Agreement with SMG
AMENDMENT NO.1 TO THE MANAGEMENT AGREEMENT BETWEEN THE CITY
OF MIAMI BEACH, FLORIDA AND SMG FOR THE MIAMI BEACH CONVENTION
CENTER AND JACKIE GLEASON THEATER OF THE PERFORMING ARTS FOR
THE OPERATION, MANAGEMENT AND PROMOTION OF THE BYRON-CARL YE
THEATER, COLONY THEATER, AND ACORN THEATER
This Amendment No. 1 to the Agreement, is made and entered into this ;, S1(
day of Tv t ~ ' 20D4, by and between the CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation having its principal office at 170D Convention Center
Drive, Miami Beach, Florida, 33139 (City), and SMG, a Pennsylvania general
partnership whose current address is 7D1 Market Street, 4th Floor, Philadelphia, PA,
191D6 (SMG).
RECITALS
WHEREAS, on October 15, 2D03, the Mayor and City Commission approved
Resolution No. 20D3-25381, approving and authorizing the Mayor and City Clerk to
execute a Management Agreement between the City and SMG for the management,
promotion, and operation of the Miami Beach Convention Center (the Convention
Center) and Jackie Gleason Theater of the Performing Arts (the Theater), including,
without limitation, all adjacent grounds, sidewalks, rights-of-way and marshaling areas,
but not including the adjacent parking lots (collectively with the Convention Center and
Theater, the Facility) located in the City of Miami Beach, Florida (the Agreement); and
WHEREAS, pursuant to Section 2.2 of the Agreement, the City may elect, upon
thirty (3D) days written notice to SMG, at any time during the Management Term or any
Renewal Term, as such terms are defined in the Agreement, to have SMG operate,
manage, and promote other City cultural facilities (including, without limitation, the
Byron-Carlyle Theater, the Acorn Theater, the Band Shell, and/or the Colony Theater);
and
WHEREAS, the City has hereby elected, as memorialized in this Amendment
No. 1 to the Agreement, to have SMG operate, manage, and promote the following City
cultural facilities:
a) Byron-Carlyle Theater, located at 50D 715t Street, Miami Beach, FL
33141;
b) Colony Theater, located at 1040 Lincoln Road, Miami Beach, FL 33139;
c) Acorn Theater, located at 210D Washington Avenue, Miami Beach, FL
33139; (For purposes of this Amendment No.1, the above City cultural
facilities are hereinafter referred to as the "Additional Facilities").
NOW, THEREFORE, in consideration of the mutual premises, covenants and
agreements herein contained, and other good and valuable consideration, in receipt and
adequacy of which are hereby acknowledged and intending to be legally bound, the City
and SMG hereby amend the Agreement as follows:
1. Recitals. The foregoing recitals are true and correct and
incorporated by reference herein.
2. Section 1 of the Agreement, entitled "Definitions", is amended by
the addition of the following language at the end of the definition of "Facility":
"Facility"-as defined in the Background Section of this Agreement, which
(i) for the Convention Center includes the exhibit halls, meeting rooms,
common areas, lobby areas, executive offices and utilities facilities
related thereto and (ii) for the Theater includes the lobby areas, common
areas, audience chambers, backstage areas, dressing rooms, stage
areas and rehearsal hall related thereto. If during the Management Term
or any Renewal Term, the City elects to have SMG manage, promote and
operate other City cultural facilities pursuant to Section 2.2(b) hereof (the
"Additional Facilities"), such other facility or facilities shall be deemed
included within the definition of "Facility" hereunder. Accordinalv. the City
and SMG herein acknowledae and aaree that the City. pursuant to
Amendment No. 1 to the Aareement. has elected to have SMG manaae.
promote and operate the followina Additional Facilities:
ill Byron-Carlyle Theater. located at 5DD 7151 Street. Miami
Beach. Florida 33141;
Ql Colony Theater. located at 1040 Lincoln Road. Miami
Beach. FL 33139: and
f} Acorn Theater. located at 2100 Washinaton Avenue. Miami
Beach. FL 33139.
The aforestated Additional Facilities shall be deemed included within the
definition of Facilitv hereunder.
3. Section 2.2 of the Agreement, entitled "Scope of Services", is
amended to include the additional scope of work and management structure, pertaining
to the additional respective responsibilities of the City and SMG, with regard to the
management, promotion and operation of the Additional Facilities; said scope of work
and management structure is attached hereto and incorporated herein as Exhibit "A" to
this Amendment NO.1.
4. Section 2.2 of the Agreement, entitled "Scope of Services";
subsection (b) therein, entitled "Additional Facilities", is amended by the deletion of the
last sentence thereto as follows:
(b) The City may elect, upon thirty (30) days prior written notice to SMG,
at any time during the Management Term or any Renewal Term to
have SMG operate, manage and promote other City cultural facilities
(including, without limitation, the Byron-Carlyle Theater, the Acorn
Theater, the Band Shell and/or the Colony Theater; such facilities are
referred to herein, individually and/or collectively, as elected by the
City, as the "Additional Facilities") subject to the City's policies and
directives and under the City's general guidance for programming.
Such election will be memorialized as an amendment to this
Agreement upon the same terms and conditions provided herein.
Upon the effective d::lto of such election, the Mal1agemont Foo
p3Y3ble to SMG pursuant to Seotion 4.1 (a)(i) hereof shall inorease by
mutually agrood upon amount not to exoeed $5D,ODO
5. The management fee for the Additional Facilities
(Additional Management Fee) shall be payable to SMG as follows (which amount shall
be subject to CPI adjustment as provided in Section 4.1 (a)(i) hereof):
(a) $20,ODD annually for the operation, management, and promotion of
the Byron-Carlyle Theater and Acorn Theater, payable in equal
monthly installments, commencing on October 1, 20D4. The
commencement date for the management of the Byron-Carlyle
Theater and Acorn Theater shall be October 1, 2004; and
(b) an additional $2D,000 annually for the operation, management, and
promotion of the Colony Theater, payable in equal monthly
installments (and pro-rated, for any partial year of the Management
Term). The commencement date for the management of the Colony
Theater shall be the date of the issuance by the City to SMG of a
written Notice to Proceed.
6. 5.1 O(a)of this Agreement, entitled "SMG Capital Contributions," is
amended by the deletion of existing language thereto pertaining to the "Additional
Capital Contribution", and replacement of same with new language as follows:
(a) Upon the execution and delivery of this Agreement, SMG shall pay to
the City the sum of One Hundred Fifty Thousand Dollars ($150,ODO)
(the "Initial Capital Contribution"), and an additional Si~y Two
Thous3ml, Five Hunsres Doll3rs ($62,500) annual sum eaual to
twenty-five percent (25%) of the portion of the Additional Manaaement
Fee earned by SMG durina such vear (the "Additional Capital
Contribution") (if the City eleots '....ithin the first year, ana if not on 3
pror3ted basis thereafter based on the nLlmbor of years remaining in
the ourrent Managoment Term, pLlFSLl3nt to Seotion 2.2(b) hereof, to
have SMG operate, manage ana promote the Additional Faoilities
payable by SMG as follows:
.@l for the Byron-Carlyle Theater and Acorn Theater. within
thirty (30) davs of October 1. 2004; and thereafter on
October 151 of each subseauent year of the Manaaement
Term. and anv Renewal Term(s): and
!Q} for the Colony Theater. within thirty (30) days followina the
issuance of the written Notice to Proceed bv the City. and
thereafter on October 151 of each subseauent year of the
Manaaement Term and anv Renewal Term(s):
which sums shall be used at the sole discretion of the City. In the
event the City exercises its right pursuant to Section 3.1 above to
extend this Agreement for anyone or more Renewal Terms, SMG
shall pay to the City the sum of Fifty Thousand Dollars ($50,000) (the
"Renewal Term Capital Contribution") for each Renewal Term granted
to SMG.
7. Section 12.5 of the Agreement, entitled "Additional Facilities/City's
Right to Terminate for Convenience", is added to the Agreement as follows:
12.5 Additional Facilities/City's Rioht to Terminate for
Convenience.
Notwithstandinq the provIsions of this Section 12.
Amendment NO.1 of the Aqreement. SMG's operation and
manaqement of the Additional Facilities. may be
terminated by the City. for convenience and without cause.
at anv time durinq the Term herein. upon the furnishinq of
thirty (30) days prior written notice to SMG.
8. No Further Modifications. ExceRt as provided in this Amendment
No.1, the Agreement remains unmodified and in full e and effect.
EST: d ~ ~~LiY
CI Clerk
as been duly executed by the
IN WITNESS WHEREOF, this A em
parties hereto as of the day and year first abov writt
ayor
I S'rkday of OCTol!biL- ,2004.
ATTEST:
L:\~ ~ ~~
~ry
SMG ~.W
President ~
JL \1\\e>+l~
Print Name
50 day of s..e..yk\\A.-~ 20D4.
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
2- G-oC(
Date