Resolution No. 2017-44 Performing Arts Center Authority Third Amendment Agreement for AACC- September 5, 2017 RESOLUTION NO. 2017-44
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA AUTHORIZING THE CITY MANAGER TO
EXECUTE THE ATTACHED THIRD AMENDMENT TO THE
AGREEMENT BETWEEN THE CITY OF AVENTURA AND THE
PERFORMING ARTS CENTER AUTHORITY FOR MANAGEMENT,
PROGRAMMING AND OPERATIONAL SUPPORT SERVICES FOR THE
AVENTURA ARTS & CULTURAL CENTER; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE
AIMS OF THIS RESOLUTION; AND PROVIDING FOR AN EFFECTIVE
DATE.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Section 1. The City Manager is hereby authorized to execute the attached
Third Amendment to the Agreement between the City of Aventura and the Performing
Arts Center Authority for management, programming and operational support services
for the Aventura Arts & Cultural Center.
Section 2. The City Manager is hereby authorized to do all things necessary to
carry out the aims of this Resolution and the Agreement.
Section 3. This Resolution shall become effective immediately upon its
adoption.
The foregoing Resolution was offered by Commissioner Narotsky, who moved its
adoption. The motion was seconded by Commissioner Dr. Marks, and upon being put
to a vote, the vote was as follows:
Commissioner Denise Landman Yes
Commissioner Dr. Linda Marks Yes
Commissioner Gladys Mezrahi Yes
Commissioner Marc Narotsky Yes
Commissioner Robert Shelley Yes
Vice Mayor Howard Weinberg Yes
Mayor Enid Weisman Yes
City of Aventura Resolution No. 2017-44
PASSED AND ADOPTED this 5th day of September, 2017.
NID WEISMAN, MAYOR
F10-
.e 649
ATTEST:
ELLISA L. HORVA TH, MC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
Page 2of2
THIRD AMENDMENT
To
AGREEMENT
Between
PERFORMING ARTS CENTER AUTHORITY
and
CITY OF AVENTURA
for
MANAGEMENT, PROGRAMMING AND OPERATIONAL SUPPORT SERVICES FOR
THE AVENTURA ARTS & CULTURAL CENTER
This is the Third Amendment ("Third Amendment") to the Agreement dated
September 28, 2012 ("Agreement" or "AGREEMENT"), between: PERFORMING ARTS
CENTER AUTHORITY, an independent special district and a public body, politic and
corporate, in Broward County organized in the State of Florida under the laws of Florida
(hereinafter "PACA"), which is located at the Broward Center for the Performing Arts in
Broward County, Florida 33312, and the City of Aventura (hereinafter "CITY" or
"AVENTURA"), a Florida municipal corporation. PACA and the CITY (or AVENTURA")
are collectively referred to as the "parties or "Parties."
RECITALS:
On September 28, 2012, the Parties entered into an agreement for PACA to
provide programming, management and operational services to AVENTURA (the
"Agreement").
The Parties subsequently entered into a First Amendment on September 3, 2015,
and a Second Amendment on August 11, 2016, to renew the Agreement.
By this Third Amendment, the Parties now seek to amend the Agreement to
provide for a third renewal term consisting of a total of three (3) years and to provide for
payment for such time period.
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
Aventura & PACA Third Amendment
1. The Parties agree that the "Recitals" clauses are true and accurate.
2. Except as modified herein, all terms and conditions of the Agreement, shall
remain in full force and effect. Amendments to the Agreement are indicated
by use of strikethroughs to indicate deletions and bold/underlining to
indicate additions, unless otherwise stated.
3. Article 4, "Term And Time Of Performance," is amended as follows:
ARTICLE 4
TERM AND TIME OF PERFORMANCE
The initial term of this Agreement shall begin on October 1, 2012 ("Effective
Date"), and it shall continue in full force and effect for thirty-six (36) months
through September 30, 2015, unless terminated sooner as provided in
Article 7 herein. Thereafter, the Agreement shall be subject to renewable
one-year terms not-to-exceed a total of five (5) two (2) one-year terms and
a third term renewal consisting of three (3) years, upon mutual written
amendment to this Agreement by PACA and AVENTURA at the—C-ity's
AVENTURA's discretion. If the term of this Agreement extends beyond a
single fiscal year of PACA or of AVENTURA, the continuation of this
Agreement beyond the end of any fiscal year shall be subject to the
appropriation and availability of funds in accordance with Chapter 129,
Florida Statutes, as amended, and Florida Statutes Section 166.241, as
amended. • - e. • - •- -: .: -- e - •- By the First Amendment,
the Parties renewed the AGREEMENT through September 30, 2016, as
the first of the above described and permitted one-year renewal terms. The
parties hereby agree to renew By the Second Amendment, the Parties
renewed the AGREEMENT through September 30, 2017, as the second of
the above-described and permitted one-year renewal terms. By the Third
Amendment, the Parties renewed the AGREEMENT for the three-year
period commencing October 1, 2017, through September 30, 2020, as
the third term described above in this Article.
4. Article 5, "Compensation," Sections 5.2, 5.2.1, and 5.2.2, are amended as
follows:
5.2 METHOD OF BILLING AND PAYMENT FOR AVENTURA'S
PAYMENTS TO PACA
5.2.1 The fees for Services as stated in Section 5.1.1 shall be
payable by AVENTURA to PACA as follows:
Commencing with the Effective Date of this Agreement
Aventura & PACA - 2 - Third Amendment
through the end of the first one-year renewal ending
September 30, 2016, the fees for Services, as stated in
sSection 5.1.1 shall be payable to PACA as follows: Eleven
Thousand Dollars ($11,000.00) is due every thirty (30)
calendar day cycle. Effective on October 1, 2016, with the
commencement of the second renewal period, the fees for
Services, as stated in sSection 5.1.1 shall be payable to
PACA as follows: Eleven Thousand Three Hundred Thirty
Dollars ($11,330.00) which is due every thirty (30) calendar
day cycle with the first payment due on October 30, 2016.
The payment for the three (3) year term ending
September 30, 2020, shall be made by AVENTURA to
PACA as stated herein. Effective on October 1, 2017
with the commencement of the first year of the
three-year term, the fees for Services, as stated in
Section 5.1.1, shall be payable to PACA as follows:
Eleven Thousand Six Hundred Seventy Dollars
($11,670.00) which is due every calendar month cycle for
twelve (12) months. The first payment shall be due on
October 31, 2017, and on the last day of each
subsequent month through September 30, 2018.
Effective on October 1, 2018, with the commencement of
the second year of the three-year term, the fees for
Services, as stated in Section 5.1.1, shall be payable to
PACA as follows: Twelve Thousand Twenty Dollars
($12,020.00)which is due every calendar month cycle for
twelve (12) months with the first payment due on
October 31, 2018, and on the last day of each
subsequent month through September 30, 2019.
Effective on October 1, 2019, with the commencement of
the third year of the three-year term, the fees for
Services, as stated in Section 5.1.1, shall be payable to
PACA as follows:
Twelve Thousand Three Hundred Eighty Dollars
($12,380.00)which is due every calendar month cycle for
twelve (12) months with the first payment due on
October 31, 2019, and on the last day of each
subsequent month through September 30, 2020. If the
gross revenues exceed Two Hundred Twenty-five Thousand
Aventura & PACA - 3 - Third Amendment
Dollars ($225,000.00) for the period of October 1, 2015,
through September 30, 2016. PACA shall be paid an
additional $12,000.00 for that period no later than
October 30, 2016. If the gross revenues exceed Two
Hundred Twenty-five Thousand Dollars ($225,000.00) for the
period of October 1, 2016, through September 30, 2017,
PACA shall be paid an additional $12,000.00 for that period
no later than October 30, 2017, even if the AGREEMENT is
not renewed _ _ • _ _ - _ - •- - - - . If the gross
revenues exceed Two Hundred Twenty-five Thousand
Dollars ($225,000.00) for the period of October 1, 2017
through September 30, 2018, PACA shall be paid
additional compensation of $12,000.00 for Services for
that period no later than October 30, 2018. If the gross
revenues exceed Two Hundred Twenty-five Thousand
Dollars ($225,000.00) for the period of October 1, 2018
through September 30, 2019, PACA shall be paid
additional compensation of $12,000.00 for Services for
that period no later than October 30, 2019. If the gross
revenues exceed Two Hundred Twenty-five Thousand
Dollars ($225,000.00) for the period of October 1, 2019
through September 30, 2020, PACA shall be paid
additional compensation of $12,000.00 for Services for
that period no later than October 30, 2020. Such payment
obligation of AVENTURA shall survive the expiration of
the Agreement. Net revenues as used in this section shall
include ticket sales for AACC Presents performances, box
office fees, facility fees, facility rent, service package fees,
production service fees, net food and beverage revenues,
parking revenue., and any other net revenues generated by
the operations of the AACC from the users of the AACC.
5.2.2 As to the invoicing for the monthly payment of
compensation for the Services, PACA will submit invoices
for compensation following the end of each thirty (30)
calendar day month cycle, after the cervices Services for
which invoices are submitted have been completed. An
original invoice will be submitted by PACA to AVENTURA.
Invoices shall designate the nature of the services Services
performed for the period.
Aventura & PACA - 4 - Third Amendment
5,2,2 As to the payment of compensation for Services
AVENTURA shall pay PACA _! __ . _ .
of the date for Services by the last day of each month as
stated in Section 5.2.1 above, subject to receipt of
PACA's invoice statement. To be deemed proper, all
invoices must comply with the requirements set forth in this
Agreement.
As to any additional compensation due for Services as a
result of the calculation of the gross revenues each year
of the three-year term as stated in Section 5.2.1 above,
PACA will submit an original invoice for compensation
within fifteen (15) days after September 30 of each year,
and AVENTURA shall pay PACA by October 30 of each
year including October 30, 2020. Such payment
obligation shall survive the expiration or earlier
termination of the Agreement. Invoices shall designate
the nature of the gross revenue calculation resulting in
the additional compensation invoice.
AVENTURA's responsibility for the expenses described
in Section 6.8 in connection with the management, use,
occupancy, and operation of the AACC and AVENTURA's
additional responsibility to make payments to reimburse
PACA for costs associated with the agreed upon
employees to staff the AACC and other agreed upon
operating costs of the AACC, as stated in Section 5.1.1
shall be invoiced and paid as follows:
PACA will invoice AVENTURA within twenty-five (25)
days following the end of each calendar month for
expenses incurred under Section 6.8 and any
reimbursement expenses incurred under Section 5.1.1.
AVENTURA shall pay PACA for such reimbursement
expenses within thirty (30) days after the date of receipt
of the invoice. Such payment obligation shall survive the
expiration or earlier termination of the Agreement for the
last payment due under this section and invoice(s), if any,
remaining unpaid and due under the Agreement.
5. Article 7, "Miscellaneous," Section 7.1 is amended as follows:
Aventura & PACA - 5 - Third Amendment
7.1 RIGHTS AND OWNERSHIP OF DOCUMENTS; PUBLIC
RECORDS
Both PACA and AVENTURA are public entities organized under the
laws of the State of Florida, and notwithstanding anything herein
contained to the contrary; PACA and AVENTURA shall comply with
the Public Records Law. If a copyright is claimed by either party, as
to any work related to this Agreement, the other party grants a
non-exclusive license to use the copyrighted item(s) indefinitely, to
prepare derivative works, and to make and distribute copies to the
public. Except as relating to confidential customer data, confidential
ticket data, and any other information and materials determined by
Florida's laws (as amended) to be confidential as to a public entity,
PACA and AVENTURA agree that the information, reports, data, and
other documents created by PACA or on behalf of AVENTURA
related to this Agreement shall become the jointly owned property of
PACA and AVENTURA. Each party, as separate and independent
owners, shall have the separate and independent right to use,
photocopy, and share with third parties, as it determines appropriate
in its sole discretion such information, report, data and other
documents separately and independently of the ownership rights of
the other party, and such party shall not be required to provide any
notice or obtain any consent from the other party relating to such use.
PACA and AVENTURA are public entities subject to the public
records laws in Chapter 119, Florida Statutes. Each party is
responsible for complying with its public records requests and
the public records laws in Chapter 119, Florida Statutes,
including Section 119.0701.
6. Article 7, "Miscellaneous," Section 7.2 is amended as follows:
7.2 TERMINATION
7.2.1 This Agreement may be terminated for cause by action of
PACA's Board or PACA's President/CEO or by AVENTURA's
City Commission upon ninety (90) calendar days' prior written
notice specifying the default or breach as furnished by the
party that elected to terminate e e e -e • - . . e
e . . •e .. . • • •.• . .• e- e. Prior to the issuance
of such notice, the non-breaching party shall provide at
least ten (10) calendar days' prior written notice to the
Aventura & PACA - 6 - Third Amendment
a
other party and an opportunity to cure the breach or
default within such time period. Any written notice
required by Section 7.2 may be provided by AVENTURA
(through its City Manager) or PACA (through its
President/CEO) after any required action, if applicable.
Notwithstanding anything to the contrary contained in this
Agreement, this Agreement may not be terminated for
convenience except as allowed by Section 3.3 as to food
and beverages services. This Agreement may be terminated
by PACA's President/CEO or the City Manager of
AVENTURA upon such notice as such President/CEO or the
City Manager deems appropriate under the circumstances in
the event that PACA PACA's President/CEO or the City
Manager determines that termination is necessary to protect
the public health, safety, or welfare. If oral notice is used
such notice shall be followed by written notice from the
terminating party (through its stated representative)
within five (5) business days after such oral notice and
shall include the effective date of termination.
7.2.2 Termination of this Agreement for cause shall include, but not
be limited to, failure to suitably perform the work, failure to
continuously perform the work in a manner calculated to meet
or accomplish the objectives of PACA or AVENTURA as set
forth in this Agreement, or breach of any of the provisions of
this Agreement notwithstanding whether any such breach was
previously waived or cured.
7.2.3 Notice of termination shall be provided in accordance with
Section 7.13, "NOTICES," by PACA's President/CEO or the
City Manager which PACA's President/CEO or the City
Manager, respectively deems necessary to protect the public
health, safety, or welfare. It may be verbal notice which shall
be promptly confirmed in writing within three (3) business days
in accordance with Section 7.13 of this Agreement.
7.2.4 In no event shall AVENTURA be liable to PACA for any
additional compensation, upon such early termination only as
provided for in Section 7.2.1 above, beyond that earned in
accordance with the schedule of payments provided in
Section 5.2.1 above other than that expressly provided herein,
nor shall AVENTURA be liable to PACA for any consequential
or incidental damages.
Aventura & PACA - 7 - Third Amendment
7.2.5 Any termination for convenience or without cause (except as
allowed under Section 3.3) shall be considered a breach of
this Agreement. Any termination for convenience or without
cause shall not relieve PACA or AVENTURA from any of their
respective obligations or liabilities incurred by PACA or
AVENTURA prior to the effective date of such termination
including, without limitation, the payment of all fees owed to
PACA or the payment by AVENTURA of all expenses incurred
relating to the management, programming, and operations
support, and use of the AACC. If this Agreement expires or
is terminated, . .e• - • • .-, • e . .. . - e - . -
PACA shall be entitled to use the AACC for all
PACA-presented existing, committed events, and PACA shall
be charged the applicable rate already agreed to in the
applicable presenting agreement(s), or if none, then the
applicable rates in existence at the AACC on the effective
date of termination in order to meet performance
commitments under existing Agreements with AVENTURA for
such use by PACA.
7.2.6 In the event this Agreement is terminated for convenience as
allowed by Section 3.3 as to the food and beverages
services, PACA shall be paid for any cervices Services
properly performed under the Agreement through the
termination date specified in the written notice of termination
subject to the provisions stated herein. Each party
acknowledges and agrees that it has received good, valuable
and sufficient consideration from the other party, the receipt
and adequacy of which are, hereby acknowledged by each
party, for the other party's right to terminate this Agreement
for convenience as allowed by Section 3.3.
7.2.7 As applicable, the Agreement may also be terminated for
cause if AVENTURA or PACA is placed on the Scrutinized
Companies with Activities in Sudan List or the Scrutinized
Companies with Activities in the Iran Petroleum Energy Sector
List created pursuant to Section 215.473, Florida Statutes, as
amended or if PACA or AVENTURA provides a false
certification submitted pursuant to Section 287.135, Florida
Statutes, as amended.
7. All other terms and conditions of the Agreement (including exhibits) as
amended by the First and Second Amendment, not inconsistent with this
Third Amendment, shall remain in full force and effect and are to be
Aventura & PACA - 8 - Third Amendment
performed at the level specified in the Agreement. This Third Amendment
shall become effective upon complete execution by both Parties or
September 30, 2017, whichever date is earlier.
(The remainder of this page is intentionally left blank.)
Aventura & PACA - 9 - Third Amendment
IN WITNESS WHEREOF, the Parties hereto have made and executed this Third
Amendment to the Agreement dated September 28, 2012, on the respective dates under
each signature: PERFORMING ARTS CENTER AUTHORITY, signing by and through its
Chair or Vice Chair,and CITY OF AVENTURA, signing by and through its City Manager,duly
authorized to execute same.
PACA
PERFORMING ARTS CENTER AUTHORITY,
an independent special district and a public body
politic and corporate
ATT T: '
(17
0.
By X �� J
P•CA's Board Se etary Chair
(SEAL) day of AR/1— , 201i
Approved as to form by PACA's General Counsel,
Broward County Attorney,
in Fort Lauderdale, Broward County, Florida
By
Andrea S. Froome (Date)
Senior Assistant County Attorney
ASF:dp
2017-07-24 Aventura-ACC-PACA.Amend#03
07/24/17
#17-158
Ave ntura&PACA - 10- Third Amendment
THIRD AMENDMENT TO THE AGREEMENT BETWEEN PERFORMING ARTS CENTER
AUTHORITY AND CITY OF AVENTURA FOR, MANAGEMENT, PROGRAMMING AND
OPERATIONAL SUPPORT SERVICES FOR THE AVENTURA ARTS AND CULTURAL
CENTER
AVENTURA
CITY OF AVENTURA, a municipality
in the State of Florida /
/
By -
Eric M. Sorok:, City Manager
day of , 2017.
ATTEST:
CsAPPROVED AS TO FORM:
City Clerk
By y`
Weiss Serota Helfman Cole
& Bierman, P.L.
'4. City Attorney
(SEAL) `
Circ ea 6%
Aventura & PACA - 11 - Third Amendment
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