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2002-012RESOLUTION NO. 2002-12 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED POLICE SERVICES AGREEMENT BETWEEN THE CITY OF AVENTURA AND AVENTURA MALL VENTURE, WHICH REPLACES THE AGREEMENT DATED AUGUST 1, 1998; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING 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 Police Services Agreement between the City of Aventura and Aventura Mall Venture which replaces the Agreement dated August 1, 1998. Section 2. The City Manager is hereby authorized to do all things necessary to carry out the aims of this Resolution Section 3. This Resolution shall become effective immediately upon its adoption. The foregoing Resolution was offered by Vice Mayor Rogers-Libert, who moved its adoption. The motion was seconded by Commissioner Grossman, and upon being put to a vote, the vote was as follows: Commissioner Arthur Berger yes Commissioner Jay R. Beskin yes Commissioner Ken Cohen yes Commissioner Manny Gressman yes Commissioner Harry Holzberg yes Vice Mayor Patricia Rogers-Libert yes Mayor Jeffrey M. Pedow yes Resolution No. 2002- 12 Page 2 PASSED AND ADOPTED this 5~h day of February, 2002. ~ ..xI~P~RE~Y IVY. PERLOW, MAYOR-- APPROVED AS TO LEGAL/I~IFFIClENCY: CITY ATTORNEY POLICE SERVICES AGREEMENT THIS AGREEMENT (the "Agreement") is effective the ~ day of ,2002 (the "Effective Date') by and between the CITY OF AVENTURA, FLORIDA, a Florida municipality (the "CITY") and AVENTURA MALL VENTURE, a Florida general partnership (the "OWNER"). WHEREAS, OWNER is the owner and operator of the Aventura Mall (the "Mall") which constitutes the largest retail shopping facility within the CITY and within the region, and provides more than two million square feet of retail space; and WHEREAS, the volume and intensity of retail activities at the Mall creates special police and law enforcement demands; and WHEREAS, OWNER wishes to help offset the CITY'S costs which result from the provision of law enforcement services at the Mall; and WHEREAS, the City Commission finds that this Agreement constitutes a public purpose in providing police services and a tool to offset a portion of the cost of CITY'S law enforcement services required by the Mall. WHEREAS, OWNER and CITY have previously entered into a Police Services Agreement dated August 1, 1998 (the Prior Agreement"); and WHEREAS, simultaneous with the execution of this Agreement, the Prior agreement will terminate and be of no further force and effect. THE PARTIES HERETO DO COVENANT AND AGREE, AS FOLLOWS: Section I. Incorporation of Recitals. The foregoing recitals are hereby incorporated herein and made a pert hereof by this reference. Section II. Provision of Law Enforcement Services. A. On Dub/ Mall Zone Patrol At a minimum, City shall provide the services of three (3) on-duty law enforcement officers. All such personnel shall work exclusively at the Mall premises except in the event of extraordinary police emergencies. The officers shall be situated and located at the Mall for CITY's convenience in enhancing response times and avoiding unnecessary interruptions of regular CITY patrol. Personnel shall work shift hours set forth based on the schedule contained in Exhibit "A". The CITY will use it's best efforts to have the officers execute a Limited Waiver and Release of Liability in favor of OWNER in a form agreed to by beth parties. B. On Duty Mall Interior Patrol At a minimum CITY shall provide the services of six (6) on duty law enforcement officers. All such Personnel shall work exclusively out of the mall except in the event of extraordinary police emergencies and be stationed out of the police substation, which is located in the Mall for CITY's convenience in enhancing response times and avoiding unnecessary interruptions of regular CITY patrol. Personnel shall work shift hours set forth based on the schedule contained in Exhibit "B". The CITY will use it's best efforts to have the officers execute a Limited Waiver and Release of Liability in favor of OWNER in a form agrccd to by both parties. C. Administration of Work The City shall provide one (1) supervisor to oversee zone units, mall interior units and off-duty units. The Supervisor shall submit to Mall Management, a list of names of the on-duty officers assigned to work at the Mall. Any changes made to the list dudng the term of the Agreement shall be reported to Mall Management. The Supervisor or acting Supervisor shall be at the Mall dudng all shift hours set forth on the schedule on Exhibit "A". It shall be the Supervisor's responsibility to ensure that the vacation times of the On-Duty Officers do not conflict with the schedule set forth herein. Additionally, during the Holiday Season (as defined in Exhibit "C" attached hereto, or as later modified in writing by OWNER) no more than one (1) of the On-Duty Officers shall be on vacation at a time. Whenever an officer is on vacation or sick, either a supervisor or a police officer selected and paid for by the City will cover such officers' duties. Both City and Owner agree it is essential for the Supervisor to have a good working relationship with the Mall. Should any problems arise regarding supervision, The Police Chief and Mall Management will meet to address these issues. By giving whtten notice to CITY, OWNER may reduce the amount of On-Duty Officers it pays for and requires. City shall have up to six (6) months to implement such reductions. Notwithstanding, Owner, shall not reduce by more than six (6) officers at any point in time. The remaining officers shall be assigned based on Owner's requested allocation and the Owner may amend the personnel work shift hours as set forth on the schedule contained on Exhibit "B". D. Payment OWNER shall pay to CITY the annual amount of Four Hundred and Eight-Seven Thousand Five Hundred Dollars ($487,500), payable in advance, in equal monthly installments, for the duration of this Agreement to pay for seven and one-half (71/2) officers (the "Payment"). The CITY will pay for Supervisor and one and one-half (11/2) other officers. Payment shall be allocated to be Sixty-five Thousand Dollars ($65,000) per officer. Payment shall be made pro rata based on the number of officers retained and stationed at the Mall. Notwithstanding, Owner's obligation shall not commence unless and until City has retained its one and one-half (11/2) officers and Supervisor. The Payment shall be subject to annual Consumer Price Index (CPI) increases in October of each year beginning on October 1, 2002. Payment shall be over and above payments of applicable ad valo~ern taxes, normal City revenues, impact fees and other fees as provided by law. The CITY represents that no sales tax is due on the payment. However, if sales tax does become due and payable, then CITY shall indemnify OWNER for any such sales tax due. E. Off Duty Subject to CITY law enforcement personnel and resource limitations CITY shall provide off duty law enforcement officers ("Office-Duty Officers") for private duty details to the Mall on an as needed basis upon the request of the OWNER. OWNER hereby agrees to provide CITY at least two (2) weeks prior written notice in the event the services of Off-Duty Officers are needed. The Mall shall pay to City the prevailing off duty police officer rate per hour as established by City and in accordance with any future increases to said rate for all off duty officers. F. City Personnel All law enforcement personnel assigned to the Owner are employees of City which is acting as an independent contractor. City will pay all appropriate compensation due and owing to its law enforcement personnel, all employer contributions, and all required payroll taxes and withholdings as levied by the appropriate authorities. City shall provide for all personnel administration of its law enforcement officers assigned to the Mall and hereby fully indemnifies Owner from any liability thereunder, subject to the limits of Sec. 768.28, F.S. G. Record Maintenance and Self Audit The CITY shall be responsible for maintaining a log of the hours worked by all Personnel and supplying such data on a monthly basis to the Mall Designee. It shall be the CITY's responsibility to monitor and self audit all aspects of the Substation and to ensure that all Personnel are performing the duties required by this Agreement. H. Manpower Revisions Any deviations from the schedule manpower requirements established in this Agreement shall be subject to the approval of the City Manager or his designee and OWNER. I. Holiday Covera,qe Notwithstanding anything herein to the contrary, in the event OWNER needs more coverage than provided for herein during the Holiday Season, OWNER shall make a written request for such additional coverage to the CITY at least thirty (30) days prior to the commencement of such Holiday Season and the CITY shall use its best efforts to comply with OWNER'S request. J. Annual Review Police law enforcement needs for the Mall shall be evaluated semi-annually by CITY and OWNER to deterrnine if any changes are necessary to improve security at the Mall. The first evaluation shall take place six (6) months after the Effective Date. Section III. Term of A.qreement. This Agreement shall be in full force and effect for a period commencing on the Effective Date hereof and expiring five (5) years thereafter, and shall be subject to an automatic one (1) year renewal unless either party gives written notice of termination at least six (6) months prior to the expiration of the applicable term. Section IV. Cooperation. /L OWNER shall use its best efforts to cooperate with CITY's police department in connection with the performance of this Agreement. B4 OWNER shall continue to provide private security guard services for the safety of patrons and for protection of property and prevention of theft, at OWNER's sole cost and expense, and nothing in this Agreement shall relieve OWNER of any responsibility or liability imposed by law. Additionally, any arrangements made by OWNER or merchants at the Mall for additional off-duty law enforcement services shall be independent of this Agreement. Section V. Default. A. OWNER Event of Default. Without limitation, failure by the OWNER to substantially fulfill any of its material obligations in accordance with this Agreement, unless such failures are justified by force majeure, shall constitute an "OWNER Event of Default". If an OWNER Event of Default should occur, the CITY shall have all of the following rights and remedies, which it may exercise singly or in combination: 1. In addition to all rights and remedies provided under Florida law, the right to declare that this Agreement, together with all rights granted to OWNER hereunder, terminated, effective upon such date as is designated by the CITY, provided OWNER fails to cure such default for a period of thirty (30) days after receipt of written notice from the CITY of such default (or longer period, provided that (1) the nature of the default is such that it cannot be cured in a period of thirty (30) days from the date of the default; (2) OWNER shall commence good faith efforts to cure such default no later than thirty (30) days after such notice, and (3) such efforts are prosecuted to completion, to CITY's reasonable satisfaction). 2. The right to terminate this Agreement, effective on such date designated by CITY, in the event OWNER shall be in breach of any of the terms or provisions of this Agreement on three (3) or more occasions during any consecutive twenty-four (24) month period, notwithstanding OWNER's right to cure, 4 B. CITY Event of Default. Without limitation, the failure by the CITY to substantially fulfill any of its material obligations in accordance with this Agreement, unless such failures are justified by force majeure, shall constitute a "CITY Event of Default". If a CITY Event of Default should occur, the OWNER shall have the following rights and remedies, which it may exercise singly or in combination: 1. In addition to all rights and remedies provided under Florida law, the right to declare that this Agreement, together with all rights granted to CITY hereunder, terminated, effective upon such date as is designated by the OWNER, provided CITY fails to cure such default for a period of thirty (30) days after receipt of written notice from the OWNER of such default (or longer period, provided that (1) the nature of the default is such that it cannot be cured in a period of thirty (30) days from the date of the default; (2) CITY shall commence good faith efforts to cure such default no later than thirty (30) days after such notice, and (3) such efforts are prosecuted to completion, to OWNER's reasonable satisfaction). 2. The right to terminate this Agreement, effective on such date designated by OWNER, in the event CITY shall be in breach of any of the terms or provisions of this Agreement on three (3) or more occasions during any consecutive twenty-four (24) month period, notwithstanding CITY's right to cure. Section VI. Goveming Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties agree to submit to service of process and jurisdiction of the State of Florida for any controversy or claim arising out of or relating to this Agreement or a breach of this Agreement. Venue for any court action between the parties for any such controversy adsing from or related to this Agreement shall be in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. Section VII. Indemnity. A.. Subject to the specific monetary limits provided by Section 768.28(5), F.S., OWNER shall indemnify, defend and hold harmless CITY and its affiliates, and their respective members, managers, officers, directors, employees and agents (collectively the "City Indemnified Parties") from and against any and all losses, claims, damages, expenses (including reasonable attorneys' fees) and liabilities incurred or paid by any of the City Indemnified Parties in connection with the investigation, defense, prosecution, settlement or appeal of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, and to which any of the City Indemnified Parties was or is a party or is threatened to be made a party by reason of or arising out of, and solely to the extent the same arises out of, the negligence or willful misconduct of OWNER or any of OWNER's partners, officers, employees, agents or centrectors solely in connection with this Agreement. This shall not impair liability limits imposed by Section 768.28(5), B. Subject to the limits of Sec. 768.28, F. S., CITY shall indemnify, defend and hold harmless OWNER and its affiliates, and their respective partners, shareholders, members, managers, officers, directors, employees and agents (collectively the "Owner Indemnified Parties") from and against any and all losses, claims, damages, expenses (including reasonable attorneys' fees) and liabilities incurred or paid by any of the Owner Indemnified Parties in connection with the investigation, defense, prosecution, settlement or appeal of any threatened, pending or completed action, suit or proceeding, whether civil, cr!minal, administrative or investigative, and to which any of the Owner Indemnified Parties was or is a party or is threatened to be made a party by reason of or arising out of, and solely to the extent the same arises out of, the negligence or willful misconduct of CITY or any of its officers, employees, agents or contractors solely in connection with this Agreement. Section VIII. Entirety of Agreement. This Agreement incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein. The parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this Agreement, and that this Agreement contains the entire Agreement between the parties as to the matters contained herein. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that any oral representations or modifications concerning this Agreement shall be of no force or effect, and that this Agreement may be modified, altered or amended only by written agreement duly executed by both parties hereto or their authorized representatives. Section IX. Termination of Prior A,qreement. Upon the Effective Date the Prior A~'eemee,t sh~,[ tex~r~te ~ be of ~a fud, he~ ~rce ~ effect, ~ OWNER and CITY shall be relieved from all obligations thereunder accruing after the Effective Date. This shall not release either party from an obligation under the Prior Agreement for any claim or damage which occurred prior to the Effective Date. Section X Headings. Captions and headings in this Agreement are for ease of reference only and do not constitute a part of this Agreement and shall not affect the meaning or interpretation of any provisions herein. Section Xl Rights of Others. Nothing in this Agreement expressed or implied is intended to confer upon any person other than the parties hereto any rights or remedies under or by reason of this Agreement. Section Xll. Waiver. There shall be no waiver of any right related to this Agreement unless in writing signed by the party waiving such right. No delay or failure to exercise a right under this Agreement shall impair such right or shall be construed to be a waiver thereof. Any waiver shall be limited to the particular rights so waived and shall not be deemed a waiver of the same right at a later time, or of any other right under this Agreement. Section Xlll. Invalidity of Provisions, Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement, provided that the material purposes of this Agreement can be determined and effectuated. Section XIV. Notice. Notices to CITY provided for herein shall be sufficient if sent by Federal Express or certified mail, return receipt requested, postage prepaid, addressed to City Manager at 19200 West County Club Drive, Aventura, Florida 33180, and notice to OWNER, if sent by Federal Express or certified mail, return receipt requested, postage prepaid addressed to OWNER at 19501 Biscayne Blvd., Suite 400, Aventura, Florida 33180 or such other respective address as the parties may designate to each other in writing from time to time. Section XV. Force Majeure. Neither party hereto shall be liable for its failure to carry out its obligations under this Agreement during any pedod when such party is rendered unable, in whole or in part, by force majeure to carry out such obligations, but the obligations of the party relying on such force majeure ("Relying Party") shall be suspended only during the continuance of any inability so caused and for no longer than the pedod of said unexpected or uncontrollable event, and such cause, so far as possible, shall be remedied with all reasonable dispatch. It is further agreed that the obligations of the party not relying on such force majeure ("Nonrelying Party") shall also be suspended during the period of time in which the Relying Party is unable to carry out its obligations under the terms of this Agreement pursuant to such force majeure. It is further agreed and stipulated that the right of any party hereto to excuse its failure to perform by reason of force majeure shall be conditioned upon such party giving the other party, written notice of its assertion that a force majeure delay has commenced within ten (10) working days after such commencement, unless there exists good cause for failure to give such notice, in which event, failure to give such notice shall not prejudice any party's right to justify any non- performance as caused by force majeure unless the failure to give timely notice causes material prejudice to the other party. It is further agreed and stipulated that each party hereto shall make its best efforts to carry out its obligations under this Agreement during any period when such party is rendered unable, in whole or in part, by force majeure to carry out such obligations. 7 This Agreement is entered into on the date written above. Attest: '~ CLEI~ Approved as to form: CITY OF AVENTURA. a Florida municipality Eric M. Soroka ~, CITY MANAGER CITY ATTORNEY AVENTURA MALL VENTURE. ~ia Florida,/;nel ~nership Witnessed ~ Print Name: ..,,e' Witnessed by:C'/~ Print Name: Z~ Ow N(,.) --I1,~ Z 0 I I I I ~ I I ~ I I I I I o ~