Management Agreement
J 007- :l t f;z 1
c '1 D - ;f'1/o7
MANAGEMENT AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH. FLORIDA
AND
THE MIAMI BEACH GARDEN CONSERVANCY. INC.
;t/;..
THIS AGREEMENT, is made and executed as of this ~ day of -:MNUAPlI2007, by and
between the CITY OF MIAMI BEACH, a municipal corporation organized and existing under the
laws ofth6 State of Florida (the City), and the MIAMI BEACH GARDEN CONSERVANCY, INC.,
a Florida not-for-profit corporation, 2000 Convention Center Drive, Miami Beach, Florida 33139-
1821 (the Conservancy).
WITNESSETH
RECITALS:
WHEREAS, the City is the owner ofthe Miami Beach Botanical Garden (Botanical Garden
or, in the alternative, the Premises), located at 2000 Convention Center Drive, Miami Beach, Florida
33139; and
WHEREAS, the Conservancy is an organization with members committed to promotion of
the Botanical Garden as a horticultural, educational, and cultural arts venue; and the Conservancy
and its precedents have, for the past three years, raised funds and volunteered time to improve the
Botanical Garden's contribution to a higher quality oflife in Miami Beach; and
WHEREAS, the City requires citizen participation in the development and operation of the
Botanical Garden so that there can be a strong "public/private partnership" of efforts in funding to
fully realize the Botanical Garden's potential; and
WHEREAS, on July 7, 1999, the Mayor and City Commission authorized the execution of a
Concession Agreement with the Conservancy, which permitted the Conservancy use of the Botanical
Garden (specifically, the Welcome Center, and the gift shop and the orchidariums; and
Garden Center Management Agreement
Draft 1/4/07
WHEREAS, the Conservancy's purpose was to provide volunteer public information, and
horticultural, educational and conservational services, and support the capital improvements,
programming and building/grounds maintenance needs at the Botanical Garden; and
WHEREAS, on April 18, 200 I, the City Commission approved a Management Agreement
(Prior Agreement) with the Conservancy for a term of three (3) years, commencing on July 1,2001
and expiring on July 20, 2004, with an option to renew, at the City's discretion, for an additional two
(2) year term; and
WHEREAS, on April 14, 2004, two months prior to the expiration of the initial term of the
Prior Agreement, the City Commission adopted Resolution 2004-25534, approving the two (2) year
renewal option and further waiving, by 5/7ths vote, the competitive bidding requirements, to provide
for one (1) additional year; all for a total renewal term of three (3) years; and
WHEREAS, since the Prior Agreement is due to expire on June 30, 2007, with no renewal
options remaining, the City has been approached by the Conservancy, which has requested a new
Agreement, in order to not only pursue its base mission, but also to see through the implementation
of General Obligation (G .0.) Bond funded capital improvements, and to achieve full accreditation as
a botanical garden; and
WHEREAS, on November 22, 2006, the Finance and Citywide Projects Committee
unanimously recommended that the Mayor and City Commission waive, by 5/7ths vote, the
competitive bidding requirement and approve a new Management Agreement, with an initial term of
five (5) years, commencing on July 1, 2007, and ending on June 30, 2012, with an option, at the
City's sole discretion, to renew and extend the Agreement for an additional five (5) year term.
2
Garden Center Management Agreement
Draft 1/4/07
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, it is agreed by the parties hereto as follows:
SECTION 1.
The City hereby grants to the Conservancy, and the Conservancy hereby accepts from the
City, this Agreement to manage and operate the Botanical Garden, located at 2000 Convention
Center Drive, Miami Beach, Florida, and more fully described in Exhibit A (the Botanical Garden or,
in the alternative, the Premises), attached hereto and made a part hereof, in conformance with the
purposes and for the period stated herein and subject to all the terms and conditions herein contained
and fairly implied by the terms hereinafter set forth.
SECTION 2. TERM.
This Agreement shall be for an initial term of five (5) years, commencing on July 1,2007
ending on the June 30, 2012.
At the expiration of the initial term herein, provided the Conservancy is in good standing and
free from default hereunder, the City may, at its sole discretion, renew and extend this Agreement for
an additional five (5) year option term, under all of the terms and conditions contained herein.
In the event the City determines not to extend the Agreement, it shall notify the Conservancy
of same, in writing, no less than sixty (60) days prior to the end of the initial term.
2.1 Termination of Prior Ae:reement. Upon approval ofthis Agreement by the Mayor
and City Commission and execution by the parties hereto, the Prior Agreement (between the City
and the Conservancy, dated April 18, 2001, and as amended and extended pursuant to City
Resolution No. 2004-25534) shall be hereby terminated and shall be of no further force or effect and,
accordingly the parties intend and acknowledge that their respective rights and obligations with
regard to the ongoing management, maintenance, and operation of the Botanical Garden shall be
governed by the terms and conditions set forth in this Agreement.
3
Garden Center Management Agreement
Draft 1/4/07
SECTION 3. BOTANICAL GARDEN PREMISES.
The Botanical Garden premises subject to this Agreement, herein referred to as the Botanical
Garden or, in the alternative, the Premises, shall be those facilities and spaces more specifically
described in Exhibit "A", attached and incorporated herein. Subject to the terms ofthis Agreement,
the Conservancy shall have the primary use and sole occupation of the Premises and shall be
responsible for its management and maintenance, as further set forth herein.
SECTION 4. GOAL AND PRIORITIES.
The Botanical Garden shall be managed and developed as a multi-purpose community
resource centered on an outstanding public botanical garden which provides:
Enjoyment of a beautiful botanical garden
Education for children and adults
A unique and enjoyable venue for visual and performing arts, special events,
receptions, and community meetings
A catalyst for community promotion of beautification and ecological improvement of
the City
A popular and memorable tourist destination
The City and the Conservancy intend that the activities programmed in and pertaining to the
Botanical Garden continuously increase in scope and number so that the Garden favorably impacts
an increasing number of residents and visitors.
SECTION 5. OPERATION AND MANAGEMENT OF THE BOTANICAL GARDEN.
5.1 All activities undertaken at the Botanical Garden shall be to advance the goals and
priorities set forth in Section 4 above. Subject to the terms, limitations and required approvals
contained in this Agreement, the Conservancy is authorized and required, and shall have the
exclusive right to:
a. Manage and direct the operations and activities of the Botanical Garden;
4
Garden Center Management Agreement
Draft 1/4/07
b. Maintain the grounds and garden and provide housekeeping for the facilities;
c. Develop the Botanical Garden grounds consistent with the City-approved
Master Plan and City administration of public funds including, without
limitation, the allocation of General Obligation (G.O.) Bond funds;
d. Develop and implement programs and activities which support and promote
the goals and priorities set forth in Section 4; and
e. Schedule public use of the Premises pursuant to policies and procedures
consistent with the goals and priorities set forth in Section 4 and fees
reflecting the reasonable expense of allowing such use, as approved by the
City Commission. The City shall have the right to use the Premises,
including but not limited to the meeting room facilities, on a space available
basis, at no charge. Duly constituted garden clubs with membership
primarily situated in the City of Miami Beach shall have the right to hold
their regular meetings at the Botanical Garden at no charge.
5.2 Hours of Operation. City and Conservancy herein agree that normal hours of
operation for the Botanical Garden for the general public shall be from 9:30 am to 5:00 pm. These
hours shall not otherwise be extended or shortened without the prior written approval of the City
Manager or his designee, which approval shall not be unreasonably withheld. Notwithstanding the
preceding, the Conservancy shall not require the prior written consent of the City for operation of the
Botanical Garden (beyond the regular hours of operation set forth herein) for functions, consistent
with the goals and priorities in Section 4, such as special events, cultural events, reception, etc.
SECTION 6. BASE USE FEE/REVENUE FROM BOTANICAL GARDEN RELATED
ACTIVITIES/FINANCIAL RECORDS AND REPORTS.
6.1 Base Use Fee. As partial consideration for the City's allowing the Conservancy to
use the Premises for the purposes, and in accordance with the terms and conditions, set forth in this
Agreement. The Conservancy shall pay to the City an annual base usage fee of one dollar ($1) per
year.
5
Garden Center Management Agreement
Draft 1/4/07
6.2 Revenue from Botanical Garden Related Businesses/Activities. The City herein
acknowledges that the Conservancy may derive additional revenues from business( es) it conducts
upon or from the Premises, including, but not limited to, event rental of the Premises, gift shop sales,
plant sales, classes, tours, and sale of food and beverages. The Conservancy herein acknowledges
that any and all business( es) conducted upon the Premises shall be directly related to and consistent
with the customary operation and management of a public botanical garden and consistent with the
goals and priorities in Section 4. Notwithstanding the preceding, any business conducted, or
contemplated to be conducted upon, the Premises shall first be approved, in writing, by the City
Manager or his designee, prior to commencement of same, which approval, if given at all, shall be at
the City's sole discretion. Said approval shall initially be obtained concurrent with the execution of
this Agreement by the parties, by submittal of proposed useslbusiness( es) to be conducted by the
Conservancy on the Premises, which submission shall be attached and incorporated hereto as Exhibit
"B" to the Agreement. Thereafter, said exhibit shall be updated by the Conservancy, with each new
proposed use/business(es) on the Premises. Additionally, the City's approval of any proposed
useslbusiness( es) to be conducted on the Premises by the Conservancy shall not excuse the
Conservancy from the requirements pertaining to event programming and other event scheduling
requirements, as set forth in Section 10 of the Agreement.
6.2.1 Cessation/Suspension of Approved Use(s) and/or Business Activitv(ies).
Notwithstanding anything contained in subsection 6.2 or this Agreement, in the event
that a particular use and/or business activity(ies) has been approved by the City Manager, and the
City Manager thereafter, upon reasonable inquiry, determines that the continuation of such use(s)
and/or activity(ies) is, or may be, inconsistent, contrary to and/or detrimental to the goals and
priorities set forth in Section 4, and/or to the health, safety and/or welfare of the residents of and
visitors to the City of Miami Beach, then the City Manager and/or his designee, upon thirty (30) days
prior written notice to the Conservancy of same may revoke, suspend, and/or otherwise disallow the
objectionable uses(s) and/or business activity(ies), and the Conservancy shall immediately cease and
desist in providing, and/or continuing with, said use(s) and/or business activity(ies) within the time
period and in the manner prescribed in the City's notice. In the alternative, the City Manager and/or
6
Garden Center Management Agreement
Draft 1/4/07
his designee may allow the Conservancy to continue with the subject use, or business activity(ies),
subject to such additional guidelines, as may be determined and established by the City Manager, in
his sole and reasonable discretion and judgment.
6.3 Financial Records and Reports. The Conservancy shall keep on the Premises, or
such other place within Miami Dade County, Florida, as approved by the City, true, accurate, and
complete records and accounts of all receipts and expenses for business( es) being transacted upon or
from the Premises pursuant to this Agreement and shall give the City, or its designated
representative, access during reasonable business hours to examine and audit such records and
accounts. The Conservancy shall provide the City Manager or his designee, with time frames
consistent with City departments, a monthly report of receipts and expenditures with a comparison to
the stated budget and projection for the balance of the budget period. Within ninety (90) days after
each fiscal year during the term of this Agreement, the Conservancy shall deliver to the City a
written annual financial statement of the activities conducted pursuant to this Agreement. Said
statement shall be certified as true, accurate and complete by the Conservancy and by its certified
public accountant.
SECTION 7. BUDGET AND FUNDING FOR THE BOTANICAL GARDEN.
7.1 Throughout the term of this Agreement, the Conservancy shall prepare and present,
on or before July 3151 of each City fiscal year (October I - September 30), a proposed, detailed line
item annual operating budget for the Botanical Garden, for review and approval by the City Manager
and/or his designee. Said budget shall include a projected income and expense statement; projected
year end balance sheet; and statement of projected income sources~ and application of funds.
Additionally, the budget shall also include, but not be limited to, the following detailed projections:
a. Gross revenues by categories from all revenue sources derived from or upon
the Botanical Garden (including, without limitation, from business uses
and/or activities on the Premises);
b. Operating expenses of the Botanical Garden;
c. Administrative, labor and general expenses;
7
Garden Center Management Agreement
Draft 1/4/07
d. Marketing, advertising and promotion expenses;
e. Energy costs, to the extent not supplied by the City;
f. Regular repairs and maintenance, to the extent not performed by the City.
7.2 Proe:rammatic Plan.
Accompanying the Conservancy's proposed annual budget shall be the Botanical
Garden Programmatic Plan for the next fiscal year, detailing the then-known activities planned, and
the number of residents and visitors anticipated to be impacted.
SECTION 8. NOT A LEASE.
It is expressly understood and agreed that no part, parcel, building, structure, equipment or
space is leased to the Conservancy; that this Agreement is a management agreement and not a lease;
and that the Conservancy's right to operate, and manage the Botanical Garden shall continue only so
long as the Conservancy complies with the undertakings, provisions, agreements, stipulations and
conditions of this Agreement.
SECTION 9. ALTERATIONS, MAINTENANCE, AND REPAIRS.
9.1 Alterations. It is understood by the parties hereto that the Conservancy shall not be
responsible, nor required to pay for, any costs related to capital improvements or infrastructure (i.e.
including, but not limited to, plumbing and sewer lines, major electrical, structural, etc.) with regard
to the Premises. Notwithstanding the foregoing, in the event that the Conservancy desires or deems
it appropriate to make alterations, additions, or improvements to the Premises, it will submit plans
and estimates of cost for same to the City for the prior written approval of the City Manager or his
designee. No such alterations, improvements, or additions shall be made without the express written
approval of the City. Additionally, in the event that minor (defined as $5000 or less) capital and/or
infrastructure repairs are required, the Conservancy may be permitted to proceed, subject to
obtaining the prior written consent of the City Manager or his designee, whose determination over
whether such repairs are, in fact, necessary, shall be final and binding upon the parties. In the event
that the City Manager approves and authorizes the Conservancy to proceed, the Conservancy shall
8
Garden Center Management Agreement
Draft 1/4/07
obtain any and all necessary permits and/or other approvals, as may be required, for the work and
shall (prior to commencement of work) provide the City with evidence of same, as well as evidence
of any and all insurance requirements, as may be required by the City for the intended work, and
naming the City as an additional insured. Thereafter, the Conservancy shall be responsible for
diligently prosecuting such work, through completion, and for obtaining any and all applicable final
inspections. Provided that said minor repairs( s) have been satisfactorily performed and completed
subject to the terms herein, the Conservancy will be reimbursed for said repairs. Examples of
"minor" repairs may include, without limitation, minor electrical and plumbing, HV AC repair,
broken windows and/or doors, and partial painting and touch up of the building. The Conservancy
shall not have the right to create or permit the creation of any lien attaching to the City's interest in
the Premises as a result of any such alterations, improvements, or additions.
9.2 Maintenance. The City shall continue to have sole responsibility for maintenance and
repair of all facilities, improvements and facilities and utilities infrastructure equipment on the
Premises. However, notwithstanding the preceding sentence, the Conservancy continues to accept
the Botanical Garden, particularly the aforementioned, in its present "as-is" condition from the City.
The Conservancy shall, at its sole cost and expense, to the satisfaction of the City, keep and maintain
the Premises, and all improvements thereon, in good, clean, and sanitary order. The Conservancy
shall, at its sole cost and expense, have the sole responsibility for maintaining the grounds and
horticulture of the Botanical Garden. To that end, the parties herein acknowledge, and the
Conservancy herein agrees to be bound by, the minimum maintenance standards as set forth in
Exhibit "C" to this Agreement, entitled "City of Miami Beach Minimum Specifications for
Maintenance of the Miami Beach Botanical Garden". It is further understood that the Conservancy
shall provide the City with a monthly maintenance report, in a format to be approved by the City
Manager and/or his designee. Notwithstanding the City and the Conservancy's respective
roles with regard to maintenance of the Premises and the grounds and horticulture of the Botanical
Garden, the City retains the right to review and approve plans for all major horticultural material
installations, removals, etc., and the Conservancy shall comply with any and all State, Miami-Dade
County, and City laws, codes, rules and regulations, etc. with regard to its respective maintenance
9
Garden Center Management Agreement
Draft 1/4/07
and horticultural rights and obligations in this Agreement including, but not limited to, tree removal
permits, use and storage of pesticides, chemicals, etc.
9.3 Personal Property. A list of City owned personal property included in the
Agreement for use by the Conservancy during the term hereof, is attached and incorporated herein as
Exhibit "D". The Conservancy hereby continues to accept such equipment in its "as-is" condition.
The Conservancy shall maintain all City owned equipment and, at its sole cost and expense, acquire
and maintain all replacement and such other equipment as may be necessary to maintain the Premises
in a condition which satisfies those maintenance standards set forth in Exhibit "C", but shall not have
an obligation to improve the condition of the personal property beyond the "as-is" condition in which
it was accepted, all of which shall be noted on the inventory. The Conservancy shall have the right,
at the initial inventory and at any point thereafter, to decline the use and responsibility for any
personal property not useful for its operation of the Botanical Garden and may turn such personal
property over to the City in the condition in which it was accepted. The City shall have the right to
periodically take an inventory of any or all equipment on the Premises.
In the event that the Conservancy deems it necessary and appropriate to supplement the City
equipment set forth in Exhibit "D", through either the direct lease or purchase by the Conservancy of
additional equipment to be used for the operation and maintenance of the Premises, the Conservancy
shall be required to submit a list of all equipment either leased or purchased directly by the
Conservancy and shall provide the City with copies of any applicable lease purchase agreements, and
all invoices and validation of payments related to such lease/purchase agreements, in order for the
City to properly maintain an account for such newly acquired inventory against the original list set
forth in Exhibit "D". It shall also be the Conservancy's responsibility to supplement such list
periodically in the event of any new equipment leases or purchases.
In the event that a lease/purchase agreement for equipment acquired by the Conservancy
extends beyond the duration of this Agreement, the City, at its sole option, shall have the right to
either purchase such equipment (in the event of a lease/purchase agreement), or assume the lease on
the same terms and conditions as originally made available to the Conservancy. Notwithstanding the
preceding, the Conservancy shall not purchase or lease any supplemental equipment to be used by
10
Garden Center Management Agreement
Draft 1/4/07
the Conservancy for the purpose of operating and managing the Premises under this Agreement,
without first having obtained the prior written approval of the City Manager or his designee.
SECTION 10. USE OF PREMISES FOR SPECIAL EVENTS/ RECEPTIONS/
COMMUNITY MEETINGS, AND GENERALLY.
10.1 Pursuant to Subsection 5.1(e), the Conservancy shall have the exclusive right to
allow, permit, rent, and otherwise book any and all areas of the Botanical Garden, for the purpose of
allowing individuals and/or organizations to utilize the Botanical Garden for special events,
receptions, community meetings, and any other uses generally consistent with use(s) associated with
a public botanical garden. The Conservancy shall follow and adhere to the rental rates and policies
and procedures established and approved by the City and which are attached hereto as Exhibit "E".
The City reserves the right to amend said rental rates and other policies and procedures in its sole
discretion and, in such event, the City shall require the Conservancy to amend its version of same,
which will be attached as a new Exhibit "E" to this Agreement.
In particular, the Conservancy shall require that all users of the Botanical Garden (excepting
the City) provide Certificates ofInsurance evidencing appropriate insurance, as shall be determined
by the City's Risk Manager and referenced within the attached Exhibit "E". Copies of these
certificates shall be furnished to the City Manager or his designee. Such insurance shall be kept in
full force at all times throughout the period of intended use. All such liability policies shall name the
City as additional insured.
The Conservancy shall provide a monthly written report of all events scheduled in and
pertaining to the Garden and, with each such report, shall report on the events which actually
occurred and the number of persons participating in those events during the previous month. Any
commercial activity at the Garden shall be undertaken for the purposes of furthering the purposes set
forth in Section 4 herein, and must be approved by the City, as provided in Section 6.1 of this
Agreement, and may be disapproved and/or otherwise redefined, as provided in Section 6.2 of the
Agreement. All revenues received by the Conservancy in connection with the operation,
management, and its portion of the programming of the Botanical Garden shall be dedicated
11
Garden Center Management Agreement
Draft 1/4/07
exclusively to support the operation and improvement ofthe Botanical Garden. For purposes herein,
"revenues" shall also be deemed to include unrestricted donations and contributions received by the
Conservancy, as well as membership fees and dues. No portion of the net earnings resulting from the
activities of the Conservancy at the Botanical Garden shall inure to the benefit of any private
individual. In the event that revenue(s) pertaining to the Botanical Garden exceeds expenses during
an annual accounting period, the City and the Conservancy agree that such excess will be applied by
the City to offset the City's contribution to the Conservancy, as set forth and memorialized in the
annual operating budget for the proceeding fiscal year during the term ofthis Agreement.
Notwithstanding the foregoing, the City Manager or his designee, shall oversee the
Conservancy's activities with regard to this Agreement and its operation and management of the
Botanical Garden, such that the City is assured that the purposes intended by this Agreement are
being achieved and the Botanical Garden is being operated in the best interest ofthe City.
10.2 Use bv the City. The City shall have the right to use the Botanical Garden, or
any part thereof, subject to availability, for the benefit of the community for such purposes including,
but not limited to, meetings, labor negotiations and training classes, activities sponsored in
conjunction with the Miami Beach Convention Center, City-sponsored special events, receptions,
and other purposes, as deemed necessary by the City in its sole and absolute discretion, without the
payment of any rental or use fee, except the direct out-of-pocket expenses incurred in connection
with such uses shall be paid by the City. City uses of the Botanical Garden shall not be competitive
with, nor conflict with, events booked or sponsored by the Conservancy and shall be booked in
advance upon reasonable notice, and shall not be inconsistent with maintenance of the grounds and
facility ofthe Botanical Garden. Additionally, upon execution of this Agreement, the Conservancy
acknowledges and herein agrees to honor all pre-existing scheduled events, whether booked by the
City or otherwise, at the Botanical Garden, whether or not such events actually occur on or after
execution by all parties ofthis Agreement and the Conservancy's possession and use of the Premises
for the purposes set forth herein.
12
Garden Center Management Agreement
Draft 1/4/07
SECTION 11. CITY'S CONTRIBUTION.
The Conservancy shall continue use its best efforts to obtain public/private grant funding and
individual/corporate contributions for the support ofthe Botanical Garden. During the term of this
Agreement, it is the intent of the City and the Conservancy that Conservancy-initiated funding grows
on a continuing basis. During the term of this Agreement, the Conservancy shall include, in its
annual proposed budget and/or Programmatic Plan, the funding that it anticipates raising, and the
City shall use such representations in evaluating its respective level of contribution for the coming
fiscal year, which amount shall be approved as part of the City's own annual budget process.
The City initially identified approximately $1.5 million from the Series 2000 General
Obligation Bond Program for Phase I capital improvements to the Botanical Garden, of which
approximately $1.4 Million remains at the time or execution of this Agreement. The City and the
Conservancy herein agree that a vital component of the Conservancy's mission statement, with
respect to this Agreement, is to use its best efforts; specifically, to obtain public/private funding
contributions for further capital improvements to the Botanical Garden (hereinafter, the Phase II
improvements). Accordingly, the Conservancy herein represents that it shall use its best efforts with
respect to undertaking a coherent and consistent fundraising effort for the Phase II improvements,
and that any funds and contributions received for same shall be kept and maintained by the
Conservancy in a separate fund, which funds shall ultimately be conveyed to the City. The City
acknowledges that said Phase II improvement funds may be conditioned as to the terms for
disbursement therein. To that end, the parties agree to memorialize the transfer of said funds in a
separate agreement, to be negotiated between the City and the Conservancy. However, the
Conservancy herein acknowledges and understands that the City shall in no way be obligated to
proceed with any Phase II improvements until and when funding for same has been identified and
secured.
SECTION 12.
ASSIGNMENT/SUBLET.
The Conservancy may not sublet or assign this Agreement, or any part thereof, without the
prior written approval of the City, which approval shall be given, if at all, at the sole discretion of the
13
Garden Center Management Agreement
Draft 1/4/07
City. Similarly, Conservancy shall not act as an agent or representative on behalf of any other group,
organization, or entity, for use or uses set forth in Section 4 of this Agreement, or for any other uses
contemplated by this Agreement by any other group, organization, or entity, other than Conservancy.
In the event that Conservancy ceases to be a not-for-profit corporation, this Agreement shall be
automatically terminated.
SECTION 13.
USE OF THE BOTANICAL GARDEN IS PRIMARY.
The Botanical Garden is for the use of the public for purposes consistent with Section 4 and
the public's right to such use shall not be infringed upon by any act of the Conservancy. The
Conservancy shall use reasonable efforts to assure that the activities conducted by the Conservancy
on the Premises shall not unduly interfere with the solemnity and respectful atmosphere of the
adjacent Holocaust Memorial.
SECTION 14.
SECURITY.
The Conservancy shall provide reasonable security to protect the Premises and its equipment,
materials and facilities, including any City equipment, furnishings, and fixtures used by
Conservancy, as set forth in Subsection 9.3 herein, and shall be solely responsible to the City for any
loss or damage to any City equipment, furnishings, and fixtures so used by Conservancy, subject to
the City's obligation to use ordinary care in the execution of its responsibilities hereunder, and
subject further to the intentional acts and negligence of utility easement holders upon the Premises.
SECTION 15.
PERMITS; LICENSES; TAXES; APPLICABLE LAWS.
The Conservancy agrees to obtain and pay for all permits and licenses necessary for the
conduct of its business and agrees to comply with all laws governing the responsibility of an
employer with respect to persons employed by the Conservancy. The Conservancy shall also be
solely responsible for payment of any and all taxes levied on the Premises and its operations unless
such taxes are caused by actions of the City and not anticipated in the budget of the Conservancy
approved by the City. In addition, the Conservancy shall comply with all rules, regulations and laws
14
Garden Center Management Agreement
Draft 1/4/07
of the City; Miami-Dade County; the State of Florida; and the u.s. Govemment now in force or
hereafter to be adopted.
SECTION 16.
UTILITIES.
Subject to budget limitations, the City agrees to continue to pay for the utilities used within
the Premises, to the extent such utilities (and such expenses) are customary and consistent with the
City's budgeted resources for the Botanical Garden, including but not limited to electric, water, gas,
telephone service (defined for purposes herein as one line, exclusive of long distance and internet
services), and garbage disposal. The City reserves the right to review said expenses for utilities at
any time during the Term of this Agreement. In the event that such charges exceed the budgeted
costs for utilities for the Botanical Garden, the City reserves the right, in its sole and absolute
discretion, to amend this Section 16, thereby making the Conservancy responsible for the
difference( s) in any overages for utility costs. Should the Conservancy not wish to be responsible for
such difference( s) in utility charges, the City reserves the right to automatically terminate this
Agreement without further notice to Conservancy, and further avail itself of any and all remedies to
recoup such utility cost(s) from the Conservancy.
SECTION 17.
SIGNAGE.
Conservancy shall provide, at its cost within the budget submitted to the City, required signs
at all public approaches to the Premises. All advertising, signage and postings shall be approved by
the City and shall be subject to all applicable planning and zoning requirements of the City.
SECTION 18.
FORCE MAJEURE.
,
The performance of any act by Conservancy or the City hereunder may be delayed or
suspended at any time while, but only so long as, either party is hindered in or prevented from
performance by acts of God, the elements of war, rebellion, strikes, lockouts or any other cause
beyond the reasonable control of such party; provided. However, that if the condition of force
majeure exceeds for more than a period of ninety (90) days, the City or Conservancy may, at their
15
Garden Center Management Agreement
Draft 1/4/07
respective option and discretion, terminate this Agreement.
SECTION 19.
INSPECTION.
The Conservancy agrees that the Premises may be inspected at any time upon reasonable
notice by authorized representatives of the City, or by any other State, County, Federal or municipal
officer or agency having responsibilities for inspections of such operations and/or premises. The
Conservancy agrees to undertake immediately the correction of any deficiency cited by such
inspectors on the Premises, which is properly the responsibility of the Conservancy pursuant to this
Agreement.
SECTION 20.
WAIVER OF INTERFERENCE.
The Conservancy hereby waives all claims for compensation for loss or damage sustained by
reasons of any interference with its operation and management of the Premises by any public agency
or official as a result of their enforcement of any laws or ordinances or of any of the rights reserved
to the City herein. Any such interference shall not relieve the Conservancy from any obligation
hereunder.
SECTION 21.
INSURANCE REQUIREMENTS.
The Conservancy shall maintain, at the Conservancy's sole cost and expense, the following
types of insurance coverage at all times throughout the term of this Agreement:
a. General liability insurance with not less than the following
limits:
General aggregate
$2,000,000
Products (completed operation
aggregate)
$2,000,000
Personal and advertising (injury)
(Per occurrence)
$1,000,000
$1,000,000
16
Garden Center Management Agreement
Draft 1/4/07
Fire damage
$ 100,000
Medical Expense
$
5,000
Liquor Liability (aggregate)
(Per occurrence)
$2,000,000
$1,000,000
b. Workers Compensation Insurance shall be required under the Laws of the
State of Florida.
c. Automobile Insurance shall be provided covering all owned, leased, and hired
vehicles and non-ownership liability for not less than the following limits:
Bodily Injury $1,000,000 per person
Bodily Injury
$1,000,000 per accident
Property Damage
$ 500,000 per accident
d. Pesticide liability shall be provided separately, or as part of the general
liability coverage, in an amount not less than $1,000,000.
e. Fire Insurance shall be the responsibility ofthe City.
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days written notice to City and then subject to the prior
written approval of City. The Conservancy shall provide City with a Certificate of Insurance for
each such policy, which shall name the City as an additional named insured. All such policies shall
be obtained from companies authorized to do business in the State of Florida with an A.M. Best's
Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and any replacement or
substitute company shall also be subject to the approval of the City's Risk Manager. Should the
Conservancy fail to obtain, maintain or renew the policies of insurance referred to above, in the
required amounts, the City may, at its sole discretion, obtain such insurance, and any sums expended
by City in obtaining said insurance, shall be repaid by the Conservancy to City, plus ten percent
(10%) of the amount of premiums paid to compensate City for its administrative costs. If the
Conservancy does not repay City's expenditures within fifteen (15) days of demand, the total sum
17
Garden Center Management Agreement
Draft 1/4/07
owed shall accrue interest at the rate of twelve percent (12%) until paid, and such failure shall be
deemed an event of default hereunder.
SECTION 22. INDEMNIFICATION.
22.1 The Conservancy shall indemnify, hold harmless and defend the City, its agents,
servants and employees from and against any claim, demand or cause of action of whatsoever kind or
nature arising out of error, omission, or negligent act of the Conservancy, its agents, servants or
employees in the performance of services under this Agreement.
22.2 In addition, the Conservancy shall indemnify, hold harmless and defend the City, its
agents, servants and employees from and against any claim, demand or cause of action of whatever
kind or nature arising out of any misconduct of the Conservancy not included in the paragraph in the
subsection above and for which the City, its agents, servants or employees are alleged to be liable.
This subsection shall not apply, however, to any such liability as may be the result of the willful
misconduct of the City, its agents, servants or employees.
22.3 Subroe:ation. The terms of insurance policies referred to in Section 21 shall preclude
subrogation claims against the Conservancy, the City and their respective officers, employees and
agents.
SECTION 23.
NO LIENS.
The Conservancy agrees that it will not suffer, or through its actions or anyone under its
control or supervision, cause to be filed upon the Premises any lien or encumbrance of any kind. In
the event any lien is filed, the Conservancy agrees to cause such lien to be discharged within ten (10)
days therefrom, and in accordance with the applicable law and policy. If this is not accomplished,
the City may automatically terminate this Agreement, without further notice to the Conservancy.
SECTION 24.
CONSERVANCY EMPLOYEES AND MANAGERS.
The City and the Conservancy recognize that in the performance ofthis Agreement, it may be
necessary for the Conservancy to retain employees and/or managers to effectuate and optimize the
18
Garden Center Management Agreement
Draft 1/4/07
Conservancy's management and operation of the Botanical Garden. Any employees, agents,
independent contractors, volunteers, and/or other individuals and/or entities retained by the
Conservancy for such purpose( s) shall not be deemed to be agents, employees, partners, joint
venturers or associates of the City and shall not obtain any rights or benefits under the civil service or
pension ordinances of the City or any rights generally afforded classified or unclassified employees
of the City; further they shall not be deemed entitled to the Florida Worker's Compensation benefits
as employees of the City. Additionally, the Conservancy and any persons employed by it, or
volunteers acting under the authority and/or with the permission of Conservancy, shall never have
been convicted of any offense involving moral turpitude or felony. Failure to comply with this
provision shall constitute a violation of this Agreement. The Conservancy shall have an experienced
manager or managers overseeing the Premises at all times. Any criminal activity on the Premises
caused by or knowingly permitted by the Conservancy shall result in automatic termination of this
Agreement.
SECTION 25.
NO IMPROPER USE.
The Conservancy will not use, nor suffer or permit any person to use in any manner
whatsoever, the Premises for any improper, immoral or offensive purpose, or for any purpose in
violation of any Federal, State, County, or municipal ordinance, rule, order or regulation, or of any
governmental rule or regulation now in effect or hereafter enacted or adopted. The Conservancy
shall not use the Premises for any unlawful purpose and shall comply with all laws, permitting, and
licensing requirements now in force or hereafter adopted, applicable to the Premises or the activities,
uses, and/or business(es) conducted on the Premises. The Conservancy agrees not to use the
Premises for, or to permit operation of any offensive or dangerous activity, nuisance or anything
against public policy. Except as may result from acts of force majeure, the Conservancy agrees that
it will not allow the Premises to become unoccupied or vacant. The Conservancy shall take
appropriate precautions to prevent fire on the Premises, maintaining existing fire detection devices
and extinguishing equipment at all times.
19
Garden Center Management Agreement
Draft 1/4/07
SECTION 26. NO DANGEROUS MATERIALS.
The Conservancy agrees not to use or permit in the Premises the storage of illuminating oils,
oil lamps, turpentine, gasoline (except for small containers [5 gallons or less] for machinery),
benzine, naphtha, or other similar substances, or explosives or any kind, or any substance or thing
prohibited in the standard policies of fire insurance companies in the State of Florida.
SECTION 27. NO CLAIM AGAINST CITY OFFICERS, EMPLOYEES,
INDIVIDUALS.
It is expressly understood and agreed by and between the parties hereto that all individuals,
employees, officers, and agents ofthe City are acting in a representative capacity and not for their
own benefit; and that neither the Conservancy nor any occupant shall have any claim against them or
any of them as individuals in any event whatsoever in conjunction with any acts or duties which are
reasonably related to the performance of their duties.
SECTION 28.
DEFAULT AND TERMINATION.
If either party fails to perform in accordance with any of the terms and conditions of this
Agreement, and such default is not cured within fifteen (15) days after written notice is given, the
aggrieved party shall have the right to immediately terminate this Agreement and, as the case may be
either vacate or re-enter the Premises, without further notice or demand. At its option, either party
may also pursue any and all legal remedies available to seek redress for such default.
SECTION 29.
TERMINATION FOR CONVENIENCE.
Notwithstanding the provisions of Section 28 above, this Agreement may be terminated by
the City, for convenience and without cause, upon the furnishing of sixty (60) days written notice to
the Conservancy.
SECTION 30.
NOTICES.
All notices from the City to the Conservancy shall be deemed duly served if mailed by
20
Garden Center Management Agreement
Draft 1/4/07
registered or certified mail to the Conservancy at the following address:
Miami Beach Garden Conservancy, Inc.
Attention: Executive Director
2000 Convention Center Drive
Miami Beach, Florida 33139-1821
All notices from the Conservancy to the City shall be deemed duly served if mailed to:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to:
City of Miami Beach
Attention: Kent Bonde, Redevelopement Coordinator
1700 Convention Center Drive
Miami Beach, Florida 33139
The Conservancy and the City may change the above mailing addressed at any time upon giving the
other party written notification. All notice under this Agreement must be in writing.
SECTION 31.
NO DISCRIMINATION.
The Conservancy agrees that there shall be no discrimination as to race, sex, color, creed,
national origin, physical handicap, or sexual orientation in the operations referred to by this
Agreement; and further, there shall be no discrimination regarding any use, service, maintenance or
operation of the Premises. All facilities located on the Premises shall be made available to the
public; subject to the right of Conservancy to establish and enforce reasonable rules and regulations
to provide for the safety, orderly operation and security of the facilities.
SECTION 32.
VENUE.
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 principles of conflict oflaws.
21
Garden Center Management Agreement
Draft 1/4/07
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, ifin federal court.
BY ENTERING INTO THIS AGREEMENT, CITY AND CONSERV ANCE EXPRESSLY
WAIVE ANY RIGHTS EITHER PARTY MA Y HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
SECTION 33.
LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only if in so doing the City can place a limit on
its liability for any cause of action for money damages due to an alleged breach by the City of this
Agreement, so that its liability for any such breach never exceeds the sum of $1 0,000. Contractor
hereby expresses his willingness to enter into this Agreement with Contractor's recovery from the
City for any damage action for breach of contract to be limited to a maximum amount of $1 0,000,
less the amount of all funds actually paid by the City to Contractor pursuant to this Agreement.
Accordingly, and notwithstanding any other term or condition of this Agreement, Contractor
hereby agrees that the City shall not be liable to the Contractor for damages in an amount in excess
of $1 0,000, which amount shall be reduced by the amount actually paid by the City to Contractor
pursuant to this Agreement, for any action or claim for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this Agreement.
Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability as set forth in Section 768.28, Florida
Statutes.
22
Garden Center Management Agreement
Draft 1/4/07
IN WITNESS WHEREOF, the parties hereto hav
their seals to be affixed; all as of this day and year first
:~~~~
City Clerk
Robert Parcher
their names to be signed and
Secretary
MIAMI BEACH GARDEN
~l:j~NC.
President ~
Attest:
Print Name
\Z.. 'lttwv< 1) Gr. ,,)(.. H::,o
Print Name
F:\A TTO\AGUR\AGREEMN1\GARDNCTR.MGT
APPROVED AS TO
FORM & LANGUAGE
OR CUnON
I }-n) 1>7
Date
23
Garden Center Management Agreement
Draft 1/4/07
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 6 -tA day of P:;lYIIIl'1t' ,
2007, by Mayor David Dermer and Robert Parcher, City Clerk, or their designees respect~vely, on
behalf of the CITY OF MIAMI BEACH, known to me to be the persons described in and who
executed the foregoing instrument, and acknowledged to and before me that they executed said
instrument for the purposes therein expressed.
WITNESS my hand and official seal, this J:/tIJ day of r ~, 200t
?i
Notary lie, S
Commission No.:
My Commission
at Large
I<S1RY HERNANDEZ
.:r. MY COMMISSION I DO 626373
: ' EXPIRES: May 3, 2011
_nw-.PubIc-
STATE OF FLORIDA
)
)
)
SS:
COUNTY OF MIAMI-DADE
The f~ego.iyg in~tAwas a~knowledged before me this ~daY of O~ '
2007, by ~) , on behalf of the MIAMI BI(XCH GA EN
CONSERVANCY, INC., known to me to be the persons described in and who executed the
foregoing instrument, and ackn)lwle?ged to and befofl( me that they executed said instrument for the
purposes therein expressed. L~ ~
WITNESS my hand and official seal, this &1ay of a~ ,2007.
Jr; U:___(
N6~tr-;~'~L&g<
Commission No.:
My Commission Expires:
RJA\!.-".'
F:\A TTO\AGUR\AGREEMNTIGARDNCTRMGT
(i)'~ KEARY HERNANDEZ
!'i :~ MY COMMISSION # DO 626373
~. . .. . . EXPIRES: May 3, 2011
~P.r.,~' BondedThruNolalypLbIIcUnderwrlters
24