5.5 hereof, or (ii) if the City fails to make Capital Improvements or Capital
Equipment purchases at a Facility or to correct any condition at a Facility noted by
Global pursuant to Section 2.3(u) hereof, to the extent that such condition materially
impairs the ability of Global to manage that Facility.
(b) Either party shall have the right to terminate this Agreement under
the circumstances specified in Section 13.5(c) hereof.
(c) Partial Termination for Convenience by City. In addition to the
rights and options to terminate pursuant to Sections 12.1 and 12.2 (a) and (b) hereof, or
any other provision in this Agreement, the City reserves and retains the right, at its sole
option and discretion, to terminate this Agreement, in part, without cause and without
penalty, with regard to Global's rights and responsibilities with respect to the operation,
management, maintenance, promotion and marketing of the Colony, said partial
37
termination to become effective upon sixty (60) days prior written notice to Global. In
the event of a partial termination pursuant to this subsection (c), the Management Fee
shall be adjusted to reflect such reduction pursuant to the allocation set forth in Section
4.1(b) ( excluding the portion of the Fee allocated for the Colony), and this Agreement
shall remain in full force and effect with respect to the Convention Center (and, as the
case may be, any Additional Facility(ies)).
12.3 Effect of Termination.
In the event this Agreement expires or is terminated: (i) all Operating
Expenses incurred or committed for prior to the date of expiration or termination shall be
paid using funds on deposit in the account(s) described in Sections 5.6 and 5.7 hereof
and, to the extent such funds are not sufficient, the City shall pay all such Operating
Expenses; and (ii) the City shall promptly pay Global all fees earned to the date of
expiration or termination (the fees described in Section 4 hereof being subject to
proration), provided that the City shall be entitled to offset against such unpaid fees any
damages directly incurred by the City in remedying any default by Global hereunder
which resulted in such termination (other than the fees or expenses of any replacement
manager for the Facilities); and provided further that, in the event of termination or
expiration of the Agreement prior to completion of the initial Term , and where such
termination or expiration is not caused by a default of the City or a Force Majeure, the
City shall also be entitled to offset against such unpaid fees any costs incurred by the
City to relocate Global employees to the Facility to perform under this Agreement,
subject to proration based on the number of days such employees worked at the Facility
out of 1,095. Upon the expiration of this Agreement or a termination pursuant to
Section 12.1 or 12.2 hereof, all further obligations of the parties hereunder shall
terminate except for the obligations in this Section 12.3 and in Sections 8.1 and 12.4
hereof.
12.4 Surrender of Premises.
Upon termination of this Agreement (termination shall, for all purposes in
this Agreement, include termination pursuant to the terms of this Section 12 and any
expiration during the Term hereof), Global shall surrender and vacate the Facilities upon
the effective date of such termination. The Facilities, and all furnishings, fixtures, and
equipment thereon, shall be returned to the City in good repair, reasonable wear and
tear excepted All reports, records (including financial records), and any and all other
documents maintained by Global relating to this Agreement, other than materials
containing Global's proprietary information, shall be immediately surrendered to the City
by Global upon termination.
13. Miscellaneous.
13.1 City Use of a Facility/Facilities.
38
(a) The City shall have the right to use each Facility, or any part
thereof, upon reasonable advance notice and subject to availability, for such public uses
including, without limitation, meetings, seminars, training classes, or such other public
uses, as may be determined by the City Manager, free of charge, except that direct out-
of-pocket expenses incurred in connection with such use(s) shall be paid by the City.
(b) The City shall not schedule use of a Facility pursuant to subsection
(a) above if such use will conflict with paying events booked by Global.
(c) Notwithstanding subsections (a) and (b) above, Global
acknowledges that the Convention Center is a high visibility City-owned building. In the
case of any type of emergency situation or natural disaster, including, without limitation,
a hurricane or other extreme weather event, the City Manager may determine that the
City's use of the Facility is necessary to protect the health, safety, and welfare of the
residents and visitors of the City. Upon that determination (which determination shall be
within the sole authority of the City Manager and shall be based upon the best
information and knowledge regarding the particular emergency that the City Manager
has available to him at the time of making such determination), and upon verbal or
written notice to the general manager, Global shall promptly cede use of the Convention
Center, or any portion thereof, for City use, free of charge (except that direct out-of-
pocket expenses incurred in connection with such use shall be paid by the City), during
the pendency of the emergency event and/or natural disaster (including, without
limitation, the time period(s) immediately preceding and following the actual occurrence
of such event).
13.2 VenueNVaiver of Jury Trial.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida, both substantive and remedial, without regard to
principals of conflict of laws. The exclusive venue for any litigation arising out of this
Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District
Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS
AGREEMENT, CITY AND GLOBAL EXPRESSLY WAIVE ANY RIGHTS EITHER
PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO,
OR ARISING OUT OF, THIS AGREEMENT.
13.3 Relationship of Parties.
Nothing herein contained is intended or shall be construed in any way as
creating a partnership, joint venture, employee, or similar relationship between the City
and Global. In operating the Facilities, entering into Facilities contracts, accepting
reservations, and conducting financial transactions for the Facilities, Global acts on
behalf of and as agent for City (but subject to the limitations on Global's authority as set
out in this Agreement) with the fiduciary duties required of one acting in such capacity.
Global shall have exclusive control of and the exclusive right to manage and operate the
39
Facility pursuant to this Agreement and shall be solely responsible for the acts and
omissions of its officers, agents, and employees. No person performing any of the work
or services described hereunder shall be considered an officer, servant or employee of
the City, nor shall any such person be entitled to any benefits available or granted to
employees of the City.
13.4 Written Amendments.
This Agreement shall not be altered, modified or amended in whole or in
part, except in writing executed by each of the parties hereto.
13.5 Force Majeure.
(a) No party will be liable or responsible to the other party for any
delay, damage, loss, failure, or inability to perform caused by "Force Majeure" if notice
is provided to the other party within ten (10) days of the date on which such party gains
actual knowledge of the event of "Force Majeure" that such party is unable to perform.
The term "Force Majeure," as used in this Agreement, means the following: an act of
God, strike, war, public rioting, lightning, fire, storm, flood, explosions, epidemics,
landslides, lightening storms, earthquakes, floods, storms, washouts, civil disturbances,
explosions, and any other cause (whether of the kinds specifically enumerated above or
otherwise) which is not reasonably within the control of the party whose performance is
to be excused and which by the exercise of due diligence could not be reasonably
prevented or overcome (it being acknowledged that under no circumstances shall a
failure to pay amounts due and payable hereunder be excusable due to a Force
Majeure).
(b) Neither party hereto shall be under any obligation to supply any
service or services if and to the extent and during any period that the supplying of any
such service or services or the provision of any component necessary therefore shall be
prohibited or rationed by any Law.
(c) In the event of damage to or destruction of a Facility or of the
Facilities by reason of fire, storm or other casualty or occurrence of any nature or any
regulatory action or requirements that, in either case, is expected to render the Facility
or Facilities materially untenantable, for a period of at least one hundred eighty (180)
days from the happening of the fire, other casualty or any other such event, either party
may terminate this Agreement upon written notice to the other; provided, however, if the
damage or destruction does not render the Convention Center materially untenantable
for such period of time, either party may terminate this Agreement solely with respect to
the other Facility(ies) rendered untenantable, and this Agreement shall continue in
effect with respect to the Convention Center and any other Facility not so affected,
provided that the Management Fee shall be adjusted to reflect such reduction pursuant
to the allocation set forth in Section 4.1(b) ( excluding the portion of the Fee allocated
for the Facility [or Facilities] being terminated).
40
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(d) Global may suspend performance required under this Agreement,
without any further liability, in the event of any act of God or other occurrence, which act
or occurrence is of such effect and duration as to effectively curtail the use of a Facility
or of the Facilities so as to effect a substantial reduction in the need for the services
provided by Global for a period in excess of 180 days; provided, however, that for the
purposes of this subsection, Global shall have the right to suspend performance
retroactively effective as of the date of the use of a Facility or of the Facilities was
effectively curtailed. "Substantial reduction in the need for these services provided by
Global" shall mean such a reduction as shall make the provision of any services by
Global economically impractical. No payment of the Management Fee otherwise due
and payable to Global shall be made by the City during the period of suspension. In lieu
thereof, the City and Global may agree to a reduced Management Fee payment for the
period of reduction in services required.
13.6 Binding Upon Successors and Assigns; No Third-Party Beneficiaries.
(a) This Agreement and the rights and obligations set forth herein shall
inure to the benefit of, and be binding upon, the parties hereto and each of their
respective successors and permitted assigns.
(b) This Agreement shall not be construed as giving any person, other
than the parties hereto and their successors and permitted assigns, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any of the
provisions herein contained, this Agreement and all provisions and conditions hereof
being intended to be, and being, for the sole and exclusive benefit of such parties and
their successors and permitted assigns and for the benefit of no other person or entity.
13.7 Notices.
Any notice, consent or other communication given pursuant to this
Agreement will be in writing and will be effective either (a) when delivered personally to
the party for whom intended, (b) on the second business day following mailing by an
overnight courier service that is generally recognized as reliable, (c) on the fifth day
following mailing by certified or registered mail, return receipt requested, postage
prepaid, or (d) on the date transmitted by telecopy as shown on the telecopy
confirmation therefore as long as such telecopy transmission is followed by mailing of
such notice by certified or registered mail, return receipt requested, postage prepaid, in
any case addressed to such party as set forth below or as a party may designate by
written notice given to the other party in accordance herewith.
To the City:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Jimmy Morales, City Manager
41
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Telecopy:
AND
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Jose Smith_, City Attorney
Telecopy:
AND
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida
Attn: Max Sklar, Tourism, Culture, & Economic Development Director
Telecopy:
To Global:
Global Spectrum, L.P.
3601 S. Broad Street
Philadelphia, PA 19148
Attn: Chief Operating Officer
Telecopy: 215-389-5424
AND
Comcast Spectacor, LP
3601 S. Broad Street
Philadelphia, PA 19147
Attn: General Counsel
Telecopy: 215-389-9461
13.8 Section Headings and Defined Terms.
The section headings contained herein are for reference purposes only
and shall not in any way affect the meaning and interpretation of this Agreement. The
terms defined herein and in any agreement executed in connection herewith include the
plural as well as the singular and the singular as well as the plural, and the use of
masculine pronouns shall include the feminine and neuter. Except as otherwise
indicated, all agreements defined herein refer to the same as from time to time
amended or supplemented or the terms thereof waived or modified in accordance
herewith and therewith. The parties to this Agreement have all participated fully in the
negotiation and preparation hereof; and, accordingly, this Agreement shall not be more
strictly construed against any one of the parties hereto.
42
13.9 Counterparts.
This Agreement may be executed in two or more counterparts, each of
9 Y p
which shall be deemed an original copy of this Agreement, and all of which, when taken
together, shall be deemed to constitute but one and the same agreement.
13.10 Severability.
The invalidity or unenforceability of any particular provision, or part of any
provision, of this Agreement shall not affect the other provisions or parts hereof, and this
Agreement shall be .construed in all respects as if such invalid or unenforceable
provisions or parts were omitted.
13.11 Non-Waiver.
A failure by either party to take any action with respect to any default or
violation by the other of any of the terms, covenants, or conditions of this Agreement
shall not in any respect limit, prejudice, diminish, or constitute a waiver of any rights of
such party to act with respect to any prior, contemporaneous, or subsequent violation or
default or with respect to any continuation or repetition of the original violation or default.
13.12 Certain Representations and Warranties.
(a) The City represents, warrants, and covenants to Global the
following: (i) all required approvals have been obtained, and the City has full legal right,
power and authority to enter into and perform its obligations hereunder; and (ii) this
Agreement has been duly executed and delivered by the City and constitutes a valid
and binding obligation of the City, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally or by general equitable principles.
(b) Global represents and warrants to the City the following: (i) all
required approvals have been obtained, and Global has full legal right, power and
authority to enter into and perform its obligations hereunder, and (ii) this Agreement has
been duly executed and delivered by Global and constitutes a valid and binding
obligation of Global, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally or by general equitable principles.
13.13 Approvals.
Whenever any matter set forth herein is made subject to the approval of the
City or Global, the approval shall be expressed in writing and the City or Global (as
applicable) shall not unreasonably withhold, delay or condition any such approval.
43
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13.14 Contractor's Compliance with Florida Public Records Law.
To the extent that Global is acting on behalf of the City, as provided under
Section 119.011(2), Florida Statutes, this Agreement shall be subject to Florida Public
Records Law including, without limitation, Chapter 119, Florida Statutes, as same may
be amended from time to time.
As required pursuant to Section 119.0701, Florida Statutes, Global shall comply
with public records law; specifically to:
(a) keep and maintain public records that ordinarily and necessarily would be
required by the public agency in order to perform the service;
(b) provide the public with access to public records on the same terms and
conditions that the public agency would provide the records and at a cost
that does not exceed the cost provided in Chapter 119, Florida Statutes or
as otherwise provided by law;
(c) ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as
authorized by law; and
(d) meet all requirements for retaining public records and transfer, at no cost, to
the public agency all public records in possession of the contractor upon
termination of the contract, and destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure
requirements. All records stored electronically must be provided to the
public agency in a format that is compatible with the information technology
systems of the public agency.
Global's failure to comply with this Section, or to comply with a public records
request brought pursuant to this Section, may be deemed by the City to be an event of
default under this Agreement.
13.15 Entire Agreement.
This Agreement and the Exhibits attached hereto contain the entire agreement
between the parties with respect to the subject matter hereof and supersedes and
replaces any prior agreements, understandings and commitments of the parties hereto,
except that any obligations accruing under the Original Agreement (such as indemnity
and payment obligations) that are not satisfied as of the date hereof shall continue in
effect and survive termination hereof. Any oral representations or modifications
concerning this Agreement shall be of no force and effect.
44
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
ATTEST: CITY OF MIAMI BEACH, FLORIDA
Lam-
'IN ORP ORA .'
�T��:
'"-GLOBAL SPECTRUM, L.P.
'y
2E ,
ATTEST:
By: By:
Name: Name:
Title: Title:
APPROVED AS TO
FORM &LANGUAGE
&FO ECUTION
me j1_ ate
45
EXHIBIT "A99
CITY AGREEMENTS
i
EXHIBIT «B$9
CONVENTION CENTER BOOKING POLICIES
I
EXHIBIT &&C99
COLONY THEATRE BOOKING POLICIES
EXHIBIT "D"
INTENTIONALLY OMITTED
EXHIBIT "E"
STANDARD CITY— FORM USE AGREEMENTS FOR:
1. Convention Center
a) Trade Shows
b) Consumer Shows
2. Colony Theatre
EXHIBIT 6699
MINIMUM FACILITIES MAINTENANCE STANDARDS
EXHIBIT "G"
FACILITIES RATE SCHEDULES
(in effect as of Commencement Date)
i
EXHIBIT "H"
INSURANCE REQUIREMENTS FOR USERS/LESSEES OF THE FACILITIES
TABLE OF CONTENTS
1. DEFINITIONS.......................................................................................................................1
2. ENGAGEMENT OF GLOBAL; SCOPE OF SERVICES...............................................6
2.1 ENGAGEMENT......................................................................................................6
2.2 SCOPE OF SERVICES............................................................................................6
2.3 SPECIFIC SERVICES. ............................................................................................7
2.4 Intentionally Omitted.....................................................................................14
2.5 RIGHT OF ENTRY RESERVED........................................•■........•............................14
3. TERM AND RENEWAL TERM........................................................................................14
4. GLOBAL'S COMPENSATION........................................................................................15
4.1 MANAGEMENT FEE. ...........................................................................................15
4.2 EXECUTIVE COMPENSATION. ..........................•...................................................15
4.3 INCENTIVE FEE. ........■o..o........................00...................o......................................16
4.4 LIMITATION. .....................................................................................................22
5. FUNDING; BUDGETS; BANK ACCOUNTS. ...............................................................23
5.1 OPERATING FUNDS............................................................................................23
5.2 NON-FUNDING...................................................................................................23
5.3 ANNUAL BUDGET; CASH FLOW BUDGET. ............................................................24
5.4 BUDGET MODIFICATIONS INITIATED BY GLOBAL...................................................25
5.5 BUDGET MODIFICATIONS INITIATED BY THE CITY. .................................................25
5.6 RECEIPTS AND DISBURSEMENTS.........................................................................26
5.7 TICKET SALES-REVENUES..................................................................................26
5.8 CAPITAL IMPROVEMENTS; CAPITAL EQUIPMENT...................................................27
5.9 LIMITATION OF GLOBAL LIABILITY. ...................................................................27
5.10 GLOBAL CAPITAL CONTRIBUTION/SCHOLARSHIP CONTRIBUTION/PUBLIC
BENEFITS/GREEN INITIATIVES.............................................................................28
6. RECORDS, AUDITS AND REPORTS...........................................................................30
6.1 RECORDS AND AUDITS.......................................................................................30
6.2 ANNUAL MANAGEMENT PLAN............................................................................o31
6.3 REPORTS. .........................................................................................................31
6.4 FIVE YEAR MARKETING/PROMOTION PLAN. ................................................32
6.5 SPECIAL REPORTS. .............................................................................34
7. EMPLOYEES......................................................................................................................34
7.1 GLOBAL EMPLOYEES.■..000..oo.o..o.............■.............................o..o..........................34
8. INDEMNIFICATION AND INSURANCE..........................o.........•............................35
8.1 INDEMNIFICATION...........................o.o........•...•o..o................................................35
0)
i
8.2 LIABILITY INSURANCE.........................................................................................36
8.3 WORKERS COMPENSATION INSURANCE...............................................................37
8.4 Crime Insurance AND PERFORMANCE GUARANTEES.........................................37
8.5 PROPERTY INSURANCE.......................................................................................41
8.6 CERTAIN OTHER INSURANCE. .............................................................................41
9. OWNERSHIP OF ASSETS..............................................................................................42
9.1 OWNERSHIP. .....................................................................................................42
9.2 CITY OBLIGATIONS. ...........................................................................................42
10. ASSIGNMENT; AFFILIATES......................................................................................43
10.1 ASSIGNMENT.....................................................................................................43
10.2 GLOBAL AFFILIATES. .........................................................................................43
11. LAWS AND PERMITS..................................................................................................46
11.1 PERMITS, LICENSES, TAXES AND LIENS...............................................................46
11.2 GOVERNMENTAL COMPLIANCE. ..........................................................................47
11.3 NO DISCRIMINATION IN EMPLOYMENT..................................................................47
11.4 LIVING WAGE. ...................................................................................47
11.5 EQUAL BENEFITS FOR DOMESTIC PARTNERS. .............................................47
12. TERMINATION...............................................................................................................48
12.1 TERMINATION UPON DEFAULT. ...........................................................................48
12.2 TERMINATION OTHER THAN UPON DEFAULT. .......................................................48
12.3 EFFECT OF TERMINATION. ..................................................................................49
12.4 SURRENDER OF PREMISES. ................................................................................49
13. MISCELLANEOUS........................................................................................................50
13.1 City USE OF FACILITY/FACILITIES.......................................................................50
13.2 VENUEIWAIVER OF JURY TRIAL. .........................................................................50
13.3 Relationship of Parties..................................................................................50
13.4 Written Amendments. ...................................................................................50
13.5 Force Majeure. ...............................................................................................51
13.6 Binding Upon Successors and Assigns; No Third-Party Beneficiaries. ..52
13.7 Notices. ..........................................................................................................52
13.8 Section Headings and Defined Terms. ........................................................53
13.9 Counterparts..................................................................................................54
13.10 Severability.................................................................................................54-
13.11 Non-Waiver.
13.12 Certain Representatives and Warranties.................................................54
13.13 Approvals. ■.................................................................................................55
13.14 Entire Agreement.......................................................................................55
(ii)
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EXHIBITS
EXHIBIT"A"-CITY AGREEMENTS
EXHIBIT"B"-CONVENTION CENTER BOOKING POLICIES
EXHIBIT"C"-COLONY THEATRE BOOKING POLICIES
EXHIBIT"D"-BYRON-CARLYLE BOOKING POLICIES
EXHIBIT "E" -STANDARD CITY- FORM USE AGREEMENTS FOR CONVENTION CENTER AND
COLONY THEATRE
EXHIBIT"F"-MINIMUM FACILITIES MAINTENANCE STANDARDS
EXHIBIT"G"-FACILITIES RATE SCHEDULES
EXHIBIT"H"-INSURANCE REQUIREMENTS FOR USERS/LESSEES OF THE FACILITIES
(iii)