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027-2009 UNIDAD North Beach Ocean Front Centerm MIAMIBEACH oFFlce of I~_ clrr ntnr.n~~[e MEMORANDUM No. 027-2009 To The Honorable Edward L. Tobin, Vice-Mayor FROnn: Jorge M. Gonzalez. City Manager \~ %` \, DATF, May 4,2009 ~~~--~ sUaJ[Ci UNIDAD North Beach Ocean Front tenter Attached, per your request, is a copy of the Management Agreement between the City of Miami Beach and UNIDAD of Miami Beach, Inc. for the North Beach Senior Center: dated September 6, 2006. JMGIHMFlAP/dr cc: Mayor and Commissioners F~,V2HCD1SALlWSG-CDICOOKYtUNIDADITObin memo.doc ~ ~) ~ ~ i "~ ~ r'{} _{ r~ 1 ~tt .r '' ` - ~ -n • ~,, --r v ~ 1.4ANAGEMENT AGREE:~ZF,NT BETR'EEN THE CiTX OF NIIAMI BEACH, FLORIDA AND U:VIDAD OF A1L41~1I BEACH, I1~C. FOR THE 'x'ORTII BEACH SE:~`IOR CF,'Q'TER .' THIS AGREEMENT, is made and executed as of this ~ day of ~C~~4 2006, by and between the CITY OF 1`RAMI BEACH, a municipal corporation organized and existing under the laws of the State of Florida (the City), and LNIDAD of'~4iami Beach, inc., a Florida not-for-profit corporation,. whose principal office is located at 1701 Normandy Drive, D~liami Beacl>y Florida, 33141, Miami Beach, Florida 33139-I S21 (L.NIDAD). R'ITNESSETH RECrr.~L.s: . >~it}-r Shore Community Center (and hereinafter referred to as the Senior Center or, in the altcmative, the Premises), located at 7251 Collins Avenue, Miami Beach, Florida 33139; and R'AEREAS, the City, through its Five fear Consolidated Ylan (2003 through 2007}, has noted a continued "high priority'' need for senior sen-ices and senior oriented community centers; and WHEREAS, UNLOAD is a Florida not-for-profi t corporation which has developed a proven track record in providing senior employ~trrent services, senior training and related elderly services; azid R`FIEREAS, the City is desirous of forging a parviership with UTZDAD to manage a comprehensive senior center on the Premises, and has deemed that it ~xould be in the City's best interest to utilize UNIDAD's prior expertise and skills in developing programming in this Senior Center; and R`FIEREAS, in particular, the North Beach community has been identi feed as an area in high need and low supply of senior prog_ram,ning and has, through a community consensus process, identified the creation of a senior center as a top priority, as part of the revitalisation of the North Beach park corridor; R'HEREAS, the City has idenGficd the Premises as an ideal facility for the proposed Senior Center; the facility is in proximity to both Normand}' Drive and CoDins Avenue, providing ready pedestrian access for seniors in the North Beach community, and adjacent barrier island conunututies; and WIiERE.~S, the proposed Senior Center will attract seniors to participate by offering a range of wholesome activities; seniors involved at the Center will become familiar with a full range of social sen-ices, including employTttcnt, counseling, support groups, health information, nutritiott, and cultural offerings; and R'P~REAS, concurrent with its desire to engage UNIDAD in the programming of a camprchcnsir•e senior center, and in order to effectively and fully accomplish such purpose(s), the City has also identified the need for capital improvements to the Senior Center and has committed to appropriating funds for the renovation and rehabilitation of the Senior Center; and ~i'AEREAS, rather than iudependently seek out and purchase a building, and rehabilitate and program a comprehensive senior center on its ow~~, using its own fiutding and technical and intellectual resources, UNIDAD ltas been engaged in discussions with the City with regard to the aforestated "partnership of resources", and is ready, willing and able to contribute substantial financial resources, obtained through Federal capital grant programs administered by the Cit}° and Miami-Dade County, toward augmenting the City's proposed capital renovation and improvement of the Senior Center, in order to develop and operate a full service multi-purpose facility; and VVFLEREAS, the City is desirous that lilvID.4D play a primary role in the operation and management of the proposed Senior Center, as set forth in the terms and conditions of this Agreement, and V'.'HEREAS, in order to optimize its ability to raise monies, through public grant pro¢rams and~or such other sources as may be available to it, it is vital that LT'IDAD (and the City) demonstrate a lonb term cotumitment tow•azd the parties' intended use and programming of the Premises as a compreheusive senior ce-ntcT; to that end, UNID.AD has requested, and the City has deemed it in the best interest of the public, particularly the City's elderly population, that the foregoing Agreement have as long a term as possible. NOR' TIIEREFORE, in consideration of the premises and the tnutual covenants and conditions herein contained, it is agreed by the parties hereto as follows: SECTION 1. The City hereby grants to Ui~~AD, and UivTD.4D hereby accepts from the City, this A~eement for the exclusive use, management, coordination, and operation of the Premises, as more fully described and delineated in the sketch attached hereto and incorporated herein as Exhibit ' .4", in conformance with the purposes and for the period staled herein, and subject to all the terms and conditions herein contained and fairly implied by the terms hcreniaRer set forth. SECTION 2. TERAi. This Agreement shall be for an initial term of forty (40) years, commencing on the 30~' day of September, 2006, and ending on the 29tr' day of September, 2046. At the expiration of the initial term herein, and provided that {i) t,^~~AD is in good standing 'nd--{3~g-fT972~-def8yjy)•1ETEIII3dCL,--and-(jj~ iTU'T1~AT~ rnntim~ec to nperale and manat+~th~C~n~r Center in accordance with the approved uses (as hereinafter defined] and fot the stated purposes herein, this Agreement shall be automatically renewed for a maximum of four (4) additional ten (10) year terms ,under all of the terms and conditions contained herein. In the event that LTIIDAD determines not to renew the Agreement, it shall notify fhe Cify of same, in writing, no less thazi one (1) year prior to the end of the initial term, or a renewal term, as the case may be. SECTION 3. PREMISES. The Premises subject to this Agreement shall be those faciliries and spacesmore specifically described in Exhibit ".4", attached and incorporated hcrellm. Subject to the terms of this Agreement, UVIDAD shall have the primary use and occupation of the Premises and shall be responsible for its management, operation, prograuuning, and maintenance. L'1~'IDAD acknowledges that it has examined the Premises and knows the condition thereof and accepts the Premises in its present condition; "as is," and without any representations or warranties of any kind or nature whatsoever by City as to its condition or as to the use or occupancy which may be made thereof SECl'ION 4. GOALS 4ND PRIORITIES/APPRO«:D USES. 4.1 In keeping with the high priority cited iu the City of 1~4iatni Beach Five-Ycaz Consolidated Plan (2003-2007), for the need in the Cit}• for senior sen•ices and senior centcts, the parties hereto recognize and aclatowledgc the vital need for a comprehensive senior activity attd commttnih• center, particularly within the North Beach community. 4.2 The North Beach community is home to a lazge concentration of seniors, many of whom aze low-income seniors. Seniors, iu general, and lows-income seniors in particulaz, are vulnerable to cultural and social isolation, to misinfotntation and exploitation, and to ignorance of sen•ices available to them. The Senior Center will offer an attractive facility and proeram where seniors will want to come for its vaziet}~ of social, recreational, and cultural activities. R'hile at the Senior Center, seniors will discover grange of senices -- counseliue, employment, nutrTit~ionnT, and 1..,~lch r. nA c~rt:irp 7.OT$.~l~t.~ and the City have identi fled that the need is particularly acute for a Center which is not exclusively a feeding center nor a day care center for seniors, but rather a magnet center whi ch will attract seniors through wholesome activities who would othenvisc not connect with the settidces which should be available to them. 4.3 The parties hereto have detemtined that it is in the City's best interest to bring together the City's resources, together with UNTDAD's proven track record in operating senior emplo}went, cultural enrichment, and related senior services, as well as UN-~AD's intended funding contributions (to supplement the City's proposed funding contribution) and UNIDAD's commitment to manage and operate the Premises, at its sole cost and expense; all towazd the development and management of a comprehensive senior center. The goal and priorities which the Senior Center's programs will attain include the following: • Enhanced access to emplo}~rlent trainutg and placement opportunities for seniors who want and need to w•orlc. • Enhanced access to counselntg, to support groups for health issues and nutrition awareness. • Improved mental and physical health for regulaz participants in Center programs. • Enhanced access to social services for low-income seniors, particulazly in the North Beach community, including services to victims ofdiscrimination, abuse and neglect. • A greater renge of cultural offerings, particularly those otintcrest to seniors, which will serve not only 1Qorth Beach seniors, but also the entire community. 4.4 The Senior Center shall Ue managed and developed as amulti-purpose community resource, centered on theprovision of services and programs and the improvement of the quality of life for senior citizens, and which is intended to include, the following programs, services, activities, and uses: • Operation of an elderly community service program to provide job placement for seniors; • Operation of senior employment training programs; • Senior meals center for the North Beach azea elderly community (subject to funding • Seniorrecreationa] activities, classrooms, special interests, lectures, etc.: and • Culiural activities and special events. (hereinafter, al] such City approved programs, activities; services, azid uses by UIvIDAD in and ofthe Senior Center, whether revenue generating or not, shall be collectivc]yrefcrred herein to as the "`uses" andior the "approved uses")]n the event that LTIID AD seeks to use the Senior Center for additional programs, services, activities and uses w}uch are materially different than the approved uses, as speci5cally enumerated herein, then each such proposed new use shall be subject to the prior written approval of the City which approval, if given at all, shall be at the City's sole discretion, and which shall be memorialized as an amendment to this Agreement. Notwithstanding the preceding sentence, L'N1DAD shall not be required to obtain the City's prior written consent if a proposed new use is reasonably related to the approved uses set forth herein; for purposes of this Section 4, the term "reasonably related" shall refer to a proposed new use that 5 is neither a substantive change nt the approved uses ,nor represents a material programmatic change in said approved uses. 4.5 The Senior Center shall be used by IJIr'ID.AD solely azrd exclusively for the uscs set forth in this Section 4, or such other uses as may be approved by the City. It is understood and agreed that the Senior Center shall be used by UNIDAD during the entire term of this Agreement only for the purposes and'or uses described in (and:'or otherwise approved ptusuant to}Section 4, and for no other purposes or uses whatsoever. In the event thatLNIDAD uscs the Senior Center for any purposes and•'or uses not expressly permitted in Section 4 herein, such use shall be considered a default under this Agreement and the City shall he entitled to all remedies, including termination of this Agreement; asset forth in Section 27 herein. In addition, not,~~thstanding any othertenns of this Agreement, the City shall be entitled to seek immediate relief; whether at law or equity, to restrain such improper use(s). SECTION 5. OPERAT101\' A1SrD V1AN.0.GEA'IENT OF THE SEi\10R CF.VTER 5.1 Subject to the approved uses in Section 4 (as same maybe amended from time to time), and the terms, limitations and required approvals contained in this .Agreement, liI~'IDAD is ~ui71v1 rLw m~aTCCtan a. 2a~ aria-3.ii..+-+i '~4anage and direct the Senior Center and coordinate and supcntise all approved uses thereof; b. Maintain and provide for the day-to-day maintenance and housekeeping for the Premises; c. Supervise and duect all Senior Center employees and personnel consistent with the provisions of this Agreement; d. Maintain and supervise detailed, accurate and complete financial and other records of all its activities under this Agreement in accordance with generally accepted accounting principles. All financial records maintained pursuant to this Agreement shall be retained by L"IQ7D~'1D as long as such records are required to be retained pursuant to Florida Public Records Lain, and shall be made available upon reasonable notice by the City; f. UNIDAD will be allowed to book and promote events at the Senior Center, but only at prevailing rates, fees and prices, as shall be approved bythe City Manager prior to same. UNIDAD shall require that all users of the Senior Center provide certificates of insurance evidencing appropriate insurance, as required and approved by the City's Risk'~4anager. Such insurance is to be kept in force at all times by all users and shall name the City and UKIDAD as additional insureds. g. Develop and implement programs and activities which support and promote the goals and priorities and approved uses, as set forth in Section 4; and h. Coordinate with the City for such public use of the Premises by the City, as set forth ui Section ]t).2 of the Agreement, which coordination and cooperation shall not be unreasonably withheld. Such public uses of the Premises by the City shall he conducted pursuant to policies and procedures, which shall be established and mutually a¢eed upon by U'_v1DP.D and the Cit}°, within six (6) months oC execution of this A~eement by the parries hereto. .. ,, nth-f~ierassae~£, ar~orrsister~t-w~,-iltc - goals and priorities and approved uses, UNID~.D and the City may agree to provide certain recreation and leisure activities at the Senior Center that will be programmed through the City's Park and Recreation Department, or such other prodder as the City may reasonably dclcgate. UhZD ~ and the City hereby agree to use best efforts in mutually dctennining and agreeing upon the time, place, and manner in the coordination of such services and programs within the Senior Center, and further a~•ee that each party will be responsible for its respective costs associ ated with the provision of said services and programs. 5.3 Hours of Operation. The City and UN]DAD herein agree that normal hours of operation for the Senior Center shall be from 10:00 AAA to 5:00 PM, Monday through Fridays. The panics recognize and acknowledge that, under certain circumstances (i.e. special events, special prop'atnming, etc.), UI~TIDAD wil) be permitted to extend its hours oooperation, but in no event shall 7 said hours be shortened without the prior written approval of the City Manager or his designee, which approval shall not be unreasonably withheld. SECTION 6. REVEti'L'E Y'ROM SENIOR CENTER RELATED ACTIVITIES/FIl~'ANCLAL RECORDS AND REPORTS. 6.] Revenue from Senior Center Related Acti~~ties. The City hereni acknowledges that 1J7\ZDAD may dem a additional revenues from a portion ofthe uses it couducts upon or from the Premises, including, but not limited to, special events on the Prenuses, specialty sales, classes, lectures, and sale of food and beverages. UI~TIDAD herein acknowledges that any and all revenue generating uses conducted upon or from the Premises must be duectly related to, consistent witlt, or used to help fluid L~rIDAD's management, operation, and maintenance ofthe Senior Center and, in the event that revenue(s) pertaining to the Senior Center exceed expenses during an annual accounting period, the City and tT'.~TDAD agree that such excess, if any, mar• also be applied by L~7ll.AD to support the programming of L"NIDAD . Any revenue aencrating uses conducted upon or from the Premises that aze not consistent with the uses in this subsection 6.1, shall first be approved, in writing, by the City Manager or his designee, prior to commencement of same. ~~ ~• t u ~r 1Dd-RCPf~rtS 1 1T~"fT».T~ chall ke inn thr P..L~1]1LSCS, or sucki'othcr place within Miami Dade County, Florida, as approved by the Cih', hve, accurate, and complete records and accounts of all receipts and expenses for any and all uses, services, programs, events, activities, and/or revenue generating astivities'operatians bcutg conducted and/or transacted upon or Crom the Premises pursuant to this Agreement and shall give the City, or its designated representative, access during reasonable busuiess hours to examine and audit such records and accounts. Throughout the teen of this Aereement, no later than one hundred and twenty (130) days following [he closing of UNIDAD's fiscal year (October 1" -September 3U'~, which is also the City's fiscal year), UNID.AD shall provide the City Manager or his designee, with an azmual report of all activities and+or operations conducted pursuant to this Agreement for the prior year, along with audited financial statements. Said statements shall be certified as true, accurate and complete by UI\1D.AD and by its certified public accountant. SECTION 7. BUDGET ANll FUNDING FOli THE SENIOR CENTEK. 7.1 Throughout the term of this Agreement, U,YIDAD shall prcpaze and prosent, on October 1st of each City fiscal year (October 1 - Scptemher 3U'", which is also UIdIDAD's fiscal year) a proposed, detailed line item annual operating budget for the Senior Center, for review by the Ciry Manager and.~or his designee. Said budeet shall include a projected income and expense statement; projected year end balance sheet; statement of proj ected income sourrzs; and application of funds. Additionally, the budget shall also ntclude, but not be Limited to, the following detailed projections: a. Gross revenues by categories from all revenue sources and revenue generating activities derived from or upon the Senior Center; b. Operating expenses of the Senior Center; c. Administrative, labor and general expenses; d. Marketing, advenisin~ and promotion expenses; e. utility costs; f. Rcgulaz repairs and maintenance costs (to the extent such repairs and maintenance are the responsibility of UNIDAD, as provided herein) ;and e. In addition to subsection (f) above, identify Cor the Ciry, such long term capital repairs and maintenance of facility infrastructure (cvhiclt the Cit}' is responsible for, as provided herein); in conjunction with this subsection (f) l:I~'IDAD agrees to allow the City and'or its designee access to the Premises, as the City may deem necessary for the purpose of the City conducting its owT facility assessment methodology (as is used by the City in assessing the condition of other City-owned structures including, without limitation, the methodology implemented by the City through the "Vanderbilt Facilities Advisors" (VFA) softwaze). 7.2 Programmatic Plan. Accompan}~ng L"ATD.4D's proposed annual budget shall be the Senior Center programmatic plan for the upcoming fiscal year, detailing the then-known (planned) uses, activities, events, and operations, and the number of users anticipated. SECTION 8. [IN'I'ENTION.4LLY DELE'11;DJ 9 SECTION 9. TIACNTEVr1-'VCE, REPAIRS,?-ND ALTER1T10KS. 9.1 General !Maintenance and Renair. UNIDAD agrees to mavrtain the interior ofthe Premises, and every part thereof, in good condition during the term of the Agreement, including the plumbing, doors and windows, and will not suffer or permit any strip or waste of the Premises. Except as expressly provided in this Agreement, it is understood by the patties hereto that LINiDAD shall not be responsible nor required to pay for any costs related to capital improvements or infrastructure {i.e. including, but not limited to, roof, structural elements and utfrastructurc, HV AC, plumburg and sewer lines; major electrical, etc.) for the Premises. Kotw•ithstandingtho preceding sentence, LI~~AD shall provide the City with prompt notice ofneeded capital and%or infraslructuic repairs that arc deemed to be within the City's respective maintcnaztce respousibiGties, and the City shall have a reasonable time thereafter to commence said repairs. 9.2 Dav to Dav Maintenance. LT7D AD shall, at its sole cost and expense, to the satisfaction of the Cih•, keep, maintain, and repair the Premises, and all improvements, futures, and equipment thereon (except for those items the City is responsible for as set forth in subsection 9.l above), in good, clean, and sanitary order. UNIDAD assumes sole responsibility attd expense for day to day housekeeping, janitorial services, and routine maintenance oCthe interior of the Premises, and all improvements, fixtures, and equipment thereon. This shall include, without limitation, daily removal of litter, garbage and debris generated by LT-IDAD's use of the Premises, including all garbage disposal generated by its operations and activities. Notwithstanding the City and UA 1DAD's respective roles with regard to maintenance and repair ofthe Premises, UNIDAD shall comply with any and al] State,!viiami-Dade County, and City laws, codes, rules and regulations, etc. with regard to its respecaivc obligations. 93 Lt the event that LJ?\'IDAD desires or deems it appropriate to make alterations, additions, or nnprovetnents to the Premises (other than the Proposed improvements contemplated in subsection 9.7) it will submit plans 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 madew~ithoul the express written approval of the City and, if approved, shall be made at UNLUAD's sole cost and expense, and shall become the property of the City upon termination of tltis Ag~ecmeut. liNIDAD ]~ 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, impuwcruents, or additions. 9.4 Labor/Personnel/I~~aterials/F,guiament/Furnishings. UN1DA77 must provide and maintait, at its sole cost and expense, all labor, personnel, materials, equipment, and furnishings, as reasonably required, to operate the Premises as a full service comprehensive senior center, in accordance wilt the approved uses set forth herein. In the event any materials, equipment, and~or funtishings aze lost, stolen, or damaged, they shall be promptly replaced or repaired (funding pem»tted) at the sole cost attd expense of die LNII)AD. 9.5 Orderh• Oaeration. LTID.4D shall have a neat yid orderly operation at all times and shall be solely responsible for the necessary housekeeping sernices to properly maintain the Senior Center. There shall be no living yuarters nor shall anyone be permitted to live within the Premises . LIT\TIDAD shall make the Premises available for inspection during hours of operation by the City ?vlanagcr or his authorized representative. 9.6 Security. LTNID.AD shall be responsible for and provide reasonable security measures which may be required to protect the Premises and any of the materials, equipment, and furnishings thereon. Under no circumstances shall the City be responsible for any stolen or damaged materials, equipment, and furnishings, nor shall die Cit}• be responsible for any stolen or damaged persona] property of LTID.AD's employees, contractors, patrons, guests, invitees, and~or other t}tird parties. 9.7 Senior Center Proposed Capitat lmnrovemeuts and Renovation/Fuadine and Responsibilikies. 9.7.1 The Senior Center will commence operations pursuant to this Agreement upon completion ofdte proposed capital improvements and renovation of the Premises, as hereinafter set forth. Ttte intended scope of the improvements and renovations v~ill be to repair and renovate the existing structure and to expand it by adding substantial additional square footage (the Proposed Improvements). his understood that the Premises will house public restrooms in addition to the Senior Ccntcr. 9.7.2 This Agreement is made with the understanding and aereetnent that LNIDAD will design and construct the Proposed Improvements, which shall be valued at no less than $ l Million. UNIDAD will agree to assign or contribute a minimwn of $500,000 toward the Proposed Improvements. The City agrees to fund a minimum of $500,000, in addition to previously allocated Community Development Block Grant Funds. The Proposed improvements will be approved by the City Commission prior to commencement of the project {as hereinafter set forth in subsection 9.7.4). Other than the City's funding contribution, as set forth herein (or such other additional contributions expressly and separately approved and authorized by the City), the Proposed httprovements shall be the sole cost and expense of the LINID.AD. 9.7.3.1 LT]1llAD shall be solely responsible for the design of the Proposed Improvements, and shall obtaht all approvals from City and other applicable regulatory agencies therefore, including approvals by City acting in bout its proprietary regulatory capacit}• under the City Code, and other applicable laws. 9.7.3.2 Concept Plan Design AppruvallPlannin~ Board Review. UNTDAD shall submit for review and approval by the'_vlayor and Cit}• Commission at a rcgulazh~ scheduled rnecting, a Concept Plan Design detailing the Proposed hnprovcmcnts in sufi3cient detail; the layout and siting, including without lituitation, preliminary elevations, including, but not limited to, size of building footprint, number of stories, heights; and other improvements and appurtenances proposed upon the Premises. The Concept Plan Design review process shall commence with 1JNIDAD's submission to the Citu, ihrouglr the City Manager, no Later than Ociobcr 6, 2006. The City Manager shall have 14 days to review the Concept Plan Design. Upon conclusion of his re~~ew and approval, and prior to consideration of the Concept Plan Design by the Mayor and City Commission, LT1~1D~'>,D shall submit the Concept P1aziDesign to the Planning Board, for its review and rccotnrnendation, which reeomrueudation shall be no later than November 2S, 2006. Nonvithstanduigthe preceding sentences, fatal approval ofthc Concept Plan Dcsignwill rest with the City Comnssion. ]n the event that l"I~~.4D fails to make its submissions timely, the City Manager may, at his sole option and discretion (i) gani i.TNIDAD a good faith extension Cor said submittal, or (ii) declaze the .Agreement in default pursuant to Section 27 herein. Additionally, should the City Commission fail to approve the Concept Plan Design by the date which is rivo (2) months from the Planning Boazd's recommendation(s) regazding said Plan , or January 31 ~`, 2006, w•hichevcr is later, then this Ageement shall automatically terminate and be of no further force or effect, unless the City Commission deems to gant an extension, at its sole discretion. In the event of automatic termination of this Ageement pursuant to this subsection, each party shall beaz its own costs and expenses incurred in connection with this Ageement, and neither party shall have any further ]iabilih• to the other. 12 9.7.4 P_reliminan• Plans and Saecifications. Lpon the City Commission's approval of ttte Concept Plan Design, U'_QIDAD shall submit to City (acting in its proprietary capacity through the City ~4anager) Prcliminat Plans and Specifications for the Proposed Improvements, which shall he in accordance with the approved Concept Plan Design and shall include, but not be limited to, a detailed site plan, elevation draaitigs of each facade, a detailed floor plan for each of the floors of the Proposed Improvements, a calculation of the floor areas for each floor, and a calculation of the total floor area dedicated to each use within the Proposed Improvements (the "Preliminary Plans and Specifications"). U'JIDAD shall submit its Preliminary Plans and Specifications to the City Manager for approval within 120 days of the approval of the Concept Plan Design by dte City Convnission (hereinafter, for purposes of this subsection 9.7, such date shall be referred to as the "Commencement Date"). The City Manager shall have thirh° (30) days to review the Preliminary Plans and Specifications. if the City Manager disapproves the Preliminary Plans and Specifications, then iJNIDAD and the City shall, confer in good faith to develop and submit revised Preliminary Plans and Specifications which shall be submitted and reviewed as provided above. Failure of UNIDAD to obtain the City's final approval of the Preliminary Plans and Specifications within 120 days from the date of City's disapproval, shall constitute a default under tlvs Agreement. UNID.AD shall, within sixty (60) days of City Manager's approval of the Preliminary Plans and Specifications, submit an application for approval ofthc design forthe proposed hnprovements to the applicable City boards, including, without ]imitation, [he applicable City land use boards (collectively, any and all such City boazds shall be hereinafter referred to as the "applicable City boards"). Failure of UNTD.AD to submit its application(s) to the applicable Cityboards, by the date which is sixty (60) days from the receipt of City's final approval, as provided above, shall constitute a default under this Agreement. UNLD.4D shall pursue approval ofits applications to the applicable City boards, diligently and in good faith. Notwithstandingany otherprovision ofthis Agreement, this deadline shall be automatically extended by the panics should the City elect to seek historic desi~mation of the Premises. 9.7.5 Plans and Specifications. L'pon receipt of the City's, and the applicable City boards'; approval of the Proposed 13 hnprovcments, UNIDAD shall prepaze, construction Plans and Specifications for constnuction of the Proposed Improvements, consistent with the Preliminary Plans and Specifications (as approved by the City and the applicable City boards) 9.7.6 Construction CommencemenWNIDAD's Riaht to Terutinate. 9.7.6.1 As conditions precedent to UNIDAD's commencement of construction of the Proposed Improvements, CI;IDAD shall obtain a final Builduig Permit for the Proposed Improvements by not more than 120 days from the Comtnertcement Date, and failure to do so shall constitute a default under this Agreement. UN]DAD shall not commence construction of the Proposed Improvements unless and until (a} UNIDAD shall have obtained and delivered to City copies of all final permits and approvals required to commence construction; (b) itN1DAD shall have delivered to City original ceriificates of the policies of insurance required to be carried by L'NIDAD's contractor(s) pursuant to Exhibit. `B" to this agreement, attached hereto and incorporated; and (c) L'I1ID.AD shall have obtained acrd famished to City a pa}ment and performartce bond from LT'1DAD's general contractor (the Payment and Performance Bond), in a form reasonabh• acceptable to City, issued by a surety listed in the most recent iJ.S. Dept. of Treasury listing of approved sureties, guazanteeing the performance by the general contractor for crmsiruction of the Proposed Improvements. The City ofMiami Beach, F{orida, shall be named as a dual obligee under the PavTttent and Performance Bond. The City (solely in its proprietary and not in its regulator}° capacit}•) shalt reasonably cooperate tivith UNIDAD in obtaining the permits and approvals required to construct the Proposed Improvements; shall sign any application reasonably made by L"~~TDAD that is rcquued in order to obtain such permits and approvals; and shall provide IJNTDAD with any utfonnation arid:'or documentaiion not otherwise reasonabl}' available to L'VIDAD (ifavailable to City) that is nee;essary to procure such permits and approvals. 1'1ny such acconmtodation by City shall he without prej udicc to, and shall not constitute a waiver of City's rights to exercise its discretion in connection with its regulatory functions. 9.7.G.2 UI~ 1DAD shall, at its expense; (a) commence construction of the Proposed Improvements on or before sixty (60) days after all permits and approvals necessary for the commencement of construction are issued, but no later than six (G) months from the Commencement 14 Date (the "Construction Commencement Date"), and (b) thereafter continue to pmsec;utc construction of the Proposed Improvements with diligence and continuity to completion. "Commence Construction" or "Commencement of Construction" means the conm~encement of major work (such as pilings or foundations) for construction of the Proposed Improvements. Promptly after commencement of construction, UArID,4D shall notify City in writing of the actual date of such commencement. Any and all preliminary site work (including, without limitation, any en~ironmcntal remediation and ancillary demolition) shall not be deemed to be commencement of construction. If, after UNIDAD has commenced construction, UNTDAD fails to diligently prosecute construction of the Proposed Improvements (subject to unavoidable delays), and such failure continues (subject to unavoidable dela}•s) for thirty (3U) consecutive days aRcr Uh1IDAD's receipt of notice ofsuch failure, City shall, in addition to all of its other remedies under this Agreement, have the right to seek such equitable relief (tither mandatory or injunctive in nature) as may he necessary to cause di ligent azid continuous prosecution of construction of the Proposed Improvements (subject to unavoidable dela}'s) by UTZDAD, it being understood that. construction of the Proposed Improvements is a material inducement for to City to enter into this 1`4anagement and C)pcration Agreement, and monetary damages shall be inadequate to compensate City for harm resultuig from such failure. Notwithstanding anything to the contrary contained herein, if U1~ID:4D fails to substantially complete construction of the Proposed Improvements by the date provided for in this Agreement, then the same shall constitute a default under this Agreement. 9.7.6.3 "Unavoidable dela}~s"shall mean delays due to strikes, slowdowns, lockouts, acts of God, inability to obtain labor or materials, war, enemy action, civil commotion, fire, casualty, eminent domain, catastrophic weather conditions, a court order that actually causes a delay (unless resulting from disputes bch;peen or among the party allcguig an unavoidable delay, present or former employees, officers, members, partners or shareholders of such alleging party or ofaffiliates ofsuch alleging party), in the application of azry requirement. The party alleging tmavoidable delay shall notify the other within twenty days of such occurrence, however, failure to do so shall not waive azry rights caused by such delay. The times for performance related to the Proposed lmprovements set forth in this Agreement shall he extended to the extent performance is delayed by unavoidable delays. 9.7.6.4 L~NIDAD'S RIGIiT TO TI~:R1Y[INA"fF,. Notwithstanding anvfhing to the contrary contained herein, LJi~'IDAD shall have the right to be released from its liability and to terminate this Agreement prior to the obtaining a final (Full) Building Permit for construction of the Proposed Improvements because (a) changes to the Preliminary Plans and Specifications required by any or all of the applicable City boards, or any other governmental authority (including the City), render thz project economicallytmfeasible inthe reasonable busuiess judgment of UNIDAD, (b) LJNIDAD, after good faith efforts, has been unable to obtain a Building Pcnnit for the Proposed Improvements pursuant to the Plans and Spccificatiot>s submitted by UAIIDAD, or (c) L'I~LD.4D, after diligent, good faith efforts, has been unable to raise its respecti ve funding contribution required for the Proposed Improvements. h~ the event oftztmination of this Agreement pursuant to this subsection, each party shall bear its own costs and expenses incurred in cotmection with this agreement and neither pazjy shall have any further liability to the other. 9.7.7 Substantial Completion/C'ompletion of Construction. Substantial completion of the Proposed Improvements shall be accomplished in a dili«ent manner and, in any event, no later than eighteen (18) months from the issuance of a Full Building Permit. "Substantial completion", as used herein shall requirz the issuance of a temporary or final certificate of occupazicy by the City's Building Depazttnent. Such date may be extended for good cause shown upon request in writing to the City Manager, which extension b}° the City Manager shall not be unreasonablywithheld. Final completion of the construction of the Proposed hnprovements, shall be accomplished in a diligent manner, in each case in a good and workmanlike manner, ut substantial accordance with [he Plans and Specifications (with no material deviations except as expressly permitted herein), at LTNIT).AD's sole cost and expense. iJpon Substantial Completion of Construction of the Proposed Improvements, LTIDAD shall funtish City with Ute following: (a) a certification from LJNIDAD's architect (certified to City on the standard AIA certification form) that it has examined the Plans and Specifications and that, in its professional judgment, after diligortt inquiry, construction ofthc Proposed lmprovomcnts has been Substantially Completed in acc;ordwce with the Plans and Specifications applicable thereto and, as constructed, the Proposed Improvements comply with all applicable codes and laws; (b) a copy or copies of the temporary and final certificates of occupancy for the Proposed bnprovements issued by the City of D'liazni Beach Building Dcparttnent; (c) lien waivers in form and substaztce reasonably satisfactory to City from each contractor, subcontractor, supplier or materiahnan retained by or on behalf of IJNII)AD in connection with the construction of the Proposed Improvements, evidencing that such persons have been paid in full for all work performed or materials supplied in comtection with the construction of the Proposed Improvements; (d) a complete set of"as built" plans and a survey showuig the improvement(s) (excluding personality) for which the construction of the Proposed hmprovements bas been completed. City shall have an unrestricted license to use such "as built" plans aztd survey for any pwpose related to the Prctnises without pa}ing any additional wst or compeusation therefore, The foregoutg requirement with respect to "as built" plana shall be satisfied by LTIDAD furnishing to City or, at LId]llAD's expense, a complete set of Plans and Specifcatious, with al] addenda thereto and chance orders in respect thereof, marked to show all changes, additions, deletions and selections made during the course of the construction of the Proposed Improvements; and (e) a Contractor's Final Affidavit iu form and substance reasonably satisfactory to City executed by the General Contractor (i) evidencing that all contractors, subcontractors, suppliers and matcriahnen retained by or on behalfof LTIDAD in connection with the conshuction of flee Proposed Improvements have been paidut full for all work performed or materials supplied in connection with the construction of the Proposed Improvements and (ii) otherwise complyirtg with all of the requiremeuts under the Florida Construction Lien Law, Chapter 713, Florida Statutes, as amended. Construction of the Proposed Tmprocetnents shall be carried out pursuant to Plans and Specifications prepared by licensed architects and engineers, with controlled inspections conducted by a licensed architect or professional engrinccr as required by applicable requirements. Lipon Substantial Completion ofthc Proposed improvements, tR~]DAll shall ccrtifyto City that it has, in fact, expended not less than the required minimum amount(s) for total construction 1% COStS. Any and all construction, once commenced, must be carried through continuously to completion, but any interruption or delay iu the doing and completion of the work which shall have been caused by act of God, or the public enemy, or strike, or natural casualty, or other circumstances not occasioned by or attributable to the fault, default or neglect of LTIDAD shall not be deemed to cause UNtUAD to be itt default under this Agreement, so long as UNIDAD exercises due diligence to cause the work ofconstruction to be carried throw to completion as promptly and expeditiously after the commencement thereof as possible. 9.7.8 Extensions for Performaucc. The times for performance related to the design and construction of the Proposed Improvements, as set forth in this subsection 9.7, may be extended for good cause shown, upon request in ++riting to the City I+4anagcr, which extension by the City Manager shall uot. be unreasonably withheld. SECT10'V 10. Al\NC.AL RF.POR1'S FOR USE OF PREDIISF.SICITY' USE OF PRE~ITSF,S 1•~OR SPECTAL E}~1\`TS/ RECF_.PTTOVS/ COl-~ZIJNITY A'iEETi]~GS, ~\D GENERALLY. 10.1 UN1D AD shall provide an annual++a-ittcn report ofthe activities and events scheduled in and pertaining to the Senior Center and, with each such report, shall report on the activities which actually occurred and the number of persons participating in those activities during the precious month. Any revenue-generating activity(ies) conducted upon or from the Senior Center must be in accordance with those provided in Section 6 of this Agreement (or, other+vise approved by the City in accordance therein). All revenues received by UAIDAD in compction with uses conducted upon or from the Senior Center shall be dedicated exclusively to help fund LR~-CDAD's management; operation, and maintenance of the Senior Center. hi the event that revenue(s) pertaining to the Senior Center exceed expenses during an annual accounting period, the City and UNIT} AD agree that such excess, if arty, sha0 first be applied to offset any of the City s capital improvements and:'or infrastructure maintenance costs (as set forth in subsection 9.1) and may then he applied by UNTDAD to support the programming of UNTDAD. For proposes herein, "revenues" shall also he deemed to include public?private grant funding, and unrestricted donations and contributions received by U`~IIDAD specifically ear-mazked towazd the operation, management and programming of the Senior Center. No portion of the net earnings resulting from the activities of U1~r1DAD at the Senior Center shall inure to the benefit of any private individual. Notwithstanding the foregoing, the City Manager or his designee, shall have the absolute and final authority un overseeing LINIDAD's activities with regard to 8tis Agreement and its operation and manaeement of the Senior Center, such that the City is assured that the Senior Center is being operated and utiliaed in accordance with the ternzs of this Agreement. 1U.2 Use hp the City. UNIDAD and the City have agreed that the Proposed lrnprovetnents will provide amulti-purpose facility that can be uszd for community programting, and serve as an adjunct to the adjacent park and bandshell facility. Coruistent with this, the Cit}• shall have the right to use the Senior Center, or any part thereof, subject to availability, for the benefit of the commutity for such purposes including, but not limited lo, recreational programs sponsored by the City, public meetings, training classes, City sponsored special events, receptions, and other public purposes as deemed necessarvby the City, without the payment of anyrental or use fee, except that direct out-of-pocket expenses incurred in connection with such uses (including reasonable expenses incurred by L7v1D.AD in order to open and make the Premises available in connection with a City use thereof) shall be paid by the City. LT'.VIDAD and the City agree to develop mutually acceptable guidelines and regulations to permit City and eommuiity use of the Senior Center, as set forth in subsection ~.1(h) of the Agreement . SECTION 11. UNIDAD'S CONTRiBUT1UN. 11.1 11is Agreement is made with the express consideration, understanding and agreement that UNIDAD will contribute $ SOO,000, toward the Proposed Improvements , as more specifically described in subsection 9.7 of this Agreement. 11.2 In addition to the req[ured contribution in subsection 11.1 above, throughout the tens of [his Agreement, and as further consideration For tlis Agreement, U'_~IIDAD shall also use its best efforts to continue to obtain publiclprivate grant ftmdiug and individual.+'corporatc contributions, not only for such other capital renovations and improvements as may be mutually agreed to by the parties hereto but, more importantly, for the continued operation and support of the Senior Center (and to sustain the approved uses contemplated in this Agreement). U?~ILDAD hereby warrants and represents that such approved uses shall, throughout the temt of tlils Agreement, be funded and operated, at UNIDAD's sole cost and expense. It is the intent of the Cit}• and UNIDAD that UNIDAD will use reasonable efforts to increase its funding for the maintenance, operation and programming of the Senior Center, and toward sustaining and increasing the approved uses, on a continuing basis. Similarly, the City and UNTDAD herein agree that a vital component of iJNIDAD's mission statement, with respect to this Agreement, is to use its best efforts; specifically, to obtain publie'ptivate funding contributions to augment the parties' respective contributions for the Proposed Improvement, and to continue to operate and manage the Senior Center in accordance with the hi ghestlevels of sen-ice. Accordingly, UNIDAD hc~rcin represents that it shall use its br,5i efforts ~+ith respect to undertaking a coherent and consistent grants writing and submittal effort, not only to fund its portions of the Proposed hnprovements, but t4 fund the continued management and operation oCthe Senior Center. UN~AD further acknowledges and urtdetstands that the City shall in no way be obligated to supplement and or otherwise contribute any funds for U?~7D:1D's day-to-day operation attd manttenancc of the Senior Center, except as may be otltenvisc set forth in this Agreement. SECTION 12. ASSIGNDIENT. UNIDAD may not assign this Agreement, or any part thereof, without the prior written approval of the Cih~, which approval shall be given, il'at all, at the sole discretion of the City. This Agreement is made with the understanding that UNIDAD shall at all times, throughout the term of this Agreement, remain anot-for-profit corporation. Jn the event that LTIDAD ceases to be a not- for-profit corporation, or the City, through the City'~4anager, in his sole discretion and judgment, determines that the Senior Center is not being used for the stated purposes in Section 4, this Agreement shall be subject to termination upon thirty (30) days written notice by the City to UN7DAI). 20 SECTION 13. tiSE OF THE SENIOR CENTER IS PRIMAI2S'. The Senior Center is for the use of the public, for the approved uses consistent with Section 4, and the public's right to such use shall not be infringed upon by any act of UNIDAD. SECTION 14. PERMITS; LICENSES. UNIDAD agrees to obtain and pay for all permits and licenses necessary for the conduct of its operation and activities on the Prcrnises and agrees to comply with all laws governing the responsibility of an employer with respect to persons employed by UNID.4D. UAlIDAT) shall also he solely responsible for pa}orient of any and all testes levied on the Premises and its operations. lu addition, UT'IDAD shall comply with all rules, regulations and laws of the Cit};'.vtiami-Dade Cowtty; the State oCFlorida; and the U.S. Government, now in force or hereafter to he adopted. SECTTON 15. LICENSF.S/PERDIITS, UTiLdTTES,'1'ARF.S, AND ASSFSSiTENTS. 1~.1 Licenses. Permits, Utilikies. LTI~'IDAD shall pav any fees imposed bylaw for licenses or pemmits for any uses or activities of UNIDAD upon the Senior Center or under this Agreement and shall pay to the City, before delinquency any and all charges for utilities at or on the Senior Center {including, but not limited to, water, electricity, gas, heating, cooling, sewer and telephone, trash collcctiota, etc.). ] 5.2 Procedure Lf Taxes Assessed. LNTDAD agrees to and shall pay before delinqucncyall taxes and assessments ofany kind assessed or ]ev~ed upon UNiU.4D or the Senior Center by reason of tlzis Agreement or by reason of the business or other activities of UNIU.AD upon or in connection with the Senior Center. The parties agree that the operation and uses of the Senior Center and those operations and uses convenient and necessary therefore, are for public proposes and, therefore, no ad valorem faxes should be assessed by the llade Cowity Tax Appraiser. lf, however, said taxes are assessed by said I'ropcTty Tax Appraiser, U^~'IDAD shall be responsible for pa}'tnent of same. SECTiO:V 16. SLGNAGE. LTNIDAD shall provide, at its sole cost and expense , required sigtts al al] public approaches to the Premises, as determined by UNIDAll in its reasonable discretion, said signage containing substantially the following lanes age: NORTH BEACH SENIOR CENTER OPERA'1'F.D B1' UNID:ID OF'.1'lIA.M1ti BEACII,11\C. 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. SECTIO'V 17. FORCE D'L4JEtiRE~. 17.1 The performance of any act by U'_~AD or the City hcretutder may be delayed or suspended at any time while, but only so long as, citlter party is hutdered in or prevented from performance by acts of God (including without limitation hurricanes), the elements of war, rebellion, strikes, lockouts, fire, explosion or any other casualty or occurrence not due to UMDAD's negligence and beyond the reasonable control of the parties. 17.2 Premises Unusable. In the event a Force Majeure renders the Premises untenantable, in whole or in par[, as dett~nuined by City, the City may, at its sole option and discretion: (i) elect, as soon as practicable, to utilize the insurance proceeds to repair the damaged property, and the term ofthe Agreement shall he abated until such time as UN1D~'1D mayreopen the Senior Cenicr after restoration or repairofthe damaged property; or (ii) elect not to repair or restore the damaged property and, in such event {and provided further that U\~.4D does not elect, and'or dots not comply with the procedures for Ui~1IDAD's repair of the Premises using its own funds), this Agreement shall be terminated as ofthc date of said occurrence of dan~age or casualty. Notwithstanding the preceding sentence, ut the event the (a) City elects not to restore or repair the damage; (b) iJIvIDAD gives written notice to the City within sixt}• ((0) days of the casualty that UN1llAD is willing to undcrG'ake the repair the damage with its owv or other availahle funds; (c) within twelve (1 Z) months following such notice, LTTlD:1D proses, to the City's sole satisfaction and discretion, that it has adequate funds inunediately available to undertake the repair; and (d) the CiR• and LT'~ZDf1D, each acting in its reasonable discretion, agree within a reasonable time (but not to exceed six (6) months unless otherwise extended ut writing by City Manager) after the City deems that U?~TD:~D has demonstrated that it has adequate funds to undertake the repair, to the conditions, tuning, plans, procedures, contractors, subcontractors, disbursement mechanisms and other matters with respect to the repair, then aztd in that event, liTTDAD shall be entitled to effect the repair with its own fiords; provided that LNIDAD must complete any and all repairs and~or restoration no later than eighteen (18) months fiotn the date of the City s approval of LT\TD.4D's funding capability. SECTION 18. INSPECTION. L'NIDAD agrees that the Premises maybe inspected at any time upon reasonable notice by authorized representatives of the City, or by arty other State, County, Federal and•'or tntuticipal officer or agency having responsibilities for inspcc[iotts of such opcratiotts artd%or Premises. UNID.AD agrees to undertake immediately the correction of any deficiency ci red by such inspectors on the Premises, which is properly the responsibility of UNII)AD pursuant to dtis :agreement. The Cih~ or its agents shall have the right to enter upon the Premises at all reasonable tunes to examine the condition and use thereof; (including, without limitation, for the purpose of assessing the condition of the facility, as also referenced in subsection 71(e), provided, only, that such right shall be exercised in such manner so as not to interfere with UI~'IDAD in the conduct of LINII):4i)'s activities on the Premises; and if the Premises are dammed b}• fire, windstorm or by other casualty that causes the Prenuses to be exposed to the elements, then the City may enter upon ttte Premises to make emergency repairs; but if the City exercises its option to make emergency repairs, such actor acts shall not be deemed to excuse UNII).A17 from his obligation to keep the Premises in repair. If Cin makes any emergency repairs pursuant to the terms hereof, UNll)AD shall reimburse the City for al] such repairs upon receipt by UIvrD7AD of City's notice of repairs made and statement and proof of costs incurred. SECTION 19. W..1I~'ER Or LV'1'EI2FERENCE. UNID.AD hereb}' ~m•aivcs all claims for compensation for loss or dsuttage sustained by reasons 23 of any interference with its operation and tnanagcment of the Premises by any public agency or of5cial a_s 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 UNIDAD from any obligation hereunder. SECTION 2U. INSURANCE RF;QUIRENIEN'I'S. L]?~rIDAD shall maintain, at L1~7DAD's sole cost and expense, the following t}~pes of insurance coverage at all times throughout the term of this .Agreement: a. General liability insurance with not less titan the following limits: General aggregate S2,WO,U00 Persona] and advertising (injury) $1,000,000 (Per occurrence) $1;000,000 Fire daniage $ 100,000 A4edical Expense $ >>UW Liquor Liabilih• (ag~~cgate) $2,OOQUU0 (Per owttrrence) $1,000,000 (for special events, if required) b. Workers Compensation Tnsurance shall be reyuired uttder the Laws of the State of Florida. c. Automobile Tnsurazice shall be prov-idcd covering al] owned, leased, and lured vehicles and non-ownership liability far not less than the following limits (only if LT'TDAD provides transportation services): Bodily Injury• $1,000,000 per person Bodily Injury $1,000,000 per accident Property Damaee $ 500,000 per accident e. Fire insurance shall be the responsibility of t}te City. The policies of insurance referred to above shall not be subject to cancellation or changing ~4 coverage except upon at least thirty (30) daps ~+•ritten notice to City and then subject to the prior written approval of City. UNIDAD shall provide City with a Certificate of lnsurancc 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 Cit}~s Risk Manager, and any replacement or substitute company shall also he subject to the approval of the Cit}'s Risk Manager. Should UNII).AD fail to obtain, maintain or renew the policies of insurance refened to above, in the reyuircd amounts, the City may, at its sole discretion, obtain such insurance, aJid any stuns expended by City in abtainutg said insurance, shall be repaid by UND~AD to City, plus ten percent (10`%) of the unount of premiums paid to compensate City for its administrative costs. If i.T11DAD does not repay Cit}~s expenditures t+~thin fifteen (15) days of demaztd, the total sum owed shall accrue interest at the rate of twelve percent (12%) until paid, and such fat 1 ure shall be deemed an event of default hereunder. SECTION 21. INDEbLVIP'ICAT101\. 21.1 U?xTiDAll shall indeimvf}', hold hamiless and defcttd the City, its agents, servants and employees from and against any claim, demand or cause of action of whatsoever kind or nah~re arising out of error, omission, or negligent act of UNIDAD, its agents, servants or ctnployees in the performance of services under this Agreement. 21.2 In addition, UNIDAD shall indemni ty, hold harmless and defend the City, its agents, servants and employees from and against any claim, demand or cause of action of ~+'hatevzr kind or nature arising out of any misconduct of UNIDAD not included in the paragraph in the subsection above and Cor which the City, its agents, sert.•uits or employees arc alleged to be liable. This subsection shall not apply, however, to any such liability as may be the result of the w•il)ful misconduct of the City, its agents, servants or employees. 21..3 Subroeatiou. The terms of insurance policies referred to in Section 21 shall preclude subrogation claims against UNIDAD, the City and their respective officers, employees and agents. 21A The provisions of this Section 21 shall surc-ive the termination and,''or expiration of this Agreement. zs SECTION 22. NO L1ENS. Ulv`ID.4D agrees that it will not suffer, or tlu~ough its actions or anyone under its control or supervision, cause to be Sled upon the Premises any lien or encumbrance of any kind. Im the event any lien is filed, UNIDAD agrees to cause such lien to be di scharged w~tlun ten (] 0) days therofrom, 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 L'7~TIDAD. SECTION 23. UNIDAD EMPLUl'-EES A1VD 111.4.VAGF,RS. 23.1 The City and UA~IDAD rccogttve that in the performance of tlus Ab cement, it shall be necessan' for LT7DAll to retain qualified individuals to effectuate and optimize L`1~'ID.4D's management and operation of the Senior Center..4ny such individuals, whether employees, agents, independent contractors, volunteers, and'or other, retained by LLNIDAD 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 pensimt 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 ~'~'orker's Compensation benefits as employees of the City'. Additionally, LNIDAD, and%or any employees, agents, independent contractors; volunteers, an1'or others; acting under the authority and'or.~.ith the permission of liN1DAD for the purpose set forth herein, shall never have been convicted of any offense involving moral turpitude or felony. Failure to complywith this provision shall constitute cause for the termination ofthis Agreement. LJNIDAL) shall have an experienced manager or managers oversecitg the Premises at all times. Any criminal activity on the Premises caused b}' or knowingly permitted by C2~1D.4D shall result in automatic termination ofthis Agreement. 23.2 Contract Administration. The City's contract adnnistrator shall be the City Manager and•'or his designee. UNID.4D shall name a speci5c individual to serve as its contract administrator. The City's contrtet administrator shall have the authorit}' to give all approvals for the City while administering this Agreement, with the 26 exception of items which would require City Commission approval. The City's contract administrator: (i) Shall be the liaison berivecn the City and UNIDAD on al] matters relating to this AgTecment. (ii) Shall be responsible for ensuring that any information supplied by U'~fID.AD is property distributed to the appropriate City depatvnents. (iii) Shall be responsible for contract compliance byLRd1DAD (including, without Gmilatiott, U.NID~'1D's activities, programmutg, operations, management, and maintenaztce of the Senior Ceuter). c. UNIDAD shall name an individual who shall serve as the general manager of the Senior Center and w•ho: (i) Shall be the liaison between the City and L>T~AD on all matters relating to this Agreement. (ii) Shall be responsible for the day-to-day management and supervision of the Senior Center. (iiil Shall bz responsible for pro~~ding supervision and direction to the Senior Center's employees, agents, contractors, andr`or volwtteers. SECTION 24. NO IMPROPER tiSE. UN1D AD will not use, nor suffer or perniit anv person to use ut any manner w•]tatsoever, the Premises for auy improper, immoral or offensive purpose, or for any purpose in violation of any Federal, State, County, or mtuticipal ordinance, rule, order or regulation, or of any governmental rule or regulation no~r• in effect or hereafter enacted or adopted. UNIDAD shall not use the Premises for any unlawful purpose and shall complywith all laws, pennitiing, and licensing requirements now ut force or herea(ter adopted, applicable to the Premises or the uses and activities conducted on the Prctnises. L'T~'IDAD agrees not to use the Premises for, or to pemtit operation of any offensive or dangerous activity, nuisance or anything against public policy. Except as may result from acts of force majeure, L~NIDAD agrees that it will not allow the Premises to become unoccupied or vacant. LTTIDAD steal I lake appropriate precautions to prevent fire on the I'rcntises, maintaining existing fire ?7 detection devices and extinguishing equipment at all times. SECTION 25. NO DANGEROUS'~L1TERi_4LS. UNTDAD agrees not to use or pern~it in the Premises the storage of illuminating oils, oil lamps, turpentute, gasoline, benzine, naphtha, or other similar substances, or explosives or any kind, or any substance or thing prohibited in the standazd policies of fire insurance companies in the State of Florida. SECTION 26. NO CI.All4I AGAINST Cl'1'Y OFFICF,RS, EMPLOYEES, L'YDiVIDUAI.S. it is expressly understood and agreed by and behveen the parties hereto That all individuals, employees, of5cers, and agents of the City are acting in a representative capacity and not for their ow•n benefit; and that neither UNIDAD, nor auy of its employees, agents, contractors, voluntu;rs and'or others, shall have any claim against them or any of them as individuals in any event w-halsoever in conjunction with any acts or duties which are reasonably related to the performance of their duties. SECLIONZ7. DEFAL-LT:~'VD'TER'~1L\ATION. If either party fails to perform in accordance with any of the tenus and conditions of this Agreement, and such default is not cured within thirty (30) days a$er written notice is given, the aggrieved party shall have the right to terminate this Agreement and, as the case may be, either vacate or re-enter the Pretmi es, 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. The default and termination rights afforded the parties in this Section 27, shall in no way limit or otherwise preclude the Ci ty from exercising such other rights to ternurtate this Agreement, as may be expressly provided in other sections hereto. SECTION 28. PROCEDURE UPON EXPIItA'fION AND/OR TERDIINATION BY CITY 28.1 U NID:1D shall, on or before the last day of Qte teem hereui, or the sooner termination 28 thereof, peaceably and quieU}' leave, swTender and }geld unto the City, the Premises; together with anv and all fixtures located at or on the Premises and used by UNIDAD in the maintenance, management or operation of the Premises, excluding any eyuipment, furnishings, appliances or other personal property which can be removed without material injury to the Premises, free of all liens, clauns and encumbrances and rights of others, and broom-clean, together with all snvctural changes, alterations, additions, and improvements which may have been made upon the Premises, in good order, condition and repair, rcasouable wear and tear excepted, subject, however, to the suUseyuent provisions of this subsection..4ny property' which pursuant to the provisions of this subsection is removable by UNTDAD on or at the Premises upon the termination of this Agreement and is not so removed may, at Ute option of the City, be deemed abandoned by UI~IDAD, and ciUter ntay be retained by the City as its property, or may be removed and disposed of by City, at the sole cost of the UKID AD, in such manner as the City may see fit. !f the Premises are not surrendered at the end ofthe term as provided in this subsection, l,TIIDAI) shall make good to the City all damages which the City shall suffer by reason Utereof, and shall indemnifi~, the City against all claims made by a succeeding occupant (if any), so faz as such delay is occasioned by the failure of Utv'ID:4D to surrender the Premises as and when herein required. 28.2 LNTDAD covenants and agrees that it will not enter into agreements (whether express or implied) relating to the Premises for a period of time beyond the stated expiration date of this :Agreement. SECTION 29. TEKII~IIN,aTIO1H TOR i.ACK UT T[JNDS. In the event that U1~lDAD loses its funding, such that it cart no longer manage and operate the Senior Center in accordance with thz goals and priorities and uses herein, then the City may, at its discretion: (i) supplement any lack or loss of funds in order to allow L,TNID:'1D to continue to manage and operate the Center; or (ii) terminate this Agreement pursuant to Section 2 ~ above. SECTION 30. NOTICES. All notices from the City to L7 t\'TDAD shall. he deemed duly sensed if mailed by registered or ~9 certified mail to U'1~'iDAD at the following address: UNIDAD of Miuni Beach, Inc. Attention: Mazgarita Cepedo,E•xecutive Duector 1?Ol Normandy Drive Miami Beach, Florida 33141 All notices from UNIDAD to the City shall be deemed duly sen•cd ifmailed to: Ciri• of D2iami Beach City Manager 1700 Convention Center lltive Miami Beach, Florida 33139 with copies to: City of'~4iami Beach .Attention: Asset Manager 1700 Convention Center Drive, 3`~ Floor Miami Beach, Florida 33139 L"NIDAD and the City may change the above mailing addressed at azty time upon giving the other party written notification..All notice under this Agreement must be in writing. SECTION 31. NO DISCRL'11IN.ATIOV. LTIIDAD agrees [hat there shall be no discrimination as to race, sex, color, creed, national origin, ph}~sical handicap, or sexual orientation in the operations referred to by this .AgTecnncnt; and further, there shall be no discrimination regazding any use, service, maintenance or operation ofthc Premises. All facilities located on flee Premises shall he made available to the public; subject to the ritiht of U~IIDAD to establish and enforce reasonable rules and regulations to provide for the safety; orderly operation and security of the facilities. SECTION 32. VE'~tUE/~VATVER OF BURY TRIAi,/DISPUTE 1-4F.Di.ATIO1\. 32.1 This .Agreement shat] 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 of laws. The exclusive venue for any litigation arising out of this Agreement shall be 1`iiami-Dade Counn,•, Floiid~ i f in state court, and the U.S. District Court, Southern District of Florida, if in federal court. 13y'E1~TLP~LIC_~fNTOTHISACREEMLNT, CTl'YANllU;~IDADH?CPRESSLY~ti.AI~~'EANY '~ U RIGHTS EITHER PARTY MAY HAVE TO A TR7AI. BY JURY OF ANY CIVIL. LITIGATION RELATED TO, OR ARISING OUT OP, THIS AGREEMENT. 32.2 If a dispute arises out of, or related to, this Agreement, or the breach thereof, and i f the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association, or other sintilaz alternative dispute resolution organiaati on, person or source acTCCabte to the parties, before resorting to litigation or other dispute resolution procedure. SECTION 33. L1AIIT:ITION OF LIABIi.iTY. 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 5l U,000. Contractor hereby expresses his willingness to enter into this Agreement ~vidt Contractor's ra;ovcry from the Ciry for any damage action for breach of contract to be limited to a maximtun amount of 510,000, less the amount of all funds actually paid by the City to Contractor pursuant to this Agreement. Accordingly, and notwithstanding anyotherterm or condition of this Agreement,Contractor hereby agrees that the City shall not be liable to the Contractor for daznages in an amount in excess of 510,000, 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 tins 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 itt Section 768.2A, Florida Statutes. SECTION 34. NIISCF_LLANEUUS PRO~7S10NS. 34.1 Cih•'s Governmental Capacih•. Nothing in this Agreement or in the parties' acts or omissions in connextion herewith shall be deemed in any manner to waive, impair, limit or otherwise affect the authority of the City in die discharge of its police or governmental poi;•er. 34.2 Lntirc Aareemeut. (a) Entire A~eement. This Agreement together with the attachments hereto, contains all of the promises, agreements, conditions, inducements and understandings between City and LJ',~IIDAD concerning the operation and management oC the 1'renvses (exci~pt for finding commitments by the City, CDBG, and'or FbA~IA which may be expressly cornntitted for the premises under separate grant agreements), and there arc no promises, agreements, conditions, understanduigs, inducements, warranties or representations, oral or written, express or implied, between them other than as expressly set forth herein and in such attachments thereto or as may be expressly contautcd ut any enforceable written agreements or instruments executed simultaneously herewith bythe patties hereto. (b) Waiver. Modification, etc. \o covenani, agreement term or condition of this A~eement shall be changed, modi5ed, altered, or waived except by a written uistrument of change, modification, alteration, or waiver executed by City and itNlt)AD. No ~+ aiwer of any default shall affect or alter this Agreement, but each and every covenaru, agreement, term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent default thereof. 34.3 Remedies Cumulative. Each right aztd remedy of either party provided for in this .4grecment shall be cwnulative and shall be in addition to even other right or remedy provided for in this Agreement, or now or hereafter existing at law or in equity or by statute ox otherwise (except as otherwise expressly limited by the terms of this Agreement), and the exercise or beginning of the exercise by a party of any one or more of the rights or remedies provided far in this Agrccrnent or now or hereafter existing at law or in equity or by statute or otherwise (except as otherwise expressly limited by the terms of this Agreemetn), shall not preclude the simultaneous or later exercise by such party of any or all other rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise (except as otherwise expressly limited by the terms of this Agreement). 34.4 Performance al Each Partv's Sole Cost and Expense. Unless otherwise expressly provided in this Agreement, when either party exercises any of its rights, or renders or performs any of its obligations hereunder, such party shall do so at its sole cost and expense. 34.5 Time is of the Essence. Time is of the essence with respect io all matters in, and requirements of, this Agreement as to both City and L'N1DAll including, but not limited to, the times within which LNIDAD must commence and complete construction of the Proposed lmprovcments. 34.6 No Representations. City and UN'IDAD have made no representations herein as to thz condition ofthc Premises. 34.7 Partnership Disclaimer. U'.~`IDAD acknowledges, represents and confirms that it is an independent contractor in the performance of all activities, functions, duties and obligations pursuant to this Agreement. The parties hereby acknowledge that it is not their n~tention to create between themsehcs a partnership, joint venture, tenancy-in-common, joint tenancy, co-o~~Tership or agency relationship for the purpose of this Agreement, or for any other purpose whatsoever. Accordingl}', notwithstanding any expressions or prod stops contained herein, nothing in this Agreement, shall be construed or deemed to create, or to express an intent to create, a partnership, joint venture, tenancy- in-common, joust tenancy, co-ownership, or agency relationship of any kind or nature whatsoever between the parries hereto. The provisions of this Section 34.7 shall survive termination andror expiration of this Agreement. 34.8 :Vot a i.ease. it is expressly understood and agreed that no part, parcel, bui]ding, structure, equipment or space is leased to t?NIDA[~; that this Agreement is a management agreement and not a lease; and that tJNIDAD's right to operate, manage, and coordinate the Senior Center shall continue only so long as UNIDAD complies with the undertakings, provisions, agreements, stipulations and 33 conditions of this Agreement. 34.9 No'Third Parri~ Ri?hts. Nothing in this Agreement, express or implied. shall confer upon azty person, other than the parties hereto and their respecti~~e successors and assigns, any rights or remedies under or by reason of this Agreement. [The rest of this page left intentionally blank] 34 IN W11'1~'F.SS WHEREOF, the panics hereto have caused their names to be signed and their seals to be af5xe<l; all as of this day and year first written above. A est: CIT)' OF'~~[IAAll BEACH City Clerk ~ ~• Ice-Mayor Jem Libhin Robert Parcher Attest: l;'1~-TOAD OF 1111.>111'II RF.4CH, INC. _ _ n '~ ~ ~~ S etary ~~ President F'aic`.4C;i Jb:4',GF:IlC1~^.~"I~i; nidad Cn76-Managunenl .4g: e:mcm (Final ;OALt~.110C STATE OF FLORIDA SS: COUNT-Y OF ML~'~41-ll 4DE "Ilieforegoinginstnunent~vasackno~m•ledgedbeforzmethis~dayof fi~CLt~-E=2 , ZOOG, by Vice-Mayor Jelry LibbinutdRobert Pazcher, City Clerk, or their designees respectively, on behalf of the CITY OF M1AMI BEACtI, known to me to be thz persons described in and wlto executed the foregoing instrument, attd acknowledeed to and before me that they executed said insnvment for the purposes therein expressed. \§'I'I'NFSS my hand and official seal, this l' ~ day of. G ~' r.'e~~-~i , ?006. ,~//'~ 1\otat-y'Public, State of Flon a:•iv%• KERRY FtANnNDEZ CommisS7on NO.: "' A ~`"s IdY CAIdIdISS10R A DD 17919' I'.1 }..: My Commission Expires: '~~= EYrIREs Ma; s,?ov A, !:•,. ]rnis?,n Ntrar, Nmr. U•nwrJ.rs APPROVED AS TO FORM & LANGUAGE & FO CUTION % i' fA S C4 " I ttom ,; to ~' t TATS OF FLOR1llA 'Ot:T'TY OF M1AA+II-DADE SS: The f eeoing instrument was acknowledged before the this day of ~1 ~.~ 1d~L~~ , DUG, b}+__ , on behalf of the LJI~~AD o (ami Beach, htc., known to to to be [he persons described in td who executed the foregoing instntmcnt, and acknow-ledgcd to nd before me that they executed said vtsttument for the purposes therein~e~xp,,re/ssed. R'ITNESS my haztd and official seal, this day oC~~ r~ , ZOUG. Notary blic Sta e of FI rida at Large Cottnnission Ko.: My Commission Expires: cr~(rwa onavuwo ~„~ t~msooonmos i &h ~ E~m~a t221RW9 fF BOMeE Ihv (8^'J?a:3J)u: F,7~TI1BTT A ~SI~F,TCH OFPRFA115LS~ 37 E~rrrBrT s (INSUR.~VCE KlQCJrRED OF LI\rDAD'S CO1V'TRACTORSj 1. Workers compensation vrsurance covering all employees of the Contractor as required by the laws of the State of Florida and employers liability insurance of not less [hart One Million Dollars ($ 1,0OO,000) per occurrence. 2. Comprehensive general liability insurance in ati amount of not less than One T4illion Dollars ($1,000,000) per occurrence and Two Million Dollars (52,000,OUO) annual aggregate covering personal injttn~ and property damage. Such coveragc shall include, but not be limited to, the following: i. Blanket contractual liahilit}' insurance covering all indemnity or hold harmless agreements. ii. Protective liability insurance for the operation of the 6ideperxlent Contractors. iii. XCU coveragc (explosion, collapse or damage to underl,7otwd property). iv. Products and completed operations (for tu'o yeaz extension beyond completion of project). 3. Excess umbrella liability insurance with a limit of not less titan 1TAr)1 Dollars ($ )per occurrence and in the aggregate in excess of the above mentioned insurance; which shall he required only in any "~~Tap up" policy- a) LNIDAD may cause the insurance listed in this subsection to be provided through an overall "wrap up" policy, in lieu of individual policies providctlby Contractors. h) Comprehensive automobile insurance in an amount of not less than Two Million Dollars ($2,000,000) combined single limit for bodily utjtrry and property damage covering al] ovc>ned, non-owned or hired vehicles, trailers or semi-trailers, including any machinery or apparatus attached thereto. 4. Bui I tier's Risk Insurance (standard "All Risk" or equivalent coverage) in an amount not less than the cost of construction, written on a completed value basis or a reporting basis, for property damage protecting U'TZDAD, City, and LJN1L)AD's general contractor, witlt a deductible of not more than Fifty Thousand Dollazs (550,000), subject to adjustment for inflation (except as to flood and windstorm, ~eZth regard to which the deductible shall be a commercially reasonable amounQ. 5. Comprehensive automobile insurance in an amount of not less than Two Million Dollars (52,000,000) combined single limit for bodily injury and property damage covering all owned, non-owned or hired vehicles, trailers orsemi-trailers, including any machinery or apparatus attached thereto. ;s EXHIBIT "A"