Boys & Girls Clubs of Miami Dade, Inc.~oo~'- a693 ~
AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
BOYS AND GIRLS CLUBS OF MIAMI-DADE, INC.
FOR THE MANAGEMENT AND OPERATION
OF A BOYS AND GIRLS CLUB IN FLAMINGO PARK
THIS AGREEMENT, is made and executed as of this ~ day of ~J2008, by and
between the CITY OF MIAMI BEACH, a municipal corporation organized and existing under the
laws of the State of Florida (the "City"), and BOYS AND GIRLS CLUBS OFMIAMI-DADE, INC.,
a Florida not-for-profit corporation, whose principal office is located at 2805 SW 32 Avenue, Miami,
FL 33133 ("BGCM-D").
WITNESSETH
RECITALS:
WHEREAS, the City is the owner of that certain building located in Flamingo Park, and as
more specifically delineated in the sketch attached and incorporated as Exhibit "A" hereto
(hereinafter referred to as the Premises or the Club); and
WHEREAS, the City and BGCM-D are currently parties to a Lease Agreement for the
Premises, dated August 1, 2006, with an initial term of three (3) years, ending on July 31, 2009, and
two (2) additional three (3) year renewal terms (the Lease); and
WHEREAS, the Lease provides that the Premises be used by BGCM-D as a public
recreation center for the purpose of providing children with after school summer programs including,
without limitation, sports, arts and computer education; and
WHEREAS, BGCM-D is currently using the Premises for the aforestated purpose through
operation of a Boys and Girls Club thereon; and
WHEREAS, the BGCM-D wishes to continue to operate a Boys and Girls Club at the
Premises, to not only continue providing the aforestated children's programming, but also for the
development of future programs as well; and
WHEREAS, the City recognizes that BGCM-D is a Florida not for profit corporation with a
proven track record in providing children's clubs and services and, given BGCM-D's expertise and
skills in this area, wishes to continue to have BGCM-D providing the aforestated children's
programming (as well as development of new programs in the future) on the Premises; and
WHEREAS, the City and BGCM-D have also had recent discussions with regard to BGCM-
D's proposed improvements to the Premises, which would include demolishing the existing
building/structure, and designing, developing, and constructing a new, larger improved building in its
place; and
WHEREAS, the City is desirous of improving the Premises but does not have available
funding to do so; and
WHEREAS, rather than independently seek out and purchase a new building on its own,
BGCM-D has proposed a "partnership of resources" with the City, and is ready, willing and able to
contribute substantial financial resources toward the design, development and construction of a new
building (on the site of the current Premises); and
WHEREAS, the design and construction of the new facility would be funded and undertaken
by BGCM-D, at its sole cost and responsibility and, once completed, would be owned by the City,
but operated by BGCM-D under the following management agreement (the Agreement); and
WHEREAS, as the Flamingo Park community has been identified as an area in high need
and low supply of children's programming and has, through a community concensus process,
identified the creation of an improved, expanded Boys and Girls Club facility as a top priority, the
City is supportive of the BGCM-D's offer to use its funding (which will consist of monies raised
from private donations, grant resources, and other funding sources that the BGCM-D is uniquely
qualified and/or positioned to apply for and receive) toward the design, development, and
construction of the new building; and
WHEREAS, the City is desirous that BGCM-D play a primary role in the operation and
management of the proposed Club; and
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WHEREAS it is vital that BGCM-D (and the City) demonstrate along-term commitment
toward the parties' intended use and programming of the Premises as a comprehensive club; to that
end, BGCM-D has requested, and the City has deemed it in the best interest of the public,
particularly the City's children population, that the Agreement have as long a term as possible; and
WHEREAS, the City would recommend that, in order to effectuate this long term
partnership, the parties terminate the existing Lease and, in its place, that the City and BGCM-D
approve and execute the following Agreement (whereby BGCM-D would design, develop and
construct a new building on the site of the current Premises; the City would continue to own the
Premises; and the Premises would be managed, operated, and maintained by BGCM-D, at its sole
cost and expense (and as provided hereunder), as a public children's recreational center (i.e. a Miami
Beach Boys and Girls Club); and
WHEREAS, the Agreement set forth herein is consistent with other similar partnerships that
the City has undertaken with not for profit entities for long-term management and operation of City
facilities (by said agencies) for public recreational purposes.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, it is agreed by the parties hereto as follows:
SECTION 1.
The City hereby grants to BGCM-D, and BGCM-D hereby accepts from the City, this
Agreement for the exclusive use (except for use by the City as set forth herein) management,
coordination, operation and maintenance of the Premises (as more fully described and delineated in
the sketch attached hereto and incorporated herein as Exhibit "A"), in conformance with the
purposes and for the period stated herein, and subj ect to all the terms and conditions herein contained
and fairly implied by the terms hereinafter set forth.
SECTION 2. TERM.
This Agreement shall be for an initial term of thirty (30) years, commencing on the I~day
,¢~ sk -
of 1~, 08, and ending on the31 day~C4°'~;"'2038. Upon the commencement of this
Agreement, the Lease shall automatically terminate without the need of any further action by the
parties thereto.
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At the expiration of the initial term herein, and provided that (i) BGCM-D is in good standing
and free from default hereunder, and (ii) BGCM-D continues to operate, manage and maintain the
Premises in accordance with the terms of this Agreement including, without limitation, in accordance
with the approved uses (as hereinafter defined) and for the stated purposes herein, this Agreement
shall be automatically renewed for a maximum of two (2) additional ten (10) year terms, under all of
the terms and conditions contained herein.
In the event that BGCM-D determines not to renew the Agreement, it shall notify the City of
same, in writing, no less than one (1) year prior to the end of the initial term, or a renewal term, as
the case maybe.
SECTION 3. PREMISES.
The Premises subject to this Agreement shall be those facilities and spaces at the location
within Flamingo Park, all as more specifically described in Exhibit "A", attached and incorporated
herein. The parties acknowledge and agree that, following completion of the Proposed Improvements
(as defined in Section 9.7 hereof), the new building/facility, and all improvements and fixtures
thereon, shall be the sole and exclusive .property of the City and shall be defined and referred to
herein, as the "Premises".)
Subj ect to the terms of this Agreement, BGCM-D shall have the primary use and occupation
of the Premises and shall be responsible for its management, operation, programming, and
maintenance.
BGCM-D warrants and represents that it hereby agrees to accept the Premises in their "as is"
condition, without any representation(s) or warranty(ies) of any kind or nature whatsoever by City,
whether as to their condition or as to the use or occupancy which may be made thereof.
SECTION 4. GOALS AND PRIORITIES/APPROVED USES.
4.1 Goals and Priorities.
4.1.1 The dramatic change in the Miami Beach population has created new demands on the
City's services. The change in population has resulted in more children in schools and an increased
need for after-school care. Parks and recreational facilities have been designated ahigh-priority in
the City of Miami Beach Consolidated Plan. There is a need to continue to provide local youth with
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a facility where they can continue to improve academically, and have a safe and structured place to
play every school day and throughout the summer as well.
4.1.2 BGCM-D South Beach Club has been in existence for the past eighteen (18) years at
Flamingo Park, (most recently, BGCM-D has leased the Premises for the operation of a Boys and
Girls Club facility, primarily serving the South Beach area, pursuant to the Lease referenced in the
Recitals section of this Agreement). This Club is an established entity, well known by all the
surrounding neighborhood areas. The Club, in collaboration with the City of Miami Beach Parks
Department, is a testimony to the productive collaboration and cost effectiveness of pooling
resources to provide first-rate programs to the low income, at-risk youth in the area.
4.1.3 The primary mission of BGCM-D is to assure and enhance the quality of life for
youth as participating members of a richly diverse urban society. With special concern for the
disadvantaged, BGCM-D helps youth to help themselves realize their potential for growth and
development. Basing the Club's programs on member and community involvement, BGCM-D is
aware of the influences of the total environment, and so provides youth with diversified individual
care and the skills necessary for them to grow into contributing members of society. Therefore, to
accomplish BGCM-D's mission, both nationally and locally, it must provide services, based on
principles of behavioral guidance, which will achieve the health, social, educational, vocational,
character and leadership development of its members. BGCM-D provides programs to take children
off the streets and into productive programs such as after-school care, academic improvement and
homework assistance, computer lab, recreational activities such as arts and crafts and dance, and
organized league sports such as basketball, baseball, softball and volleyball.
4.1.4 The new facility, which BGCM-D proposes to design, develop and construct for the
City on the site of the existing Premises (and, thereafter, operate, manage and maintain same
pursuant to the terms and conditions of this Agreement), would enable the Club members to be more
successful in school and be a part of a vibrant change in the City's expanding landscape. Children
would have more time to take online practice exams (such as the FCAT), have instructors review
homework or study assignments and continue to use new computers to hone developing skills. Youth
would also have more time to partake in improved physical fitness and athletic competitions. This
would help combat the growing national problem of childhood obesity. Sports programs are offered
on a year-round basis in order to keep the children occupied as long as possible in a healthy, safe,
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productive, and enjoyable environment. It is anticipated that the children participating in the Club's
programs improve both physically and socially. They become physically fit and develop skills
associated with team play and camaraderie. The Club anticipates school grades and attendance to
improve as a result of participation in this program. Frustration and anger can result in negative
behaviors including violent crime, gang activity, and drug use. The Club's sports programs provide a
positive channel for children to vent their frustrations and anger, thus simultaneously eliminating the
possibilities of negative behavior.
4.1.5 The Club will primarily serve children from Census Tracts 40.00-45.00 (Census Tract
43.00-site of activity). The average percentage of low/moderate income reveals 61 % in these areas.
The three major contiguous areas served by the Club's program (42.00, 44.00 & 45.00) reveal an
average of 55.5% oflow/moderate income families. The program is available to all Miami Beach
youth, ages 5-16. No child is turned away because of financial difficulties. It is expected that the
Club will be able to serve an additional 75 children yearly in addition to the 300 children it currently
serves in its year round, after-school, academic, athletic and recreational programs, and summer
program.
4.2 Approved Uses.
4.2.1 The parties hereto have determined that it in is in the City's best interest to bring
together the City's resources, together with BGCM-D's (i) proven track record in operating
programs for children; (ii) financial resources which it has agreed to commit toward the design,
development and construction of a new building/facility on the Premises; and (iii) commitment to
manage, operate and maintain the Premises, at its sole cost and expense.
4.2.2 The Club shall be designed, developed and constructed (and thereafter managed,
operated, and maintained) as amulti-purpose recreational facility, centered on the provision of
services and programs, and the improvement of the quality of life, for children.
The Premises are intended to include the following programs, services, activities, and uses:
• Provide quality after school academic, athletic and recreational programs in a
supervised environment that include homework assistance, computer training, sports, recreation,
cultural arts, career mentoring, and social skills.
• Provide Teacher Work Day programs.
• Provide Spring Break Camp, Winter Break Camp, and Summer Camp
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(hereinafter, all such City approved programs, activities, services, and uses by BGCM-D of the
Premises, shall be collectively referred herein to as the "uses" and/or the "approved uses").
4.2.3 In the event that BGCM-D seeks to use the Premises for additional programs,
services, activities, and uses which are materially different than the approved uses (as enumerated in
Section 4.2.2), then each such proposed new program, service, activity and use shall be subject to the
prior written approval of the City Manager, which approval shall not be unreasonably withheld or
delayed, and provided such proposed program, service, activity and/or use is for a public purpose and
is consistent with the approved uses herein. In the event of approval by the City Manager, all such
new program(s), service(s), activity(ies), and use(s) shall be memorialized by written amendment to
this Agreement.
4.2.4 Notwithstanding Section 4.2.3, BGCM-D shall not be required to obtain the City
Manager's prior written consent if a proposed new program, service, activity, or use is reasonably
related to the approved uses set forth herein. For purposes of this Section 4, the term "reasonably
related" shall refer to a proposed new use that, in the reasonable judgment and discretion of the City
Manager, does not represent either a substantive change in the approved uses, or does not represent a
material programmatic change in said approved uses.
4.2.5 The Premises shall beused byBGCM-D solely and exclusively for the uses set forth in
this Section 4(or such other uses as may be approved by the City), and such other uses that are
reasonably related thereto. It is understood and agreed that the Premises shall beused byBGCM-D
during the entire term of this Agreement only for the purposes and/or uses described in (and/or
otherwise approved pursuant to) this Section 4, or reasonably related thereto, and for no other
purposes or uses whatsoever. In the event that BGCM-D uses the Premises for any purpose(s) and/or
use(s) not expressly permitted in (or reasonably related to) this Section 4, such use(s) shall be
considered a default under this Agreement, and the City shall be entitled to all remedies, including
termination of this Agreement, as set forth in Section 27 hereof. In addition, notwithstanding any
other terms of this Agreement,. the City shall be entitled to seek immediate relief, whether at law or
equity, to restrain such improper use(s).
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SECTION 5. OPERATION AND MANAGEMENT OF THE PREMISES.
5.1 Subject to the approved uses in Section 4 (as same may be amended from time to
time), and any and all other terms, limitations and required approvals contained in this Agreement,
BGCM-D is authorized and required, and shall have the exclusive right to:
a. Manage and operate the Premises, and BGCM-D's activities, services, and
programs thereon, for the purpose of coordinating, implementing, and
supervising all approved uses;
b. Maintain and provide for the day-to-day maintenance and housekeeping of
the Premises;
c. Supervise and direct all BGCM-D and/or Club employees, officers, agents,
contractors, invitees, visitors, and guests on the Premises;
d. Maintain and supervise detailed, accurate and complete financial and other
records of all its activities under this Agreement in accordance with generally
accepted accounting principles. All financial records maintained pursuant to
this Agreement shall be retained by BGCM-D as long as such records are
required to be retained pursuant to Florida Public Records Law, and shall be
made available upon reasonable notice by the City;
f. 1NTENTIONALLY OMITTED;
g. Develop and implement programs and activities which support and promote
the goals and priorities and approved uses (as set forth in Section 4, as same
may be amended from time to time); and
h. Coordinate and cooperate with the City for public use of the Premises by the
City, as set forth in Section 10.2 hereof, which coordination and cooperation
shall not be unreasonably withheld or delayed, and provided that such City
use(s) does not materially interfere with the operations of the Club by
BGCM-D. Such public use of the Premises by the City shall be conducted
pursuant to policies and procedures, which shall be established and mutually
agreed upon byBGCM-D and the City, within six (6) months of execution of
this Agreement by the parties hereto.
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5.2. The parties agree and acknowledge that, in furtherance of, and consistent with, the
goals and priorities and approved uses, BGCM-D and the City may agree to mutually coordinate,
sponsor and provide certain additional recreation and leisure activities and/or programs on the
Premises. As to the City, such activities and/or programs shall be coordinated through its Parks and
Recreation Department. The City and BGCM-D shall mutually agree upon and approve any such
activities and/or programs in advance of their implementation; the programsand/or activities must be
consistent with the operation of a Boys and Girls Club;. and may not materially interfere with the
operations of the Club. Subject to the preceding criteria, BGCM-D and the City hereby agree to use
best efforts in mutually determining and agreeing upon the time, place, and manner in the
coordination of such activities and/or programs within the Premises, and further agree that each party
will be responsible for its respective costs associated with the provision of said activities and/or
programs.
5.3 Hours of Operation. The City and BGCM-D herein agree that normal hours of
operation for the Club shall be from 12:00 PM to 8:00 PM, Monday through Fridays during school
days, and 7:30 AM to 6:30 PM during teacher work days, school breaks, and summer. The Miami-
Dade County Public School calendar will be followed. The parties recognize and acknowledge that,
under certain circumstances (i.e. special events, special programming, etc.), BGCM-D may be
permitted to extend its hours of operation, but any prolonged extension shall be subject to the prior
written consent of the City Manager (which consent shall not be unreasonably withheld or delayed).
Additionally, in no event shall the Clubs hours of operation be shortened without the prior written
consent of the City Manager (which consent shall not be unreasonably withheld or delayed).
SECTION 6. REVENUE FROM CLUB RELATED ACTIVITIES/FINANCIAL
RECORDS AND REPORTS.
6.1 Revenue from Club Related Activities. The City herein acknowledges that BGCM-
D may derive additional revenues from a portion of the approved uses it conducts on the Premises
(such revenue generating uses may include, from time to time, special events on the Premises,
specialty sales, classes, lectures, and sale of food and beverages). BGCM-D herein acknowledges
that any and all revenue generating uses conducted on the Premises must be directly related to,
consistent with, or used to help fund BGCM-D's management, operation, and maintenance of the
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Premises and, in the event that annual revenue(s) pertaining to the Club exceed expenses during a
particular budget year, (in accordance with prof ected annual operating budget submitted by the Club
to the City pursuant to Section 7 hereof), the City and BGCM-D agree that such excess revenue, if
any, shall first be applied to offset any of the capital improvements and/or infrastructure maintenance
costs (as set forth in Section 9.1), and may, thereafter, be applied by BGCM-D to support other
programming of BGCM-D. Any revenue generating uses conducted on the Premises that are not
consistent with the approved uses in Section 4, or consistent with this Section 6.1, shall first be
approved, in writing, by the City Manager (prior to commencement of same).
6.2 Financial Records and Reports. BGCM-D shall maintain on the Premises, or at the
location set forth in the Notices section of this Agreement, or at such other place within Miami Dade
County, Florida, true, accurate, and complete records and accounts of all receipts and expenses for
any and all uses, services, programs, events, and activities (including, without limitation all revenue
generating uses) being conducted on the Premises, and shall give the City Manager, or his authorized
representative, access during reasonable business hours to examine and audit such records and
accounts.
Throughout the term of this Agreement, and no later than one hundred and twenty (120) days
following the closing of BGCM-D's fiscal year (June 1St -May 31st), BGCM-D shall provide the
City Manager with an annual report of all uses, services, programs, events and activities (including,
without limitation, all revenue generating uses) conducted upon the Premises for the prior year,
along with audited financial statements. Said statements shall be certified as true, accurate and
complete by BGCM-D and by its certified public accountant.
SECTION 7. BUDGET AND FUNDING FOR THE CLUB.
7.1 Throughout the Term of this Agreement, BGCM-D shall prepare and present, by May
15th of each year, a proposed, detailed line item annual operating budget for the Club for the period
from the next June 1St to May 30th, for review by the City Manager. Said budget shall include a
projected income and expense statement; projected year end balance sheet; statement of projected
income sources; and application of funds. Additionally, the budget shall also include, without
limitation, the following detailed projections:
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a. Gross revenues by categories from all revenue sources and revenue
generating uses derived on the Premises;
b. Operating expenses for the Club;
c. Administrative, labor and general expenses;
d. Marketing, advertising and promotion expenses;
e. Utility costs;
f. Regular repairs and maintenance costs, and costs related to capital
improvements and infrastructure (to the extent such costs are the
responsibility of BGCM-D, as provided in Section 9.1 hereof); and
g. In addition to subsection (f) above, BGCM-D shall identify for the City, such
long term capital repairs and maintenance of facility infrastructure ((subject
to BGCM-D and the City's respective obligations as to same, in accordance
with Section 9.1 hereof). In conjunction with this subsection (g), BGCM-D
agrees to allow the City and/or its authorized representative(s) access to the
Premises, as the City Manager may deem necessary, in his reasonable
judgment and discretion and upon at least 24 hours prior notice (written or
verbal), for the purpose of the City conducting its own facility assessment.
7.2 Programmatic Plan. Accompanying BGCM-D's proposed annual budget shall be
the Club's programmatic plan for the Club's upcoming fiscal year, detailing the then-known
(planned) uses, services, activities, events, programs, and operations, and the number of users
anticipated.
SECTION 8. [INTENTIONALLY DELETED]
SECTION 9. MAINTENANCE, REPAIRS, AND ALTERATIONS.
9.1 General Maintenance and Repair. Throughout the Term of the Agreement,
BGCM-D shall maintain the interior of the Premises, and every part thereof, in good condition,
including the plumbing, doors, and windows, and will not suffer or permit any strip or waste of the
Premises. Except as expressly provided in this Agreement, it is understood by the parties hereto that,
for the first ten (10) years of the Term, BGCM-D shall be responsible, and required to pay for, any
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costs related to capital improvements or infrastructure for the Premises (i.e. including, without
limitation, roof, structural elements and infrastructure, HVAC, plumbing and sewer lines, major
electrical, etc.). After the first ten (10) years of the Term (i.e. commencing upon the 11 ~' year of the
Term), such costs related to capital improvements or infrastructure shall be paid fifty percent (50%)
by BGCM-D, and fifty percent (50%) by the City (i.e. shared equally by the parties).
Notwithstanding the preceding paragraph, during the Term hereof, BGCM-D shall provide
the City with prompt notice of needed capital and/or infrastructure repairs and/or maintenance, and
the City and BGCM-D shall coordinate in good faith when to commence such repairs and/or
maintenance.
9.2 Day to Day Maintenance.
BGCM-D shall, at its sole cost and expense, and to the reasonable satisfaction of the
City, keep, maintain, and repair the Premises, and all improvements, fixtures, and equipment
thereon, in good, clean, and sanitary order(subject to any proportionate responsibility and/or
obligation of the City as to capital improvements or infrastructure as provided in Section 9.1 hereof) .
BGCM-D assumes sole responsibility and expense for day to day housekeeping,
janitorial services, and routine maintenance of the interior of the Premises, and all improvements,
fixtures, and equipment thereon. This shall include, without limitation, daily removal of litter,
garbage and debris generated by BGCM-D's use of the Premises, including all garbage disposal
generated by its operations and activities.
9.3 AdditionalImprovements/Alterations.
In the event that BGCM-D desires or deems it appropriate to make alterations,
additions, or improvements to the Premises (other than the Proposed Improvements contemplated in
Section 9.7), it will submit plans for same to the City, for the prior written approval of the City
Manager. No such alterations, improvements, or additions shall be made without the express written
approval of the City Manager and, if approved, shall be made at BGCM-D's sole cost and expense,
and shall become the property of the City upon completion of same. BGCM-D shall not have the
right to create or permit the creation of any lien attaching to the City's interest in the Premises as a
result of any such alterations, improvements, or additions.
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9.4 Labor/Personnel/Materials/Eguipment/Furnishings.
BGCM-D must provide and maintain, at its sole cost and expense, all labor,
personnel, materials, equipment, and furnishings, as reasonably required, to operate the Premises as
a full service comprehensive Boys and Girls Club facility, in accordance with the goals and priorities
and approved uses set forth herein. In the event any materials, equipment, and/or furnishings are
lost, stolen, or damaged, they shall be promptly replaced or repaired at the sole cost and expense of
the BGCM-D(funding permitted) .
9.5 Orderly Operation.
BGCM-D shall have a neat and orderly operation at all times and shall be solely
responsible for the necessary housekeeping services to properly maintain the Premises. There shall
be no living quarters nor shall anyone be permitted to live within the Premises. BGCM-D shall make
the Premises available for inspection by the City Manager or his authorized representatives during
hours of operation.
9.6 Securi
BGCM-D shall be responsible for and provide reasonable security measures as may
be required to protect and secure the Premises and any materials, equipment, and furnishings
thereon. Under no circumstances shall the City be responsible for any stolen or damaged materials,
equipment, and furnishings, nor shall the City be responsible for any stolen or damaged personal
property ofBGCM-D and/or the Club's officials, employees, contractors, patrons, guests, invitees,
and/or any other third parties.
9.7 BGCM-D's Proposed Capital Improvements and Renovation/Fundin~ and
Responsibilities.
9.7.1 The Club will commence operations pursuant to this Agreement upon the demolition
of the existing building on the Premises and the completion of the proposed capital improvements
and renovation of the Premises, as hereinafter set forth. The intended scope of the improvements
and renovations will be to demolish the existing structure and to construct a new two (2) story
structure (on the approximate footprint of the current structure), with the new structure having
approximately 10,000 square feet. A sketch of the proposed new structure is attached as Exhibit "A"
hereto (the proposed new structure is hereinafter referred to as the "Proposed Improvements").
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9.7.2 This Agreement is made with the understanding and agreement that BGCM-D will, at
its sole cost and expense, design, develop, and construct the Proposed Improvements, which shall
cost no less than $1.5 Million.
9.7.3 The Proposed Improvements will be approved by the City Commission prior to
commencement of the project (as hereinafter set forth in Section 9.7.5). The Proposed
Improvements shall be the sole cost and expense of BGCM-D.
9.7.4 BGCM-D shall be solely responsible for the design of the Proposed Improvements,
and shall obtain all final, non-appealable approvals from City and other applicable regulatory
agencies therefore, including approvals by the City acting in both its proprietary regulatory capacity
under the City Code and other applicable laws.
9.7.5 Concept Plan Design ApprovaUPlanning Board Review.
BGCM-D shall submit, for review and approval by the Mayor and City Commission at a
regularly scheduled meeting, a Concept Plan Design detailing the Proposed Improvements in
sufficient detail; the layout and siting (including, without limitation, preliminary elevations
identifying the size of the building footprint, number of stories, heights); and other improvements
and appurtenances proposed upon the Premises. The Concept Plan Design review process shall
commence with BGCM-D's submission to the City, through the City Manager, no later than June 1,
2009. The City Manager shall have fourteen (14) Business days to review the Concept Plan Design.
Upon conclusion of his review and approval, and prior to consideration of the Concept Plan Design
by the Mayor and City Commission, BGCM-D shall submit the Concept Plan Design to the Planning
Board, for its review and recommendation, which recommendation shall be no later than September
1, 2009.
Notwithstanding the preceding paragraph, final approval of the Concept Plan Design will rest
with the City Commission. In the event that BGCM-D fails to make its submissions timely, the City
Manager may, at his sole option and discretion, (i) grant BGCM-D a good faith extension for said
submittal, or (ii) declare the Agreement in default pursuant to Section 27 herein. Additionally,
should the City Commission fail to approve the Concept Plan Design by the date which is three (3))
months from the Planning Board's recommendation(s) regarding said Plan, or December 31, 2009,
whichever is later, then this Agreement shall automatically terminate and be of no further force or
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effect, unless the City Commission deems to grant an extension, at its sole discretion. In the event of
automatic termination of this Agreement pursuant to this subsection, each party shall bear its own
costs and expenses incurred in connection with this Agreement, and neither party shall have any
further liability to the other.
9.7.6 Preliminary Plans and Specifications.
Upon the City Commission's approval of the Concept Plan Design, BGCM-D shall submit to
the City (acting in its proprietary capacity through the City Manager) Preliminary Plans and
Specifications for the Proposed Improvements, which shall be in accordance with the approved
Concept Plan Design and shall include, without limitation , a detailed site plan, elevation drawings
of each facade, a detailed floor plan for each of the floors , a calculation of the floor areas for each
floor, and a calculation of the total floor area dedicated to each use within the Proposed
Improvements (the "Preliminary Plans and Specifications").
BGCM-D shall submit its Preliminary Plans and Specifications to the City Manager
for approval within 120 days of the approval of the Concept Plan Design by the City Commission
(hereinafter, for purposes of this Section 9.7.6, such date shall be referred to as the "Commencement
Date"). The City Manager shall have thirty (30) Business days to review the Preliminary Plans and
Specifications. If the City Manager disapproves the Preliminary Plans and Specifications, then
BGCM-D and the City shall confer in good faith to develop and submit revised Preliminary Plans
and Specifications which shall be submitted and reviewed as provided above. Failure ofBGCM-D
to obtain the City's final approval of the Preliminary Plans and Specifications within 120 days from
the date of City's disapproval shall constitute a termination of this Agreement without any further
liability of either party to the other.
BGCM-D shall, within sixty (60) days of City Manager's approval of the Preliminary Plans
and Specifications, submit an application for approval of the design for the Proposed Improvements
to the applicable City boards, including, without limitation, the applicable City land use boards
(collectively, any and all such City boards shall be hereinafter referred to as the "applicable City
boards"). BGCM-D shall pursue approval of its applications to the applicable City boards, diligently
and in good faith. Failure ofBGCM-D to submit its application(s) to the applicable City boards, by
the date which is sixty (60) days from the receipt of City's final approval, as provided above, shall
constitute a default under this Agreement.
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9.7.7 Plans and Specifications.
Upon receipt of the City's, and the applicable City boards', approval of the Preliminary Plans
and Specifications, BGCM-D shall prepare construction Plans and Specifications for construction of
the Proposed Improvements, consistent with the Preliminary Plans and Specifications (as approved
by the City and the applicable City boards)
9.7.8 Construction Commencement/BGCM-D's Right to Terminate.
9.7.8.1 As conditions precedent to BGCM-D's commencement of construction of the
Proposed Improvements, BGCM-D shall obtain a final Full Building Permit for the Proposed
Improvements by not more than one (1) year from the Commencement Date, and failure to do so
shall constitute a default under this Agreement. BGCM-D shall not commence construction of the
Proposed Improvements unless and until (a) BGCM-D shall have obtained and delivered to City
copies of all final permits and approvals required to commence construction; (b) BGCM-D shall
have delivered to City original certificates of the policies of insurance required to be carried by
BGCM-D's contractor(s) (as set forth in Exhibit "B" to this Agreement, attached hereto and
incorporated); and (c) BGCM-D shall have obtained and furnished to City a payment and
performance bond from BGCM-D's general contractor (the Payment and Performance Bond), in a
form reasonably acceptable to City, issued by a surety listed in the most recent U.S. Dept. of
Treasury listing of approved sureties, guaranteeing the performance by the general contractor for
construction of the Proposed Improvements. The City of Miami Beach, Florida, shall be named as a
dual obligee under the Payment and Performance Bond.
The City (solely in its proprietary and not in its regulatory capacity) shall reasonably
cooperate with BGCM-D in obtaining the permits and approvals required to construct the Proposed
Improvements; shall sign any application reasonably made by BGCM-D that is required in order to
obtain such permits and approvals; and shall provide BGCM-D with any information and/or
documentation not otherwise reasonably available toBGCM-D (if available to City) that is necessary
to procure such permits and approvals. Any such accommodation by City shall be without prejudice
to, and shall not constitute a waiver of City's rights to exercise its discretion in connection with its
regulatory functions.
9.7.8.2 BGCM-D shall, at its expense, (a) commence construction of the Proposed
Improvements on or before sixty (60) days after all permits and approvals necessary for the
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commencement of construction are issued, but no later than eighteen (18) months from the
Commencement Date (the "Construction Commencement Date"), and (b) thereafter continue to
prosecute construction of the Proposed Improvements with diligence and continuity to completion.
"Commence Construction" or "Commencement of Construction" means the commencement of
major work (such as pilings or foundations) for construction of the Proposed Improvements.
Promptly after commencement of construction, BGCM-D shall notify the City Manager, in writing,
of the actual date of such commencement. Any and all preliminary site work (including, without
limitation, any environmental remediation and ancillary demolition) shall not be deemed to be
commencement of construction. If, after BGCM-D has commenced construction, BGCM-D fails to
diligently prosecute construction of the Proposed Improvements (subject to unavoidable delays), and
such failure continues (subject to unavoidable delays) for thirty (30) consecutive days after BGCM-
D'sreceipt ofnotice ofsuch failure, the City shall, in addition to all of its other remedies under this
Agreement, have the right to seek such equitable relief (either mandatory or injunctive in nature) as
may be necessary to cause diligent and continuous prosecution of construction of the Proposed
Improvements (subject to unavoidable delays) byBGCM-D, it being understood that construction of
the Proposed Improvements is a material inducement for the City to enter into this Agreement, and
monetary damages shall be inadequate to compensate the City for harm resulting from such failure.
Notwithstanding anything to the contrary contained herein, if BGCM-D fails to substantially
complete construction of the Proposed Improvements by the date provided for in this Agreement,
then the same shall constitute a default under this Agreement.
9.7.8.3 "Unavoidable delays" shall mean delays due to strikes, slowdowns, lockouts, acts of
God, inability to obtain labor or materials, war, enemy action, civil commotion, fire, casualty,
eminent domain, catastrophic weather conditions, a court order that actually causes a delay in the
application of any requirement (unless resulting from disputes between or among the party alleging
an unavoidable delay, present or former employees, officers, members, partners or shareholders of
such alleging party, or of affiliates of such alleging party). The party alleging unavoidable delay
shall notify the other within twenty (20) days ofsuch occurrence; however, failure to do so shall not
waive any rights caused by such delay. The times for performance related to the Proposed
Improvements set forth in this Agreement shall be extended to the extent performance is delayed by
unavoidable delays.
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9.7.9 BGCM-D's Right to Terminate.
Notwithstanding anything to the contrary contained herein, BGCM-D shall have the right to
be released from its liability and to terminate this Agreement at any time prior to obtaining a final
Full Building Permit for construction of the Proposed Improvements because: (a) changes to the
Preliminary Plans and Specifications required by any or all of the applicable City boards, or any
other governmental authority (including the City), render the prof ect economically unfeasible in the
reasonable business judgment ofBGCM-D; (b) BGCM-D, after good faith efforts, has been unable
to obtain a final Full Building Permit for the Proposed Improvements pursuant to the Plans and
Specifications submitted by BGCM-D; or (c) BGCM-D, after diligent, good faith efforts, has been
unable to raise the funding required for the Proposed Improvements. In the event of termination of
this Agreement pursuant to this subsection, each party shall bear its own costs and expenses incurred
in connection with this Agreement, and neither party shall have any further liability to the other.
9.7.10 Substantial Comuletion/Completion of Construction.
Substantial completion of the Proposed Improvements shall be accomplished in a diligent
manner and, in any event, no later than eighteen (18) months from the issuance of a final Full
Building Permit. "Substantial completion", as used herein, shall require the issuance of a temporary
or final certificate of occupancy by the City of Miami Beach Building Department. Such date may
be extended for good cause shown upon request in writing to the City Manager, which extension by
the City Manager shall not be unreasonably withheld. Final completion of the Proposed
Improvements, shall be accomplished in a diligent manner, in a good and workmanlike manner, in
substantial accordance with the Plans and Specifications (with no material deviations except as
expressly permitted herein), and at BGCM-D's sole cost and expense.
Upon Substantial Completion of Construction of the Proposed Improvements, BGCM-D
shall furnish the City Manager with the following:
(a) a certification from BGCM-D's architect (certified to City on the standard AIA
certification form) that it has examined the Plans and Specifications and that, in its
professional judgment, after diligent inquiry, construction of the Proposed Improvements
has been Substantially Completed in accordance with the Plans and Specifications
applicable thereto and, as constructed, the Proposed Improvements comply with all
applicable codes and laws;
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(b) a copy or copies of the temporary and final certificates of occupancy for the Proposed
Improvements issued by the City of Miami Beach Building Department;
(c) lien waivers (in form and substance reasonably satisfactory to the City Manager) from
each contractor, subcontractor, supplier or materialman retained by or on behalf of
BGCM-D in connection with the construction of the Proposed Improvements, evidencing
that such persons have been paid in full for all work performed or materials supplied in
connection with the construction of the Proposed Improvements;
(d) a complete set of "as built" plans and a survey showing the improvement(s) for which
the construction of the Proposed Improvements has been completed. The City shall have
an unrestricted license to use such "as built" plans and survey for any purpose related to
the Premises without paying any additional cost or compensation therefore, The
foregoing requirement with respect to "as built" plans shall be satisfied by BGCM-D
furnishing to the City Manager, a complete set of Plans and Specifications, with all
addenda thereto and change orders in respect thereof, marked to show all changes,
additions, deletions and selections made during the course of the construction of the
Proposed Improvements; and
(e) a Contractor's Final Affidavit (in form and substance reasonably satisfactory to the City
Manager) executed by the General Contractor (i) evidencing that all contractors,
subcontractors, suppliers and materialmen retained by or on behalf of BGCM-D in
connection with the construction of the Proposed Improvements have been paid in full
for all work performed or materials supplied in connection with the construction of the
Proposed Improvements, and (ii) otherwise complying with all of the requirements under
the Florida Construction Lien Law, Chapter 713, Florida Statutes, as amended.
Construction of the Proposed Improvements shall be carried out pursuant to Plans and
Specifications prepared by licensed architects and engineers, with controlled inspections conducted
by a licensed architect or professional engineer as required by applicable requirements.
Upon Substantial Completion of the Proposed Improvements, BGCM-D shall certify to City
that it has, in fact, expended not less than the required minimum amount(s) for total construction
costs.
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Any and all construction, once commenced, must be carried through continuously to
completion, but any interruption or delay in the doing and completion of the work which shall have
been caused by act of God, public enemy, or strike, or natural casualty, or other circumstances not
occasioned by or attributable to the fault, default or neglect of BGCM-D shall not be deemed to
cause BGCM-D to be in default under this Agreement, so long as BGCM-D exercises due diligence
to cause the work of construction to be carried through to completion as promptly and expeditiously
after the commencement thereof as possible.
9.7.11 Extensions for Performance.
The times for performance related to the design and construction of the Proposed
Improvements, asset forth in this Section 9.7, maybe extended for good cause shown, upon request
in writing to the City Manager, which extension by the City Manager shall not be unreasonably
withheld.
SECTION 10. ANNUAL REPORTS FOR USE OFPREMISES/CITY USE OF
PREMISES.
10.1 BGCM-D shall provide an annual written report of the activities, services, programs,
uses and events scheduled on the Premises and, with each such report, shall report on the activities,
services, programs, uses and events which actually occurred, and the number of persons
participating. Any revenue-generating uses conducted from the Premises must be in accordance with
the approved uses in Section 4 and consistent with Section 6.1 of the Agreement. All revenues
received by BGCM-D in connection with such uses shall be dedicated exclusively to help fund
BGCM-D's management, operation, and maintenance of the Premises. In the event that revenue(s)
pertaining to the Club exceed expenses during a particular budget year, the City and BGCM-D agree
that such excess, if any, shall first be applied to offset any of the capital improvements and/or
infrastructure maintenance costs (as set forth in Section 9.1), and may, thereafter, be applied by
BGCM-D to support other programming ofBGCM-D. For purposes herein, "revenues" shall also be
deemed to include public/private grant funding, and unrestricted donations and contributions
received byBGCM-D specifically ear-marked toward the operation, management and programming
of the Club. No portion of the net earnings resulting from the activities ofBGCM-D on the Premises
shall inure to the benefit of any private individual.
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Notwithstanding the foregoing, the City Manager, shall have the absolute and final authority
in overseeing BGCM-D's activities with regard to this Agreement and its operation and management
of the Premises, such that the City is assured that the Premises are being operated and utilized in
accordance with the terms of this Agreement.
10.2 Use by the City. BGCM-D and the City have agreed that the Proposed
Improvements will provide amulti-purpose recreational facility for boys and girls that can also be
used by the City for public meetings and substantially similar purposes so long as they do not
materially interfere with the operation of the Club by BGCM-D. Accordingly, and consistent with
the intent of the preceding sentence, the City shall have the right to use the Premises, or any part
thereof, subject to availability, for City-sponsored public meetings, training, and classes, as may be
reasonably deemed necessary and appropriate by the City Manager. Any City use of the Premises
shall be without the payment of any rental or use fee, except that direct out-of-pocket expenses
incurred in connection with such uses shall be paid by the City (including without limitation,
reasonable out of pocket expenses incurred by BGCM-D in order to open and make the Premises
available in connection with such City use) . BGCM-D and the City agree to develop mutually
acceptable guidelines and regulations for City use of the Premises.
SECTION 11. BGCM-D'S CONTRIBUTION.
The City and BGCM-D herein agree that a vital component ofBGCM-D's mission statement
with respect to this Agreement, is to use its best efforts to obtain public/private funding contributions
for the design and construction of the Proposed Improvements and, thereafter, for the continuous
operation, management, and maintenance of the Club in accordance with the highest levels of
service. Accordingly, BGCM-D hereby represents that it shall use its best efforts with respect to
undertaking a coherent and consistent grants writing and submittal effort, not only to fund the
Proposed Improvements, but to fund the continued management, operation, and maintenance of the
Club and of the Premises.
Throughout the Term of this Agreement, and as further consideration for this Agreement,
BGCM-D shall also use its best efforts to obtain public/private grant funding and
individual/corporate contributions, not only for such other capital renovations and improvements as
maybe mutually agreed to by the parties hereto but, more importantly, for the continued operation,
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support and maintenance of the Premises (as required to effectively sustain the goals and priorities
and approved uses contemplated in this Agreement). BGCM-D hereby represents that such approved
uses shall, throughout the Term of this Agreement, be funded and operated atBGCM-D's sole cost
and expense. It is the intent of the City and BGCM-D that BGCM-D will use best efforts to increase
its funding for the maintenance, management/operation, and programming of the Premises, and
toward sustaining and increasing the goals and priorities and approved uses, on a continuing basis.
BGCM-D further acknowledges and understands that the City shall in no way be obligated to
supplement and/or otherwise contribute any funds for the Proposed Improvements, or for BGCM-D's
day-to-day operation and maintenance of the Premises, except as may be otherwise set forth in this
Agreement.
SECTION 12. ASSIGNMENT.
BGCM-D may not assign this Agreement, or any part thereof, without the prior written
approval of the City, which approval shall be given, if at all, at the sole discretion of the Mayor and
City Commission. This Agreement is made with the understanding that BGCM-D shall at all times,
throughout the Term of this Agreement, remain anot-for-profit corporation. In the event that
BGCM-D ceases to be anot-for-profit corporation, or the City, through the City Manager, in his
reasonable discretion and judgment, determines that the Club is not being used for the stated
purposes in Section 4, this Agreement shall be subject to termination upon thirty (30) days written
notice by the City to BGCM-D.
SECTION 13. USE OF THE CLUB IS PRIMARY.
The Club and the Premises are for the use of the public, for the approved uses consistent with
Section 4, and the public's right to such use shall not be infringed upon by any act of BGCM-D.
SECTION 14. PERMITS; LICENSES.
BGCM-D agrees to obtain and pay for all permits and licenses necessary for the conduct of
its operation and activities on the Premises and agrees to comply with all laws governing the
responsibility of an employer with respect to persons employed by BGCM-D and/or the Club.
BGCM-D shall also be solely responsible for payment of any and all taxes levied on the Premises
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and its operations. In addition, BGCM-D shall comply with all rules, regulations and laws of the
City; Miami-Dade County; the State of Florida; and the U.S. Government, now in force or hereafter
to be adopted, and as same may be amended from time to time.
SECTION 15. LICENSES/PERMITS, UTILITIES, TAXES, AND
ASSESSMENTS.
15.1 Licenses, Permits, Utilities.
BGCM-D shall pay any fees imposed by law for licenses or permits for any uses or
activities of BGCM-D upon the Premises, and shall pay to the City, before delinquency, any and all
charges for utilities on the Premises (including, without limitation, water, electricity, gas, heating,
cooling, sewer and telephone, trash collection, etc.).
15.2 Procedure If Taxes Assessed.
BGCM-D agrees to, and shall pay before delinquency, all taxes and assessments of
any kind assessed or levied, whether upon BGCM-D or the Premises, by reason of this Agreement or
by reason of any business(es) or other activity(ies) of BGCM-D upon or in connection with the
Premises. The parties agree that BGCM-D's operation and use(s) of the Premises is for public
purposes and, therefore, no ad valorem taxes should be assessed by the Miami-Dade County Tax
Appraiser. If, however, said taxes are assessed by the Property Tax Appraiser, BGCM-D shall be
solely responsible for payment of same.
SECTION 16. SIGNAGE.
BGCM-D shall provide, at its sole cost and expense, any required signage on the Premises,
subj ect to the prior written consent of the City Manager (which shall not be unreasonably withheld or
delayed), and subject further to all applicable planning and zoning requirements of the City.
SECTION 17. FORCE MAJEURE.
17.1 The performance of any act by BGCM-D or the City hereunder may be delayed or
suspended at any time while, but only so long as, either party is hindered in or prevented from
performance by acts of God (including without limitation hurricanes), the elements of war, rebellion,
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strikes, lockouts, fire, explosion, or any other casualty or occurrence not due to BGCM-D's and/or
the City's negligence and beyond the reasonable control of the parties.
17.2 Premises Unusable.
In the event a Force Majeure renders the Premises untenantable, in whole or in part,
as determined in the reasonable judgment and discretion of the City Manager, the City may, at its
sole option and discretion: (i) elect, as soon as practicable, to utilize insurance proceeds (if
applicable) to repair the damaged property, and the Term of the Agreement shall be abated until such
time as BGCM-D may re-open the Club after restoration or repair of the damaged property; or (ii)
elect not to repair or restore the damaged property and, in such event (and provided further that
BGCM-D does not elect, and/or does not comply with the procedures for BGCM-D's repair of the
Premises using its own funds), this Agreement shall be terminated as of the date of said occurrence
of damage or casualty. Notwithstanding the preceding sentence, in the event: (a) the City elects not
to restore or repair the damage; (b) BGCM-D gives written notice to the City Manager, within sixty
(60) days of the casualty, that BGCM-D is willing to undertake the repair of the damage with its own
or other available funds; (c) within twelve (12) months following such notice, BGCM-D proves, to
the City Manager's reasonable satisfaction and discretion, that it has adequate funds immediately
available to undertake the repair; and (d) the City and BGCM-D, each acting in its reasonable
discretion, agree within a reasonable time (but not to exceed six (6) months unless otherwise
extended in writing by City Manager) after the City Manager deems that BGCM-D has demonstrated
that it has adequate funds to undertake the repair, to the conditions, timing, plans, procedures,
contractors, subcontractors, disbursement mechanisms, and other matters with respect to the repair,
then (and in that event) BGCM-D shall be entitled to effect the repair with its own funds; provided
that BGCM-D must complete any and all repairs and/or restoration no later than eighteen (18)
months from the date of the City Manager's approval of BGCM-D's funding capability.
SECTION 18. INSPECTION.
BGCM-D agrees that the Premises may be inspected at any time upon reasonable notice
(whether written or verbal) by the City Manager and/or or his authorized representatives, or by any
other State, County, Federal, and/or municipal officer or agency having responsibilities for
inspections of the Premises and/or any operations thereon. BGCM-D agrees to immediately
24
undertake the correction of any deficiency cited by such inspectors on the Premises, which is the sole
responsibility of BGCM-D pursuant to this Agreement.
The City Manager and/or his authorized representatives, shall have the right to enter upon the
Premises at all reasonable times to examine the condition and use thereof (including, without
limitation, for the purpose of assessing the condition of the facility, as also referenced in Section
7.1(e), provided that such right shall be exercised in such manner so as not to materially interfere
with BGCM-D's activities on the Premises.
Notwithstanding the preceding paragraph or anything contained in this Agreement, if the
Premises are damaged by fire, windstorm or by other casualty that causes the Premises to be exposed
to the elements, then the City may enter upon the Premises, without notice to BGCM-D, to make
emergency repairs; but if the City exercises its option to make emergency repairs, such act or acts
shall not be deemed to excuse BGCM-D from its obligation to keep the Premises in repair. If City
makes any emergency repairs pursuant to the terms hereof, BGCM-D shall reimburse the City for all
such repairs upon receipt by BGCM-D of City's notice of repairs made and statement and proof of
costs incurred.
SECTION 19. WAIVER OF INTERFERENCE.
BGCM-D hereby waives all claims for compensation for loss or damage sustained by reasons
of any interference with its operation and management of the Premises by any public agency or
official as a result of their enforcement of any laws or ordinances or of any of the rights reserved to
the City herein. Any such interference shall not relieve BGCM-D from any obligation hereunder.
SECTION 20. INSURANCE REQUIREMENTS.
20.1 BGCM-D shall maintain, at BGCM-D's sole cost and expense, the following types of
insurance coverage at all times throughout the term of this Agreement:
a. General liability insurance with not less than the following
limits, subject to adjustment for inflation:
General aggregate $2,000,000
Personal and advertising (injury) $1,000,000
(Per occurrence) $1,000,000
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Fire damage $ 100,000
Medical Expense $ 5,000
b. Workers Compensation Insurance shall be required under the Laws of the
State of Florida.
c. Automobile Insurance shall be provided covering all owned, leased, and hired
vehicles and non-ownership liability for not less than the following limits,
subject to adjustment for inflation (only ifBGCM-D provides transportation
services):
Bodily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
Property Damage $ 500,000 per accident
e. Fire Insurance shall be the responsibility of BGCM-D.
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage, except upon at least thirty (30) days written notice to the City, and then subject to the prior
written approval of City Manager. BGCM-D shall provide City with a Certificate of Insurance for
each such policy, which shall name the City of Miami Beach, Florida as an additional named insured.
All such policies shall be obtained from companies authorized to do business in the State of Florida
with an A.M. Best's Insurance Guide (latest edition) rating acceptable to the City, through its Risk
Manager, and any replacement or substitute company shall also be subject to the approval of the
City, through its Risk Manager. Should BGCM-D fail to obtain, maintain or renew the policies of
insurance referred to above, in the required amounts, the City may, at its sole discretion, obtain such
insurance, and any sums expended by the City in obtaining said insurance, shall berepaid byBGCM-
D to the City, plus ten percent (10%) of the amount of premiums paid to compensate City for its
administrative costs. If BGCM-D does not repay the City's expenditures within fifteen (15) days of
demand, the total sum owed shall accrue interest at the rate of twelve percent (12%) until paid, and
such failure shall also be deemed an event of default hereunder.
20.2 Adjustment of Limits.
All of the limits of insurance required pursuant to this Section 20 shall be subject to review
by the City and, in connection therewith, BGCM-D shall carry or cause to be carried such additional
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amounts as City may reasonably require from time to time, but City may not impose such new limits
any more frequently than once in every ten (10) year period from the Commencement Date. Any
request by City that BGCM-D carry or cause to be carried additional amounts of insurance shall not
be deemed reasonable unless such additional amounts are commonly carried in the case of similar
projects in South Florida of a size, nature and character similar to the size, nature and character of the
Premises and the Club.
SECTION 21. INDEMNIFICATION.
21.1 BGCM-D shall indemnify, hold harmless and defend the City, its officers, agents,
servants and employees, from and against any claim, demand or cause of action of whatsoever kind
or nature, including, but not limited to, reasonable attorneys fees and cost(s) arising out of error,
omission, or negligent act ofBGCM-D, and/or its officers, agents, servants, employees, contractors,
or volunteers under this Agreement.
21.2 In addition, BGCM-D shall indemnify, hold harmless and defend the City, its officers,
agents, servants and employees, from and against any claim, demand or cause of action of whatever
kind or nature arising out of any willful misconduct ofBGCM-D not included in Section 21.1 and
for which the City, its officers, agents, servants or employees are alleged to be liable. This
subsection shall not apply, however, to any such liability as may be the result of the gross negligence
or willful misconduct of the City, its officers, agents, servants or employees.
21.3 Subrogation. The terms of insurance policies referred to in Section 20 shall preclude
subrogation claims against BGCM-D, the City and their respective officers, agents, servants, and
employees.
21.4 The provisions of this Section 21 shall survive the termination and/or expiration of
this Agreement.
SECTION 22. NO LIENS.
BGCM-D agrees that, it will not suffer, or through its actions or anyone under its control or
supervision, cause to be filed upon the Premises any lien or encumbrance of any kind. In the event
any lien is filed, BGCM-D agrees to cause such lien to be discharged within ten (10) days therefrom,
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and in accordance with the applicable law and policy. If this is not accomplished, the City may
automatically terminate this Agreement, without further notice to BGCM-D.
SECTION 23. BGCM-D EMPLOYEES AND MANAGERS.
23.1 The City and BGCM-D recognize that in the performance of this Agreement,
it shall be necessary for BGCM-D to retain qualified individuals to effectuate and optimize BGCM-
D'smanagement and operation of the Premises. Any such individuals, whether employees, agents,
independent contractors, volunteers, and/or other, retained by BGCM-D for such purpose(s) shall
not be deemed to be agents, employees, partners, joint venturers or associates of the City, and shall
not obtain any rights or benefits under the civil service or pension ordinances of the City or any
rights generally afforded classified or unclassified employees of the City; further they shall not be
deemed entitled to the Florida Worker's Compensation benefits as employees of the City.
Additionally, BGCM-D, and/or any employees, agents, independent contractors, volunteers, and/or
others, acting under the authority and/or with the permission ofBGCM-D for the purpose set forth
herein, shall never have been convicted of any offense involving moral turpitude or felony. Failure
to comply with this Section shall constitute cause for the termination of this Agreement. BGCM-D
shall have an experienced manager or managers overseeing the Premises at all times. Any criminal
activity on the Premises caused by or knowingly permitted by BGCM-D shall result in automatic
termination of this Agreement.
23.2 Contract Administration.
a. The City's contract administrator shall be the City Manager and/or his
authorized designee. BGCM-D shall name a specific individual to serve as
its contract administrator.
b. The City's contract administrator shall have the authority to give all
approvals for the City while administering this Agreement, with the
exception of items which would require City Commission approval. The
City's contract administrator:
(i) Shall be the liaison between the City and BGCM-D on all matters
relating to this Agreement.
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(ii) Shall be responsible for ensuring that any information supplied by
BGCM-D is property distributed to the appropriate City departments.
(iii) Shall be responsible for contract compliance byBGCM-D (including,
without limitation, BGCM-D's activities, programming, operations,
management, and maintenance of the Premises).
c. BGCM-D shall name an individual who shall serve as the general manager of
the Club and who:
(i) Shall be the liaison between the City and BGCM-D on all matters
relating to this Agreement.
(ii) Shall be responsible for the day-to-day management and supervision
of the Premises.
(iii) Shall be responsible for providing supervision and direction to
BGCM-D and/or the Club's employees, agents, contractors,
volunteers, and/or others.
SECTION 24. NO IMPROPER USE.
BGCM-D will not use, and shall use its reasonable efforts to not suffer or permit any person
to use, in any manner whatsoever, the Premises for any improper, immoral or offensive purpose, or
for any purpose in violation of any Federal, State, County, or municipal ordinance, rule, order or
regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted.
Should BGCM-D become actually aware of any such use by any person, it shall take corrective
action in a reasonable amount of time to stop such use. BGCM-D shall not use the Premises for any
unlawful purpose and shall comply with all laws, permitting, and licensing requirements now in
force or hereafter adopted, applicable to the Premises or the uses and activities conducted on the
Premises. BGCM-D agrees not to use (or to permit operation of) the Premises for any offensive or
dangerous activity, nuisance, or anything against public policy. Except as may result from acts of
force majeure,BGCM-D agrees that it will not allow the Premises to become unoccupied or vacant.
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SECTION 25. NO DANGEROUS MATERIALS.
BGCM-D agrees not to use or permit in the Premises the storage of illuminating oils, oil
lamps, turpentine, gasoline, benzene, naphtha, or other similar substances, or explosives or any kind,
or any substance or thing prohibited in the standard policies of fire insurance companies in the State
of Florida. BGCM-D shall take appropriate precautions to prevent fire on the Premises, maintaining
existing fire detection devices and extinguishing equipment at all times.
SECTION 26. NO CLAIM AGAINST CITY OFFICERS, EMPLOYEES,
INDIVIDUALS.
It is expressly understood and agreed by and between the parties hereto that all individuals,
employees, officers, and agents of the City are acting in a representative capacity and not for their
own benefit; and that neither BGCM-D, nor any of its employees, agents, contractors, volunteers,
guests, invitees, and/or others, shall have any claim against them or any of them as individuals in any
event whatsoever in conjunction with any acts or duties which are reasonably related to the
performance of their duties.
SECTION 27. DEFAULT AND TERMINATION.
If either party fails to perform in accordance with any of the terms and conditions of this
Agreement, and such default is not cured within thirty (30) days after written notice is given( or if
not curable within thirty (30) days, the party has begun to take curative action within thirty (30) days
and is continuing to pursue such cure), the aggrieved party shall have the right to terminate this
Agreement and, as the case maybe, either vacate or re-enter the Premises, without further notice or
demand. At its option, either party may also pursue any and all legal remedies available to seek
redress for such default. The default and termination rights afforded the parties in this Section 27,
shall in no way limit or otherwise preclude the City from exercising such other rights to terminate
this Agreement, as may be expressly provided in other sections hereto.
SECTION 28. PROCEDURE UPON EXPIRATION AND/OR TERMINATION
BY CITY
28.1 BGCM-D shall, on or before the last day of the Term herein, or the sooner
termination thereof, peaceably and quietly leave, surrender and yield unto the City, the Premises,
30
together with any and all fixtures located at or on the Premises and used by BGCM-D in the
maintenance, management or operation of the Premises, excluding any equipment, furnishings,
appliances or other personal property which can be removed without material injury to the Premises,
free of all liens, claims and encumbrances and rights of others, and broom-clean, together with all
structural changes, alterations, additions, and improvements which may have been made upon the
Premises, in good order, condition and repair, reasonable wear and tear excepted; subject, however,
to the subsequent provisions of this subsection. Any property which pursuant to the provisions of
this subsection is removable by BGCM-D on or at the Premises upon the termination of this
Agreement and is not so removed may, at the option of the City, be deemed abandoned byBGCM-D,
and either may be retained by the City as its property, or may be removed and disposed of by City, at
the sole cost of BGCM-D, in such manner as the City may see fit. If the Premises are not
surrendered at the end of the Term as provided in this subsection, BGCM-D shall make good to the
City all damages which the City shall suffer by reason thereof, and shall indemnify the City against
all claims made by a succeeding occupant (if any), so far as such delay is occasioned by the failure of
BGCM-D to surrender the Premises as and when herein required.
28.2 BGCM-D covenants and agrees that it will not enter into agreements (whether express
or implied) relating to the Premises for a period of time beyond the stated expiration date of this
Agreement.
SECTION 29. TERMINATION FOR LACK OF FUNDS.
In the event that BGCM-D loses its funding, such that it can no longer manage, operate, and
maintain the Club and the Premises in accordance with the goals and priorities and uses herein, then
the City may, at its sole option and discretion: (i) supplement any lack or loss of funds in order to
allow BGCM-D to continue to manage and operate the Club; or (ii) terminate this Agreement
pursuant to Section 27 hereof.
SECTION 30. NOTICES.
All notices from the City toBGCM-D shall be deemed duly served if mailed by registered or
certified mail to BGCM-D at the following address:
Boys and Girls Clubs of Miami-Dade, Inc.
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Attention: Alex Rodriguez-Roig ,Executive Director
2805 SW 32 Avenue
Miami, FL 33133
All notices from BGCM-D to the City shall be deemed duly served if mailed to:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
with copies to: City of Miami Beach
Attention: Director of Parks
1700 Convention Center Drive, 3rd Floor
Miami Beach, Florida 33139
BGCM-D and the City may change the above mailing addressed at any time upon giving the other
party written notification. All notice under this Agreement must be in writing.
SECTION 31. NO DISCRIMINATION.
BGCM-D agrees that there shall be no discrimination as to race, sex, color, creed, national
origin, physical handicap, or sexual orientation in the operations referred to by this Agreement; and
further, there shall be no discrimination regarding any use, service, maintenance or operation of the
Premises. All facilities located on the Premises shall be made available to the public; subject to the
right ofBGCM-D to establish and enforce reasonable rules and regulations to provide for the safety,
orderly operation, and security of the facilities.
SECTION 32. VENUE/WAIVER OF JURY TRIAL/DISPUTE MEDIATION.
32.1 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, CITY AND BGCM-D 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.
32
32.2 If a dispute arises out of, or related to, this Agreement, or the breach thereof, and if
the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle
the dispute by mediation administered by the American Arbitration Association, or other similar
alternative dispute resolution organization, person or source agreeable to the parties, before resorting
to litigation or other dispute resolution procedure.
SECTION 33. INTENTIONALLY OMITTED
SECTION 34. MISCELLANEOUS PROVISIONS.
34.1 City's Governmental Capacity.
Nothing in this Agreement or in the parties' acts or omissions in connection herewith shall be
deemed in any manner to waive, impair, limit or otherwise affect the authority of the City in the
discharge of its police or governmental power.
34.2 Entire Agreement.
(a) Entire Agreement. This Agreement, together with the attachments hereto, contains all
of the promises, agreements, conditions, inducements and understandings between City and BGCM-
D concerning the operation and management of the Premises, and there are no promises, agreements,
conditions, understandings, inducements, warranties or representations, oral or written, express or
implied, between them other than as expressly set forth herein and in such attachments thereto or as
may be expressly contained in any enforceable written agreements or instruments executed
simultaneously herewith by the parties hereto.
(b) Waiver, Modification, etc. No covenant, agreement, term or condition of this
Agreement shall be changed, modified, altered, or waived except by a written instrument of change,
modification, alteration, or waiver executed by City and BGCM-D. No waiver of any default shall
affect or alter this Agreement, but each and every covenant, agreement, term and condition of this
Agreement shall continue in full force and effect with respect to any other then existing or
subsequent default thereof.
33
34.3 Remedies Cumulative.
Each right and remedy of either party provided for in this Agreement shall be cumulative and
shall be in addition to every other right or remedy provided for in this Agreement, or now or
hereafter existing at law or in equity or by statute or otherwise (except as otherwise expressly limited
by the terms of this Agreement), and the exercise or beginning of the exercise by a party of any one
or more of the rights or remedies provided for in this Agreement, or now or hereafter existing at law
or in equity or by statute or otherwise (except as otherwise expressly limited by the terms of this
Agreement), shall not preclude the simultaneous or later exercise by such party of any or all other
rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity or
by statute or otherwise (except as otherwise expressly limited by the terms of this Agreement).
34.4Performance at Each Party's Sole Cost and Expense.
Unless otherwise expressly provided in this Agreement, when either party exercises any of its rights,
or renders or performs any of its obligations hereunder, such party shall do so at its sole cost and
expense.
34.5Time is of the Essence.
Time is of the essence with respect to all matters in, and requirements of, this Agreement as to both
City and BGCM-D including, but not limited to, the times within whichBGCM-D must commence
and complete construction of the Proposed Improvements.
34.6 No Representations.
City and BGCM-D have made no representations herein as to the condition of the Premises.
34.7 Partnership Disclaimer.
BGCM-D acknowledges, represents and confirms that it is an independent contractor in the
performance of all activities, functions, duties and obligations pursuant to this Agreement.
The parties hereby acknowledge that it is not their intention to create between themselves a
partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or agency relationship
for the purpose of this Agreement, or for any other purpose whatsoever. Accordingly,
notwithstanding any expressions or provisions contained herein, nothing in this Agreement, shall be
34
construed or deemed to create, or to express an intent to create a partnership, j oint venture, tenancy-
in-common, joint tenancy, co-ownership, or agency relationship of any kind or nature whatsoever
between the parties hereto. The provisions of this Section 34.7 shall survive termination and/or
expiration of this Agreement.
34.8 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, structure, equipment or
space is leased to BGCM-D; that this Agreement is a management agreement and not a lease, and
that BGCM-D's right to operate, manage, and maintain the Premises shall continue only so long as
BGCM-D complies with the undertakings, provisions, agreements, stipulations and conditions of this
Agreement.
Accordingly, BGCM-D hereby agrees and acknowledges that in the event of termination of
this Agreement, whether due to a default by BGCM-D or otherwise, BGCM-D shall surrender and
yield unto the City the Premises, in accordance with Section 28 hereof, and the City shall in no way
be required to evict and/or otherwise remove BGCM-D from the Premises as if this were a tenancy
under Chapter 83, Florida Statutes, nor shall BGCM-D be afforded any other rights afforded to
nonresidential tenants pursuant to said Chapter (the parties having herein expressly acknowledged
that this Agreement is intended to be a management agreement and is in no way intended to be a
lease).
34.9 No Third Party Rights.
Nothing in this Agreement, express or implied, shall confer upon any person, other than the
parties hereto and their respective successors and assigns, any rights or remedies under or by reason
of this Agreement.
35
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed; all as of this day and year first written above.
Att st:
City Clerk
Attest:
Secretary
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
CITY OF MIAMI BEACH
Ma Herrer ower, Mayor
BOYS AND GIRLS CLUBS OF MIAMI-
D E, INC.
President _~
SS:
9 The fore~join in trument was ackn wledged before me this ~~ay of __~~ ,
200$x, by Mayor /~~~~~~~ty Clerk, or their designees respectively, on behalf of
the CITY OF MIAMI BEACH, known to me to be the persons described in and who executed the
foregoing instrument, and acknowledged to and before me that they executed said instrument for the
purposes therein expressed.
WITNESS my hand and official seal, this ~~day of , 200,$9
:rPY •U••• IQ:RRY HERNANDEZ
*~' ~ = MY COMMISSION # DD 626373
'--r,~:~a= EXPIRES: May 3, 2011
'~,pf~°tb'~`' BortdetlThruNotaryPublicUnderwriters Notary , f Flo a at Large
Commission No.:
My Commission Expires:
APPROVED AS TO
FORM & LANGUAGE
FOR EXECUTION
,, ,
C ~ tDd'
36
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
SS:
~1 The foregoing instrument was acknowledged before me this 1 ~ day of ~y +n 2 ,
200, by ~ ~ ~ ~zcmc~~ ~ ~5 },.a~°~on behalf of the Boys and Girls Clubs ofMiami-Dade, Inc.,
known to me to be the persons described in and who executed the foregoing instrument, and
acknowledged to and before me that they executed said instrument for the purposes therein
expressed.
WITNESS my hand and official seal, this ~ day of ~~1r1~ , 200.
otary Public, State of Florida at Large
Commission No.:
My Commission Expires:
od"• Notarv Public state of Florida
: `~ Raque~F?rnandez
Q MV Corrnrission DD509180
~'~or~°`~ Expires 0112312010
37
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EXHIBIT "B"
INSURANCE REQUIREMENTS
1. Worker's compensation insurance covering all employees of the Contractors (as
required by the laws of the State of Florida) and employer's liability insurance of not less than One
Million Dollars ($ 1,000,000) per occurrence.
2. Comprehensive general liability insurance in an amount of not less than One Million
Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) annual aggregate
covering personal injury and property damage. Such coverage shall include, but not be limited to,
the following:
i. Blanket contractual liability insurance covering all indemnity or hold
harmless agreements.
ii. Protective liability insurance for the operation of the Independent Contractors.
iii. XCU coverage (explosion, collapse or damage to underground property).
iv. Products and completed operations (for two (2) year extension beyond
completion of project).
v. Sexual Molestation/Abuse of a minor
3. Excess umbrella liability insurance with a limit of not less than Three Million Dollars
($3,000,000) per occurrence and in the aggregate in excess of the above mentioned insurance, which
shall be required only in any "wrap up" policy.
a) BGCM-D may cause the insurance listed in this subsection to be provided
through an overall "wrap up"policy, in lieu of individual policies provided by
Contractors.
b) Comprehensive automobile insurance in an amount of not less than Two
Million Dollars ($2,000,000) combined single limit for bodily injury and
property damage covering all owned, non-owned or hired vehicles, trailers or
semi-trailers, including any machinery or apparatus attached thereto.
4. Builder's Risk Insurance (standard "All Risk" or equivalent coverage) in an amount
not less than the cost of construction, written on a completed value basis or a reporting basis, for
property damage protecting BGCM-D, City, and BGCM-D's General Contractor, with a deductible
of not more than Fifty Thousand Dollars ($50,000), subject to adjustment for inflation (except as to
flood and windstorm, with regard to which the deductible shall be a commercially reasonable
amount).
5. Comprehensive automobile insurance in an amount of not less than Two Million Dollars
($2,000,000) combined single limit for bodily injury and property damage covering all owned,
non-owned or hired vehicles, trailers orsemi-trailers, including any machinery or apparatus attached
thereto.
39