Loading...
20121024 SM1~ MIAMI BEACH City Commission Meeting SUPPLEMENTAL MATERIAL 1 City Hall, Commission Chambers, 3rd Floor, 1700 Convention Center Drive October 24, 2012 Mayor Matti Herrera Bower Vice-Mayor Jorge R. Exposito Commissioner Michael G6ngora Commissioner Jerry Libbin Commissioner Edward L. Tobin Commissioner Deede Weithorn Commissioner Jonah Wolfson Interim City Manager Kathie G. Brooks City Attorney Jose Smith City Clerk Rafael E. Granado Visit us at www.miamibeachfl.gov for agendas and video "streaming" of City Commission Meetings. ATTENTION ALL LOBBYISTS Chapter 2, Article VII, Division 3 of the City Code of Miami Beach entitled "Lobbyists" requires the registration of all lobbyists with the City Clerk prior to engaging in any lobbying activity with the City Commission, any City Board or Committee, or any personnel as defined in the subject Code sections. Copies of the City Code sections on lobbyists laws are available in the City Clerk's office. Questions regarding the provisions of the Ordinance should be directed to the Office of the City Attorney. SUPPLEMENTAL AGENDA C7 -Resolutions C7 J A Resolution Authorizing The Acceptance Of An Eighteen Thousand One Hundred Eighty- Eight Dollars ($18, 188) Cash Donation From The Marilyn And Edward Gadinsky Charitable Foundation, In Support Of The Soundscape Cinema Series For Fiscal Year 2012/13; And Authorizing The City Manager Or Her Designee To Make Such Expenditures And/Or Reimbursements From The Aforestated Donation, In Furtherance Of And Consistent With The Aforestated Event. (Tourism & Cultural Development) (Resolution) 1 Supplemental Agenda, October 24, 2012 C7 -Resolutions (Continued) C7K A Resolution Approving And Authorizing The Mayor And City Clerk To Execute A Lease Agreement With Design Miami To Hold The Design Miami Show In The Preferred Parking Lot, For Specific Dates In 2013,2014, 2015, And 2016; As More Specifically Set Forth In The Lease Agreement Attached As Exhibit "A" To This Resolution. (Tourism & Cultural Development) (Resolution & Draft Lease Agreement) C7L A Resolution Authorizing The Mayor And The City Clerk To Execute Amendment No. 1 To The Fiscal Year 2009/10 State Housing Initiatives Partnership (SHIP) Program Agreement Between The City Of Miami Beach And Miami Beach Community Development Corporation (MBCDC), In A Form Acceptable To The City Manager And The City Attorney, Which Extends The Term Of The Agreement Through December 31, 2012, And Provides $45,938.97 In SHIP Program Income To One Income- Eligible Homebuyer And Rehabilitation Household In North Beach. (Real Estate, Housing & Community Development) (Memorandum & Resolution) RS -Ordinances R5D An Ordinance Amending Chapter 12 Of The Miami Beach City Code, Entitled "Arts, Culture And Entertainment," By Amending Article II Thereof, Entitled "Special Events," By Amending Section 12-5, "Special Events Permits" To Provide Clarification To Special Event Applicants Under Provision (5); By Providing Enforcement And Penalties For The Violation Of Section 12-5 As Set Forth In Provision (9); And Providing For Repealer, Codification, Severability, And An Effective Date. 11 :30 a.m. Second Reading Public Hearing (Requested by the Neighborhood/Community Affairs Committee) (Legislative Tracking: Tourism & Cultural Development) (Continued from July 18, 2012/Referred to NCAC) (Ordinance) R7 -Resolutions R7L A Resolution Approving Funding, In An Amount Not To Exceed $250,000, To Address The Relocation Of The Kitchen Exhaust Venting System Installed By The Pennsylvania Avenue Garage Retail Tenant, Penn 17, LLC (D/B/A Cooper Avenue); With Funding Available From Previously Appropriated City Center RDA Capital Fund 365; And Further, Authorizing The Interim City Manager And Penn 17, LLC To Negotiate And, If Successful, Execute An Agreement To Proceed With The Re-Design, Permitting And Constructing Of Kitchen Exhaust Venting System That Discharges Away From The Service Alley Located Between The New World Symphony Building And The Pennsylvania Avenue Garage. Joint City Commission And Redevelopment Agency (Real Estate, Housing & Community Development) (Memorandum & Resolution) 2 ii Supplemental Agenda, October 24, 2012 R7 -Resolutions (Continued) R7M A Resolution Accepting The Recommendation Of The Finance And Citywide Projects Committee (FCWPC) Meeting, Pertaining To A Cure Of The Sunshine Law Issue Raised With Respect To Request For Proposals No. 14-11/12 (The Lincoln Road RFP), And Also Recommending That A Cure Be Undertaken, As A Pre-Emptive Measure, With Respect To Request For Qualifications No. 22- 11/12 (The Convention Center RFQ); Authorizing The City Administration And City Attorney's Office To Proceed With The Following Cure Options (As Presented To The FCWPC By The City Attorney At The Committee's October 3, 2012 Meeting): 1) Approving Cure "Option 2" For The Lincoln Road RFP, And Authorizing The City Manager To Convene A New Evaluation Committee And Have Such New Committee Meet In A Duly Noticed Public Meeting To (A) View The Videotape Of The RFP Proposers' Original Oral Presentations, Followed By (B) Question And Answer Sessions With The Individual Proposers, And Ending With (C) The Committee's Deliberations, Rankings And Final Recommendation(s) To The City Manager (Provided That Portion (B) Of The Meeting May Be Closed To The Public, As Permitted Pursuant To Section 286.0113(2), Florida Statutes, But Shall Be Recorded By The City); And 2) Approving Cure "Option 1" For The Convention Center RFQ And Authorizing The City Manager To Re-Convene The Current RFQ Evaluation Committee And Have The Committee Meet In A Duly Noticed Public Meeting To (A) View The Videotape Of The RFQ Proposers' Original Presentations, Followed By (B) Question And Answer Sessions With The Individual Proposers, And Ending With (C) The Committee's Deliberations, Rankings And Final Recommendation(s) To The City Manager (Provided That Portion (B) Of The Meeting May Be Closed To The Public, As Permitted Pursuant To Section 286.0113(2), Florida Statutes, But Shall Be Recorded By The City). (City Attorney's Office) (Memorandum & Resolution) R7N A Resolution Opposing The Use Of Any Convention Development Tax ("CDT") Funds For A Purpose Other Than For Convention Center Development, And Further Opposing Any Expenditure Of Such CDT Taxes For Water And Sewer Infrastructure Or For Any Other Purpose That Is Not Eligible For COT Funding Pursuant To State Law. (Requested by Mayor Matti Herrera Bower) (Legislative Tracking: City Attorney's Office) (Memorandum & Resolution) R70 A Resolution Approving The Design Of The Recycling Receptacle To Be Provided Under The Coca- Cola Sponsorship Agreement, And Also Approving The Design Of A Matching Trash Receptacle, As Recommended By The Finance And Citywide Projects Committee At Its July 9, 2012 Meeting. (Public Works) (Memorandum & Resolution) R7P A Resolution Approving The Issuance Of New Police And Parking Towing Permits To Beach Towing Services, Inc. And Tremont Towing Services, Inc., With Said Permits Having A Three (3) Year Term, Commencing On November 1, 2012, And Ending On October 31, 2015; Further Approving Amendment No.2 To The Administrative Rules And Regulations For Police And Parking Towing Permits. (Parking Department) (Resolution) 3 iii Supplemental Agenda, October 24, 2012 R9 -New Business and Commission Requests R9L Discussion Regarding A Resolution In Support Of Miami-Dade County Public Schools' Capital Bond Referendum To Modernize And Construct Schools, Including Technology Upgrades At All Schools. (Requested by Mayor Matti Herrera Bower) (Resolution) Redevelopment Agency Items 1A A Resolution Of The Chairperson And Members Of The Miami Beach Redevelopment Agency (RDA), Approving Funding, In An Amount Not To Exceed $250,000, To Address The Relocation Of The Kitchen Exhaust Venting System Installed By The Pennsylvania Avenue Garage Retail Tenant, Penn 17, LLC (D/B/A Cooper Avenue); With Funding Available From Previously Appropriated City Center RDA Capital Fund 365; And Further, Authorizing The Interim Executive Director And Penn 17, LLC To Negotiate And, If Successful, Execute An Agreement To Proceed With The Re-Design, Permitting And Constructing Of Kitchen Exhaust Venting System That Discharges Away From The Service Alley Located Between The New World Symphony Building And The Pennsylvania Avenue Garage. Joint City Commission And Redevelopment Agency (Real Estate, Housing & Community Development) (Memorandum & Resolution) 4 iv RESOLUTION NO.------ A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE ACCEPTANCE OF AN EIGHTEEN THOUSAND ONE HUNDRED EIGHTY-EIGHT DOLLARS ($18,188) CASH DONATION FROM THE MARILYN AND EDWARD GADINSKY CHARITABLE FOUNDATION, IN SUPPORT OF THE SOUNDSCAPE CINEMA SERIES FOR FISCAL YEAR 2012/13; AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE SUCH EXPENDITURES AND/OR REIMBURSEMENTS FROM THE AFORESTATED DONATION, IN FURTHERANCE OF AND CONSISTENT WITH THE AFORESTATED EVENT. WHEREAS, the City developed and produced the SoundScape Cinema Series at the ExoStage, which launched in March 2011 and allows the public to experience free weekly movies; and WHEREAS, the Cinema Series is part of the City's Arts in the Park Program that was launched in 2006, in response to the results of community surveys and focus groups that indicated residents would like to see more free cultural events; and WHEREAS, the SoundScape Cinema Series has been very well received by the Community, generating an average weekly attendance of 938 people; and WHEREAS, Mr. and Mrs. Edward Gadinsky would like to make a cash donation to the City, in the amount of$ 18,188, to help cover the costs associated with the Cinema Series, including licensing fees and technical staff; and WHEREAS, in consideration of this donation, the City will recognize the Marilyn and Edward Gadinsky Charitable Foundation as a sponsor (prior to each weekly movie in the Series, and in all marketing and promotions associated with the Cinema Series). NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby authorize the acceptance of an eighteen thousand one hundred and eighty- eight dollars ($18, 188) cash donation from the Marilyn and Edward Gadinsky Charitable Foundation, made to the City in support of the SoundScape Cinema Series for Fiscal Year 2012/13; and authorize the City Manager or his designee to make such expenditures and/or reimbursements from the aforestated donation, in furtherance of and consistent with the aforestated event. PASSED and ADOPTED this ___ day of _____ , 2012. ATTEST: MAYOR CITY CLERK T:\AGENDA\2012\1 0-24-12\Gadinsky Sponsorship Acceptance RESO.doc Agenda Item C 7 T Date 10-Jf/-12. 5 THIS PAGE INTENTIONALLY LEFT BLANK 6 RESOLUTION NO. ______ _ A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE AGREEMENT WITH DESIGN MIAMI TO HOLD THE DESIGN MIAMI SHOW IN THE PREFERRED PARKING LOT, FOR SPECIFIC DATES IN 2013, 2014, 2015, AND 2016; AS MORE SPECIFICALLY SET FORTH IN THE LEASE AGREEMENT ATTACHED AS EXHIBIT "A" TO THIS RESOLUTION. WHEREAS, on May 12, 2010, the City Commission adopted Resolution No. 2010-27384 approving a Lease Agreement between the City and Design Miami to hold the Design Miami Show in the Preferred Parking Lot (P-Lot) in 2010, 2011 and 2012; and WHEREAS, Design Miami is currently in the final year (third year) of its Lease Agreement with the City, which expires December 31, 2012, and Design Miami has approached the City about entering into a new Lease; and WHEREAS, Design Miami wishes to again lease the Preferred Parking Lot, located between Convention Center Drive and Meridian Avenue, and 18th and 19th streets, for the purpose of continuing to provide the Design Miami show for specific dates in December 2013, 2014, 2015, and 2016, respectively, in conjunction with Art Basel Miami Beach; and WHEREAS, the Preferred Parking Lot was identified as the most compatible space, as it provides for synergy between Design Miami and Art Basel Miami Beach; and WHEREAS, the additional parking at the City Hall Garage, and the Pennsylvania Avenue Garage, provides alternative parking for the spaces displaced by Design Miami; and WHEREAS, at its meeting on July 30, 2012, the Neighborhood/Community Affairs Committee recommended that the Administration negotiate a new Lease with Design Miami, and WHEREAS, the Administration and Design Miami have negotiated the attached Lease Agreement. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission hereby approve and authorize the Mayor and City Clerk to execute a Lease Agreement with Design Miami to hold the Design Miami Show in the Preferred Parking Lot, for specific dates in December, 2013, 2014, 2015, and 2016; as more specifically set forth the Lease Agreement attached as Exhibit "A" to this Resolution. PASSED AND ADOPTED this ___ day of _______ , 2012 ATTEST: CITY CLERK KGB/MAS T:\AGENDA\2012\10-24-12\DM PLOT LEASE Resc Agenda Item C. 'l K Date Jo-lq-1 Z. 7 MAYOR APPROVED AS TO FORM & LANGUAGE & FOA EXECUTION . . /Ok~ j;._ ttomey~ ate PREFERRED PARKING LOT LEASE AGREEMENT FOR "DESIGN MIAMI" SHOW This Lease Agreement (the Lease) made this __ day of , 2012 (Effective Date), by and between the CITY OF MIAMI BEACH, a Florida Municipal Corporation (City or Lessor), whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139, and DESIGN MIAMI II, LLC, a Florida limited liability company whose address is 3841 NE 2nd Avenue, Suite 400, Miami, Florida 33137 (Lessee). WHEREAS, Lessee wishes to lease the Preferred Parking Lot, located between Convention Center Drive and Meridian Avenue, and 18th and 19th streets, for the purpose of producing the "Design Miami" show in conjunction with the Art Basel Miami Beach show at the Miami Beach Convention Center (MBCC); and WHEREAS, the Preferred Parking Lot was identified as the most compatible space, as it provides for synergy between Lessee's event and Art Basel Miami Beach; and WHEREAS, Lessee seeks to lease the Preferred Parking Lot for the aforestated event from October 21 -December 26, 2013, as well as for similar dates in 2014, and--2015 and 2016; and WHEREAS, the Lessor and Lessee negotiated an agreement TeFITl Sheet (Exhibit ~. which was approved by the City Commission on DATE (via Resolution No. lilit/IJJIJ#il#); accOFdingly, the parties ha¥e negotiated the foregoing Lease based on the substanti¥e teFITls and conditions of the TeFITl Sheet. NOW, THEREFORE, in consideration of the mutual covenants herein exchanged, the parties agree as follows: 1) Premises. Lessee shall have the right to use the following City property for the purpose of producing and holding the Design Miami show (the Event), which use shall include exhibit space; passenger loading zones; space for valet ramping for City's contracted valet operator; and additional storage: The leased premises shall consist of an area equal to approximately 250 spaces in the City's Preferred Parking Lot, located between Convention Center Drive and Meridian Avenue, and 18th Street and 19th Streets, Miami Beach, Florida, (hereinafter, the Premises). The Premises are further delineated in the sketch attached as Exhibit "B" hereto. Subject to the prior written consent of the City Manager, which consent shall not be unreasonably withheld, Lessee may also be permitted to use additional space in the Preferred Parking Lot, at rental rates to be determined by Lessor, based on the formula in Section 2 hereof. If approved, any such additional space shall be deemed incorporated into and be a part of the Premises, and shall also be subject to all of the terms and conditions of the Lease. 1 8 2) Term. 2013 October 21 -December 2 December 3-December 8 December 9 -December 26 *2014 tentative dates are: October 20 -December 1 December 2-December 7 December 8 -December 25 Move-in Show Days Move-out Move-in Show Days Move-out *Lessee shall give written notice to Lessor on or before February 1, 2014 of any change to the dates; otherwise, the tentative dates set forth above shall be presumed to be the final dates and shall be binding on Lessee. **2015 tentative dates are: October 19-November 30 December 1-December 6 December 7 -December 24 Move-in Show Days Move-out **Lessee shall give written notice to Lessor on or before February 1, 2015 of any change to the dates; otherwise, the tentative dates set forth above shall be presumed to be the final dates and shall be binding on Lessee. **2016 tentative dates are: October 17 -November 28 November 29-December 4 December 5 -December 22 Move-in Show Days Move-out **Lessee shall give written notice to Lessor on or before February 1, 2016 of any change to the dates; otherwise, the tentative dates set forth above shall be presumed to be the final dates and shall be binding on Lessee. Following the first Event year (201 0), and in the event Lessee determines that it wants to terminate the Lease, Lessee maysl:laU-give the City written notice, within----sOOy (180) days from the last move-out date for any year's event (i.e. December 23, 201 0), of its desire to terminate the Lease. In consideration for being permitted to terminate the Lease in accordance with this paragraph, the City shall retain twenty-five percent (25%) of the annual rental fee for the next succeeding show as Liquidated Damages. Commencing upon the Effective Date of this Lease, Lessee shall be permitted a ninety (QO) day "exploratory period" to further research associated costs to produce the E•Jent on the Premises. In the event that Lessee determines during the exploratory period to not proceed with the Event on the Premises, it may terminate this Lease, without cause, and 'Nithout liability, upon written notice to the City; provided ho•tJever that such notice to terminate must be received by the City during the exploratory period. If Lessee does not notify the City 2 9 'Nithin the ninety (90) day exploratory period of its desire to terminate the Lease Agreement, all terms and conditions of the Agreement will remain in full force and effect. 3) Use. Lessee shall have the right to use the Premises for the Event, which is a furniture design show for galleries which present curated exhibitions of museum-quality furniture, lighting, and objects d'art. Lessee's proposed use(s) of the Premises for the Event shall permit exhibit space; passenger loading zones; space for valet ramping for the City's contracted valet operator; and additional storage. Lessee shall be permitted to install fencing at the perimeter of the Premises, subject to complying with all City and Miami-Dade County requirements, including, without limitation, permitting requirements. Lessee shall also be permitted to install tents and other equipment necessary for the Event, subject to complying with all City and Miami-Dade County requirements including, without limitation, permitting requirements. All installations and improvements shall be further subject to current applicable building codes, and shall comply with all applicable City, County, State and Federal Laws. City shall provide, and Lessee hereby accepts, the Premises in their "AS IS," "WHERE IS" condition. At the end of each of the Event dates, as set forth in the Term in Section 2 hereof, Lessee shall return the Premises to their original condition prior to the first move-in date of the Event; including, without limitation, restoring all asphalt and other surfaces to their original (or better) condition. Lessee shall be solely responsible for obtaining and paying for any and all permits and licenses as required and necessary for its use of, and operations on, the Premises. 4) Rental. Lessee agrees to pay the following rental rates (including applicable sales tax) for each Event year during the Term, as follows: Rental2013 Event parking rate of $22.50 (1.5% turnover) per day during Events and 1/4 of lot used ,_ of Event Days Rental Rate ,_ of spaces Total p/space p/day 15 $22.50 ~50 $ 84,375 Rental2014 Event parking rate of $22.50 (1.5% turnover) per day during Events and 1/4 of lot used. # of Event Days Rental Rate #of spaces Total p/space p/day 15 $22.50 250 $ 84,375 Rental2015 Event parking rate of $22.50 (1.5% turnover) per day during Events and 1/4 of lot used 3 10 ~ of Event Days Rental Rate #of spaces Total p/space p/day 15 $22.50 ~50 $ 84,375 Rental 2016 Event parking rate of $22.50 (1.5% turnover) per day during Events and 1/4 of lot used I# of Event Days Rental Rate I# of spaces Total p/space p/day 15 $22.50 ~50 $ 84,375 Rental payment for 2013 will be made as follows: • 50% on or before October 21, 2013; and • balance (50%) on or before December 3, 2010. Rental payment for 2014 will be made as follows: • 50% on or before October 20, 2014; and • balance (50%) on or before December 2, 2014. Rental payment for 2015 will be made as follows: • 50% on or before October 19, 2015; and • balance (50%) on or before December 1, 2015. Rental payment for 2016 will be made as follows: • 50% on or before October 17, 2016; and _• _balance (50%) on or before November 29, 2016 The total rental amounts set forth above are final, are subject to amendment only on account of (a) Lessee leasing additional parking spaces, in which event the rental therefor shall be adjusted only to adjust the"# of spaces" in the above formula, or (b) amendment by the City Commission as provided below in this section, and are not subject to re- computation or other adjustment under any other circumstances. In addition to the aforestated rental payments, if the City Commission amends the parking rates, Lessor, at its sole option and discretion, may increase the aforestated Rental Rates, but not to exceed 10% in any given year of the Term. Lessee shall also be solely responsible for the payment of any and all taxes and/or assessments including, without limitation real estate taxes, which may be levied against the Premises as a result of Lessee's actions and operations thereon. Rent shall be paid to the City of Miami Beach Parking Department, 1755 Meridian Avenue, Suite 200, Miami Beach, FL, 33139. 4 11 5) Protection Clause. In consideration for Lessee's agreement to hold the Event on the Premises, the City agrees that, for the Term of this Agreement, it will not lease the Preferred Parking Lot to third parties for the purpose of holding a furniture design show, for the thirty (30) days immediately prior to, and the thirty (30) days immediately after, the Event dates (for each year of the Term). The Protection Clause would not, however, prohibit or preclude the City and/or the City's manager at the Convention Center, from allowing the use of the Preferred Parking Lot for load-in, staging, and load-out of a Convention Center show/event which is either a furniture design show, or has a furniture design component. 6) Responsibilitv for Clean-Up of Public Areas. Lessee shall be solely responsible for the necessary housekeeping services to properly maintain the Premises in a neat and orderly manner. Lessee shall maintain the order and cleanliness of the Premises on a daily basis, and shall be responsible for the removal of trash, rubbish, and garbage. If required by the City, Lessee shall provide, at its own expense, trash receptacles throughout the Premises in an amount sufficient to maintain the cleanliness of the area. Lessee shall also instruct and monitor its employees and contractors to assure that trash, rubbish, and garbage are immediately picked up on the Premises. 7) Services to be Provided by the City's Parking Department. The City's Parking Department shall remove all signs on the Premises prior to the first move-in date for each year of the Event. 8) Lessor's Proposed Improvements. In the event that the City, in its sole and reasonable discretion and judgment, deems that it is necessary to close all, or a any portion of, the Premises due to a capital improvements project, including, without limitation, expansion of the Miami Beach Convention Center and/or related facilities, then the City shall provide Lessee with written notice of same no later than six (6) months prior to Lessee's first move-in date of the particular Event year. Following such notice, the parties' hereby agree and acknowledge that the Lease and the parties' respective obligations hereunder, shall be automatically terminated, without liability to either party. Lessee acknowledges and agrees that it shall not have any claim, demand, or cause of action of whatever kind or nature, against the City, its officials, employees, agents, and/or contractors, including, without limitation, claims for interference in business or damages for business interruption, due to such closure. If possible, the City will use reasonable efforts to provide Lessee with one (1) year notice. 9) Indemnification. Lessee shall indemnify, defend and hold the City its officers, employees, contractors, and agents, harmless from and against any and all claims or causes of action (whether groundless or otherwise) by or on behalf of any persons, firm or corporation, for personal injury, property damage, or other occurring upon the Premises occasioned in whole or in part by any of the following: a. an act of omission on the part of Lessee or any officer, employee, contractor, agent, invitee, guest, or assignee of Lessee; b. any misuse, neglect, or unlawful use of the Premises by Lessee or any officer, employee, contractor, agent, guest, invitee, or assignee of Lessee; and/or c. any breach, violation, or nonperformance of any undertaking by Lessee under this Lease. 5 12 Lessee agrees to pay, and shall pay, for all damage to the Premises caused by Lessee or any employee, contractor, agent, guest, invitee, or assignee of Lessee. 1 0) Insurance. The Lease shall not be effective, nor shall Lessee take possession of the Premises, until all insurance required under this section has been obtained and such insurance has been approved by City's Risk Manager. Lessee shall maintain and carry in full force during the Term of this Lease the following insurance: 1. General Liability, in the amount of $1,000,000.00. A certified copy of Lessee's Insurance Policy must be filed and approved by the Risk Manager prior to commencement. The CITY OF MIAMI BEACH, FLORIDA must be named as an Additional Insured. 2. Workers' Compensation & Employers Liability, as required pursuant to Florida Statutes. A certified copy of Lessee's Insurance Policy must be filed and approved by the Risk Manager prior to commencement 3. Automobile Insurance, in the amount of $1 ,000,000.00. A certified copy of Lessee's Insurance Policy must be filed and approved by the Risk Manager prior to commencement. The CITY OF MIAMI BEACH, FLORIDA must be named as an Additional Insured. 4. All-Risks Property and Casualty Insurance, written at a m1mmum of 80% of replacement cost value and with replacement cost endorsement, covering the non- permanent structures and floor coverings owned by Lessee. s. Liquor Legal Liability Insurance, with policy limits of $2,000,000 per occurrence, naming the CITY OF MIAMI BEACH, FLORIDA, as an additional insured, either as an endorsement to Lessee's General Liability policy or as a separate policy. Lessee shall provide the City with evidence of this insurance prior to selling or serving alcoholic beverages at or from the Premises. If Lessee fails to obtain or to continue this coverage, Lessee shall immediately discontinue selling and serving alcoholic beverages from the Premises. Lessee may also satisfy this requirement by ensuring that a third party selling and serving such beverages maintains such insurance. All insurance policies must be issued by companies authorized to do business under the laws of the State of Florida. The companies must be rated no less than "B+" as to management and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. 11) Default and Termination. The following actions (a) through (d) shall constitute an event of default by Lessee: a. If Lessee abandons or vacates the Premises during any of the dates provided for its use of the Premises hereunder, other than as consistent with moving in or out; 6 13 b. If Lessee fails to timely pay any of the rental, or other amounts, set forth in this Lease; c. If Lessee fails to discharge or bond off any lien filed on the Premises, within five (5) days of written notice from Lessor; or d. If Lessee fails to perform in accordance with any of the other terms and conditions herein contained and such default is not cured within three (3) days after written notice from Lessor; or e. If Lessee fails to comply with the insurance requirements in Section 1 0 hereof and such default is not cured within twenty-four (24) hours of verbal or written notice from the City. In the event of default by Lessee, and where such default is not cured within the applicable period, the City may terminate this Agreement without further notice to Lessee. Lessee shall immediately surrender possession of the Premises, as well as removing any personal property and equipment therefrom. Any personal property and equipment not so removed shall be removed and stored at Lessee's expense. Additionally, in the event of a termination hereunder, the City may also pursue any and all remedies, whether at law or equity, available to seek redress for such default. 12) Bankruptcy and Insolvency. If Lessee is adjudicated bankrupt or makes an assignment for the benefits of creditors, the City shall have the right to immediately terminate this Agreement and re-enter the Premises without notice or demand. 13) Sublease and Assignment. Lessee shall not sublease the Premises or any part thereof, nor assign this Lease, without obtaining the City Manager's prior written approval, which approval may be given, if at all, at his/her sole and absolute discretion. Nothing herein shall prohibit Lessee being permitted to contract with exhibitors, sponsors and concessions for the Event. 14) Permits and Licenses. Lessee shall be solely responsible for obtaining and paying for any and all permits and licenses necessary for its use of and operations on the Premises. Lessee must obtain a City Special Event Permit, which includes building, structural, electrical permits. Issuance of such Special Event Permit shall be subject to and contingent upon Lessee meeting all the requirements and conditions of the City's administrative rules and guidelines for special events, as same may be amended from time to time. 15) City's Right of Entrv. The City, or its authorized agent or agents, shall have the right, but not the obligation, to enter upon all or any part of the Premises at all reasonable times for the purpose of inspecting same, preventing waste, making such repairs as the City may consider necessary, and for the purpose of preventing fire, and/or addressing other life safety issues. However, the City agrees that, whenever reasonably possible, the City shall provide notice to Lessee, unless the need to enter the Premises is an emergency, as deemed by the City, at its sole discretion, which if not immediately addressed could cause property damage, loss of life or limb, or other injury to persons. Nothing herein shall imply any duty on the part of the City to do any work that under any provisions of this Agreement Lessee may be required to perform, and the performance thereof by the City shall not constitute a waiver of the Lessee's default. 7 14 16) Security Deposit. Following execution of this Lease by the parties hereto, and in no event later than sixty (60) days prior to the first move-in date of the first year of the Event, Lessee shall pay to City the sum of Five Thousand Dollars ($5,000), as security for the faithful performance by Lessee of the terms, conditions and covenants of this Lease. In the event of Lessee's default of a term, condition and/or covenant of this Lease, the City shall be entitled to retain such Security Deposit. In the event that Lessee shall fully comply with all of the terms, conditions, and covenants of this Lease, the Security Deposit shall be returned to Lessee, without interest, at the end of the Term. 17) Sponsorship. The City of Miami Beach will be recognized as a sponsor of the Event. As such, the City will receive recognition (logo in catalogue, logo in Miami website/ with link to the City website). In addition, the City will receive recognition in the Design Miami/Basel catalogue. 18) Complimentary City Tickets. Lessee agrees to provide the City with a minimum of ten (10) complimentary VIP passes and an additional twenty-five (25) complimentary day passes for each year of the Event. 19) Resident Tickets. Lessee shall provide City residents with at least a fifteen percent (15%) discount on individual day passes. The City will provide Lessee with avenues to promote the offer (i.e. City website and newsletters). 20) Mutual Acknowledgement. Both parties acknowledge that use of the Preferred Parking Lot reduces parking inventory and the availability of public parking for attendees of the fair. 21) Notices. All notices shall be sent to the parties at the following addresses: Lessor: City of Miami Beach City Manager's Office 1700 Convention Center Drive Miami Beach, FL 33139 Attn: City Manager City of Miami Beach Parking Department 1755 Meridian Avenue, Suite 200 Miami Beach, FL 33139 Attn: Director Tourism and Cultural Development Department 1755 Meridian Avenue, Suite 500 Miami Beach, FL 33139 Attn: Director 8 15 Lessee: With copies to: and to: Design Miami II, LLC 3841 NE 2nd Avenue Suite 400 Miami, FL 33137 Attention: Craig Robins Design Miami II, LLC 3841 NE 2nd Avenue Suite 400 Miami, FL 33137 Attention: Anna Williams Design Miami II, LLC 3841 NE 2nd Avenue Suite 400 Miami, FL 33137 Attention: Ty Bassett Lessee and Lessor may change such address at any time upon giving the other party written notification. All notices under this Lease must be in writing and shall be deemed to be served when delivered to the address of the addressee. All notices served by mail shall be registered mail, return receipt requested. Lessee may designate additional persons for notification of default. 22) Force Majeure. No party will be liable or responsible to the other party for any delay, damage, loss, failure, or inability to perform caused by "force majeure" if notice is provided to the other party within ten (1 0) days of the date on which such party gains actual knowledge of the event of "force majeure" that such party is unable to perform. The term "force majeure", as used in this subsection, means the following: an act of God, strike, war, public rioting, terrorism, unusual tidal activity affecting the use of the Premises, fire, hurricane, explosions, epidemics, earthquakes, floods, civil disturbances, and any other cause which is not reasonably within the control of the party whose performance is to be excused, and by which the exercise of due diligence could not be reasonably prevented or overcome. 23) Waiver. No waiver by Lessor any time of any of the terms or conditions of this Lease shall be deemed at any time thereafter a waiver of the same or any other term or conditions hereof. 24) Severability. If any term or provision of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the reminder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this Lease shall be valid and be enforceable for the fullest extent permitted by law. 25) Governing LawNenue. This Lease shall be governed by and construed in accordance with the law of the State of Florida. This Lease shall be enforceable in Miami- Dade County, Florida, and if legal action is necessary by either party with respect to the 9 16 enforcement of any or all of the terms or conditions herein exclusive venue for the enforcement of same shall lie in Dade County, Florida. By entering into this Lease, Lessee and Lessor expressly waive any rights either party may have to a trial by jury of any civil litigation related to, or arising out of, this Lease. 26) Limitation of Liability. City desires to enter into this Lease only if in doing so the City can place a limit on the City's liability for cause of action for money damages due to an alleged breach by the City of this Lease, so that the liability for any such breach never exceeds the sum of $10,000. Lessee hereby expresses its willingness to enter into this Lease with Lessee's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $10,000. Accordingly, and notwithstanding any other term or condition of this Lease, Lessee hereby agrees that the City shall not be liable to Lessee for damages in an amount in excess of $10,000, for any action of claim for breach of contract arising out of the performance or nonperformance of any obligations imposed upon the City by this Lease. Nothing contained in this paragraph or elsewhere in this Lease is in any way intended to be a waiver of the limitation placed upon the City liability as set forth in Florida Statutes, Section 768.28. [ REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed by their appropriate officials, as of the date first entered above. ATTEST: I Rafael Grandado, City Clerk WITNESS: By: ____________ _ Print Name By: ____________ _ Print Name F:\info\$ALL\Max\TCD\Special Events\LesseeP Lot Lease Agr.doc 10 17 LESSOR/CITY OF MIAMI BEACH Matti H. Bower, Mayor LESSEE/DESIGN Miami DESIGN MIAMI II, LLC, by Design Miami, Inc., its managing member By: ____________ _ Anna Williams Vice President THIS PAGE INTENTIONALLY LEFT BLANK 18 COMMISSION ITEM SUMMARY Condensed Title: A resolution to execute an amendment to the FY 2009/2010 SHIP Program Agreement between the City and MBCDC, to extend the term to December 31, 2012 and provide $45,938.97 in program income to assist one income-eligible homebuyer and rehabilitation household in North Beach. Key Intended Outcome Supported: Increase access to workforce or affordable housing. Supporting Data (Surveys, Environmental Scan, etc.): According to the 2012 Community Satisfaction Survey, 34% of respondents find the availability of affordable housing to be the most important business challenge for Miami Beach; trending up from 18% of respondents in the 2009 survey. Issue: Shall the City provide an extension of its FY 2009/2010 SHIP Program Agreement with MBCDC and allocate $45,938.97 in ro ram income to assist a North Beach household with home urchase and rehabilitation. Item Summary/Recommendation: On September 9, 2009, via Resolution No. 2009-2717 4, the City Commission allocated $39,321.90 of the FY2009/201 0 SHIP funds to Miami Beach Community Development Corporation (MBCDC) to carry out the program's housing activities. MBCDC successfully expended the funds in accordance with program requirements. In September 2012, while preparing the SHIP annual report which includes a statement of interest income earned from the SHIP account, the Administration determined that $45,938.97 had accrued on the SHIP bank account's pooled cash. Uncertain as to the proper method and time frame for allocation of the program income, Staff sought technical assistance from the Florida Housing Finance Corporation (the State) and asked if the City's issuance of a Request for Proposals for the use of the program income would be a suitable plan of action for the funding. The State ask the City to submit a plan to spend the program income funds by no later than December 31, 2012, and noted that the City's FY2009/201 0 contract with Miami Beach Community Development Corporation, includes a provision to carry out SHIP activities including program income received during that fiscal year. In order to carry out the State's instructions and comply with the SHIP Program rules, an Amendment to the SHIP Agreement for Fiscal Year 2009-2010 is necessary to extend the term of the Agreement through December 31, 2012, and to allocate the $45,938.97 program income funds to MBCDC for use in furthering affordable housing activities. The Administration recommends that the subject allocation be dedicated to the North Beach area and MBCDC has committed to utilize the funding to provide assistance to a North Beach household. Advisory Board Recommendation: IN/A Financial Information· Source{~j··. Amount Funds:\ . 1 $45,938.97 I Sffie-/ I PROG 2 OBPI Total Financial Impact Summary: City Clerk's Office Legislative Tracking: I Anna Parekh T:\AGENDA\2012\0ctober 24\Consent\SHIP FY 2009-10 MBCDC MIAMI BEACH 19 Account Approved 152-8000-361145 152-5719-000349 AGENDA ITEM _C_7_____,L __ DATE /0-Jtf-/2...... MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: FROM: DATE: Mayor Matti H. Bower and Members of the City Commission Kathie G. Brooks, Interim City Manage~ A_ _ October 24, 2012 / SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE AMENDMENT N0.1 TO THE FISCAL YEAR 2009/2010 STATE HOUSING INITIATIVES PARTNERSHIP (SHIP) PROGRAM AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION (MBCDC), IN A FORM ACCEPT ABLE TO THE CITY MANAGER AND THE CITY ATTORNEY, WHICH EXTENDS THE TERM OF THE AGREEMENT THROUGH DECEMBER 31, 2012, AND PROVIDES $45,938.97 IN SHIP PROGRAM INCOME TO ONE INCOME-ELIGIBLE HOMEBUYER AND REHABILITATION HOUSEHOLD IN NORTH BEACH. ADMINISTRATION RECOMMENDATION Adopt the Resolution. ANALYSIS The State Housing Initiatives Partnership (SHIP) Program, administered through the Florida Housing Finance Corporation, was established by the 1992 William E. Sadowski Affordable Housing Act to stimulate the production of housing statewide. Annually, the Florida Housing Finance Corporation allocates SHIP Program funds among participating jurisdictions on a formula basis. The City has participated in the SHIP Program since fiscal year 1995/96. Historically, and until 2009 when the economic recession dramatically affected the SHIP Program, the City typically was allocated approximately $500,000 a year in SHIP funds for eligible homeownership activities and rehabilitation of affordable housing. However, in Fiscal Year 2009/2010 the City received a total of $43,691 of SHIP Program funds. On September 9, 2009, via Resolution No. 2009-27174, the City Commission allocated $39,321.90 of the FY2009/201 0 SHIP funds to Miami Beach Community Development Corporation (MBCDC) to carry out the program's housing activities. The remaining balance of $4,369.10 was allocated to the City for administrative expenses. MBCDC successfully expended the funds in accordance with program requirements. In September 2012, while preparing the SHIP annual report which includes a statement of interest income earned from the SHIP account, the Administration determined that $45,938.97 had accrued on the SHIP bank account's pooled cash. Uncertain as to the proper method and time frame for allocation of the program income, Staff sought technical assistance from the Florida Housing Finance Corporation (the State) and asked if the City's issuance of a Request for Proposals for the use of the program income would be a suitable plan of action for the funding. The State's response, which is attached hereto and marked 20 Commission Memorandum October 24, 2012 Page 2 of2 "Attachment 1 ," requests that the City submit a plan to spend the program income funds by no later than December 31, 2012. The State further noted that the City's FY2009/201 0 contract with Miami Beach Community Development Corporation, which is also attached hereto and marked "Attachment 2," includes a provision (Article Ill Program Income) to carry out SHIP activities including program income received during that fiscal year. In order to carry out the State's instructions and comply with the SHIP Program rules, an Amendment to the SHIP Agreement for Fiscal Year 2009-2010 is necessary to extend the term of the Agreement through December 31,2012, and to allocate the $45,938.97 program income funds to MBCDC for use in furthering affordable housing activities. Due to the U.S. Department of Housing and Urban Development's determination that North Beach is the City's "area of greatest need" in terms of affordable housing, the Administration recommends that the subject allocation be dedicated to the North Beach area. MBCDC has committed to utilize the funding to provide assistance to a North Beach household and has identified an income-eligible North Beach participant from its waiting list for the funding. CONCLUSION The Administration recommends that the FY 2009/2010 State Housing Initiatives Partnership (SHIP) Program Agreement between the City of Miami Beach and MBCDC be amended to extend the term through December 31, 2012 and to allocate $45,938.97 in program income to one income-eligible homebuyer and rehabilitation household in North Beach. t\lJJ1 KGB~EP/ARB T:\AGENDA\2012\0ctober 24\Consent\SHIP FY2009 MBCDC Agreement Extension-MEMO.doc 21 RESOLUTION NO ___ _ A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE AMENDMENT NO. 1 TO THE FISCAL YEAR 2009/2010 STATE HOUSING INITIATIVES PARTNERSHIP (SHIP) PROGRAM AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION (MBCDC), IN A FORM ACCEPTABLE TO THE CITY MANAGER AND THE CITY ATTORNEY, WHICH EXTENDS THE TERM OF THE AGREEMENT THROUGH DECEMBER 31, 2012, AND PROVIDES $45,938.97 IN SHIP PROGRAM INCOME TO ONE INCOME-ELIGIBLE HOMEBUYER AND REHABILITATION HOUSEHOLD IN NORTH BEACH. WHEREAS, the State Housing Initiatives Partnership (SHIP) Program, administered through the Florida Housing Finance Corporation, was established by the 1992 William E. Sadowski Affordable Housing Act to stimulate the production of housing Statewide; and WHEREAS, the City received a total of $43,691 of SHIP Program funds for FY 2009/10; and WHEREAS, the Mayor and City Commission, via City Commission Resolution No. 2009-27174, authorized the execution of an agreement with Miami Beach Community Development Corporation (MBCDC}, providing funding in the amount of $39,321.90 to carry out SHIP Program activities; and WHEREAS, MBCDC expended the funds in accordance with program requirements; and WHEREAS, the Administration determined that $45,938.97 of interest income has accrued on the SHIP Program pooled cash bank account, which is considered program income; and WHEREAS, at the instruction of Florida Housing Finance Corporation, the FY 2009/2010 SHIP Agreement shall be amended to extend the term through December 31, 2012 and the program income of $45,938.97 shall be provided for affordable housing activities. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAM BEACH, FLORIDA, that the Mayor and City Commission hereby authorize the Mayor and the City Clerk to execute Amendment No. 1 to the Fiscal Year 2009/2010 State Housing Initiatives Partnership (SHIP) Program Agreement between the City of Miami Beach and Miami Beach Community Development Corporation (MBCDC}, in a form acceptable to the City Manager and the City Attorney, which extends the term of the agreement through December 31, 2012, and provides $45,938.97 in SHIP Program Income to one income-eligible homebuyer and rehabilitation household in North Beach. Passed and adopted this ___ day of _______ , 2012. ATTEST: CITY CLERK T:\AGENDA\2012\0ctober 24\Consent\SHIP FY 2009-10 MBCDC Agreement Extension R~_(>_ 22 MAYOR APPROVED AS TO FORM & LANGUAGE & FO EXECUTION Parekh, Anna From: Sent: To: Cc: Subject: ATTACHMENT 1 Aida Andujar [andujar@flhousing.org] Thursday, October 11, 2012 6:25PM Parekh, Anna Bowman, Richard RE: SHIP Program Hi Anna, we would like to see a plan that has all funds spent no later than December 31, 2012. This is six months after the expenditure deadline. In reviewing your files, I noted that the City has an existing contract with Miami Beach CDC for fiscal year 2009-2010 to carry out SHIP activities including program income received during that fiscal year. Since these are 2009-2010 funds, what would prevent the City from including these funds under the existing contract to help expedite the expenditure of funds? If there are local policies or laws that prohibit this, please provide this in writing as part of the plan of action. The City must provide as much detail as possible when it prepares its plan of action to expend these funds including explanations for anticipated delays. Include specific dates for completing activities that will demonstrate how and when the funds will be expended. Thanks Aida Andujar Technical Advisor Florida Housing Coalition Phone: 954-252-4898 Andujar@flhousing.org From: Parekh, Anna [mailto:AnnaParekh@miamibeachfl.gov] Sent: Thursday, October 11, 2012 5:13 PM To: 'andujar@flhousing.org' Cc: Bowman, Richard Subject: Re: SHIP Program Aida, Is the issuance of an RFP a suitable plan of action? This would take a minimum of three months to complete. Ann From: Aida Andujar [mailto:andujar@flhousing.org] Sent: Thursday, October 11, 2012 04:49 PM To: Parekh, Anna Cc: Bowman, Richard Subject: SHIP Program Hi Anna, as you know, on Tuesday October gth, 2012 at the request of Florida Housing Finance Corp. I made a site visit to review the status of the City of Miami Beach SHIP program. At this time the City is in non-compliance with the regulatory requirements of the program. There are $45,938.97 in SHIP program income funds that should have been spent by June 30, 2012. These funds are not spent or encumbered. The City must provide a plan of action to expend these funds as quickly as possible. Please submit a plan of action for the expenditure of these funds no later than October 17, 2012 so that 1 may forward this information to Florida Housing Finance Corp. Feel free to contact me if you have any questions. Aida Andujar Technical Advisor Florida Housing Coalition Phone: 954-252-4898 Andujar@flhousing. org 1 23 ATTACHMENT 2 'SHIP AGREEMENT SHIP Fiscal Year 2009~2010 ~ {0 THIS AGREEMENT, entered into this fht day of JWII.-( , 20~. by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, {hereinafter referred to as the City), and the MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, a not-for-profit Florida corporation, with its principal office located at 945 Penns}'ivania Avenue, Miami Beach, Florida (hereinafter referred to as MBCDC). WITNESSETH: WHEREAS, the State Housing Initiatives Partnership (SHIP) Program, administered through the Florida Housing Finance Corporation, was established by the 1992 William E. Sadowski Affordable Housing Act to stimulate the production of housing Statewide; and WHEREAS, during the 2009 Legislative session, the Florida Homebuyer Opportunity Program (FHOP) was created to provide up to $8,000 or 10% of the home price (whichever is less) in purchase assistance to first time home buyers eligible to receive the federal first-time home buyer tax credit established through the American Recovery and Reinvestment Act of 2009 that must be repaid by the applicant with his/her federal tax refund or within 36 months after the home purchase date; and WHEREAS, the City received a total of $43,691 of SHIP Program funds for Fiscal Year 2009/1 0; and WHEREAS, this year's SHIP funds are to be used exclusively for the FHOP initiative until the tax credit program expires, on or about June 30, 2010; and WHEREAS, staff consulted with the Florida Housing Coalition (FHC) regarding the limited time given to implement the FY2009/1 0 Program and was advised that, considering that the home purchase initiative is included in the current contract between the City and MBCDC, a Notice of Funding Availability (NOFA) is not required to allocate FY2009/10 SHIP funds to MBCDC, in the amount of $39,321.90, representing the State's allocation of $43,691 minus the City's allocation of $4,369.10 for administrative expenses and; WHEREAS, on September 9, 2009, the Mayor and City Commission approved Resolution No. 2009-2717 4, authorizing the Mayor and the City Clerk to execute the following SHIP program agreement between the City and MBCDC for the.implementation of the 2009-2010 FHOP initiative. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: ARTICLE I BACKGROUND The Florida Homebuyer Opportunity Program (FHOP) was created during the State of Florida 2009 regular legislative session. This funding ($30 million Statewide) is detailed in the budget implementing bill under Specific Appropriation 1570A only to provide subordinate loans of up to $8,000 on purchase assistance to prospective first-time home buyers to applicants that are eligible to receive the federal-first time homebuyer tax credit created through The American Recovery and Reinvestment Act of 2009. 1 24 ARTICLE II BUDGET AND SCOPE OF SERVICES MBCDC will utilize $39,321.90 of SHIP Fiscal Year 2009/2010 funds; as set forth in the Scope of Services in Exhibit "A", attached hereto and made a part hereof by reference (hereinafter referred to as the Funds, which definition shall also include the allocation of any additional funds that may be provided by the City or the State of Florida in the future as a result of an amendment or modification of this Agreement), exclusively for down payment assistance, in an amount not to exceed $8,000, to first time homebuyers eligible to receive the federal first-time homebuyer tax credit. ARTICLE Ill PROGRAM INCOME MBCDC agrees that any SHIP Program income generated from the use of the Funds under this Agreement, or funds repaid for any reason, after making all debt repayments to the City, or other lender, if any, is to be used to further other affordable housing activities. ARTICLE IV SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE FHOP PROGRAM The parties acknowledge that the Funds provided under this program, which are distributed through and operated under the SHIP Program require that the funding be used to provide up to $8,000 or 10% of the home price {whichever is less) in purchase assistance to applicants that are eligible to receive the federal first time homebuyer tax credit created through the American Recovery and Reinvestment Act of 2009; the SHIP Program Rule; and the City's Local Housing Assistance Plan. The assistance is to be repaid by the applicant with his/her federal tax refund, or within 36 months after the home purchase date. This initiative is to expire by June 30, 2010, extended from the original date of November 30, 2009, and therefore the home purchase date must be prior to June 30, 2010, unless the Program is extended. Once the FHOP initiative ends, MBCDC can use any remaining FY2009/20 10 funds to continue providing SHIP eligible activities in accordance with SHIP Program rules and the City's Local Housing Plan, subjectto compliance with Article Ill hereof. MBCDC expressly agrees to the following terms and conditions in conformity with the FHOP Program Rule: (a) Affordability Period. The period of time SHIP assisted units must remain affordable is for a minimum of fifteen (15) years, in accordance with the SHIP Program Rules and the City of Miami Beach Local Housing Assistance Plan (LHAP). (b) Repayment of Funds. The Funds provided to applicants that are eligible to receive the federal first time homebuyer tax credit shall be repaid by the applicant in its entirety to the City with his/her federal tax refund, or within 36 months after the home purchase date. Concurrent with the closing on the property, the owner shall execute a Promissory Note and a Mortgage Deed incorporating the terms of this loan. (c) The maximum income limit under the FHOP Program shall be an adjusted gross income of $75,000 for single taxpayer households, or $150,000 for joint-filing taxpayer households, which is 2 25 equal to that allowed under the American Recovery and Reinvestment Act of 2009. (d) Income Targeting. There is no requirementto reserve thirty (30%) percent ofthe funds for awards to very-low income persons or thirty (30%) percent of the funds for awards to low-income persons. (e) There is no requirement to expend seventy five (75%) percent of funds for construction, rehabilitation, or emergency repair and; (f) The principal balance of the loans provided may not exceed ten (1 0%) percent of the home purchase, or $8,000 (whichever is Jess). (g) MBCDC warrants and represents to the City that it maintains a financial management system that conforms to the financial accountability standards of the Office of Management and Budget (OMB) Circular A-110. (h) Records: MBCDC agrees to maintain all records sufficient to meet the requirements of the SHIP Program Rule, including, but not limited to: SHIP Program records, project records, and SHIP Program administration records. All records required herein shall be retained and made accessible for a period of at least five (5) years after closing, as provided in the SHIP Program Rule, and Florida Statutes Chapter 119. (i) Property Standards. For the duration of this Agreement, and any amendments hereto, housing that is assisted with FHOP funds, at a minimum, must meet the Housing Quality Standards of CFR Section 882.109. (k) Affirmative Marketing. MBCDC acknowledges that it is unlawful to discriminate on the basis of race, creed, color, religion, age, sex, sexual orientation, marital status, familial status, national origin or handicap. MBCDC agrees to maintain affirmative marketing procedures and requirements, in writing, for FHOP assisted housing, as set forth in Chapter 67-37 F.A.C. (I) Home Ownership. Housing that is for purchase qualifies as affordable housing only if 1) the housing has an initial purchase price, or appraised value after rehabilitation or repair, that does not exceed ninety percent {90%) of the average purchase price for the Miami-Dade Metropolitan Statistical Area (MSA) of $329,268, for new and existing homes, and subject to change from time- to-time, as determined by the Florida Housing Finance Corporation; 2) is the principal residence of the owner who qualifies under the FHOP Program rules. ARTJCLEV ELIGIBLE COSTS MBCDC agrees that eligible costs for under this Agreement are limited to the Florida Homebuyer Opportunity Program (FHOP) requirement of providing up to $8,000 or 10% of the purchase price (whichever is less) in purchase assistance to first time homebuyers eligible to receive the federal first-time homebuyer tax credit established by the American Recovery and Reinvestment Act of 2009. Once the FHOP Program expires, MBCDC can utilize any unexpended funds from this allocation for approved, regular SHIP activities, subject to compliance with Article Ill hereof. 3 26 ARTICLE VI METHOD OF PAYMENT (a) The funds shall be paid to MBCDC on a reimbursement basis, for the down-payment assistance provided to eligible individuals whose home purchase was used for a home closed prior to the expiration of the FHOP Program, and with supporting documentation, that includes, at a minimum, Closing Documents, a Promissory Note and Mortgage protecting the City, and a Mortgage Deed that incorporates the payment requirements and any other pertinent infonnation regarding FHOP and SHIP requirements. (b) Any payment or disbursement of Funds under this Agreement may be withheld at the City Manager's (or his authorized designee's) sole discretion pending the receipt of, and approval by the City, of all reports and documents which MBCDC is required to submit to the City pursuant to the tenns of this Agreement. ARTICLE VII SUBCONTRACTS [Intentionally Omitted] ARTICLE VIII CONDITIONS OF SERVICE (a) MBCDC shall comply with the regulations of the SHIP. (b) Equal Opportunity: MBCDC shall comply and be governed by the Equal Opportunity and Fair Housing laws. No person in the United States shall on the grounds of race, color, national origin, religion, disability or sex be excluded from participation in, or be denied the benefits of or be subjected to discrimination under any program or activity funded in whole or in part with SHIP Program funds. (c) Housing purchased or assisted with SHIP funds shall be subject to testing and abatement activities for lead-based paint. (d) MBCDC shall comply with those other statutes, regulations and executive orders, as same may be amended, and as set forth in Exhibit "8", attached hereto and herein incorporated by reference. ARTICLE IX TERM OF AGREEMENT This Agreement shall be deemed effective following approval by the Mayor and City Commission and execution of same by the parties hereto, provided, however, that upon approval and full execution, the term of this Agreement shall be deemed to have commenced retroactively to October 1, 2009. The City and MBCDC mutually agree that the Funds are reserved for MBCDC for the designated time period as follows: (a) The SHIP Funds allocated for Fiscal Year 2009/2010 for the FHOP initiative, in the amount of $39,321.90 are to be used from the period of October 1, 2009, through June 4 27 30, 2010. (b) The Funds must be expended by June 30, 2010. Upon expiration of the Agreement, any unused portions will revert to regular SHIP, and MBCDC can use any remaining Funds to continue providing SHIP eligible activities, subject to compliance with Article Ill hereof. ARTICLE X [Intentionally omitted] ARTICLE XI AMENDMENTS Any amendments, alterations, variations, modifications or waivers of any provisions to this Agreement, including an increased allocation of Funds or extension of the Term, will only be valid when they have been reduced to writing and duly signed the both parties hereto. Any changes which do not substantially change the Scope of Services or increase the total amount payable under this Agreement, shall be valid only when reduced to writing and signed by the City Manager (or his designee) and MBCDC. ARTICLE XII CONFLICT OF INTEREST (a) MBCDC shall comply with the standards contained within the SHIP Program Rule and the FHOP initiative requirements. (b) MBCDC shall disclose any possible conflicts of interest or apparent improprieties of any party that is covered by the above standards. MBCDC shall make such disclosure, in writing, to the City Manager or his/her authorized designee immediately upon MBCDC's discovery of such possible conflict. The City will then render an opinion which shall be binding on all parties. (c) Related Parties. MBCDC shall report to the City (through its City Manager or his/her designee) the name, purpose, and any other relevant information in connection with any related- party transaction. This includes, but is not limited to, dealing with a for-profit subsidiary or affiliate organization, an organization with overlapping board of directors, or an organization for which MBCDC is responsible for appointing members. MBCDC shall report this information to the City prior to forming the relationship or, if already formed, shall report it immediately. ARTICLE XIII INDEMNIFICATION AND INSURANCE MBCDC shall indemnify and hold harmless the City (through its City Manager or his/her authorized designee) from any and all claims, liabilities, losses, and causes of action which may arise out of an act, omission, negligence or misconduct on the part of MBCDC or any of its officers, directors, employees, agents, servants, contractors, subcontractors, consultants and sub consultants, patrons, guests, clients, and/or invitees. MBCDC shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all suits in the name of the City, when applicable, .and shall pay all costs and judgments which may issue thereon. This indemnification shall survive termination and/or expiration of this Agreement. 5 28 MBCDC shall maintain, during the term of this Agreement, the insurance specified below. ( 1) General Liability: $500,000 combined single limit for bodily injury and property damage, for each occurrence. (2) Contractual Liability: the policy must include coverage to cover the above indemnification. (3) Automobile and vehicle coverage, in the amount of $500,000 per occurrence, shall be required when the use of automobiles and other vehicles are involved in anyway in the performance of the Agreement, including non-owned automobile coverage. {4) Workers' Compensation Coverage as per statutory limits required by the State of Florida. MBCDC shall submit to the City ORIGINAL certificates of insurance for the above coverage, with the City of Miami Beach, Florida named as an additional insured. All insurance coverage shall be approved by the City's Risk Manager prior to the release of any Funds under this Agreement. Further, in the event evidence of such insurance is not forwarded to the City's Risk Manager within thirty {30) days after the execution of this Agreement, this Agreement shall become null and void, without further notice to MBCDC required, and the City shall have no obligation under the terms thereof. In the event of such automatic termination, MBCDC shall immediately return the entire amount of the Funds to the City. ARTICLE XIV REPORTS (a) Progress Reports. MBCDC agrees to submit quarterly progress reports to the City Manager (or his/her authorized representative) describing the status of this Program and achievement of the Program objectives (as provided in the Scope of Services in Exhibit "A", attached hereto). The progress reports shall be submitted no later than ten (1 0) days after the end of each quarter, and shall continue until such time as all Funds are expended. (b) It will be the responsibility of MBCDC to notify the City Manager {or his/her authorized representative) in writing, of any action, law, or event that will impede or hinder the success of the Program. After such notification MBCDC will take whatever actions the City deems appropriate to ensure the success of the Program. If the required reports described above are not submitted to the City, or are not completed in a manner acceptable to the City, the City may withhold further payments until they are completed and/or revised, or may take such other action as it may deem appropriate including, without limitation, termination of the Agreement. ARTICLE XV AUDIT AND INSPECTIONS At any time during normal business hours, and as often as the City Manager and/or his/her authorized representatives may deem necessary, in their respective sole discretion, there shall be. made available to the City; to audit, examine and make audits of, all contracts, invoices, materials, payrolls, records of personnel, conditions of employment, and any or all other data or records 6 29 relating to all matters covered by this Agreement. If during the course of its monitoring, the City determines that any payments made to MBCDC do not constitute an allowable expenditure, the City will have the right to deduct/reduce those amounts from their related invoices. MBCDC must maintain records necessary to document compliance with the provisions of this Agreement, for at least five (5) years after the close of the fiscal year in which the Funds reserved hereunder are fully expended. ARTICLE XVI COMPLIANCE WITH LOCAL STATE AND FEDERAL REGULATIONS MBCDC shall comply with all applicable Federal and State regulations, as applicable to Program administration; specifically including, but not limited to, the SHIP Program Rule(s) Additionally, MBCDC will comply with all State and local laws and ordinances hereto applicable. ARTICLE XVII MISCELLANEOUS CONDITIONS (a) It is expressly understood and agreed by the parties hereto that monies contemplated by this Agreement, to be used for compensation originated from grants under the FHOP initiative and SHIP Program and are contingent upon approval of activities by the State of Florida. (b) Title and paragraph headings are for convenient reference and are not a part of this Agreement. (c) In the event of conflict between the tenns of this Agreement and any terms or conditions contained in any attached document, the terms in this Agreement shall have precedence. (d) No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. ARTICLE XVIII ACCESS TO RECORDS MBCDC agrees to allow access, during normal business hours, to all financial records to authorized Federal, State or City representatives including, but not limited to, for the purposes set forth in Article ~ herein; and MBCDC agrees to provide such assistance as may be necessary to facilitate the conduct of a financial or operational audit by any of these representatives. MBCDC shall also allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance of this Agreement, to those personnel as may be designated by the City, and or State and/or Federal representatives. ARTICLE XIX SEVERABILITY OF PROVISIONS If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. 7 30 ARTICLE XX PROGRAM PUBLICITY MBCDC agrees that any news release or other type of publicity pertaining to the project as stated herein must recognize the City as the recipient funded by the Florida Housing Finance Corporation, under the State Housing Initiatives Partnership (SHIP) Program for the FHOP Program, and administered by the Office of Real Estate, Housing & Community Development of the City of Miami Beach as the entity which provided funds for the particular project. ARTICLE XXI SUCCESSORS AND ASSIGNS MBCDC agrees that this Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and assigns. ARTICLE XXII INDEPENDENT CONTRACTOR MBCDC and its employees and agents shall be deemed to be independent contractors and not agents or employees of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the City, or any rights generally afforded classified or unclassified employees; further they shall not be deemed entitled to the Florida Workers' Compensation benefits as an employee of the City. ARTICLE XXIII ASSIGNMENT This Agreement may not be assigned or transferred by MBCDC without the prior written consent of the City. The City may terminate this Agreement for cause in the event that MBCDC does not strictly comply with the procedures established herein for obtaining City consent to assignment or transfer as defined by this Article. A merger, dissolution, consolidation, conversion, liquidation or appointment of a receiver for MBCDC, shall also be deemed an assignment of this Agreement, and will require the prior written consent of the City thereto. ARTICLE XXIV TERMINATION FOR CAUSE AND/OR FOR CONVENIENCE The City may place MBCDC in default of this Agreement and may suspend or terminate this Agreement, in whole or in part, for cause. "Cause" shall include the following: (a) Failure to comply and/or perform in accordance with any of the terms and conditions of this Agreement, or any Federal, State or local regulation; (b) Failure to submit any required report to the City or submitting any required report which is late, incorrect, or incomplete in any material respect; (c) Implementation of this Agreement, for any reason, is rendered impossible or infeasible; (d) Failure to respond in writing within thirty (30) days of notice of same from City to any concerns raised by the City, including providing substantiating documentation when requested by 8 31 the City; {e) Any evidence of fraud, waste or mismanagement as determined, by the City's monitoring of project(s) under this Agreement, or any violation of applicable SHIP Program Rules and regulations, or of any applicable City, State, County, and/or Federal laws, ordinances, code provisions, ordinance and/or other regulations; (f) MBCDC'S insolvency or bankruptcy; and (g) An assignment or transfer of this Agreement or any interest therein which has not been approved by the City pursuant to Article XXIII herein. If the default complaint is not fully and satisfactorily cured within thirty (30) days of receipt of such notice of default to MBCDC, at the expiration of said thirty (30) day period (or such additional period of time as may be permitted by the City, in its sole discretion, as required to cure such default in the event MBCDC is diligently pursuing curative efforts), this Agreement may, at the City's sole option and discretion, be deemed automatically canceled and terminated, and the Funds shall immediately become due and payable to the City. The City shall further be fully discharged from any and all liabilities, duties and terms arising out of, or accruing by virtue of, this Agreement. In the event of a default for cause, the City may also, at its option, avail itself of any and all remedies pursuant to 24CFR part 85.43, as amended from time to time, including suspension in whole or in part, of any and all MBCDC's other grant award(s); recapture of those funds; and any other remedies that may be available at law or in equity. Notwithstanding this Article XXIV, this Agreement may be terminated by the City, in whole or in part, without cause and for the City's convenience, upon the furnishing of thirty (30) days written notice to MBCDC. In the event of termination for convenience by City, MBCDC herein acknowledges and agrees that it shall not have any claim, demand, or cause of action of whatsoever kind or nature against the City, its agents, servants and employees. ARTICLE XXV ADDITIONAL REMEDIES In the event of termination of this Agreement, whether for cause or for convenience, the City shall additionally be entitled to bring any and a Illegal and/or equitable actions, which it deems to be in its best interest, in Miami-Dade County, Florida, in order to enforce the City's rights and remedies against MBCDC. The City shall be entitled to recover all costs of such actions, including reasonable attorney's fees. Further, the City and MBCDC hereby knowingly and intentionally waive the right to jury trial in any action or proceeding that City and MBCDC may herein institute against each other with respect to any matter arising out of or relating to this Agreement or the Funds. ARTICLE XXVI MAINTENANCE AND RETENTION OF RECORDS MBCDC agrees that it will maintain all records required pursuant to Chapter67 -37, F.A.C., in an orderly fashion in a readily accessible, permanent and secure location, and that it will prepare and submit all reports necessary and to assist the City in meeting record keeping and reporting requirements hereunder. (a) Records shall be maintained for a period of five (5) years after the closeout of funds under this Agreement except as provided herein in paragraphs (b) and (c) below. 9 32 (b) If any litigation, claim, negotiation, audit or other action has been started before the regular expiration date, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular period specified in paragraph (a), whichever is later; (c) Records regarding project requirements that apply for the duration of the period of affordability, as well as the written agreement and inspection and monitoring reports must be retained for five years AFTER the required period of affordability. ARTICLE XXVII LIMITATION OF LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's 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 the Funds reserved hereunder, less any amount of the Funds actually paid to MBCDC by the City at the time of the alleged breach. MBCDC hereby expresses its willingness to enter into this Agreement with MBCDC's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the Funds, less any amount, in whole or in part, of the Funds actually paid to MBCDC by the City at the time of the alleged breach. Accordingly, and notwithstanding any other term or condition of this Agreement, MBCDC hereby agrees that the City shall not be liable to MBCDC for damages in an amount in excess of the Funds, Jess any amount, in whole or in part, of the Funds actually paid to MBCDC by the City at the time of the alleged breach, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. ARTICLE XXVIII VENUE This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, If in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, MBCDC AND THE CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT ARTICLE XXIX ADDITIONAL CONDITIONS AND COMPENSATION It is expressly understood and agreed by the parties hereto that monies contemplated by this Agreement to be used for the purposes described herein, originated from grants of State Housing Incentives Partnership (SHIP) Program funds for the FHOP initiative, and must be implemented with all of the applicable rules and regulations of the Florida Housing Finance Corporation. It is expressly understood and agreed that in the event of curtailment or non-production of said SHIP Program funds, that the financial sources necessary to continue to pay the Funds hereunder will .not be available and that this Agreement will thereby automatically terminate effective as of the time it is determined that said funds are no longer available. In the event of such determination, MBCDC 10 33 agrees that it will not look to, nor seek to hold liable, the City or any individual member of the City Commission thereof, personally for the performance of this Agreement and all parties hereto shall be released from further liability each to the other under the terms of this Agreement. ARTICLE XXX NOTICES All notices shall be sent to the parties at the following addresses: City: MBCDC: Anna Parekh, Director Office of Real Estate, Housing & Community Development City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Roberto Datorre, President Miami Beach Community Development Corporation 945 Pennsylvania Ave. Miami Beach, FL 33139 The above parties may change such addresses at any time upon giving the other party written notification. All notices under this Agreement must be in writing and shall be deemed to be served when delivered to the address of the addressee. All notices served by mail shall be registered mail, retum-receipt requested. 11 34 IN WITNESS WHEREOF, The parties hereto have caused this Agreementto be executed by their duly authorized official( s ), on the day and year first above written. Secr¢tary It~ I AA),~ tiM Print Name, ATTEST: City Clerk MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION ~.14sident Print Name CITY OF MIAMI BEACH F:\RHCD\$ALL\HSG-CD\MARIA SIERRA\Contracts\SHIP Agreement (MBCDC 2009-10 FHOP).doc 12 35 THIS PAGE INTENTIONALLY LEFT BLANK 36 ORDINANCE NO.------ AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 12 OF THE MIAMI BEACH CITY CODE, ENTITLED "ARTS, CULTURE AND ENTERTAINMENT," BY AMENDING ARTICLE II THEREOF, ENTITLED "SPECIAL EVENTS," BY AMENDING SECTION 12-5, "SPECIAL EVENTS PERMITS" TO PROVIDE CLARIFICATION TO SPECIAL EVENT APPLICANTS UNDER PROVISION (5); BY PROVIDING ENFORCEMENT AND PENALTIES FOR THE VIOLATION OF SECTION 12-5 AS SET FORTH IN PROVISION (9); AND PROVIDING FOR REPEALER, CODIFICATION, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City of Miami Beach (the "City") declares that it is in the interest of the citizens of Miami Beach to ensure that special events are compatible with the City, which is a major and internationally recognized tourist destination; and WHEREAS, the Administration has acknowledged and recognized that various individuals have increased their efforts to hold special events throughout the City, which requires specific measures to be taken in order to minimize the disruption and impact to surrounding residential inhabitants and business entities; and WHEREAS, the Administration has reviewed the enforcement provisions that are applicable for special event permit violations, and is recommending necessary amendments which shall establish appropriate fines and penalties against those individuals who violate the requirements of Article II of the City Code; and WHEREAS, the Administration and City Attorney's Office recommends amending the enforcement provisions for violations of Section 12-5, which are necessary to accomplish the above objectives. NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: SECTION 1. That Article II, entitled, "Special Event Permits," of Chapter 12 of the Miami Beach City Code, entitled Arts, Culture and Entertainment, is hereby amended as follows: CHAPTER 12 ARTS, CULTURE & ENTERTAINMENT * * * ARTICLE II. SPECIAL EVENTS PERMITS * * * 37 Agenda Item R S D Date lO-2<1-tz Sec. 12-5. Special events permits. The city manager, or the manager's designee, has the authority to issue, modify or revoke permits for special events, in accordance with criteria set forth in this section and the special events requirements and guidelines approved by separate resolution of the city commission. (1) It shall be unlawful to engage in special events without a special events permit. A special event is defined as a temporary use on public or private property that would not be permitted generally or without restriction throughout a particular zoning district, but would be permitted if controlled with special review in accordance with this section. (2) Applicants wishing to hold a special event must submit a completed special event application, including but not limited to an application form, site plan, fees, deposits, insurance and indemnification, as required by the special events requirements and guidelines, no less than 60 days in advance for beach events and non-beach events. (3) The manager, or the manager's designee may impose such fees as they determine appropriate considering the impact of the special event on city facilities and services, including without limitation, user fees for particular city properties, square footage rates for exclusive use of public property, and concession agreements for paid admissions, and sale of food, beverage and merchandise on public property. The manager may, in his discretion, reduce or waive the submission periods, or fees for events by not-for-profit corporations, for a particular event when such waiver is found to be in the best interest of the city. (4) The manager or the manager's designee will determine specific requirements, and city departments will determine minimum staffing levels, for the event consistent with the special events requirements and guidelines. (5) Special event applications Aapplicants are subject required tomust present their plans for review_ill a monthly Special Events Community Review meeting, and may be required to present the special event plan to the corresponding neighborhood association in the neighborhood by, and applicants are required to present their plans to, the neighborhood association(s) corresponding to the geographic area where the special event is proposed. In the case of events that expect 200 or more attendees and where there is no legally constituted/recognized association, or in the discretion of the city commission, the city manager or city manager's designee, the matter will be referred for review and recommendation to the city planning board. (6) The city manager, or the manager's designee, will make a final determination on an application for a permit within seven days after all special events requirements applicable to an event have been fulfilled, with appropriate extensions of such deadline to allow for scheduling of neighborhood association or planning board meetings. All requirements must be fully completed no later than two weeks prior to the event, including payment for city services. No refunds will be made after a permit is issued; however, payment does not constitute permission to hold the event. (7) Special events requirements and guidelines. The city commission may adopt special events requirements and guidelines as they pertain to special events being held in the city. The manager may authorize amendments to the requirements and guidelines proposed by the administration, consistent with the intent and purpose of this section, or may present such amendments to the city commission for approval, by resolution. 2 38 (8) Conflict with noise provisions. The city manager or the manager's designee, may issue a permit that authorizes a special event in conflict with chapter 46, article IV, of this Code, or other applicable noise ordinance, only where the applicant has met all of the city's requirements for obtaining a permit as prescribed in this section and the requirements and guidelines, and the special event cannot be performed in compliance with the applicable noise ordinance. Such a permit must specify the precise manner by which the noise ordinance may be exceeded, by what duration, and at what locations. Such permit authorization may be modified or revoked if in the discretion of the manager, or designee, the authorization excessively negatively impacts the surrounding neighborhood. Having a permit shall not relieve the permit holder from compliance with all other applicable local, county, state or federal laws. (9) Enforcement. a. Permits shall be posted in a conspicuous location at the site on which the special event occurs. Upon the request of any police officer or code compliance officer of the city, the owner, lessee of the property or other representative of the special event, shall produce such permit for inspection. b. Persons engaged in a special e'lent without a permit, or otheFIIJise in violation of a permit, this section or the special events requirements and guidelines provided for herein, shall be subject to enforcement by city police or code compliance officers, through the issuance of immediate cease and desist orders, the violation of 'Nhich may subject the offender to the following immediate fines: for the first offense a fine of one thousand dollars ($1 ,000); for the second offense a fine of three thousand dollars ($a,OOO); and for the third offense and subsequent offenses a fine of five thousand dollars ($5,000) or_arrest, and/or enforcement as provided for in section 1 14 of this code, and/or notices of violation referred to special masters, who have authority to issue fines or enforce compliance, as provided for in chapter ao of this code. Police or code compliance officers will coordinate enforcement 'A'ith the Department of Tourism and Cultural Development. As an alternate and supplemental remedy, the city may enforce this section by injunctive relief in any court of competent jurisdiction, and in such circumstance the city shall be entitled to recover its reasonable attorneys' fees and costs. FOF repeat offenders, the manager or designee may decline to issue permits to such person or entity for one year, or such other period as the manager deems appropriate. (9) Enforcement and Penalties. (a) Civil fine for violators. The following civil fines sA-aU-must be imposed for a violation of this section: (1) First offense within a 12 month period sA-aU-must be a fine of $1000.00; (2) Second offense within a 12 month period &Ral.J.-must be a fine of $2500.00: (3) Third offense and subsequent offenses within a 12 month period sRaU must be a fine of $5000.00. a fine of $5000.00. (b) Enforcement. The Code Compliance Division or the Miami Beach Police Department, shall enforce the provisions of this section. This shall not preclude other law enforcement agencies or regulatory bodies, from any action to assure compliance with this section. and all applicable laws. If an enforcing officer finds a violation of this section. the officer ffitlSt-may issue a Notice of Violation to the violator. The Notice of 3 39 Violation must inform the violator of the nature of the violation. amount of fine for which the violator is liable. instructions and due date for paying the fine. notice that the Violation may be appealed by requesting an administrative hearing within ten days after service of the Notice of Violation. and that failure to appeal the violation within the ten days, shall constitute an admission of the violation and a waiver of the right to a hearing. (c) Rights of violators; payment of fine; right to appear; failure to pay civil fine or to appeal. (1) A violator who has been served with a Notice of Violation sAal-1-must elect to either: a. Pay the civil fine in the manner indicated on the Notice of Violation; or b. Request an administrative hearing before a special master to appeal the Notice of Violation. which must be requested within 10 days of the issuance of the notice of violation. (2) The procedures for appeal by administrative hearing of the Notice of Violation shall be as set forth in sections 30-72 and 30-73. (3) If the named violator. after issuance of the Notice of Violation. fails to pay the civil fine. or fails to timely request an administrative hearing before a special master. the special master sAaJ.l--may be informed of such failure by report from the officer. Failure of the named violator to appeal the decision of the officer within the prescribed time period sAaJ.l--must constitute a waiver of the violator's right to an administrative hearing before the special master, and must be treated as an admission of the violation, which fines and penalties to be assessed accordingly. (4) A certified copy of an order imposing a fine may be recorded in the public records, and thereafter shall constitute a lien upon any real or personal property owned by the violator, which -may be enforced in the same manner as a court judgment by the sheriffs of this state, including levy against the violator's real or personal property, but shall not be deemed to be a court judgment except for enforcement purposes. After two months from the recording of any such lien that which remains unpaid, the City may foreclose or otherwise execute upon the lien. (5) Any party aggrieved by a decision of a special master may appeal that decision to a court of competent jurisdiction. (6) The Special Master shall be prohibited from hearing the merits of the Notice of Violation or the consideration of the timeliness of a request for an administrative hearing, if the violator has failed to request the administrative hearing within ten (1 0) days of the issuance of the Notice of Violation. (7) The Special Master shall not have discretion to alter the penalties prescribed in subsection (9)(a). (d) Enhanced penalties. The following enhanced penalties must be imposed. in addition to any mandatory fines set forth in subsection (9)(a) above, for violations of this Section: 4 40 ill If the offense is a fourth offense within the preceding 12 month period of time, in addition to the fine set forth in subsection (9)(a), the property owner, event producer or permittee must be prohibited from receiving a Special Event Permit for a three (3) month period of time. m If the offense is a fifth offense within six (6) months following the fourth offense. in addition to any fine set forth in subsection (9)(a). the property owner. event producer or permittee must be prohibited from receiving a Special Event Permit for a six (6) month period of time. The property owner. event producer or permittee must be deemed a habitual offender. Ql The City Manager may decline to issue future Special Event Permits to such person or entity that have been deemed habitual offenders pursuant to this section for a period of one year. or such other period of time acceptable to the City Manager. SECTION 2. REPEALER. All ordinances or parts of ordinances and all sections and parts of sections in conflict herewith are hereby repealed. SECTION 3. CODIFICATION. It is the intention of the City Commission, and it is hereby ordained that the provisions of this ordinance shall become and be made part of the Code of the City of Miami Beach as amended; that the sections of this ordinance may be renumbered or re-lettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. SECTION 4. SEVERABILITY. If any section, subsection, sentence, clause, provision or phrase of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way effect the validity of the remaining portions of this ordinance. SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect ten (10) days following adoption. PASSED AND ADOPTED this ___ day of ________ , 2012. ATTEST: RAFAEL GRANADO, CITY CLERK Underline denotes additions Strikethrough denotes deletions MATTI HERRERA BOWER MAYOR 5 41 THIS PAGE INTENTIONALLY LEFT BLANK 42 COMMISSION ITEM SUMMARY Condensed Title: A Resolution approving funding, in an amount not to exceed $250,000, to address the relocation of the kitchen exhaust venting system installed by the Pennsylvania Avenue Garage Retail Tenant, Penn 17, LLC (d/b/a Cooper Avenue) (Tenant); with funding available from previously appropriated City Center RDA Capital Fund 365; and further, authorizing the Interim City Manager to negotiate terms of an agreement with Penn 17, LLC to proceed in redesigning, permitting and constructing a kitchen exhaust venting system that discharges away from the service alley located between the New World Symphony building and the Pennsylvania Avenue Garage. Key Intended Outcome Supported: Not Applicable Supporting Data (Surveys, Environmental Scan, etc.): Not Applicable Issue: Shall the City authorize the reallocation of funds from City Center Fund 365 towards funding the relocation of the kitchen exhaust system and further authorize the Interim City Manager to negotiate terms of an agreement with Penn 17, LLC to proceed with the recommended scope? Item Summary/Recommendation: On August 17, 2012, the New World Symphony (NWS), expressed major concern over the Tenant's build-out involving the venting locations of the kitchen exhaust and steam vent from the dishwashers, which both direct into the service alley between the Garage and NWS; saying that the exhaust has the potential of permeating the NWS performance hall every time the loading dock doors are opened. On September 10, 2012, the Administration entered into a Letter Agreement with the Tenant to engage an architectural/engineering firm, at a not-to-exceed cost to the City of $25,000, to develop conceptual design options and preliminary pricing estimates to modify the exhaust venting system. On September 21, 2012 the Tenant's Architect, Design 3 Architecture, presented two options for redirecting the Tenant's exhaust: Option 1 for a price of $59,000, involving the least complex and most cost effective solution; and Option 2 for a price of $181 ,000, involving a significantly more complex and potentially disruptive scope of work. In an effort to find a feasible solution, savings have been identified from the original construction budget of the Pennsylvania Avenue Garage (RDA fund 365) that can be made available to remedy the issue. At this time, the Administration requests authority to allocate up to $250,000 to proceed with Option 2 to address this issue. Advisory Board Recommendation: N/A Financial Information: Source of Amount Account Funds:CicyL:a~~~--1~~---~$~2~5on,n.oon,o----~Fu~n=d~3~6~5~-~~~~~577 ____________________ -i RDA Financial lmpac ummary: Funding is being reallocated from savings realized from the construction of the Pennsylvania Avenue Gara e. City Clerk's Office Legislative Tracking: I Anna Parekh, ext. 6471 T·\Agenda\2012110-24-12\Penn Garage Exhaust Summ docx MIAMI BEACH 43 Interim Cit KGB AGENDA ITEM ----t:..g.!...7.:;..L~~ DATE 10-;).~-12._ ~ MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachA.gov TO: FROM: DATE: SUBJECT: COMMISSION MEMORANDUM Mayor Matti Herrera Bower and Members of the City ~mission Kathie G. Brooks, Interim City Manager ~c/J. / · October 24, 2012 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING FUNDING, IN AN AMOUNT NOT TO EXCEED $250,000, TO ADDRESS THE RELOCATION OF THE KITCHEN EXHAUST VENTING SYSTEM INSTALLED BY THE PENNSYLVANIA AVENUE GARAGE RETAIL TENANT, PENN 17, LLC. (d/b/a COOPER AVENUE); WITH FUNDING AVAILABLE FROM PREVIOUSLY APPROPRIATED CITY CENTER CAPITAL FUND 365; AND FURTHER, AUTHORIZING THE INTERIM CITY MANAGER AND PENN 17, LLC TO NEGOTIATE AND, IF SUCCESSFUL, EXECUTE AN AGREEMENT TO PROCEED WITH THE RE- DESIGN, PERMITTING AND CONSTRUCTING OF KITCHEN EXHAUST VENTING SYSTEM THAT DISCHARGES AWAY FROM THE SERVICE ALLEY LOCATED BETWEEN THE NEW WORLD SYMPHONY BUILDING AND THE PENNSYLVANIA AVENUE GARAGE. BACKGROUND On April13, 2011, the Mayor and City Commission passed Resolution No. 2011-27647, approving a Lease Agreement, as amended on February 8, 2012 and June 6, 2012, respectively (the Lease), having a term of nine (9) years and 364 days, between the City, the Redevelopment Agency (RDA) and Penn 17, LLC, for use of approximately 7,655 square feet of ground level retail space at the Pennsylvania Avenue Garage, 1661 Pennsylvania Avenue, Miami Beach, Florida, for a restaurant (primary use), with ancillary uses for a bakery, a bar/cafe, and a book and gift shop. The Resolution also approved the execution of a Pre-Lease Due Diligence Review Agreement, granting the Tenant a maximum of six (6) months following approval of the Lease, in which to reserve its leasing rights while advancing design and plan development and consulting with the City's Planning and Building Departments in order to ascertain the feasibility of obtaining a full building permit prior to actual commencement of the Lease. During the first full year of rent, the annual Base Rent will be $57 4, 125, plus Common Area Maintenance costs of $98,844 (paid monthly at $47,843.75 plus $8,237, respectively, for a total of $56,080.75 monthly}. As has been reported on previous occasions, the challenges in converting the Premises for use as a restaurant proved considerably more complex, time-consuming and substantially more costly than originally anticipated by the Tenant; particularly related to the engineering and permitting of the venting for the kitchen exhaust; installing a system of multiple grease traps; the build-out of the storage room and the design of the structural slab; restoration of the existing structural slab in the retail space following partial demolition to install the plumbing; and addressing additional flood- proofing criteria. The Tenant's plans underwent extensive revisions to address comments and concerns raised by the City's Planning and Building Departments, as well as certain other regulatory agencies, as part of the permitting review process. Ultimately, the Tenant has invested more than $5 million to improve the Premises. 44 Pennsylvania Avenue Garage Exhaust Vent Relocation Commission Memorandum October 24, 2012 Page2of3 On September 24, 2012, the Tenant received a Temporary Certificate of Occupancy (TCO) for its restaurant, Cooper Avenue. ANALYSIS On August 17, 2012, as the build-out of Cooper Avenue was nearing completion, the City was contacted by the New World Symphony (NWS), which expressed major concerns over the venting locations of the Tenant's kitchen exhaust and steam vent from the dishwashers, which both direct into the service alley between the Garage and NWS. The NWS believes the kitchen exhaust could potentially permeate the performance hall every time the loading dock doors are opened (which are directly opposite the kitchen exhaust vent). As noted earlier, given the structural and architectural constraints of the building, identifying a feasible location to run the kitchen exhaust proved to be among the most challenging of the design issues, involving extensive input from Planning, Building and other regulatory entities in the final approved plan. Following an extensive series of meetings with representatives from the NWS and the Tenant's management and design team to figure out options for mitigating odors emanating from the exhaust venting, the NWS has instead demanded that the City and Tenant explore design alternatives for redirecting the kitchen exhaust in its entirety, away from the alley. Although the discussions centered on the fact that the City could not yet know whether or not there was a problem, in an abundance of caution the City authorized the tenant to direct his architect to develop several alternatives to address the NWS concerns. On September 10, 2012, the City entered into a Letter Agreement with the Tenant pertaining to the engagement of architectural/engineering services, at a not-to-exceed cost to the City of $25,000, in order to develop conceptual design options and preliminary pricing estimates to modify the exhaust venting system for the City's consideration and approval; and further to include services for the preparation of detailed plans and specifications (including any layouts, architectural, mechanical, structural, electrical and other plans, drawings and construction documents in sufficient detail to obtain any and all appropriate regulatory permits), as may be reasonably required by the City's Building Department in order to process and review Tenant's permit application for such modification as approved. Subsequent to the opening of the Cooper Avenue restaurant it has been determined that there is odor in the alleyway between the garage and concert hall. While it is not known if the odors would permeate the inside of the performance hall, in order to address a potential negative impact the Administration suggest that the Commission consider relocating the vents. On September 21, 2012 the Tenant's Architect, Design 3 Architecture, presented two options for redirecting the Tenant's exhaust in order of feasibility, complexity and cost as follows: Option 1 -Total Estimated Minimum Cost: $59,000 The most feasible, the least complex and most cost-effective approach provides for maintaining the existing location of the exhaust fans on the cover slab over the garbage room. This provides for a stable working platform by which to maintain and service the fans and duct work. The ducting and exhaust vent leading to the exterior of the building facing the New World Symphony's loading dock, would be rerouted 90 degrees to the north and discharge directly above the garage entrance located on 17th Street. 45 Pennsylvania Avenue Garage Exhaust Vent Relocation Commission Memorandum October 24, 2012 Page 3 of 3 Option 2-Total Estimated Minimum Cost: $181,000 The most complex and costliest of the solutions and the least feasible, (primarily in terms of the anticipated operational disruption for the Tenant due to the construction involved), involves the complete relocation and re-engineering of the exhaust ducting, extending it south and then west to discharge over the garage exit on Pennsylvania Avenue. This would also require the construction of an elevated concrete pad over the flood panel storage enclosure, to relocate and support the exhaust fans needed to drive the exhaust through the ducting. It should be noted that the New World Symphony views Option 2 as the only choice, as it extends the exhaust discharge the furthest away from the service alley. RECOMMENDATION In an effort to mitigate this situation, the Administration has identified savings from the original construction budget of the Pennsylvania Avenue Garage (RDA Fund 365) that can be made available to proceed with either Option. Given the fact that cost estimates to undertake the work are preliminary at best, the Administration recommends appropriating an amount not to exceed $250,000 to provide the greatest amount of flexibility to remedy this issue in the most feasible manner. The Administration also recommends that the City Commission authorize the Interim City Manager to negotiate an agreement with the Tenant to proceed with the design, permitting and construction of the modifications, based on either Option 1 or 2. KGB/MS/AP/KOB T:\AGENDA\2012\10-24-12\Penn Garage Exhaust Relocation Mem.doc 46 RESOLUTION NO. ___ _ A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING FUNDING, IN AN AMOUNT NOT TO EXCEED $250,000, TO ADDRESS THE RELOCATION OF THE KITCHEN EXHAUST VENTING SYSTEM INSTALLED BY THE PENNSYLVANIA AVENUE GARAGE RETAIL TENANT, PENN 17, LLC. (d/b/a COOPER AVENUE); WITH FUNDING AVAILABLE FROM PREVIOUSLY APPROPRIATED CITY CENTER RDA CAPITAL FUND 365; AND FURTHER, AUTHORIZING THE INTERIM CITY MANAGER AND PENN 17, LLC TO NEGOTIATE AND, IF SUCCESSFUL, EXECUTE AN AGREEMENT TO PROCEED WITH THE RE-DESIGN, PERMITTING AND CONSTRUCTION OF A KITCHEN EXHAUST VENTING SYSTEM THAT DISCHARGES AWAY FROM THE SERVICE ALLEY LOCATED BETWEEN THE NEW WORLD SYMPHONY BUILDING AND THE PENNSYLVANIA AVENUE GARAGE. WHEREAS, April 13, 2011, the Mayor and City Commission approved Resolution No. 2011-27647, approving a Lease Agreement, between the City, the Miami Beach Redevelopment Agency (RDA) and Penn 17 LLC (Tenant), for use of approximately 7,655 square feet of ground level retail space at the Pennsylvania Avenue Garage, 1661 Pennsylvania Avenue, Miami Beach, Florida, for a restaurant (primary use), with ancillary uses for a bakery, a bar/cafe, and a book and gift shop (hereinafter Premises or Cooper Avenue); and WHEREAS, the challenges in converting the Premises for use as a restaurant have proved considerably more complex, time-consuming, and costly than originally anticipated, by Tenant, including the engineering and permitting of the venting for the kitchen exhaust, which involved extensive input from the City's Planning and Building Departments, as well as other regulatory entities in the final approved plan ; and WHEREAS, on September 24, 2012, Tenant received a Temporary Certificate of Occupancy for the Premises; and WHEREAS, on August 17, 2012, the New World Symphony (NWS) contacted the City expressing its concern over the venting locations of the kitchen exhaust and steam vent from the dishwashers, which are currently directed into the service alley between the Garage and the NWS building; and WHEREAS, on September 10, 2012, the City entered into a Letter Agreement with the Tenant authorizing it to retain an architect/engineer (A&E), pertaining to the engagement of architectural/engineering services, for a not-to-exceed cost to the City of $25,000, in order to develop conceptual design options and preliminary pricing estimates to modify the exhaust venting system and, WHEREAS, on September 21, 2012, the Tenant's A&E, Design 3 Architecture, presented two options for re-directing the Tenant's exhaust; Option 1, for a price of $59,000, involving the least complex and most cost effective solution; and Option 2, for a price of $181,000, involving a significantly more complex solution; and T:\AGENDA\2012\10-24-12\Penn Garage Exhaust Relocation RESO.doc 47 WHEREAS, although the City Administration believes that Option 1, involving the relocation of the venting to discharge over the 17 1h Street entrance, is the most viable of the two options (in terms of effectiveness, cost, and expediency,) it is amenable to proceed with Option 2, which is the Tenant's preferred option, which provides for the greatest distance between the New World Symphony and the exhaust discharge, which would be located over the Pennsylvania Avenue exit; and WHEREAS, since the cost estimates to undertake the work are preliminary in nature, the Administration recommends appropriating up to $250,000 to provide the greatest amount of flexibility in negotiating a subsequent agreement with the Tenant to proceed with permitting and construction of the modifications, based on the recommended Option 2. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission of the City of Miami Beach, Florida, approving funding, in an amount not to exceed $250,000 to address the relocation of the kitchen exhaust venting system installed by the Pennsylvania Avenue Garage Retail Tenant, Penn 17, LLC ( d/b/a Cooper Avenue); with funding available from previously appropriated City Center RDA Capital Fund 365; and further, authorizing the Interim City Manager and Penn 17 LLC, to negotiate and, if successful, execute an agreement to proceed with the re-design, permitting and construction of a kitchen exhaust venting system that discharges away from the service alley located between the New World Symphony Building and the Pennsylvania Avenue Garage. PASSED AND ADOPTED this 24th day of October, 2012. ATTEST: Matti Herrera Bower, Mayor Rafael Granado, City Clerk T:\AGENDA\2012\10-24-12\Penn Garage Exhaust Relocation RESO.doc 48 FOUNDER Ted Arison PRESIDENT& CHIEF EXECUTIVE OFFICER Howard Herring OFFICERS NeiSen 0 Kasdin, Chair Rose Ellen Greene, Vice Chair Mario de Armas, Treasurer Robert Moss, Secretary BOARD OF TRUSTEES Sari Agatston Sheldon T Anderson Madele1ne Anson Sarah S. Anson Matthew W. Buttrick Adam Carlin Bruce E. Clinton Casey Cummmgs Peter J Dolara Susan S Dubin Howard Frank* C Thomas Greene Bruce W. Greer Harry M. Hersh Richard M. Jacobs Gerald Katcher* R. Kirk Landon Enrique Lerner RaiS Helene L1ndenfeld Albert R. Molina, Jr. W1lliam L. Mornson Sandra R Muss Patncia M Papper Peter G. Robbins Jeffrey T Roberts R1chard T Sanz Diane S. Sepler Edward Manno Shumsky R1chard Skor Paul H. Stebbms Judy Weiser* Sherwood M. We1ser* JodyWolfe R1chard J. Wurtman COUNSEL TO THE BOARD Bruce Jay Colan *Indicates former Chair New World Symphony Amenca's Orchestral Academy M1chael T1lson Thomas, Art1st1c D~rector Kathie G. Brooks, Interim City Manager Jorge Gomez, Assistant City Manager 1700 Convention Center Drive Miami Beach, FL 33139 September 24, 2012 Dear Ms. Brooks and Mr. Gomez, Late on Friday September 21, NWS received the attached letter and plans that were prepared by Anthony Leon outlining various options for the redesign of Cooper A venue Restaurant's exhaust systems. We greatly appreciate the effort involved to identify all possible solutions. However, we want to make sure that our concerns are correctly and completely addressed. In that regard, the ONLY option NWS will support is #3: taking the exhaust south and terminating it above the vehicle exit on Pennsylvania A venue. As we learned more about the pros and cons of various options, it became apparent to us that any solution that brings the exhaust to the roof level carries a significant risk of moving the problem from our loading dock and backstage spaces to the roof garden. Therefore, we are opposed to any solution that terminates the exhaust systems on the roof. Option #2 does little to mitigate the proximity of the exhaust to our loading and backstage work areas. NWS strongly urges that neither time nor money be wasted on further developing solutions that will not result in a permanent fix. Option #3 needs the City's fullest attention in order to ensure expeditious approval and installation prior to everyone's deadline of November 1, 2012. 500 17th Street, Miam1 Beach, FL 33139-1862 305.673.3330 Fax 305 673.6749 www.nws edu 49 NWS also supports Cooper A venue Restaurant's desire to revise its air conditioning system in a similarly expeditious manner, but this approval and work process must not create delays for fixing the exhaust systems. Howard Herring President and Chief Executive Officer New World Symphony, America's Orchestral Academy cc: Shai Benami, Amir Ben-Zion, Kent Bonde, Bruce Clinton, Jose Lamadrid, Anthony Leon, David Phillips Enclosures 50 AA3569 ARCHITECTURE September 21, 2012 City of Miami Beach RE: Cooper Ave Restaurant Exhaust Ducts This letter is a preliminary analysis of the conditions, issues, and proposed solutions for the exhaust redirection. The team involved with determining the possible solutions !listed below are: Anthony Leon, Architect. 3Deslgn, Inc. Rodney FritZ, Hood Design Consultant. Sudhir Gupta, MechanicaVEiectricaVPiumbing Engineer. Innovative Engineering, Inc. There are several items that need to be addressed as we review the possibilities of redirecting the multiple exhaust fans. 1/3 First Is the redirection of the exhaust fans that point directly to the west facade of the Symphony, which New World Symphony (NWS) describes as their principle facade. This issue has MANY complexities, Which involves not only the redirection of the ductwork, but if relocating to the roof of the parking garage as requested by NWS, the following items must be addressed, just to mention a few things: the relocation and substitution of larger fans, cutting structural precast members, losing parking spaces (or creating compact spaces) as we penetrate the floors with a vertical column of ductwork, and the visibility of the ductwork chase on the 17th Street or Pennsylvania Ave facade which will certainly trigger planning and zoning issues (NWS is adamantly opposed to the duct work chase being expresi5ed on the exterior of the building on the east side of the parking garage, but equally adamantly opposed to the ventilation of such ductwork on the NE comer/rooftop of the parking garage, which, during the winter months and consequently the "season" for the NWS, the northerly winds will project cooking smells to the rooftop garden, frequented with high profile guests and events. However, with only 2 available options we've been able to determine will be possible, this may end up being 1he only alternative, shouid the other option not be feasible. NWS has been intimately involved with the meetings that the architects and engineers have had on site and walked the entire 4 elevations of the building and all 6 parking levels. in an effort to evaluate which location for the exhaust duct would impact their buHding the least. Based on these conversations and anaiysis we have determined that there are only 2 alternatives, neither of which is kno\•m whether or not. without more analysis, are possible. The uncertainty is not due to engineering analysis, but due to restrictions that will be imposed on us by City requirements pertaining to zoning, planning, parking, cost restrictions, etc. OPTION 1. The first of these options, the EASIEST one, is to maintain the existing location of the fans, above the trash room, which by the way, Is an ideal location for the fans because it provides a working platform with railings and working clearances for maintenance of the fans. From there, the existina ducts will have to be re-routed back to the west, away from the exterior wall that we are exhausting at currentlv. for aoorox. 15'. The ductwork will then tum 90 degrees to the north. and discharae directlv above the drivewav entrance on the North side of the oarkina aaraae. 4300 Biscayne Blvd.#G-04, Miami, FL 33137 1 Phone: 305.438.93771 Fax: 305.438.9379 51 D~SIGN AA3569 ARCHITECTURE 2/3 This solution has been confirmed with the Mechanical Chief, Mr. Quintella, that the exhaust duct is acceptable to be at this location if the height of the exhaust is 1 o• min. above the sidewalk. We can conceal the exhaust duct with a louver which can span the entire width of the driveway. This solution, although the easiest, may not be acceptable to NWS. NWS has suggested modifying this concept further by turning the ductwork vertically 90 degrees, rather than exhausting directly above the North entrance of the garage, penetrating the concrete T's, to the second floor. OPTION 2. Once on the second floor, turn again 90degrees to the west between the parking spaces on the second floor and the North wall of the garage, all the way to the Northwest corner of the building, where there is a large open area without any parking spaces, and vent out towards either the north or the west side of the building, through the scrim. This solution may cause a discoloration of the scrim due to the grease exhaust, but can be maintained if cleaned frequently. This solution, perhaps better for NWS, may require larger fans due to the friction caused from so many 90 degree turns and longer runs of ducts. larger fans, mean more noise. exhausting thru the scrim means more maintenance. Extending the ductwork all the way to the roof, and avoiding discharge through the scrim will ONLY BE ACCEPTABLE to NWS, if it is on the Northwest or Southwest corners of the building. Both of these locations are very difficult to arrive at, given the existing fans and ductwork installation. The second solution, which is apparently possible, but requires a great deal more work, is the relocation and redesign of the fans to be above the driveway which is immediately adjacent to the east of the restaurant, under a high ceiling. This concept, although inferior to being built on a platform because of the need to service them from a ladder, will have the fans hanging from the ceiling structure. This has not yet been confirmed that it is structurally possible. However, a separate structure, not unlike the roof of the trash room, can be designed to support the fans. Then the ductwork can run toward the south, to the entrance of the parking garage in the south west corner of the building. OPTION 3 & OPTION 4. From there, the ductwork and exhaust would be similar to the other solutions, which entail either venting out to the west, 10' above the sidewalk, below the scrim, covered with a louver-or going vertical and discharging higher, but thru the scrim --or vertically to the roof top. Another item to review and discuss, is the redirection of the fans which are being used to lower the temperature of the ambient air surrounding the compressors which are currently permitted to be on the ramp to the second floor of the parking garage. The lack of circulating air in the area of the compressors has required several exhaust fans to extract the air and project it toward the east, again, to the principle facade of the Symphony. 4300 Biscayne Blvd.#G-04, Miami, FL 331371 Phone: 305.438.93771 Fax: 305.438.9379 52 AA3569 ARCHITECTURE 3/3 These fans are also quite noisy and near the pedestrian bridge on the 3rd floor which is considered by NWS as the "Main Entrance". This solution is perhaps a bit easier to resolve by moving them to the roof of the parking garage. There is an area that we would request permission to use, on the roof. See the drawings attached. The cost of the best solution will be explored once we know which of the solutions we would be permitted to do I have attached several drawings which attempt at describing graphically, what the situations and solutions are. In conjunction with these solutions that we are proposing, perhaps some methods of controlling the situation on the side of NWS may be implemented, albeit temporary, to alleviate the negative impact the exhaust may have for the immediate future, while the design solutions get drawn, permitted, installed and inspected. Some possible quick fix solutions include: 1-air curtains at the doors in the loading area. NWS has commented that this solution would create noise and/or reverberation during a performance, but perhaps used only during loading, to prevent odors from entering the hall prior to performances. 2-an additional barrier, perhaps a heavy drapery or plastic of sorts, which can create a barrier around the loading area while loading dock doors are open. 3-If in fact, cooking odors are penetrating the loading dock overhead door even when the door is closed, an insulated door will prevent this as the non-insulated door is not air tight. 4-With the help of an HV AC Consultant, determine if there is some negative pressure from the interior of the loading area, which there may be, which has an effect of suctioning the outside air into the loading area. In my professional opinion, these short term solutions will help keep the odors to a minimum while a permanent solution is implemented. If there are any questions or comments, or need for further discussion, please do not hesitate to contact me. My information is listed below and I can coordinate between the mechanical and hood exhaust engineer as needed. Anth~ y Leon, Architect Prestaent /3Design, Inc. 4300 Biscayne Blvd. Suite #G-04 Miami, FL 33137 t. 305.438.9377/78 f. 305.438.9379 c.305.582.1 026 4300 Biscayne Blvd.#G-04, Miami, FL 331371 Phone: 305.438.93771 Fax: 305.438.9379 53 ·t--~~---- - + - - - - - - - - P E N N S Y L V A N I A A V E N U E -,;:_...,.-~!'....l<;.'5';:'.;::::-__,_,. ~ ~ ~ ~ ~ " ' - - · · · " ' ' " " I I I - - - E X I S T I N G D U G T W t R K A N D - - " F A N S , ; / / R E M O V E E X I S T I N G E X H A U S T ~ - , A N D D U C T W O R K r i , 1 \ - \ ; . , c , I D ~ ~ 1 - < ( ~ ~ ~ ~ ~ C i T " " ~ ~ ~ t l ~ ~ £ 1 : ; : ; U J : z : i ; l : : > < > - f f i ' " ~ : : : ~ ( i i ~ ~ G ] j - . : : : t l t ) · ~ I ' ' ' T , , . . ' . - . - I l i . i , i , , . . , . , . - • J I , i l t l t ~ i H · I > m l • > : · r . . ~ ~ ' . . , . - , · · i h l " , . · • n · · · · · - d ~ t t ' U b i H • i ! . . . " · ; ' - - · - .. ·t·, ! d i a t & " , · · if c. ,, c . . ' '"' ,, ' . , . . . " " " " ' iHitJHIIIC/.dll • .-tL , • lj '' ' r -l ·-~-""=--=----=- - - - . . , . , - , - = - · - - - - - . i S . ! D E W A L K P E N N S Y L V A N I A A V E N U E O P T I O N 4 ! RELOCATED AHU COMP R E S S O R S ~ R ~ ? r a ~ ~ N ' . , ! i - ' ; ' ' - ' U U ' ' ' ' ! f l " ' ; " " : " ' ' " ' ! " ' ' ' " " " " ' " " . " " . · . . . ~ t i ~ · - · _ ] " " • . . . . 1 · - · I · - - · - - - · : : : . : . · · · - - - · : . ' ' · , , · - - ~ ~ ~ ~ ~ · · i - ' : : k r : 1 ~ - i ~ i # ~ ~ ! ; ! : ~ . . 0 ; : 3 1 L t ' ) L t ' ) I 4tid•lili>bill' •f· I i~l ~~·f·:~· -·· 'JI C'f , , ' -• · • I ~ I l>. -\. ,;,-, ~"~• >I ""-:, ~~~-----------"\of.'~---r·--...,T~r:1'r --nit'~~---------~:.~~~:. \1 ~~'-.,.,i~~·r~<w ·------- . L l · I ~ · - · · - - - - - - - · - · · - t W , ~ i T ' i ' l i U ' ; r - - - ? t t ~ ~ ! l J ! I " - - - - - ~ J k 1 h 1 ' t " " " " ~ - - - - - + ~ - @ ~ - - - - - - - - - - - - - - - - ~ ! ! . 1 \ . t , u ~ - - ' } ' - \ f : : v : t - - - + ) f f t ; n - - · - . . . . . ; ; , . : i t . . . , ~ - - - - ~ r ~ r · J . , . . - i , - ~ - L · - - - - O P T I O N 4 ~ R M I N A T I O N P O I N T B E H I N D P A R A P E T ' I ' \ - · ' ! - - , . . : . u ~ L . . . . . 1 ' ' " : · i , ~ o } t ' ~ ~ . : L ' ; : - ~ . : - " c ~ ~ ~ - ' ~ . · , · : : ; : ; - , ; ' ; ; ; £ , ' } ~ . ; t • · ~ - : ; : ; : : C i c ; · · ~ - ; > ; ! ( • ~ : ~ c ; · ~ ~ ~ - i ' ; [ - , : : ~ ; ~ ; _ C : ~ : : ~ : ' ~ = = ' C : o ~ . ; - : ~ ~ c , f i ~ ; ; : < _ : o ~ _ : ~ E ' k l : - : 1 2 1 i t j ' ; ~ ; ~ : : O P T I O N 1 P O S S I B L E E X H A U S T L O C A T I O N . L O U V E R S T O M A T C H E X I S T I N G . W E S T E L E V A T I O N N O T T O S C A l E N O R T H E L E V A T I O N t f : I T T O S U J . £ < ' ' " ' ' ' ' S . " c ' ' ) t ~ i ~ ~ ~ ; : : . " ' ~ : ~ ~ ~ . . ~ ~ ~ ~ ~ ; ~ ~ ~ w - f \ i ~ , w ~ : : ; ; : : ~ ~ ~ ~ ~ j : ; ~ r , : t ~ ~ ~ 2 H O R I Z O N T A L E X H A U S T D U C T B E H I N D P A R A P E T ~ 1 - l A I I ~ T _ _ _ , _ _ _ _ _ _ - - - - - ~ ~ O P T I O N 2 E X H A U S T T E R M I N A T I O N P O I N T B E H I N D P A R A P E T _ . _ t r . ~ . f O P T I O N 2 V E R T I C A L E X H A U S T D U C T M A Y B E V I S I B L E T H R U S C R I M - - - - ~ ~ " - ~ l ! - ~ t ? ; r , i N . j : . { ' , _ , , , , _ _ _ ' i f ( ( : ~ 1 : ~ ! 1 - i b r i : i L : ' l t ' f ] . t ~ i i l l j ~ ~ ~ l ~ ~ g I ' = ~ · ~ ; r ; j ; l ! ! 8 ~ I ' " ' < ( ~ . . p D z ~ ~ ~ ~ r - - - . ~ ~ 5 ~ ~ . r w ~ , ~ z : . . . . . . . J ~ a : : z ~ O ~ ~ ~ ~ : J ! : ~ ~ ( ' ; 5 ~ ~ I ~ w C D l t ) & MIAMI BEACH OFFICE OF THE CITY ATIORNEY JOSE SMITH, CITY ATIORNEY COMMISSION MEMORANDUM TO: FROM: DATE: SUBJECT: Jose Smith, City Att October 24, 2012 f the City Commission A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE FINANCE AND CITYWIDE PROJECTS COMMITTEE (FCWPC) MEETING, PERTAINING TO A CURE OF THE SUNSHINE LAW ISSUE RAISED WITH RESPECT TO REQUEST FOR PROPOSALS NO. 14-11/12 (THE LINCOLN ROAD RFP), AND ALSO RECOMMENDING THAT A CURE BE UNDERTAKEN, AS A PRE- EMPTIVE MEASURE, WITH RESPECT TO REQUEST FOR QUALIFICATIONS NO. 22-11/12 (THE CONVENTION CENTER RFQ); AUTHORIZING THE CITY ADMINISTRATION AND CITY ATTORNEY'S OFFICE TO PROCEED WITH THE FOLLOWING CURE OPTIONS (AS PRESENTED TO THE FCWPC BY THE CITY ATTORNEY AT THE COMMITTEE'S OCTOBER 3, 2012 MEETING): 1.) APPROVING CURE "OPTION 2" FOR THE LINCOLN ROAD RFP, AND AUTHORIZING THE CITY MANAGER TO CONVENE A NEW EVALUATION COMMITTEE AND HAVE SUCH NEW COMMITTEE MEET IN A DULY NOTICED PUBLIC MEETING TO (A) VIEW THE VIDEOTAPE OF THE RFP PROPOSERS' ORIGINAL ORAL PRESENTATIONS, FOLLOWED BY (B) QUESTION AND ANSWER SESSIONS WITH THE INDIVIDUAL PROPOSERS, AND ENDING WITH (C) THE COMMITTEE'S DELIBERATIONS, RANKINGS AND FINAL RECOMMENDATION(S) TO THE CITY MANAGER (PROVIDED THAT PORTION (B) OF THE MEETING MAY BE CLOSED TO THE PUBLIC, AS PERMITTED PURSUANT TO SECTION 286.0113(2), FLORIDA STATUTES, BUT SHALL BE RECORDED BY THE CITY); AND 2.) APPROVING CURE "OPTION 1" FOR THE CONVENTION CENTER RFQ AND AUTHORIZING THE CITY MANAGER TO RE-CONVENE THE CURRENT RFQ EVALUATION COMMITTEE AND HAVE THE COMMITTEE MEET IN A DULY NOTICED PUBLIC MEETING TO (A) VIEW THE VIDEOTAPE OF THE RFQ PROPOSERS' ORIGINAL PRESENTATIONS, FOLLOWED BY (B) QUESTION AND ANSWER SESSIONS WITH THE INDIVIDUAL PROPOSERS, AND ENDING WITH (C) THE COMMITTEE'S DELIBERATIONS, RANKINGS AND FINAL RECOMMENDATION(S) TO THE CITY MANAGER (PROVIDED THAT PORTION (B) OF THE MEETING MAY BE CLOSED TO THE PUBLIC, AS PERMITTED PURSUANT TO SECTION 286.0113(2), FLORIDA 57 Agenda Item 8 7 M Date to-~4-12~ Finance and Citywide Projects Committee Recommendation Page2 October 24, 2012 STATUTES, BUT SHALL BE RECORDED BY THE CITY). At the October 3, 2012 Finance and Citywide Projects Committee (FCWPC) Meeting, and as part of an overall presentation to the Committee members, the other City Commissioners present, and the general public, regarding the status of the Lincoln Road RFP and the Convention Center RFQ, the City Attorney's Office advised the Committee of a potential challenge to the Lincoln Road RFP Evaluation Committee process, resulting from an allegation made by one of the proposers to the RFP, that the portion of the Evaluation Committee Meeting having to do with the Committee's deliberations, ranking of proposals, and final recommendations to the City Manager, should have been open to the public and, as it was not, the City violated the Sunshine Law. The City Attorney's Office also advised that, although a similar challenge had not been raised as to the Convention Center RFQ Evaluation Committee, the City had followed the same process for that Committee (as it did on the Lincoln Road RFP) and, therefore, the RFQ Evaluation Committee's deliberations and short-listing of proposers was similarly not open to the public. The substance of the City Attorney's presentation to the FCWPC is set forth in the October 3, 2012 memorandum to the FCWPC, which is attached and incorporated as Exhibit "A" hereto. In the attached memorandum, and in the City Attorney's Office's presentation to the FCWPC, the Office recommends that, although the City's interpretation of the Sunshine Law (and, in particular, its interpretation of a newly created 2011 exemption to the Sunshine Law meeting requirements, as pertaining to public competitive bidding processes, including the instant RFP and RFQ Evaluation Committees) was reasonable, and therefore not violative of the Sunshine Law, it might still be in the best interest of the City to "cure" the alleged violation (both as raised by the proposer to the Lincoln Road RFP, and as a pre-emptive measure in the Convention Center RFQ}, rather than to engage in protracted and costly litigation defending the City's actions. Accordingly, and in addition to the "litigation option" (which the Office does not recommend}, the City Attorney's 1 0/3/12 memorandum outlines three administrative "cure" options (See administrative cure Options 1-3, on pp. 5-6 of the City Attorney's 1 0/3/13 memorandum to the FCWPC), all of which are consistent with the established legal precedent in Florida that a defect arising from a Sunshine Law violation may be cured if the matter discussed "out of the sunshine" is reconsidered in an open meeting, and where such remedial action involves more than a "merely perfunctory ratification" or "ceremonial acceptance" (of the action taken out of the sunshine), and involves a genuine reconsideration of the matters in a public meeting. The City Attorney's Office further noted that, in considering administrative cure Options 1 ,2,or 3, the FCWPC need not recommend the same option for both the RFP and the RFQ but, rather, could recommend the option that it deemed appropriate for each of these competitive selection processes (given the specific expectations and priorities of the respective process). There was, in fact, extensive discussion (and public comment) at the FCWPC meeting that the Convention Center RFQ needed to proceed in an expeditious manner; particularly in light of the City Commission's prior policy discussions affirming the need to maintain the Miami Beach Convention Center facility competitive with other facilities in Florida (as well as putting it on par with other world class convention facilitates around the country); and, additionally, in light of the ongoing efforts to develop convention facilities in Miami (which could compete with and potentially take away business from the MBCC). We are comm1ffed to prov1dmg excellent pub/Jc serv1ce and safety to off who !JVe work and ploy 1n our v1brant, tropical, h1stonc commumty 58 Finance and Citywide Projects Committee Recommendation Page3 October 24, 2012 The attached Resolution has been prepared by the City Attorney's Office and is presented for the City Commission's consideration. It reflects the recommendations of the FCWPC with respect to the administrative cure options recommended, respectively, for the Lincoln Road RFP (Option 2), and the Convention Center RFQ (Option 1 ), and further authorizes the City Manager and City Attorney's Office to proceed with implementing the selected options. F:\ATTO\AGUR\RESOS-ORD\MEMOS\Finance and Citywide Committee Recommendation (Conv. Cntr. and Lincoln Road) Memo (1 0-24-12).doc We are commtffed to provtdtng excellent publtc servtce and safety to ail who ltve work. and ploy tn our vtbrant. troptcal, htstonc communtty 59 Exhibit "A" MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMITIEE MEMORANDUM TO: Finance and Citywide Projects Committee FROM: Jose Smith, City Attorney Raul J. Aguila, Chief Deputy City Attorney DATE: October 3, 2012 SUBJECT: Public Presentation Regarding Status of, and Other Issues Pertaining to, the Lincoln Road RFP and the Convention Center RFQ INTRODUCTION In conjunction with the above referenced public presentation at the October 3, 2012 Finance and Citywide Projects Committee ("FCWP"), regarding the status of, and other issues pertaining to, pending: 1. Request for Proposals No. 14-11/12 for a Public-Private Development in Miami Beach on North Lincoln Lane, between Alton Road and Meridian Avenue, including City- owned Parking Lot #25 on 171h Street and Lenox Avenue, Parking Lot #26 on North Lincoln Lane, between Lenox Avenue and Michigan Avenue, and Parking Lot# 27 on North Lincoln Lane, between Jefferson Avenue and Meridian Avenue (the "Lincoln Road RFP" or the "RFP"); and 2. Request for Qualifications No. 22-11/12 for the Development of the Miami Beach Convention Center District (the "Convention Center RFQ" or the "RFQ"); the City Attorney's Office has prepared this memorandum addressing a Sunshine Law issue raised by one of the proposers to the Lincoln Road RFP, alleging that the RFP Evaluation Committee's recommendation to the City Manager should be voided, since the Committee's deliberations were not open to the public. Because a similar issue may be raised on the Convention Center RFQ, if the FCWP Committee recommends that the City "cure" the alleged violation raised in the Lincoln Road RFP, it should also recommend a cure option, as a pre-emptive measure. BACKGROUND The Lincoln Road RFP was issued on January 17, 2012, with an opening date for proposals on March 23, 2012. The City received four (4) proposals in response to the RFP, from the following entities: 1.) Lanestar Partners, LLC; 2.) Lincoln Road Development, LLC; 3.) Lincoln Square, LLC; and 4.) Team Nelli. 60 Finance and Citywide Projects Committee October 3, 2012 Update on Status of Convention Center and Lincoln Road Page 2 of6 Section V of the RFP (entitled, "Evaluation/Selection Process") provides that following receipt of proposals, "An Evaluation Committee, appointed by the City Manager, shall meet to evaluate each Proposal in accordance with the requirements set forth in this RFP. If further information is desired, Proposers may be requested to make additional written submissions or oral presentations to the Evaluation Committee." (See RFP, subsection V (4) at p.18, for criteria). The Evaluation Committee convened on May 11, 2012, to hear presentations from the four (4) RFP proposers; conduct a question and answer session following each presentation; and evaluate the proposals in accordance with the RFP evaluation criteria (see RFP, subsection V (5) at p. 18); following which, the Committee made its recommendation to the City Manager of the proposer or proposers it deemed to be the best candidate(s). The Convention Center RFQ was issued on February 7, 2012, with an opening date of April 23, 2012. The City received eight (8) proposals in response to the RFQ, from the following entities: 1.) Flagstone Property Group; 2.) Portman CMC; 3.) SoBeCa, LLC; 4.) South Beach ACE; 5.) Turnberry Village, LLC; 6.) CConnectMB; 7.) Rida Development Corporation; and 8.) Matthews Holding Southwest (NOTE: #8 subsequently withdrew its proposal). Following receipt of proposals, an Evaluation Committee appointed by the City Manager convened over the course of two days, on June 4 and 5, 2012, to hear presentations from the seven (7) remaining proposers; conduct question and answer sessions; following which, the Committee made its recommendation to the City Manager of the "shortlisted" proposers, in accordance with the Evaluation Criteria set forth in the RFQ (see RFQ, subsection II (A) (6) at p. 15.) The Lincoln Road RFP Committee's deliberations were not open to the public (nor was the meeting noticed as a public meeting). Likewise (and consistent with what was done for the RFP), the Convention Center Evaluation Committee deliberations were also not open to the public. In both cases, however, the City tape recorded and videotaped the entire meeting proceedings, and the audio and video recordings were available to the public immediately following the meeting(s). Further, the videotaped meetings were posted on the City's website, so that any member of the public wishing to view them could do so, free of charge. THE 2011 EXEMPTION TO THE SUNSHINE LAW In 2011, the Florida Legislature passed House Bill 7223, which took effect on June 2, 2011, and amended Section 286.0113(2), Florida Statutes, to provide the following exemption to the public meeting requirement under the Sunshine Law (hereinafter referred to as the "2011 exemption"): Any portion of a public meeting at which a negotiation with a vendor is conducted pursuant to a competitive solicitation, at which a vendor makes an oral presentation as part of a competitive solicitation, or at which a vendor answers questions as part of a competitive solicitation is exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution. (See F.S. 286.0113(2)(b)) Section 286.0113(2) also requires that: A complete recording shall be made of any portion of an exempt meeting. No portion of the meeting may be held off the record. (See F.S. 286.0113(2)(c)). 61 Finance and Citywide Projects Committee October 3, 2012 Update on Status of Convention Center and Lincoln Road Page 3 of6 Pre-2011 Exemption Prior to the enactment of the 2011 exemption, the Sunshine Law required that the entire City evaluation/selection committee meetings be open to the public and noticed as public meetings (which the City did, by noticing them along with other City meetings in the Weekly Meeting Notices). Evaluation/selection committee meetings are typically divided into three (3) components: 1.) introductory remarks by City staff, which provide committee members with a brief overview of the subject matter and explanation of applicable laws, including the Sunshine Law and the City's Cone of Silence Ordinance; 2.) oral presentations by the individual proposers, which also include question and answer sessions; and 3.) committee deliberations and scoring/ranking of proposals in accordance with the evaluation criteria specified in the solicitation document, culminating with the committee's final vote(s) and recommendation(s) to the City Manager. The Committee's recommendation is advisory to the City Manager, who in turn makes his/her independent recommendation to the City Commission. Both the Committee's recommendation to the Manager and the Manager's recommendation to the Commission are advisory, and thus not binding on either party. Even (pre -2011 exemption) when the Sunshine Law required that the entirety of evaluation/selection committee meetings be open to the public, at no time has the City taken the position, nor does the Sunshine Law require, that members of the public have a right to participate and/or speak at these meetings. The Sunshine Law does not mandate that boards allow the public to speak at open meetings. See, Wood v. Marston, 442 So. 2d 934 [Fla. 1983], where the Florida Supreme Court held that the Sunshine Law does not give the public the right to speak at a meeting of a committee appointed by a university president to recommend candidates for a university president). Therefore, even when all portions of evaluation/selection committee meetings were open to the public, the public could only watch and listen to the proceedings. The City's Interpretation/Application of the 2011 Exemption Since its enactment, public bodies throughout the State have taken widely different approaches on how to interpret the 2011 exemption. Because the exemption is still new--it took effect on June 2, 2011-there is no case law interpreting it. Similarly, the legislative history provides little guidance, other than to state that the exemption was intended to remove the competitive advantage that might be gained by bidders or proposers, where the Sunshine Law gave them the right to sit through their competitor's presentation, and potentially gain information that they might use to their advantage. Therefore, given the absence of any judicial and (very little) legislative history for the 2011 exemption and, further, given that: • existing law does not give the public the absolute right to participate in or interfere with an evaluation/selection committee's proceedings; • the City keeps tape recorded minutes of the entire proceedings (and, in the case of the RFP and RFQ, the proceedings were not only tape recorded, but videotaped as well); and • the taped proceedings (and, in case ofthe RFP and the RFQ, the videotapes too) are public record, prior to the City Manager making his/her written recommendation (on the proposal) to the City Commission; and 62 Finance and Citywide Projects Committee October 3, 2012 Update on Status of Convention Center and Lincoln Road Page 4 of6 • the intent of the exemption is to not give bidders/proposers an opportunity to use the Sunshine Law to gain an unfair advantage or competitive edge; it seemed reasonable that the City interpreted the 2011 exemption to allow it the discretion to not open committee deliberations to the public (thereby, preserving the integrity of the bidding process, without running afoul of the Sunshine Law). SUNSHINE LAW CURES/OPTIONS While the City stands by its interpretation/application of the 2011 exemption, and does not concede that--by not having the Evaluation Committee deliberations for the Lincoln Road RFP (and the Convention Center RFQ) open to the public--it violated the Sunshine Law, the potential legal challenge necessitates that the issue be addressed; particularly, if the FCWP Committee wish to proceed with the RFP (and/or the RFQ) in accordance with the current proposed timelines. Therefore, an initial determination needs to be made as to whether it makes practical sense for the City to defend the proposed challenge in court or, in the alternative, whether the City should voluntarily elect to "cure" the alleged violation, by reconsidering the matter in an open public meeting. Litigation In the event that the proposer to the Lincoln Road RFP were to sue the City (alleging that the City violated the Sunshine Law), the complaint could be for injunctive and/or declaratory relief. For example, in the case of a complaint for injunctive relief, the plaintiff could request that the City be enjoined from making an award and/or entering into a contract pursuant to the RFP "until after such time as the ranking of the proposals could be accomplished in compliance with the Sunshine Law." See, Leach-Wells v. City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999). Attorney's fees can be assessed against a party who has violated the Sunshine Law. Additionally, pending the outcome of such litigation, it would not be advisable for the City to proceed to make an award under the RFP, as any action held to have been taken in violation of the Sunshine Law is void ab initio. See, Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3rd DCA 1997), where a selection committee's rankings resulting from a meeting held in violation of the Sunshine Law were found to be void ab initio and the agency was enjoined from entering into a contract based on such rankings. Finally, as already stated, there is no legal precedent (and very little legislative history) interpreting the 2011 exemption, so the parties would be litigating in an area of new law. Litigation at the trial court level would probably take from 6 - 8 months, during which time the City would not be able to proceed with an award under the RFP (thereby delaying that process and the proposed project). Were the City to lose the case, one of the remedies likely to be imposed by the court would be to "cure" the violation, pursuant to one of the administrative "cure options" set forth herein. In addition, the City would be responsible for plaintiff's attorney's fees. If the City prevailed in the lawsuit, it would be entitled to its attorney's fees; however, the RFP process and the project would have been delayed, and any incidental and/or consequential damages attributable to same would not be recoverable. Therefore, if the FCWP Committee's recommendation is to continue to proceed with and expedite the current RFP (and/or the RFQ) process in a timely manner, litigation would not be an appropriate course of action. By the same token, if the FCWP Committee is now of a mind to reject all proposals received in response to the RFP (and/or the RFQ), and either start over by issuing a new competitive solicitation or not proceed with the proposed development altogether, there would be no need to litigate (and/or, for that matter cure) this matter. 63 Finance and Citywide Projects Committee October 3, 2012 Update on Status of Convention Center and Lincoln Road Page 5 of6 Administrative "Cure" Options As an alternative to protracted, uncertain, and perhaps costly litigation and, assuming that the FCWP Committee expresses a desire to continue with the current RFP (and/or RFQ) process, one of the following administrative options should be considered, as a means of administratively "curing" the alleged violation (and putting to rest a proposed Sunshine Law challenge). The options presented below are consistent with the general principle established by the Florida Supreme Court in Tolarv. School Board of Liberty County, 398 So. 2d 427 (Fla. 1981 }, that Sunshine Law violations may be cured if the matter discussed "out of the sunshine" is reconsidered in an open meeting. The Tolar decision further noted, however, that the subsequent public action (ratifying the action taken out of the sunshine) must involve more than "merely a perfunctory ratification" or "ceremonial acceptance" of the action taken out of the sunshine. (/d. at 429). In considering the options below, the FWCP Committee need not recommend the same option for RFP and the RFQ, but should instead select the option it deems appropriate, given the specific needs, priorities, and expectations for each of those solicitations. Option 1. Reconvene the existing Evaluation Committee in the sunshine, keeping only the proposers' presentations (and subsequent Q & A sessions) closed to the public (i.e. the deliberations would be open to the public). Since some time has passed since the original presentations were made, in addition to having the Evaluation Committee review the original written proposals again, the FWCP Committee should also provide direction as to whether to: (i) have the original proposers "re-present" to the Committee; or (ii) have the Committee listen to the videotaped presentations from the prior Committee meeting (in which case, proposers or a representative of their team should be given the option to be present, to answer any questions from the Committee after listening to their videotaped presentation(s)). Option 2. Reconvene a new Evaluation Committee and, as in Option 1 above, have the proposers either re-present to the Committee, or have the Committee listen to the original videotaped presentations. Option 3. Have the Mayor and City Commission cure the action(s) of the Evaluation Committee by reconsidering the matter at a City Commission Meeting. The City Commission may elect to hear presentations from the proposers, as well as hear from members of the public wishing to speak at the meeting. In keeping with the holding in the Tolar case, the Commission's curative meeting(s) must not be purely ceremonial (i.e. the City Commission must do more than simply "rubberstamp" the decisions of the Evaluation Committees). Additionally, since the City Manager's recommendation (on the RFP and/or RFQ) to the City Commission is independent of the Evaluation Committee's recommendation to the Manager, the Manager could still proceed to make his/her written recommendation in accordance with the evaluation/selection process. It should be noted that if the FCWP Committee recommends having the proposers "re-present" (either before the same or a new Evaluation Committee, or before the City Commission), the City Administration and City Attorney will be mindful that such presentations remain consistent with the respective proposers' written responses to the RFP, and any deviations therefrom will be brought to the attention of the Committee (to advise that they cannot be considered). 64 Finance and Citywide Projects Committee October 3, 2012 Update on Status of Convention Center and Lincoln Road Page 6 of6 If the FCWP Committee recommends convening a new Committee--for either or both the RFP and RFQ--the City Manager's Office has compiled a list of potential members (See Exhibit A-1, for potential members for Lincoln Road RFP Committee, and Exhibit A-2 for potential members to Convention Center RFQ Committee). CONCLUSION/RECOMMENDATION While the aforestated options present a variety of curative measures, whatever option or options the FCWP Committee recommends any such action(s) must ultimately accomplish two (2) fundamental goals so that any subsequent City Commission action with respect to continuing with the current Lincoln Road RFP (and/or Convention Center RFQ) process may proceed without being voided (as a result of a defect arising from a Sunshine Law violation) and/or potentially challenged under applicable procurement law: 1.) The remedial action taken must be more than ceremonial, and must involve a genuine reconsideration of the matters/actions in a public meeting; and 2.) whatever the cure, the City elects to proceed with, the proposers must be held to, and evaluated in accordance with, their respective original written submissions in response to the RFP and/or RFQ (i.e. if proposers are afforded the opportunity to re-present, it cannot result in their being allowed a "second bite of the apple.") F:\ATIO\AGUR\RESOS-ORD\MEMOS\Convention Center & Lincoln Road-Finance Memo (9-27-12).doc 65 RESOLUTION NO.------- A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE FINANCE AND CITYWIDE PROJECTS COMMITTEE (FCWPC) MEETING, PERTAINING TO A CURE OF THE SUNSHINE LAW ISSUE RAISED WITH RESPECT TO REQUEST FOR PROPOSALS NO. 14-11/12 (THE LINCOLN ROAD RFP), AND ALSO RECOMMENDING THAT A CURE BE UNDERTAKEN, AS A PRE-EMPTIVE MEASURE, WITH RESPECT TO REQUEST FOR QUALIFICATIONS NO. 22-11/12 (THE CONVENTION CENTER RFQ); AUTHORIZING THE CITY ADMINISTRATION AND CITY ATTORNEY'S OFFICE TO PROCEED WITH THE FOLLOWING CURE OPTIONS (AS PRESENTED TO THE FCWPC BY THE CITY ATTORNEY AT THE COMMITTEE'S OCTOBER 3, 2012 MEETING): 1.) APPROVING CURE "OPTION 2" FOR THE LINCOLN ROAD RFP, AND AUTHORIZING THE CITY MANAGER TO CONVENE A NEW EVALUATION COMMITTEE AND HAVE SUCH NEW COMMITTEE MEET IN A DULY NOTICED PUBLIC MEETING TO (A) VIEW THE VIDEOTAPE OF THE RFP PROPOSERS' ORIGINAL ORAL PRESENTATIONS, FOLLOWED BY (B) QUESTION AND ANSWER SESSIONS WITH THE INDIVIDUAL PROPOSERS, AND ENDING WITH (C) THE COMMITTEE'S DELIBERATIONS, RANKINGS AND FINAL RECOMMENDATION(S) TO THE CITY MANAGER (PROVIDED THAT PORTION (B) OF THE MEETING MAY BE CLOSED TO THE PUBLIC, AS PERMITTED PURSUANT TO SECTION 286.0113(2), FLORIDA STATUTES, BUT SHALL BE RECORDED BY THE CITY); AND 2.) APPROVING CURE "OPTION 1" FOR THE CONVENTION CENTER RFQ AND AUTHORIZING THE CITY MANAGER TO RE-CONVENE THE CURRENT RFQ EVALUATION COMMITTEE AND HAVE THE COMMITTEE MEET IN A DULY NOTICED PUBLIC MEETING TO (A) VIEW THE VIDEOTAPE OF THE RFQ PROPOSERS' ORIGINAL PRESENTATIONS, FOLLOWED BY (B) QUESTION AND ANSWER SESSIONS WITH THE INDIVIDUAL PROPOSERS, AND ENDING WITH (C) THE COMMITTEE'S DELIBERATIONS, RANKINGS AND FINAL RECOMMENDATION(S) TO THE CITY MANAGER (PROVIDED THAT PORTION (B) OF THE MEETING MAY BE CLOSED TO THE PUBLIC, AS PERMITTED PURSUANT TO SECTION 286.0113(2), FLORIDA STATUTES, BUT SHALL BE RECORDED BY THE CITY). WHEREAS, Request for Proposals No. 14-11/12 for a Public-Private Development in Miami Beach on North Lincoln Lane, between Alton Road and Meridian Avenue, Including City- owned Parking Lot #25 on 1 ih Street and Lenox Avenue, Parking Lot #26 on North Lincoln Lane, between Lenox Avenue and Michigan Avenue, and Parking Lot #27 on North Lincoln Lane, between Jefferson Avenue and Meridian Avenue (the "Lincoln Road RFP" or the "RFP"), was issued on January 17, 2012, with an opening date for proposals on March 23, 2012; and WHEREAS, Request for Qualifications No. 22-11/12 for the Development of the Miami Beach Convention Center District (the "Convention Center RFQ" or the "RFQ") was issued on February 7, 2012, with an opening date of April23, 2012; and WHEREAS, as provided in the Lincoln Road RFP, an Evaluation Committee (Committee) was appointed by the City Manager and met to evaluate the four (4) proposals (received in response to the RFP) on May 11, 2012, at which time the Committee 66 heard presentation from the proposers; conducted a question and answer session with each proposer following their respective presentation; and, following deliberations and discussion, made its recommendation(s) to the City Manager of the proposers it deemed to be the best candidates; and WHEREAS, similarly, a Committee appointed by the City Manager met on June 4 and 5, 2012, to hear presentations from the proposers responding to the Convention Center RFQ, at which time that Committee heard presentations from each proposer; conducted question and answer sessions with the proposers; and, following deliberations and discussion, recommended a "short-list" of proposers to the City Manager; and WHEREAS, on July 25, 2012, the City Manager received a letter from Lincoln Road Development, LLC (LRD), one of the proposers to the Lincoln Road RFP, alleging that the RFP Committee had failed to comply with the requirements of Florida's Government in the Sunshine Law (the Sunshine Law); inasmuch as the Sunshine Law required that the portion of the meeting having to do with the Committee's deliberations and discussion, and final rankings and recommendation, be open to members of the public (and it was not); and WHEREAS, while a similar challenge has not been raised with respect to the Convention Center RFQ Committee, the City also adhered to the same format in that case (as the Lincoln Road RFP Committee); therefore, the portion of the RFQ Committee meeting having to do with the Committee's final deliberations, resulting in the short-listing of proposals, was similarly not open to the public; and WHEREAS, notwithstanding the preceding, the City recorded, and videotaped, the entire proceedings of both the Lincoln Road RFP Committee meeting and the Convention Center RFQ Committee meeting; the audio and video recordings of the complete meetings were available to members of the public for inspection and copying shortly following each Committee meeting and, additionally, were posted by the City on the City's website, so that any member of the public could view them at any time, without charge; and WHEREAS, while the City did not advertise the Lincoln Road RFP or the Convention Center RFQ Committee meetings as public meetings, at no time was it the City's intent it keep either proceeding "secret" and/or out of the public eye, as evidenced by the City's (i) recording and (ii) videotaping of the entire proceedings, and its (iii) subsequent posting of the proceedings on the City's website (i.e. In effect, the City actions described in subsections (ii) and (iii), went beyond what is required under the Sunshine Law.); and WHEREAS, the City reasonably believed that it was not required to advertise the Committee meetings as public meetings due to a recently enacted exemption to the Sunshine Law (the 2011 exemption), which took effect on June 2, 2011 and provided, among other things, that "Any portion of a public meeting, .. at which a vendor makes an oral presentation as part of a competitive solicitation, or at which a vendor answers questions as part of a competitive solicitation ... ", is exempt from the public meeting requirements of the Sunshine Law, provided that a complete recording is made of any portion of an exempt meeting and that no portion of the meeting is held off the record (See Section 286.0113(2)(b) and (c) Florida Statutes); and WHEREAS, since the 2011 exemption is still relatively new law, there is no case law interpreting it and, similarly, the legislative history behind the enactment of the law provides very little guidance other than to state that the exemption was created to remove a potential competitive advantage that might be gained by bidders or proposers in a public bidding process, 67 where (prior to the enactment of the exemption) the Sunshine Law open meeting requirement gave them the right to sit through their competitor's presentation at an evaluation committee meeting, thereby potentially allowing them to gain information which they might use to their advantage (in, for example, their own presentation to the committee); and WHEREAS, while the City maintains that its interpretation of the 2011 exemption was proper, and that it did not violate the Sunshine Law, in light of the potential legal challenge by LRD; in order to avoid protracted and costly litigation in the defense of such challenge; and in order for the City to be able to proceed with the Lincoln Road RFP and the Convention Center RFQ (should a similar issue be raised there) without further delay, it would be in the best interest of the City to "cure" the alleged Sunshine Law issue (both as raised by LRD in the Lincoln Road RFP, and as a pre-emptive measure in the Convention Center RFQ); and WHEREAS, at its regular meeting on October 3, 2012, the Finance and Citywide Projects Committee (FCWPC) held a public discussion for the purpose of updating the public, as well as the Committee members and the other City Commissioners present at the meeting, on the status of, and other issues pertaining to, the Lincoln Road RFP and Convention Center RFQ; the meeting included a presentation by the City Attorney's Office regarding the aforestated Sunshine Law issue, as well as options to cure same (See City Attorney's 10/3/12 memorandum to the FCWPC, which is attached and incorporated as Exhibit "A" to this Resolution); and WHEREAS, following the City Attorney's presentation; a status report from the City Manager and City Attorney as to the RFP and RFQ and related issues; public comment; and extensive discussion by the FCWPC and other City Commissioners present at the meeting, the FCWPC determined that, in order to continue with the Lincoln Road RFP and, in particular, the Convention Center RFQ solicitation processes in a timely manner, it would be in the best interest of the City to proceed to cure (and thereby resolve) the alleged Sunshine Law issue; and WHEREAS, accordingly, the FCWPC recommended that the City Commission authorize the City Manager and City Attorney's Office to proceed with the cure options, as identified in the City Attorney's October 3, 2012 memorandum to the FCWPC, and as hereinafter set forth in this Resolution; and WHEREAS, having considered same at its October 24, 2012 meeting, the City Commission hereby concurs with and adopts the FCWPC's recommendation, and authorizes the City Manager and City Attorney's Office to proceed with the recommended cure options, as hereinafter set forth in this Resolution. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission hereby accept the recommendation of the Finance and Citywide Projects Committee (FCWPC), and authorize the City Administration and City Attorney's Office to proceed to cure the Sunshine Law issue raised with respect to Request for Proposals No. 14- 11/12 (the Lincoln Road RFP), and to also proceed with a cure, as a pre-emptive measure, for Request for Qualifications No. 22-11/12 (the Convention Center RFQ) as follows: 1.) Approving cure "Option 2" for the Lincoln Road RFP, and authorizing the City Manager to convene a new Evaluation Committee and have such new Committee meet in a duly noticed public meeting to (a) view the videotape of the RFP proposers' original oral presentations, followed by (b) question and answer sessions with the individual proposers, and ending with (c) the 68 Committee's deliberations, rankings and final recommendation(s) to the City Manager (provided that portion (b) of the meeting may be closed to the public, as permitted pursuant to Section 286.0113(2}, Florida Statutes, but shall be recorded by the City); and 2.) approving cure "Option 1" for the Convention Center RFQ and authorizing the City Manager to re-convene the current RFQ Evaluation Committee and have the Committee meet in a duly noticed public meeting to (a) view the videotape of the RFQ proposers' original presentations, followed by (b) question and answer sessions with the individual proposers, and ending with (c) the Committee's deliberations, rankings and final recommendation(s) to the City Manager (provided that portion (b) of the meeting may be closed to the public, as permitted pursuant to Section 286.0113(2), Florida Statutes, but shall be recorded by the City). PASSED AND ADOPTED this __ day of _____ ,, 2012. ATTEST: RAFAEL GRANADO, CITY CLERK MATTI HERRERA BOWER, MAYOR F:\ATTO\AGUR\RESOS-ORD\Finance and Citywide Projects Recommendation (Conv. Center RFQ and Lincoln Road RFP).docx 69 THIS PAGE INTENTIONALLY LEFT BLANK 70 •">-, OFFICE OF THE CITY ATIORNEY JOSE SMITH, CITY A DORNEY COMMISSION MEMORANDUM TO: FROM: DATE: MAYOR MATTI HERRERA BOWER, MEMBERS OF THE CITY COMMISSION KATHIE BROOKS, INTERIM CITY MANAGER JOSE SMITH CITY ATTOR Y SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, OPPOSING THE USE OF ANY CONVENTION DEVELOPMENT TAX ("COT") FUNDS FOR A PURPOSE OTHER THAN FOR CONVENTION CENTER DEVELOPMENT, AND FURTHER OPPOSING ANY EXPENDITURE OF SUCH COT TAXES FOR WATER AND SEWER INFRASTRUCTURE OR FOR ANY OTHER PURPOSE THAT IS NOT ELIGIBLE FOR COT FUNDING PURSUANT TO STATE LAW. Pursuant to the request of Mayor Matti Herrera Bower, the attached Resolution opposing the use of convention development tax funds for purposes other than convention center development and further opposing any expenditure of COT taxes for water and sewer infrastructure in the County, or for any other purpose that is not authorized by law, is submitted for consideration by the City Commission. Agenda Item ~ '7 N Date 10-()q~/2.. 71 RESOLUTION NO.------- A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, OPPOSING THE USE OF ANY CONVENTION DEVELOPMENT TAX {"COT") FUNDS FOR A PURPOSE OTHER THAN FOR CONVENTION CENTER DEVELOPMENT, AND FURTHER OPPOSING ANY EXPENDITURE OF SUCH COT TAXES FOR WATER AND SEWER INFRASTRUCTURE OR FOR ANY OTHER PURPOSE THAT IS NOT ELIGIBLE FOR COT FUNDING PURSUANT TO STATE LAW. WHEREAS, the Convention Development Tax Act ("Act"), set forth in Section 212.0305 of the Florida Statutes, states that a principal purpose of the convention development tax is to promote tourism and the use of hotel facilities by facilitating the improvement and construction of convention centers; and WHEREAS, under established Florida case law and Florida Attorney General opinions, where the legislature prescribes the manner in which a thing should be done, it is, in effect a prohibition against its being done in any other way and it excludes all things not expressly mentioned; and WHEREAS, Section 212.0305(4)(b)(2) of the Act mandates that convention development tax ("COT") revenues shall be used as follows: "a) Two-thirds of the proceeds shall be used to extend, enlarge, and improve the largest existing publicily owned convention center in the county," and "b) One-third of the proceeds shall be used to construct a new multipurpose convention/coliseum/exhibition center/stadium or the maximum components thereof as funds permit in the most populous municipality in the County," and WHEREAS, after the completion of projects under the above-stated prov1s1ons, and subject to whether the COT funds initially funded projects under Section 212.0305(4)(b)(2)(a) or (b), COT revenues shall only be used for other specific purposes relative to convention centers, stadiums, exhibition halls, arenas, coliseums, auditoriums, golf courses, intercity light rail, or parking facilities; and WHEREAS, Section 29-63 of the Miami-Dade County Code similarly mandates the use of COT funds only for Miami Beach Convention Center expansion and improvement projects, and other purposes relative to stadiums, exhibition halls, arenas, coliseums, or auditoriums; and · WHEREAS, there is no authority in State or County law that permits the use of COT funds for water and sewer infrastructure projects and, therefore, the use of such funds for that purpose is not authorized by law; and WHEREAS, the Miami Beach Convention Center has not undergone major renovations since 1989 and the City of Miami Beach is currently engaged in a process to renovate and expand the Convention Center, which is South Florida's largest convention space and is considered Miami-Dade County's third largest economic engine, behind the Airport and the Port of Miami; and 72 WHEREAS, an extensively renovated Convention Center would increase its competitiveness in the convention market, enhance the value of the land, and generate new revenue and jobs in South Florida; and WHEREAS, the City of Miami Beach and Miami-Dade County executed an lnterlocal Cooperation Agreement in 1996, which has been amended over the years, to provide for the allocation of Convention Development Tax receipts under State law; and WHEREAS, on October 17, 2012, the Miami-Dade Infrastructure and Land Use Committee passed a Resolution directing the Miami-Dade County Mayor, or the Mayor's designee, to identify sources of revenue available from various sources, including Convention Development Tax funds, in order to fund the repair and/or replacement of deteriorating water and sewer infrastructure within the County; and WHEREAS, the Mayor and the City Commission of the City Miami Beach strongly oppose the use of any Convention Development Tax funds a) for the repair or replacement of water and sewer infrastructure in the County, as such tax funds may not lawfully be used for any purposes other than those enumerated in the Florida Statutes and the County Code; and b) for any other lawful purpose other than for the development of much needed renovations to the Miami Beach Convention Center. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and the City Commission hereby oppose the use of Convention Development Tax funds for any purpose other than for the development of the Miami Beach Convention Center, or for any other purpose that is not eligible for COT funding pursuant to State law. PASSED AND ADOPTED this_ day of October, 2012. ATTEST: Rafael Granado City Clerk F:IA TTO\TURN\RESOS\Convention Center.docx Matti Herrera Bower Mayor 73 APPROVED AS TO FORM & LANGUAGE & FOR ECUTION jQY.~~'- THIS PAGE INTENTIONALLY LEFT BLANK 74 COMMISSION ITEM SUMMARY Condensed Title: A Resolution Approving The Design Of The Recycling Receptacle To Be Provided Under The Coca-Cola Sponsorship Agreement And The Design Of A Matching Trash Receptacle As Recommended By The Finance And Citywide Projects Committee. Key Intended Outcome Supported: Enhance the Environmental Sustainability of the Community and Improve Cleanliness of Miami Beach Rights of Way Especially in Business Areas. Supporting Data (Surveys, Environmental Scan, etc.): Under the 2012 Community Survey the City of Miami Beach received moderate ratings on its efforts to be green (66% positive) and on its sustainability initiatives (63% positive). Issue: Shall the Mayor and City Commission approve the design of the recycling receptacle to be provided under the Coca-Cola Sponsorship Agreement and the design of a matching trash receptacle as recommended by the Finance and Citywide Projects Committee? Item Summary/Recommendation: The Sustainability Committee recommended that the City consider improving the design of the recycling bins currently deployed throughout the City. In addition, it has been established that placing recycling bins next to trash bins will improve recycling rates in the public right-of-way (ROW). Coca-Cola has designed a dual recycling and trash unit with die-cut messaging. In the Euclid Circle demonstration project, Coca-Cola's recycling bin was the most successful prototype, having the least amount of cross contamination and largest quantity of recyclables present. The City needs 43 dual units (43 recycling bins plus 43 trash bins) to serve Lincoln Road. Per its sponsorship agreement, Coca-Cola will provide the 43 recycling bins. However, the City will need to purchase the 43 matching trash bins designed by Coca-Cola to provide a uniform dual unit. In light of the Historic Preservation Board's Resolution to further develop the design for the containers in a manner more consistent with the City's design characteristics, an alternative could be to coordinate the colors of the recycling and trash bins to match the colors of the City's sign program along Lincoln Road. If this alternative is desired, the recycling bins would remain silver and the trash bins could be blue. This would add to the character of Lincoln Road and show a well planned, organized street furniture program, while maintaining the functionality of the proposed bins. However, in considering this alternative the color of the other trash bins citywide should be considered as those are dark green. If the blue trash bins were selected the City could change the color of all trash bins citywide overtime as they are replaced or in need of repainting. The Administration is seeking direction from the City Commission on whether the change the color of the trash bins on Lincoln Road from dark green to the City's approved blue. Once approved, the City will still need to bid and purchase the matching trash bins for Lincoln Road. THE ADMINISTRATION RECOMMENDS APPROVAL OF THE RESOLUTION. Advisory Board Recommendation: On July 9, 2012, the FCWPC recommended that the Commission approve the Coca-Cola recycling receptacle design and include a matching trash receptacle. On September 11, 2012, the HPB recommended that Coca-Cola develop a design more consistent with the unique characteristics of the City. On October 2, 2012, the ORB recommended that the City move forward the proposed dual bin design. Financial Information· Sourc:!..of Amount LT/'1~'\ 1 (Nf.V 2 "--"BPI Total Financial Impact Summary: City Clerk's Office Legislative Tracking: Richard Saltrick ext. 6565 Department Director I AssisfNAt_9ity M FHB I JGG .,..1il' MASi T IAGENDA\2012110-24-12\L~ncoln Road Recycling SUMMARY doc" MIAMI BEACH 75 ag~y l L~ v---I vz Account City Ma'(i9er KGB~ ., AGENDA ITEM ____;_R..:....7.:....0--:-~ DATE {0 -~Y-/2. MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM, Kathie G. Brooks, Interim City Manager ~~ ~ DATE: October 24, 2012 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE DESIGN OF THE RECYCLING RECEPTACLE TO BE PROVIDED UNDER THE COCA-COLA SPONSORSHIP AGREEMENT AND THE DESIGN OF A MATCHING TRASH RECEPTACLE AS RECOMMENDED BY THE FINANCE AND CITYWIDE PROJECTS COMMITTEE. ADMINISTRATION RECOMMENDATION The Administration recommends adopting the resolution. BACKGROUND The Sustainability Committee believes that the City should consider improving the design of the recycling bins currently deployed throughout the City. In addition, it has been established that placing recycling bins next to trash bins will improve recycling rates in the right-of-way (ROW). On May 17, 2012, the Finance and Citywide Projects Committee (FCWPC) reviewed the Euclid Circle recycling bin demonstration. The Committee recommended that during FY 2012/13 budget discussion, staff determine the number and locations of recycling bins that are needed in the ROW, and present a cost comparison for the current silver bin, the Coca-Cola recycling bin, and/or the Big Belly recycling bin. On July 9, 2012, FCWPC determined that the Coca-Cola recycling bin design was the most cost- effective model, approved the Coca-Cola design, and recommended that a dual recycling and trash receptacle be developed and installed as a pilot project along Lincoln Road. The Committee recommended that the Historic Preservation Board (HPB) and the Design Review Board (DRB) provide comment on the design. On September 11, 2012, the HPB passed a resolution encouraging Coca-Cola to further develop the design for the containers in a manner more consistent with the unique design characteristics of the City of Miami Beach (Attachment A). On October 2, 2012, the DRB passed a resolution recommending a more rounded metal rain hood, with the inclusion of the Miami Beach logo to be located on the trash container in addition to its location on the recycling container (Attachments B & C). 76 City Commission Memo-Lincoln Road Dual Recycling and Trash Bins October 24, 2012 Page 2 of 3 Current ROW Recycling Program Since 2009, the City has installed 74 dual recycling bins and 63 silver urban style stand-alone recycling bins throughout the City's ROW, beach entrances, and in select parks. The City services the ROW bins along Lincoln Road and Ocean Drive and the waste haulers service those in City parks, beach entrances and other ROW locations. The ROW bins are serviced on a regular schedule to ensure a high level of service. As part of the Coca-Cola Sponsorship Agreement, Coca-Cola developed signage for the existing silver recycling bins and wraps for the dual bins used at beach accesses and parks. The wraps have been installed and the signage for the silver bins will be installed shortly. All existing recycling bins and all future recycling bins to be purchased by the City will include this updated recycling message to create a uniform design throughout the City. Proposed ROW Recycling Bin Pilot Program Coca-Cola has designed a custom recycling bin and matching trash bin, with die-cut messaging that can be placed together to create a dual unit (Attachment C). In the Euclid Circle demonstration project, Coca-Cola's recycling bin was the most successful prototype, having the least amount of cross contamination and largest quantity of recyclables present. The City needs 43 dual units (43 recycling bins plus 43 trash bins) to serve Lincoln Road. Per its Sponsorship Agreement, Coca-Cola will provide the 43 recycling bins. However, the City will need to purchase 43 matching trash bins designed by Coca-Cola to provide a uniform dual unit. Staff recommends that the ROW Recycling Bin Pilot Program be phased, beginning with the Lincoln Road Coca-Cola dual recycling and trash receptacle pilot project. If the new bins are successful, the City will purchase an additional 83 dual units to deploy throughout the entertainment districts. The existing 52 silver bins currently located in these districts would then be repositioned along identified high pedestrian areas. ANALYSIS Attachment D illustrates the Coca-Cola dual unit cost and total capital cost for Lincoln Road over five years. The cost per individual recycling bin designed by Coca-Cola is $800. The trash and recycling bins are priced individually. Coca-Cola has committed to provide 43 individual recycling bins to be installed, at no cost to the City. The City would be responsible for purchasing the 43 matching trash bins to complete the 43 dual units necessary along Lincoln Road. It is estimated that maintenance costs for these 86 bins will be $1 ,075 per year and the refurbishment costs will be $5,375 every two years. Over 5 years, the total cost of the ROW Recycling Bin Pilot Program is estimated to be $43,000. In light of the Historic Preservation Board's Resolution to further develop the design for the containers in a manner more consistent with the City's design characteristics, an alternative could be to coordinate the colors of the recycling and trash bins to match the colors of the City's sign program along Lincoln Road. If this alternative is desired, the recycling bins would remain silver and the trash bins could be blue. This would add to the character of Lincoln Road and show a well planned, organized street furniture program, while maintaining the functionality of the proposed bins. However, in considering this alternative the color of the other trash bins citywide should be considered as those are dark green. Historically, the City has purchased green trash bins throughout the City to remain consistent and reinforce that trash should be disposed of in green 77 City Commission Memo -Lincoln Road Dual Recycling and Trash Bins October 24, 2012 Page 3 of3 bins. If the blue trash bins were selected the City could change the color of all trash bins citywide overtime as they are replaced or in need of repainting. The Administration is seeking direction from the City Commission on whether the change the color of the trash bins on Lincoln Road from dark green to the City's approved blue. Once approved, the City will still need to bid and purchase the matching trash bins for Lincoln Road. CONCLUSION The Administration recommends that the Mayor and City Commission adopt the resolution. Attachments: A. Historic Preservation Board Resolution B. Design Review Board Resolution C. Dual Recycling and Trash Receptacle Design D. ~ Dual Bin Fiscal Analysis KGB/t.i\t~I=HB/JJF/RWS/ESW T:\AG~~~012\10-24-12\Lincoln Road Recycling MEMO.doc 78 RESOLUTION NO. ----- A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE DESIGN OF THE RECYCLING RECEPTACLE TO BE PROVIDED UNDER THE COCA-COLA SPONSORSHIP AGREEMENT, AND ALSO APPROVING THE DESIGN OF A MATCHING TRASH RECEPTACLE, AS RECOMMENDED BY THE FINANCE AND CITYWIDE PROJECTS COMMITTEE AT ITS JULY 9, 2012 MEETING. WHEREAS, by managing solid waste and conserving material resources through reduction, re-use, and recycling, the City will help minimize impacts to the quality and safety of the local environment, reduce costs of waste disposal, and decrease the carbon footprint associated with the production and the use and disposal of materials; and WHEREAS, the City's Sustainability Plan outlines the goal of increasing the Citywide volume of recyclables diverted from the County landfill to recycling plants; and WHEREAS, improving the design of recycling and trash receptacles with enhanced signage, and by placing the recycling bin next to the trash bin, will help to increase recycling volumes along Lincoln Road; and WHEREAS, under Coca-Cola's Sponsorship Agreement with the City, Coca-Cola will provide, at its sole cost and expense, 43 recycling bins, which will be installed on Lincoln Road as the first phase of the City's Right-of-Way Recycling Bin Pilot Program; and WHEREAS, Coca-Cola has designed dual recycling and trash receptacles, which the City would like to install as part of the aforestated Pilot Program, to determine the design's long- term durability and recycling diversion success. WHEREAS, at its July 9, 2012 Finance and Citywide Projects Committee meeting, approved of the design of Coca-Cola's proposed recycling receptacle, and also approved of the design of a matching trash receptacle (which would be constructed and installed, at the City's expense, next to the proposed recycling receptacles); and NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission approve the design of the recycling receptacle to be provided under the Coca-Cola sponsorship agreement, and also approving the design of a matching trash receptacle, as recommended by the Finance and Citywide Projects Committee at its July 9, 2012 meeting. PASSED AND ADOPTED this 24th day of October, 2012. ATTEST: Rafael Granado, City Clerk T:\AGENDA\2012\10-24-12\Lincon Road Recycling-RESO.doc 79 Matti Herrera Bower, Mayor APPROVED AS TO FORM & LANGUAGE & fti~ EXECUTION ~ ~\-tU-ci-<1.. cl}IAnorner~ {.,-Date :1 ... , Attachment A CITY OF MIAMI BEACH HISTORIC PRESERVATION BOARD RESOLUTION WHEREAS, the City of Miami Beach Historic Preservation Board is charged by Ordinance as serving in an advisory capacity to the City Commission and other City Boards on issues affecting the City's architecture, design, historic districts and structures; and WHEREAS, the Historic Preservation Board strongly supports the efforts of the City to promote and enhance its unique social and architectural history and to improve the appearance of its streets and neighborhoods and the quality of life of its residents; and WHEREAS, the Historic Preservation Board strongly supports the efforts ofthe City to promote its historic neighborhoods and commercial districts as valuable historical, educational and visual resources for its residents and visitors, as well as vital, thriving centers for commercial activity; and WHEREAS, street furniture including lighting, signage, benches, and trash containers, plays a vital role in the overall appearance of the historic districts; and WHEREAS, the City of Miami Beach has made a substantial investment in the high quality design of street furniture within its historic districts, especially along Lincoln Road; and WHEREAS, although the Historic Preservation Board strongly supports the concept of a combined trash and recycling container concept , the Board is extremely disappointed in the mundane, generic and substandard design proposed for these containers; and WHEREAS, a high quality, dynamic and streamline designed trash and recycling container unit would further enhance the unique and special design character of Miami Beach. THEREFORE, it is hereby resolved that the Historic Preservation Board strongly encourages Coca-Cola to further develop the design for these containers in a manner more consistent with the unique design characteristics of the City of Miami Beach. PASSED AND ADOPTED THIS 11~ DAY OF September, 2[ ~~----~--~~+----------- F:IPLANI$HPBIRESOS\2012 Resos\RES-Recycling Blns.doc 80 THOMAS R. MOONE Design and Preservation Manager For the Historic Preservation Board Attachment B CITY OF MIAMI BEACH DESIGN REVIEW BOARD RESOLUTION WHEREAS, the City of Miami Beach Design Review Board is charged by Ordinance as serving in an advisory capacity to the City Commission and other City Boards on issues affecting the City's architecture, design, structures; and WHEREAS, the Design Review Board strongly supports the efforts of the City to promote and enhance its unique social and architectural history and to improve the appearance of its streets and neighborhoods and the quality of life of its residents; and WHEREAS, the Design Review Board strongly supports the concept of a combined trash and recycling container, and encourages an increase in the number of recycling bins located throughout the City; and WHEREAS, the Design Review Board recognizes that the City's Finance and Citywide Projects Committee has selected the Coca Cola designed containers because they have the greatest recycling rates and are the lowest cost option compared to other alternatives; and WHEREAS, the Design Review Board recognizes that Coca Cola will be donating the recycling bins and the City will be funding the cost of the accompanying trash bins; and WHEREAS, the Design Review Board has reviewed the three (3) options presented, and believes that the bins with 'Metal rain hood option 2', will be the least obtrusive while also discouraging the placement of trash and recyclable containers on top of the rain hood; and THEREFORE, it is hereby resolved that the Design Review Board unanimously approved a motion (3-0) recommending that the City Manager, the Mayor and City Commissioners, approve the recycling bins with 'Metal rain hood option 2', with the inclusion of the Miami Beach logo to be located on the trash container in addition to its location on the recycling container. PASSED AND ADOPTED THIS 2"' DAY OF Octt 201l ~ F:IPLANI$DRB\Resos\RES· Recycling Bins.doc 81 THOMAS R. MOONEY Design and Preservation Manager For the Design Review Board 00 N At t a c h m e n t C Me t a l ra i n ho o d op t i o n 1: Or i g i n a l de s i g n : 2. 5 " be v e l in mi d d l e Si d e he i g h t : 8" Di m e n s i o n s of ea c h bi n Fo o t p r i n t 23 " x 22 " He i g h t 40 " (w i t h o u t ra i n h o o d ) -C o n f i d e n t i a l - Ou t d o o r Bi n de s i g n - Le v e l i n g Fe e t (4 / b i n ) An c h o r ho l e s av a i l a b l e for se c u r i n g to c o n c r e t e - 2/bin Bi n s m a d e fr o m 82% recycled st e e l (6 8 % po s t consumer and 14 % pr e co n s u m e r ) In c l u d e s BL A C K inside bin m a d e wi t h 1 00 % post co n s u m e r HO P E plastic (#2) SI L V E R re c y c l i n g bin: GREEN me t a l ba c k i n g GR E E N tr a s h bi n : SILVER metal ba c k i n g - Gr e e n pa i n t : Ev e r g r e e n Du p o n t ( PF G 5 0 0 S 9 } - RA I N H O O D S : M e t a l (same co l o r as bi n ) - Ci g a r e t t e di s p o s a l options (s a m p l e be i n g sent to MBch} - FI N A L CO S T / B I N - $740 (w/o frt} d!EGill 00 w Me t a l ra i n ho o d op t i o n 2: 4. 5 " be v e l in mi d d l e (+ 2 " vs or i g i n a l ) Si d e he i g h t : 8 " ~ - - _ _ !B ' J I I ' - ·- -" " ' ~ - . . _. I I \ U . J . ~ . . . . . . U . J . MI A M I BE A C H • & .a l v e I t bo c k . • Di m e n s i o n s of e a c h bi n Fo o t p r i n t 23 " x 22 " He i g h t 40 " (w i t h o u t rai n h _ ~ ~ Q l n t i a l · - ~2 00 ~ Op t i o n #1 c o m p a r e d to Op t i o n #2 Or i g i n a l (O p t i o n #1 ) Op t i o n #2 To p he i g h t in mi d d l e : 2. 5 " To p he i g h t in mi d d l e : 4.5" .M I A M I BE A C H • . t' i ' J .. .S J i V e it bCI C k ~ • -C o n f i d e n t i a l - MI A M I BE A C H • & .g i v e It ba c k . • t!!EGJJ3 85 "' I ' ~ c Ql ;g c 0 l( 00 en -C o n f i d e n t i a l - LE V E L I N G FE E T (4 per bin} 1) Lo c a t e d in a l l 4 corners of e a c h bi n 2) 2 ad d i t i o n a l holes a v a i l a b l e to se c u r e to c o n c r e t e if needed ~6 c ·-.c ... ~ = c: ·-.c cu "C ·-ut c: 87 ' :g c: Q) :g c 0 l( 0 0 0 0 Li n c o l n Ro a d Du a l Re c y c l i n g & Tr a s h Bi n Co s t - Ca p i t a l Pu r c h a s e Co c a - C o l a Du a l Re c y c l i n g Bi n s Ca p i t a l Pu r c h a s e Ca p i t a l Co s t (p e r du a l un i t s ) Es t . Ma i n t e n a n c e Co s t (4 3 du a l un i t s ) Re f u r b i s h m e n t (p e r du a l un i t s ) TO T A L Li n c o l n Ro a d Pi l o t Pr o g r a m Ca p i t a l Co s t (4 3 in d i v i d u a l bi n s ) Es t . Ma i n t e n a n c e Co s t (4 3 du a l un i t s ) Re f u r b i s h m e n t (4 3 du a l un i t s ) TO T A L Ye a r 2 Ye a r 3 Ye a r 4 $1 , 6 0 0 $2 5 $2 5 $2 5 0 $1 , 6 0 0 $2 5 $2 5 0 $2 5 43 Re c y l i n g Bi n s Re q u i r e d + 43 Tr a s h Bi n s Re q u i r e d 86 TO T A L 86 To t a l Bi n s Re q u i r e d 43 Bi n s Pr o v i d e d by Co c a - C o l a - - - - 43 TO T A L Ye a r 2 Ye a r 3 Ye a r 4 $3 4 , 4 0 0 $1 , 0 7 5 $1 , 0 7 5 $5 , 3 7 5 $3 4 , 4 0 0 $1 , 0 7 5 $ 5 , 3 7 5 $1 , 0 7 5 Ye a r S $2 5 $2 5 Ye a r S $1 , 0 7 5 $1 , 0 7 5 AT T A C H M E N T D TO T A L CO S T PE R DU A L BIN $1 , 9 2 5 TO T A L PI L O T PR O G R A M COST $4 3 , 0 0 0 RESOLUTION NO.------- A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE ISSUANCE OF NEW POLICE AND PARKING TOWING PERMITS TO BEACH TOWING SERVICES, INC. AND TREMONT TOWING SERVICES, INC., WITH SAID PERMITS HAVING A THREE (3} YEAR TERM, COMMENCING ON NOVEMBER 1, 2012, AND ENDING ON OCTOBER 31, 2015; AND FURTHER APPROVING AMENDMENT NO.2 TO THE ADMINISTRATIVE RULES AND REGULATIONS FOR POLICE AND PARKING TOWING PERMITS. WHEREAS, Chapter 106, Article V, Division 2 of the Miami Beach City Code, provides for the issuance by the City Commission of towing permits, for the towing of vehicles identified by the City as requiring removal from the public way (the police and parking towing permits); and WHEREAS, on January 11, 2006, the Mayor and City Commission approved Resolution No. 2006-26100, issuing police and parking towing permits to Beach Towing Services, Inc., and Tremont Towing Services, Inc. (Permittees); and WHEREAS, the term of the Permittees' permits expired on August 31, 2011 and, since then, said permits have been on a month to month term, with an outside expiration date of December 31, 2012; and WHEREAS, the Permittees have been meeting with the City Administration with regard to the City's issuance of new three (3) year police and parking towing permits to the Permittees, as well as to negotiate certain amendments to the City's Administrative Rules and Regulations for Police and Parking Towing Permits (the Rules and Regulations), which amendments include certain rate increases requested by the Permittees to the City's maximum allowable towing rates (collectively, the discussions pertaining to the new towing permits and the proposed amendments to the Rules and Regulations, including Permittees' requested rate increases, are hereinafter referred to as the "towing issues"); and WHEREAS, the towing issues were discussed at the December 27, 2011 and January 19, 2012, Finance and Citywide Projects Committee (FCWPC) meetings; the FCWPC recommended that the towing issues be referred to the full City Commission for its consideration; and WHEREAS, the Administration provided the City Commission with an update on the towing issues (including its ongoing discussions with the Permittees regarding same), at the June 6, 2012 City Commission meeting; at that time, the Mayor and City Commission extended the Permittees' police and parking towing permits (which were set to expire on 8/31/2011) on a month to month basis, with an outside expiration date of December 31, 2012, and referred the towing issues to a joint meeting of the FCWPC and Neighborhoods and Community Affairs (NCAC) to be scheduled at a later date; and WHEREAS, on September 12, 2012, the Mayor and Commission rescinded its prior referral (of the towing issues) to the joint FCWPC/NCAC meeting, and instead directed the Administration to place an item on the October 24, 2012 City Commission meeting agenda for discussion of the towing issues by the City Commission; and 89 Agenda Item R 7 P Date 10 -24-IL WHEREAS, in the City Commission Memorandum accompanying this Resolution, the City Administration has provided a summary of the towing issues which were (most recently) discussed at the FCWPC on January 19, 2012 (see Item Nos. 1-7 on pp. 3 and 4 of the 10/24/12 City Commission Memorandum for Agenda Item R7P); and WHEREAS, the City Administration concurs with, and recommends that the City Commission approve Item Nos. 1-6; which items are summarized as follows (and also set forth, in full, in the 10/24/12 City Commission Memorandum for Agenda item R7P). Item 1 - Item 2 - Item 3 - Item 4 - Item 5 - Item 6 - renewal of the Permittees' police and parking towing permits, with issuance of new permits for a three (3) year term; approval of certain "enhancements" required of Permittees, such as employee uniforms, employee drug screening, driver's license screening, and reduction of the storage requirement within the City limits; technological improvements; establishment of a City of Miami Beach "resident discount" for public tows; stronger City audit rights for police and parking tows; dismissal of existing lawsuits filed by Beach Towing against the City; and WHEREAS, Item No. 6, the dismissal of certain litigation instituted against the City by Beach Towing Services, Inc., has already occurred; and WHEREAS, the City Administration does not recommend Item No. 7, pertaining to the Permittees' request for an increase in certain Maximum Allowable Towing Rates, until such time as additional information is provided by the Permittees (in order for the City Administration to further evaluate such proposed rate increases); and WHEREAS, upon the City Commission's approval of the recommended Item Nos. 1-6 above, the City Administration will incorporate Item Nos. 1-5 into Amendment No. 2 to the Rules and Regulations. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve the issuance of new police and parking towing permits to Beach Towing Services, Inc., and Tremont Towing Services, Inc., with said permits having a three (3) year term, commencing on November 1, 2012 and ending on October 31, 2015; and further approving Amendment No. 2 to the Administrative Rules and Regulations for Police and Parking Towing Permits. PASSED AND ADOPTED this ____ day of ______ ,, 2012 ATTEST: CITY CLERK T:\AGENDA\2012\0ct242012\TowingPermit0ct242012.res.doc 90 MAYOR APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION 7 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA IN SUPPORT OF MIAMI-DADE COUNTY PUBLIC SCHOOLS' CAPITAL BOND REFERENDUM TO MODERNIZE AND CONSTRUCT SCHOOLS, INCLUDING TECHNOLOGY UPGRADES AT ALL SCHOOLS. WHEREAS, Miami-Dade County Public Schools will ask County voters to invest in their schools by approving the issuance of a $1.2 billion General Obligation Bond ("Bond") for renovating facilities, updating technology, building school replacements, expanding capacity, and enhancing facility safety; and WHEREAS, inequity exists between the instructional experience of students attending newer schools and those in outdated buildings. Therefore, to take full advantage of today's technology and digital learning environments, aging schools must be replaced or updated to ensure all students have access to cutting-edge academic programming and modern safety and security measures; and WHEREAS, approval by the voters of the Miami-Dade County Public Schools' Capital Bond Referendum ("Bond Referendum") is essential to the School District and the business community as they seek a sustainable long-term solution for all of Miami-Dade County's public school students to ensure that every student is prepared for the evolving workforce. Common sense and numerous studies have concluded that students learn better in upgraded or newer facilities with advanced technology, better air quality, and less noise. Upgraded or newer schools also add value to homes nearby; and WHEREAS, approving a bond referendum now makes fiscal sense because construction bonds issued in 1988 are being paid off, so homeowners will not experience a significant increase in taxes. Therefore, the proposed Bond issue will have a minimal impact on the typical homeowner--a projected $5 annually per $100,000 of taxable property value in the first year; and a projected average of $27 annually per $100,000 of taxable property value during the term of the bond; and WHEREAS, the timing of the Bond issuance is critical in order to minimize the cost to taxpayers while construction costs are significantly lower than at their peak, and interest rates are at historical lows; and WHEREAS, the Bond Referendum will provide prosperity and security in our community by bringing capital from outside the County that will be invested in the local community, and ultimately providing students with more targeted academic offerings to become better prepared for the 21st Century global economy; and WHEREAS, the long-term benefits of continuing the Bond program in 2012 far outweigh the minimal increase in taxes by creating an estimated 9,200 jobs during the first three years of the Bond and over 18,000 sustainable jobs during the life of the Bond 91 Agenda Item f< q '- Date I0-2Y-J2.. according to a recent economic impact study; and WHEREAS, the Bond will help enhance the safety and security of school buildings; renovate or upgrade every school; guarantee technology equity across all schools; seek stakeholder input while minimizing the burden on taxpayers; promote greater public/private partnerships; and provide transparency and confidence with citizen advisory and oversight committees; and WHEREAS, voters should be empowered to determine if the long-term needs of school facilities, benefiting a new generation of students, merit continuing the Bond program by authorizing the $1.2 billion Bond issue in 2012. NOW, THEREFORE, BE IT RESOLVED THAT the Mayor and City Commission of the City of Miami Beach, Florida, hereby support Miami-Dade County Public Schools' Capital Bond Referendum to modernize and construct schools, including technology upgrades at all schools. PASSED AND ADOPTED this_ day of October, 2012. ATTEST: Rafael Granado City Clerk F:IA TTO\SMIJ\resolutions\School Bond Referendum.rtf Matti Herrera Bower Mayor 92 REDEVELOPMENT AGENCY ITEM SUMMARY Condensed Title: A Resolution funding, in an amount not to exceed $250,000, to address the relocation of the kitchen exhaust venting system installed by the Pennsylvania Avenue Garage Retail Tenant, Penn 17, LLC (d/b/a Cooper Avenue) (Tenant); with funding available from previously appropriated City Center RDA Capital Fund 365; and further, authorizing the Interim Executive Director to negotiate terms of an agreement with Penn 17, LLC to proceed in redesigning, permitting and constructing a kitchen exhaust venting system that discharges away from the service alley located between the New World Symphony building and the Pennsylvania Avenue Garage. Key Intended Outcome Supported: Not Applicable Supporting Data (Surveys, Environmental Scan, etc.): Not Applicable Issue: Shall the City authorize the reallocation of funds from City Center Fund 365 towards funding the relocation of the kitchen exhaust system and further authorize the Interim City Manager to negotiate terms of an agreement with Penn 17, LLC to proceed with the recommended scope? Item Summary/Recommendation: On August 17, 2012, the New World Symphony (NWS), expressed major concern over the Tenant's build-out involving the venting locations of the kitchen exhaust and steam vent from the dishwashers, which both direct into the service alley between the Garage and NWS; saying that the exhaust has the potential of permeating the NWS performance hall every time the loading dock doors are opened. On September 10, 2012, the Administration entered into a Letter Agreement with the Tenant to engage an architectural/engineering firm, at a not-to-exceed cost to the City of $25,000, to develop conceptual design options and preliminary pricing estimates to modify the exhaust venting system. On September 21, 2012 the Tenant's Architect, Design 3 Architecture, presented two options for redirecting the Tenant's exhaust: Option 1 for a price of $59,000, involving the least complex and most cost effective solution; and Option 2 for a price of $181,000, involving a significantly more complex and potentially disruptive scope of work. In an effort to find a feasible solution, savings have been identified from the original construction budget of the Pennsylvania Avenue Garage (RDA fund 365) that can be made available to remedy the issue. At this time, the Administration requests authority to allocate up to $250,000 to proceed with Option 2 to address this issue. Advisory Board Recommendation: N/A Financial Information: Source of Amount Account Funds: CE 1 $250 000 Fund 365 -2426-069357 RDA ' Financial I t Summary: Funding is being reallocated from savings realized from the construction of the Pennsylvania Avenue Garage. City Clerk's Office Legislative Tracking: I Maria Poncel, ext. 6702 n-Offs: KGB/MAS/MP/KO~ T \Agenda\2012\10-24-12\Penn Garage Exhaust RDA Summ docx MIAMI BEACH 93 AGENDA ITEM ___.l._lt'-'---- DATE /0 -J.'f-{1-- lD MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachA.gov TO: FROM: DATE: SUBJECT: REDEVELOPMENT AGENCY MEMORANDUM Chairperson and Members of the Miami Beach Redev~lop_j:7nt Agency Kathie G. Brooks, Interim Executive Director ~ / · October 24, 2012 A RESOLUTION OF THE CHAIRPERSON AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, APPROVING FUNDING, IN AN AMOUNT NOT TO EXCEED $250,000, TO ADDRESS THE RELOCATION OF THE KITCHEN EXHAUST VENTING SYSTEM INSTALLED BY THE PENNSYLVANIA AVENUE GARAGE RETAIL TENANT, PENN 17, LLC. (d/b/a COOPER AVENUE); WITH FUNDING AVAILABLE FROM PREVIOUSLY APPROPRIATED CITY CENTER CAPITAL FUND 365; AND FURTHER, AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR AND PENN 17, LLC TO NEGOTIATE AND, IF SUCCESSFUL, EXECUTE AN AGREEMENT TO PROCEED WITH THE RE-DESIGN, PERMITTING AND CONSTRUCTING OF KITCHEN EXHAUST VENTING SYSTEM THAT DISCHARGES AWAY FROM THE SERVICE ALLEY LOCATED BETWEEN THE NEW WORLD SYMPHONY BUILDING AND THE PENNSYLVANIA AVENUE GARAGE. BACKGROUND On April13, 2011, the Mayor and City Commission passed Resolution No. 2011-27647, approving a Lease Agreement, as amended on February 8, 2012 and June 6, 2012, respectively (the Lease), having a term of nine (9) years and 364 days, between the City, the Redevelopment Agency (RDA) and Penn 17, LLC, for use of approximately 7,655 square feet of ground level retail space at the Pennsylvania Avenue Garage, 1661 Pennsylvania Avenue, Miami Beach, Florida, for a restaurant (primary use), with ancillary uses for a bakery, a bar/cafe, and a book and gift shop. The Resolution also approved the execution of a Pre-Lease Due Diligence Review Agreement, granting the Tenant a maximum of six (6) months following approval of the Lease, in which to reserve its leasing rights while advancing design and plan development and consulting with the City's Planning and Building Departments in order to ascertain the feasibility of obtaining a full building permit prior to actual commencement of the Lease. During the first full year of rent, the annual Base Rent will be $574,125, plus Common Area Maintenance costs of $98,844 (paid monthly at $47,843.75 plus $8,237, respectively, for a total of $56,080.75 monthly). As has been reported on previous occasions, the challenges in converting the Premises for use as a restaurant proved considerably more complex, time-consuming and substantially more costly than originally anticipated by the Tenant; particularly related to the engineering and permitting of the venting for the kitchen exhaust; installing a system of multiple grease traps; the build-out of the storage room and the design of the structural slab; restoration of the existing structural slab in the retail space following partial demolition to install the plumbing; and addressing additional flood- proofing criteria. The Tenant's plans underwent extensive revisions to address comments and concerns raised by the City's Planning and Building Departments, as well as certain other regulatory agencies, as part of the permitting review process. Ultimately, the Tenant has invested more than $5 million to improve the Premises. 94 Pennsylvania Avenue Garage Exhaust Vent Relocation Redevelopment Agency Memorandum October 24,2012 Page2 of3 On September 24, 2012, the Tenant received a Temporary Certificate of Occupancy (TCO) for its restaurant, Cooper Avenue. ANALYSIS On August 17, 2012, as the build-out of Cooper Avenue was nearing completion, the City was contacted by the New World Symphony (NWS), which expressed major concerns over the venting locations of the Tenant's kitchen exhaust and steam vent from the dishwashers, which both direct into the service alley between the Garage and NWS. The NWS believes the kitchen exhaust could potentially permeate the performance hall every time the loading dock doors are opened (which are directly opposite the kitchen exhaust vent). As noted earlier, given the structural and architectural constraints of the building, identifying a feasible location to run the kitchen exhaust proved to be among the most challenging of the design issues, involving extensive input from Planning, Building and other regulatory entities in the final approved plan. Following an extensive series of meetings with representatives from the NWS and the Tenant's management and design team to figure out options for mitigating odors emanating from the exhaust venting, the NWS has instead demanded that the City and Tenant explore design alternatives for redirecting the kitchen exhaust in its entirety, away from the alley. Although the discussions centered on the fact that the City could not yet know whether or not there was a problem, in an abundance of caution the City authorized the tenant to direct his architect to develop several alternatives to address the NWS concerns. On September 10, 2012, the City entered into a Letter Agreement with the Tenant pertaining to the engagement of architectural/engineering services, at a not-to-exceed cost to the City of $25,000, in order to develop conceptual design options and preliminary pricing estimates to modify the exhaust venting system for the City's consideration and approval; and further to include services for the preparation of detailed plans and specifications (including any layouts, architectural, mechanical, structural, electrical and other plans, drawings and construction documents in sufficient detail to obtain any and all appropriate regulatory permits), as may be reasonably required by the City's Building Department in order to process and review Tenant's permit application for such modification as approved. Subsequent to the opening of the Cooper Avenue restaurant it has been determined that there is odor in the alleyway between the garage and concert hall. While it is not known if the odors would permeate the inside of the performance hall, in order to address a potential negative impact the Administration suggest that the Commission consider relocating the vents. On September 21, 2012 the Tenant's Architect, Design 3 Architecture, presented two options for redirecting the Tenant's exhaust in order of feasibility, complexity and cost as follows: Option 1 -Total Estimated Minimum Cost: $59,000 The most feasible, the least complex and most cost-effective approach provides for maintaining the existing location of the exhaust fans on the cover slab over the garbage room. This provides for a stable working platform by which to maintain and service the fans and duct work. The ducting and exhaust vent leading to the exterior of the building facing the New World Symphony's loading dock, would be rerouted 90 degrees to the north and discharge directly above the garage entrance located on 17th Street. 95 Pennsylvania Avenue Garage Exhaust Vent Relocation Redevelopment Agency Memorandum October 24, 2012 Page3 of3 Option 2 -Total Estimated Minimum Cost: $181,000 The most complex and costliest of the solutions and the least feasible, (primarily in terms of the anticipated operational disruption for the Tenant due to the construction involved), involves the complete relocation and re-engineering of the exhaust ducting, extending it south and then west to discharge over the garage exit on Pennsylvania Avenue. This would also require the construction of an elevated concrete pad over the flood panel storage enclosure, to relocate and support the exhaust fans needed to drive the exhaust through the ducting. It should be noted that the New World Symphony views Option 2 as the only choice, as it extends the exhaust discharge the furthest away from the service alley. RECOMMENDATION In an effort to mitigate this situation, the Administration has identified savings from the original construction budget of the Pennsylvania Avenue Garage (RDA Fund 365) that can be made available to proceed with either Option. Given the fact that cost estimates to undertake the work are preliminary at best, the Administration recommends appropriating an amount not to exceed $250,000 to provide the greatest amount of flexibility to remedy this issue in the most feasible manner. The Administration also recommends that the RDA authorize the Interim Executive Director to negotiate an agreement with the Tenant to proceed with the design, permitting and construction of the modifications, based on either Option 1 or 2. KGB/MS/MP/KOB T:\AGENDA\2012\10-24-12\Penn Garage Exhaust Relocation RDA Mem.doc 96 RESOLUTION NO. ___ _ A RESOLUTION OF THE CHAIRPERSON AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY (RDA), APPROVING FUNDING, IN AN AMOUNT NOT TO EXCEED $250,000, TO ADDRESS THE RELOCATION OF THE KITCHEN EXHAUST VENTING SYSTEM INSTALLED BY THE PENNSYLVANIA AVENUE GARAGE RETAIL TENANT, PENN 17, LLC. (d/b/a COOPER AVENUE); WITH FUNDING AVAILABLE FROM PREVIOUSLY APPROPRIATED CITY CENTER RDA CAPITAL FUND 365; AND FURTHER, AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR AND PENN 17, LLC TO NEGOTIATE AND, IF SUCCESSFUL, EXECUTE AN AGREEMENT TO PROCEED WITH THE RE-DESIGN, PERMITTING AND CONSTRUCTION OF A KITCHEN EXHAUST VENTING SYSTEM THAT DISCHARGES AWAY FROM THE SERVICE ALLEY LOCATED BETWEEN THE NEW WORLD SYMPHONY BUILDING AND THE PENNSYLVANIA AVENUE GARAGE. WHEREAS, April 13, 2011, the Mayor and City Commission approved Resolution No. 2011-27647, approving a Lease Agreement, between the City, the Miami Beach Redevelopment Agency (RDA) and Penn 17 LLC (Tenant), for use of approximately 7,655 square feet of ground level retail space at the Pennsylvania Avenue Garage, 1661 Pennsylvania Avenue, Miami Beach, Florida, for a restaurant (primary use), with ancillary uses for a bakery, a bar/cafe, and a book and gift shop (hereinafter Premises or Cooper Avenue); and WHEREAS, the challenges in converting the Premises for use as a restaurant have proved considerably more complex, time-consuming, and costly than originally anticipated, by Tenant, including the engineering and permitting of the venting for the kitchen exhaust, which involved extensive input from the City's Planning and Building Departments, as well as other regulatory entities in the final approved plan ; and WHEREAS, on September 24, 2012, Tenant received a Temporary Certificate of Occupancy for the Premises; and WHEREAS, on August 17,2012, the New World Symphony (NWS) contacted the City expressing its concern over the venting locations of the kitchen exhaust and steam vent from the dishwashers, which are currently directed into the service alley between the Garage and the NWS building; and WHEREAS, on September 10, 2012, the City entered into a Letter Agreement with the Tenant authorizing it to retain an architect/engineer (A&E), pertaining to the engagement of architectural/engineering services, for a not-to-exceed cost to the City of $25,000, in order to develop conceptual design options and preliminary pricing estimates to modify the exhaust venting system and, WHEREAS, on September 21, 2012, the Tenant's A&E, Design 3 Architecture, presented two options for re-directing the Tenant's exhaust; Option 1, for a price of $59,000, involving the least complex and most cost effective solution; and Option 2, for a price of $181,000, involving a significantly more complex solution; and T:\AGENDA\2012\10-24-12\Penn Garage Exhaust Relocation RDA RESO.doc 97 I \. WHEREAS, although the City Administration believes that Option 1, involving the relocation of the venting to discharge over the 17 1h Street entrance, is the most viable of the two options (in terms of effectiveness, cost, and expediency,) it is amenable to proceed with Option 2, which is the Tenant's preferred option, which provides for the greatest distance between the New World Symphony and the exhaust discharge, which would be located over the Pennsylvania Avenue exit; and WHEREAS, since the cost estimates to undertake the work are preliminary in nature, the Administration recommends appropriating up to $250,000 to provide the greatest amount of flexibility in negotiating a subsequent agreement with the Tenant to proceed with permitting and construction of the modifications, based on the recommended Option 2. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission of the City of Miami Beach, Florida, approving funding, in an amount not to exceed $250,000 to address the relocation of the kitchen exhaust venting system installed by the Pennsylvania Avenue Garage Retail Tenant, Penn 17, LLC ( d/b/a Cooper Avenue); with funding available from previously appropriated City Center RDA Capital Fund 365; and further, authorizing the Interim Executive Director and Penn 17 LLC, to negotiate and, if successful, execute an agreement to proceed with the re-design, permitting and construction of a kitchen exhaust venting system that discharges away from the service alley located between the New World Symphony Building and the Pennsylvania Avenue Garage. PASSED AND ADOPTED this 24th day of October, 2012. ATTEST: Rafael Granado, Secretary APPROVED AS TO FORM & LANGUAGE & FOR EXEC I N Matti Herrera Bower, Chairperson Date T:\AGENDA\2012\ 1 0-24-12\Penn Garage Exhaust Relocation RDA RESO.doc 98 FOUNDER Ted A rison c:; PRESIDENT & i\ n v v CHIEF EXECUTIVE OFFICER Howard Hernng OFFICERS Neisen 0. Kasd1n, Chair Rose Ellen Greene, Vice Chair Mario de Armas, Treasurer Robert Moss, Secretary BOARD OF TRUSTEES Sari Agatston Sheldon T. Anderson Madeleine Arisen Sarah S. Arisen Matthew W. Buttrick Adam Carlin Bruce E Clinton Casey Cummings Peter). Delara Susan S. Dubm Howard Frank* C. Thomas Greene Bruce W. Greer Harry M. Hersh R1chard M. jacobs Gerald Katcher* R. Kirk Landon Enrique Lerner Rais Helene Lindenfeld Albert R. Molina, Jr. William L. Morrison Sandra R. Muss Patricia M. Papper Peter G. Robbms Jeffrey T Roberts RichardT. Sanz D1ane S Septer Edward Manna Shumsky R1chard Skar Paul H. Stebbins Judy Weiser* Sherwood M. We1ser* )ody Wolfe Richard). Wurtman COUNSEL TO THE BOARD Bruce jay Colan *lnd1cates former Chair n v ::::> New World Symphony Amenca's Orchestral Academy M1chael Tilson Thomas, Artistic Director Kathie G. Brooks, Interim City Manager Jorge Gomez, Assistant City Manager 1700 Convention Center Drive Miami Beach, FL 33139 September 24, 2012 Dear Ms. Brooks and Mr. Gomez, Late on Friday September 21, NWS received the attached letter and plans that were prepared by Anthony Leon outlining various options for the redesign of Cooper Avenue Restaurant's exhaust systems. We greatly appreciate the effort involved to identify all possible solutions. However, we want to make sure that our concerns are correctly and completely addressed. In that regard, the ONLY option NWS will support is #3: taking the exhaust south and terminating it above the vehicle exit on Pennsylvania Avenue. As we learned more about the pros and cons of various options, it became apparent to us that any solution that brings the exhaust to the roof level carries a significant risk of moving the problem from our loading dock and backstage spaces to the roof garden. Therefore, we are opposed to any solution that terminates the exhaust systems on the roof. Option #2 does little to mitigate the proximity of the exhaust to our loading and backstage work areas. NWS strongly urges that neither time nor money be wasted on further developing solutions that will not result in a permanent fix. Option #3 needs the City's fullest attention in order to ensure expeditious approval and installation prior to everyone's deadline of November 1, 2012. 500 17th Street, M1am1 Beach, FL 33139-1862 305.673.3330 Fax 305.673.6749 www.nws.edu 99 NWS also supports Cooper A venue Restaurant's desire to revise its air conditioning system in a similarly expeditious manner, but this approval and work process must not create delays for fixing the exhaust systems. 7C Howard Herring President and Chief Executive Officer New World Symphony, America's Orchestral Academy cc: Shai Benami, Amir Ben-Zion, Kent Bonde, Bruce Clinton, Jose Lamadrid, Anthony Leon, David Phillips Enclosures 100 D~SIGN AA3569 ARCHITECTURE September 21, 2012 City of Miami Beach RE: Cooper Ave Restaurant Exhaust Ducts This letter is a preliminary analysis of the conditions, issues, and proposed solutions for the exhaust redirection. The team involved with determining the possible solutions !listed below are: Anthony Leon, Architect. 3Deslgn, Inc. Rodney FritZ, Hood Design Consultant. Sudhir Gupta, Mechanical/Electrical/Plumbing Engineer. Innovative Engineering, Inc. There are several items that need to be addressed as we review the possibilities of redirecting the multiple exhaust fans. 1/3 First is the redirection of the exhaust fans that point directly to the west facade of the Symphony, which New World Symphony (NWS) describes as their principle facade. This issue has MANY complexlties, which involves not only the redirection of the ductwork, but if relocating to the roof of the parking garage as requested by NWS, the following items must be addressed, just to mention a few things: the relocation and substitution of larger fans, cutting structural precast members, los1ng parking spaces (or creating compact spaces) as we penetrate the floors with a vertical column of ductwork, and the visibility ofthe ductwork chase on the 17th Street or Pennsylvania Ave facade which will certainly trigger planning and zoning issues (NWS is adamantly opposed to the duct work chase being expressed on the exterior of the buiJding on the east side of the parking garage, but equaUy adamantly opposed to the ventilation of such ductwork on the NE comer/rooftop of the parking garage, which, during the winter months and consequently the "season" for the NWS, the northerly winds will project cooking smells to the rooftop garden, frequented with high profile guests and events. However, with onJy 2 available options we've been able to determine wili be possible, this may end up being 1he only alternative, should the other option not be feasible. NWS has been intimately involved with the meetings that the architects and engineers have had on site and walked the entire 4 elevations of the building and all 6 parking levels. in an effort to evaluate which location for the exhaust duct would impact their b'uilding the least. Based on these conversations and anaiysis we have determined that there are only 2 alternatives, neither of which is kno'lm whether or not. without more analysis, are possible. The uncertainty is not due to engineering analysis, but due to restrictions that will be imposed on us by City requirements pertaining to zoning, planning, parking, cost restrictions, etc. OPTION 1. The first of these options, the EASIEST one, is to maintain the existing location of the fans, above the trash room, which by the way, is an ideal location for the fans because it provides a working platform with railings and working clearances for maintenance of the fans. From there, the existino ducts will have to be re-routed back to the west, away from the exterior wan that we are exhausting at currentlv. for aoorox. 15'. The ductwork will then turn 90 deorees to the north. and discharoe directlv above the drivewav entrance on the North side of the oarkina oaraoe. 4300 Biscayne Blvd.#G-04, Miami, FL 33137 1 Phone: 305.438.93771 Fax: 305.438.9379 101 D~SIGN AA3569 ARCHITECTURE 2/3 This solution has been confirmed with the Mechanical Chief, Mr. Quintella, that the exhaust duct is acceptable to be at this location if the height of the exhaust is 1 0' min. above the sidewalk. We can conceal the exhaust duct with a louver which can span the en_tire width of the driveway. -Th-is soiUtJqn~ alth(lugh th~ easi~( may not be acceptable to NwS. __ _ _ _ __ NWS has suggested modifying this concept further by turning the ductwork vertically 90 degrees, rather than exhausting directly above the North entrance of the garage, penetrating the concrete T's, to the second floor. OPTION 2. Once on the second floor, tum again 90degrees to the west between the parking spaces on the second floor and the North wall of the garage, all the way to the Northwest corner of the building, where there is a large open area without any parking spaces, and vent out towards either the north or the west side of the building, through the scrim. This solution may cause a discoloration of the scrim due to the grease exhaust, but can be maintained if cleaned frequently. This solution, perhaps better for NWS, may require larger fans due to the friction caused from so many 90 degree turns and longer runs of ducts. Larger fans, mean more noise. exhausting thru the scrim means more maintenance. Extending the ductwork all the way to the roof, and avoiding discharge through the scrim will ONLY BE ACCEPTABLE to NWS, if it is on the Northwest or Southwest corners of the building. Both of these locations are very difficult to arrive at, given the existing fans and ductwork installation. The second solution, which is apparently possible, but requires a great deal more work, is the relocation and redesign of the fans to be above the driveway which is immediately adjacent to the east of the restaurant, under a high ceiling. This concept, although inferior to being built on a platform because of the need to service them from a ladder, will have the fans hanging from the ceiling structure. This has not yet been confirmed that it is structurally possible. However, a separate structure, not unlike the roof of the trash room, can be designed to support the fans. Then the ductwork can run toward the south, to the entrance of the parking garage In the south west corner of the building. OPTION 3 & OPTION 4. From there, the ductwork and exhaust would be similar to the other solutions, which entail either venting out to the west, 1 0' above the sidewalk, below the scrim, covered with a louver-or going vertical and discharging higher, but thru the scrim --or vertically to the roof top. Another item to review and discuss, is the redirection of the fans which are being used to lower the temperature ofthe ambient air surrounding the compressors which are currently permitted to be on the ramp to the second floor of the parking garage. The lack of circulating air in the area of the compressors has required several exhaust fans to extract the air and project it toward the east, again, to the principle facade of the Symphony. 4300 Biscayne Blvd.#G-04, Miami, FL 33137 1 Phone: 305.438.9377 1 Fax: 305.438.9379 102 D~SIGN AA3569 ARCHITECTURE 3/3 These fans are also quite noisy and near the pedestrian bridge on the 3rd floor which is considered by NWS as the "Main Entrance". This solution is perhaps a bit easier to resolve by moving them to the roof of the parking garage. There is an area that we would request permission to use, on the roof. See the drawings attached. The cost of the best solution will be explored once we know which of the solutions we would be permitted to do I haveatt_a~ched siiv_eral dr:~Wings Whtchalfempfatdescribing graphically, what the situations a:na~salutiOns . - are. In conjunction with these solutions that we are proposing, perhaps some methods of controlling the situation on the side of NWS may be implemented, albeit temporary, to alleviate the negative impact the exhaust may have for the immediate future, while the design solutions get drawn, permitted, installed and inspected. Some possible quick fiX solutions include: 1-air curtains at the doors in the loading area. NWS has commented that this solution would create noise and/or reverberation during a performance, but perhaps used only during loading, to prevent odors from entering the hall prior to perfonnances. 2-an additional barrier, perhaps a heavy drapery or plastic of sorts, which can create a barrier around the loading area while loading dock doors are open. 3-If in fact, cooking odors are penetrating the loading dock overhead door even when the door is closed, an insulated door will prevent this as the non-insulated door is not air tight. 4-With the help of an HVAC Consultant, determine if there is some negative pressure from the interior of the loading area, which there may be, which has an effeci: of suctioning the outside air into the loading area. In my professional opinion, these short term solutions will help keep the odors to a minimum while a permanent solution is implemented. If there are any questions or comments, or need for further discussion, please do not hesitate to contact me. My information is listed below and I can coordinate between the mechanical and hood exhaust engineer as needed. Anth? y Leon, Architect Pres1aent I 3Design, Inc. 4300 Biscayne Blvd. Suite#G-04 Miami, FL 33137 t.305.438.9377/78 f.305.438.9379 c.305.582.1026 4300 Biscayne Blvd.#G~04, Miami, FL 331371 Phone: 305.438.93771 Fax: 305.438.9379 103 ~:0: ~. ; ' f - f ' T , . ' I ' __ , I,J -·~·v:->1·1 i" . !r', -0 r · . " R l ' , L O C A T E B A H U C O M P R E S S O R S - - , · f". . ' '. l i N G R O U N D E I J J O R · T O S E G G N D - - ~ ~ - ) /~-·-., - - ~ t ~ R R A ~ ~ T O R O O F S E E R O ~ F _ / , ~ /~ ... / , ~ - . - : : - - - - : : ~ - = - . -1f,:· .' ,' .,.,._J --- ) : , . - - - ~ . . - · I .. : 11 I f,~-·~::~~rr-·'ft--i . I =' II I 4;:.----~ --. -·1r-:--=..,.,-l __,._...,-_,__.,.._::;,.c:-i2'S'Si50-~W R E M O V E - D U c T W O R K A N D - - - < ' ! F A N S I N G R O U N D F L O O ~ J R · ~ ~ S E C O N D F L O O R R A M P f ' = - - " . : . : : . : - " ' - ; : . . . : - - I ~ - . - : . I ~! I I ' i · · · · ~ - · - · . P E N N S Y L V A N I A A V E N U E i - 6 X I 8 T I N G D Y G T W J , R K A N D F A N S T ' ~ G R O U N I J F L O O R P L A N ~ H O T T O S C A L E ! , ~ ' - , . ! ' ~ , . . . . l ' l , D : z : ~ ~ " t c l ~ E 0 : : : r - - . . z : M c s ~ ~ ~ ~ p ~ ~ i S ~ ~ f f i ~ ~ : : : ~ C i S ~ ~ . q - 0 " " " " -· -~--,..,.-.-~~·-::.. . - - = - : . - . o - - - = - . . : - . < O - : , - _ , . _ . . , . - - - - = - - - , - = = = - - = . . - . . . o - - - - = - - , E X H A U S T T E R M I N A T I O N ,~ - O P T I O N 4 . - - - ; L O C A T I O N ~.:::.~~~]~~~~~-~---~-~:~~~~:·:~-- ~ ; ; , C ~ ~ ~ ~ ~ ~ : : ~ . : ~ ~ - ~ ~ ~ - - - ~ ~ : ~ ~ ~ ~ : : : : c . ~ · ~ · · · - - - : T ~ - - - - 1 I ,- ' , I I ~~' : / ~ - ' I I ·::_-:,~.r.·l~I-=:~;;:=.J=1:: : ~ ~ ] - = - ~ - _ : · ~ - ~ ~ ~ ! . ~ . j • . .-~1~' j ,j ~ ; ~~'·l :l•i - ~-. fn·· I -_, J 1 ' f <.:;' ' !._:r"\'~· -'<z~>· \I ' '~ '-, " '·' \_ I . O P T I O I ' l : 4 - " ' E X H A U S T L O C A T I O N P A R K I N G S P A C E S Q N 2 N D T O 6 T H F L O O R T O B E C O M P A C T . :-·111---·~----·\ . -: I /'-.., ' I !'::.·. I . h I: ' . . 1:..c . _ . .. C\ 1 , . . . . . ~ ~ - , . . --~ ,, ... ._~~-"("--.;---;-,. --l '-' : ~ f :]1 rs:~--~ .. l ~I 1 · : ~ 1 dl" t- . , ' ~ l :~)! ... ...... ~ ~ ' ~ . ' ... - ~ 1' t! --~······· l i ~ c . ~ - i l I l E X I S T I N G S I D E W A L K P E N N S Y L V A N I A A V E N U E - - - - - - - - - - - - - - - - - - b . . · . } [ . . I · L l " ~ " r : r · ; E X I S T I N G S I X S T O R Y S T R U C T U R E # 1 6 6 1 R O O F L E V E L / 6 T H F L O O R G A R A G E L E V E L I ' I , • • • - l : > ( ; : . . : : J . . , ~ : i f l - r · - ~ - - - - - - - : . . . . . . . . . . . . . , . , . l L ~ · · I I · _ · \ ' ' I I . J r _ l r O ~ T I ~ N ; : ~ ; : ' ! " . . · . . . . . . . - - ~ : · c : . ~ ~ · - < , 1 _ _ _ j _ ~ ~ ~ ~ ~ T E ~ I I t T I O N I " ' · : : ' ' ' I I ' I ' . ' - ~ l i 1 , . _ . I I i I ' ' I I l ' I 1 ' . , ' . 0 . . , I I I , . . . . . . . . . . . . . J l . , \ ' R E L O C A T E D A H U C O M P R E S S O R S _ / ~ ~ ~ j ' ' : J - - ~ O P T I O N 2 . . . . - I ' ! I I ! S E C O N D F L O O R P A R K I N G S P O T S T O i ' 1 ( · " - · " . f - - l B E C O N V E R T E D T O C O M P A C T S P A C E S I j l ' i . . ! - : ' I J . , i I i - - ~ ~ r - ~ T ' . . . . . . . . I ' f - . r . . ' · - . . . - • 1 I i ! i I w I ' 1 , I I 0 ' I I L W : i [ ; 1 : I - t ! . ~ l - < ' > · · · L . ' ~ I . ' ~ ' 1 · 1 ~ · ~ ; - ~ · ~ < · - _ : ~ ~ ~ ~ ~ ~ I " ! I ' ~ : \ J . i t - , r I ~ - - . . . . . . . . ~ ' < . ' - I i l ; ~ , i j B E ' I W E E N - s i : 9 • I I " . . . . _ , ' ! 1 1 . . , , " · . . . - + - - 1 ' - ; . - . " " " ' - ' t w l J ! l i J t l \ l P A J V i \ ' E T , . . . : r - ~ - - r : l J E L < . : A r ! ' 1 · - · - - " . . J - l . ! ' L k ' I , . ' ~ ' t ; < ! ' § f . . ' i ' ~ " J Q . . . ; I · < : o : _ · " ' " " ' ' ' I i L U C A ' J \ O N 0 S G O N D , s _ ~ : : . : ~ ~ : ' - J f . [ F 0 ~ P ~ N • , I O N ~ " ' ' : · · - r r · - · - - - ~ ~ 1 J ~ c E L ~ Y A ~ m l . 1 . . . . . I -~:-~~ 1 . : ~ I · J r l r - - r ] ~ ~Ll~~~c, ~--~=J ~,, J ~ ~ ~ ~ c ~ ~ ' · = = = = · · · · · = . . c ! ~ ~ ~ = ~ ~ = · . , - - , = = J ~ . t . , . = = = . . . L - . . - . J L . J ~ . . c , ' . c J • h J = c • · : . L . . . . . L . - . ~ - • = · = I · " ~ ~ - · ' ; ! u ! r . ' I ~ I I f l ! J i 1 1 ' 1 ' 1 1 l I I l . r · - · · " ' J i ' : I I 0 r ' I I i r r - - r / < ! . L _ _ _ _ _ _ . J P c ~ = J L . . . J ~ = ~ ~ f ~ ~ J , f ; ; · · · r·;· §"~~r RELOCATED AHU COM P R E S S O R S R O O F P L A N ~ } H O T T O S C A L f • - M I I O J i i ~ ~ § ~ ~ ~ · ~ ~ E : ! , . w : ! : 0 : ~ ~ 2 - ~ G ~ ~ ~ ~ 5 ; d s 0 : o • < ( 0 ~ ~ . D Q ~ t : : ; - < ( ! ' ; ~ , . . . , . : : : : : ! ; ~ 0 ~ ~ ~ ~ ~ ~ ~ 5 t n U J Z : i 5 = > o . m " ' - < ( 0 . . ~ ~ ~ ; ; ; ~ ~ ~ ' : i - ' " : ; : ; : - - S K - 2 R O O F P I A N I I ) 0 " " ' " · . · . ~ ~ i t ' ! h i · ~ ~ · , , · _ . ; , . . H f , r . · . t • z . ' ! a J I ~ I ; I i d ~ ! I ' ' H ~ U • f " ' · . . . . . . ' ' . ' . ' • 1 ' ' ' ' " . . i l , h ' ~ I • • < > . lt' ........ -.. .... ' l l l i l ' l . . . : : ' ' I m d . . , , t i i ~ l l ! i h m i / • H I ~ > . 1 • . _ _ , j . . , , , · ' • ; : ' . ' . 1 ''"I' ., ~~~~ , , . l L • ~ . ~ ~ . , • • • i · • · , , _ . . . . . . . . . l 11: A j.,, A~.,, i .i ~It 't. I. I I • j O P T I O N 4 E x H i \ i J S T i ' E R M I N A T I O N P O I N T B E H I N D P A R A P E T - . } . . _ ; ' I , ; \ , I . , I , ; · \ L . . . L . . . . . . . . . . . . . . . . . . . . . . . . . _ , . . - - · i - - - • • : • . : l . . : . . , . . ' _., .>,~' ~·llot\ i ' l lli!;;~ . : t . : r : ; , ; : : ' : : : , ' • . ; . " : · . i " ' . · : . . . ~ f . , : ; t · : ~ l t " : " " ' · · · : · · i : ~ _ ~ : ~ ~ c ' ' ~ " ~ - " " ' ~ . J ~ , : · ~ o . . . , - = : ~ " - ~ : _ : " _ " ; · · · o i < i ' . : : ~ · i ; ' "--:. .. · · · . , . , _ . , . , " ' - : ~ ' i ' ~ ; ' f : . " . - t k ~ ; ~ - , · : , : : ; ' } £ ; ~ " ' ' ' / . < ' i ' l i ! ' . : ' t h l 3 : l \ ' ~ ~ - ~ ' : .. - -·: P ~ ~ ~ ; : ~ , = ~ : : ~ ~ : : ' - - ; J ; ~ ~ : ; ; ; : J ! ~ . ~ ~ : ; ; i ; ' . , ; , . ~ , : ; ~ ; ; ~ ~ ~ ~ i - : ~ ; . , . i : ' ~ - ~ ~ ~ ~ ~ ~ ~ ~ ~ - ~ _ . i " ' ! . % ~ f ~ ~ ~ : i r - : . : . . I : > ~ ~ l · ' = ; : - ~ ~ ; l l ' ~ ; : ; . " i i : : i : · . ~ ~ t ~ ~ , : : ; : ~ ; ~ ~ ~ f ' l ~ ~ " " - . : : ; - ; ; : - o . ' : " ~ j ; l ! < : , ¥ Y : 1 - ~ J ····""'· ·-,---· · -~ J ~ ~ ~ ~ ~ ~ ~ ~ ? t ' ~ f ~ ~ ~ . : . ~ ~ ~ ~ ~ i f f ; : ~ J ~ ~ : < ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ " l ~ £ @ ' ~ ~ ~ = _ ; ; ~ l ~ ~ ~ J o " E < Y i : " ; ; _ ~ i i i : ' ~ ~ ~ ; ~ , ~ ~ ~ ~ ~ t " 1 ~ ~ ~ i ' 1 1 I ' 1 ' ==:_:_ ~ ~ ~ , ! '!·;;:-"::.-..------··f· f-; - t ; - · . . . : j : · f · · - l - . , . ' " T - · i · ~ : · · l ' ' " . - - j ~ - i - r - - - · · - + . , . , , . . . . . J H - r - - · - - · · . . l · · . . · : c , 1 . . . : - - - - . . . , i . . 1 . ! . . + · · · • . . . . f . , . , . " " ! . . . . . . - - · r · - . . ; , " • . - + ' " " " - - - - - - : . . t - ~ · · ~ .._, . . 1" , i , 1 ~ ; , ! ' 1 , I , [ , 1 , 1 1 . , 1 c < ! ' ~ l ! • ' l • • [ • ; i ! . 1 a 4 : , I t 1 , : , J , j , ! , 1 , ' i i J \ , u , . l . 1 · , · , · 1 ~)'rl~rtl"tf"--_2.~~,:~~ J~'-I J. ~ t . J . . . . , . J _ L , ~ J • • n ~ - ~ L ~ t ~ ~ ~ J - L ~ t ~ _ L , . . . . i ~ . L ~ : , _ • • ~ w ~ ~ - ~ ~ ~ ~ ~ ~ • • L L . . l . , . . . _ . * ~ ~ u • ~ L . . ~ ~ ~ ~ - ~ , 1 J , ~ ~ . ! - L t L , ~ ' • • • • • • • ; + t ; - ' r ~ - - - - - - - - . - - - - - - - ; ~ - r : . y · - , r l f . U . \ 1 . 1 l j j - ~ 4 4 I W E S T E L E V A T I O N N c f f l o ~ - : ! ~ ~ - : . : : : : - : - · : : : : : - · - l ' ~ m m = = - i l i l i l = ! u · ~ - - ~ ~ ! ! l i ~ ~ ~ ~ - ~ - ~ : ~ - · i ~ ' ~ ~ ' " ~ _ _ _ _ _ _ _ . . - · - · - - · - · - · - ~ t - - · · - - - - - - ~ ~ l ~ 2 2 . . ~ - t : E . ~ i ~ - - = ~ - - - ~ ~ ~ 1 ~ 1 ¥ ! 1 ~ ~ - . , l f . 1 t h t - - - y t W : : v t - - ; ~ r ~ h r - ; . . ~ ; . ~ ~ - - + • 7 ! 1 : . ~ ~ ' ( S ~ - - - - - - O P T I O N 1 P O S S I B l E E X H A U S T I . O C A T I O N . l O U V E R S T O M A T C H E X I S T I N G . N O R T H E L E V A T I O N - - t i i 5 T f O " ' S C A L - E - ~ O P T I O N 2 H O R I Z O N T A L E X H A U S T D U C T B E H I N D P A R A P E T O P T I O N 3 P O S S I B l E E X H A U S T l O C A T I O N . L O U V E R S T O M A T C H E X I S T I N G O P T I O N 2 E X H A U S T T E R M I N A T I O N P O I N T B E H I N D P A R A P E T - - - · - - l f , ~ . j l O P T I O N 2 V E R T I C A l E X H A U S T D U C T M A Y B E V I S I B L E T H R U S C R I M ~ ~ - I l l ~ ~ ~ I i I l l ~ = ~ ~ : ~ ~ . . ~ ~ ~ I 1 : - ~ ~ ~ i ~ D z ~ ~ 0 ' ~ r - - - . ~ g 1 5 ~ ~ . r ~ ~ Z ~ : i ' I - a s ~ ~ ~ a . . a : J m : 2 ~ ~ Q ~ ~ ~ i : b l i = t ~ : - - ~ ( Q 0 " " " "