2017-29957 Resolution RESOLUTION NO. 2017-29957
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ENDORSING AND APPROVING, IN CONCEPT,
THE PROPOSAL FROM THE SABRINA COHEN FOUNDATION, INC., A
FLORIDA NOT-FOR-PROFIT CORPORATION ("FOUNDATION"), FOR THE
FOUNDATION, A PUBLIC CHARITY, TO FUND-RAISE AND CONTRIBUTE
ALL OF THE EXPENSES RELATED TO THE CITY'S DESIGN,
DEVELOPMENT AND CONSTRUCTION OF A CITY-OWNED PARKS AND
RECREATION FACILITY, TO BE LOCATED AT A PORTION OF THE CITY'S
"P72" SURFACE PARKING LOT AT 53RD STREET AND COLLINS AVENUE
(THE "P72 LOT"), AND WHICH FACILITY, ONCE COMPLETED, WILL BE
USED AS AN ADAPTIVE RECREATION CENTER SERVING PERSONS WITH
PHYSICAL AND COGNITIVE DISABILITIES, SENIORS, AND ABLE-BODIED
INDIVIDUALS WITH TEMPORARY INJURIES, WITH THE INTENT OF
EXPANDING THE CITY'S ACCESSIBLE BEACH PROGRAMMING FOR THE
BENEFIT OF THE GENERAL PUBLIC (THE "FACILITY"); AUTHORIZING THE
FOUNDATION TO COMMENCE FUND-RAISING FOR THE DESIGN,
DEVELOPMENT AND CONSTRUCTION OF THE FACILITY; AND REFERRING
TO THE FINANCE AND CITYWIDE PROJECTS COMMITTEE THE
PROPOSED AGREEMENT BETWEEN THE CITY AND THE FOUNDATION
FOR FURTHER REVIEW AND CONSIDERATION.
WHEREAS, the City is the owner of certain real property located at and around 53rd Street
and Collins Avenue (5301 Collins Avenue), which includes City Fire Station 3, the surface parking
lot areas east and south of Fire Station 3 (the "P72 Lot"), Beach View Park, and associated
facilities (the "Property"); and
WHEREAS, in an effort to provide enhanced recreational programming at Beach View
Park and greater access to the City's beaches, the City desires to expand the footprint available
for Beach View Park facilities, without reducing any existing Park greenspace; and
WHEREAS, in furtherance of the foregoing, the City desires to repurpose a portion of the
existing P 72 Lot area, to provide expanded parks and recreation services to the public, including
persons living with physical and cognitive disabilities, seniors, and able-bodied individuals with
temporary injuries; and
WHEREAS, the Sabrina Cohen Foundation, Inc. (the "Foundation") is a Florida not-for-
profit corporation of the State of Florida, that exists as a.501(c)3 public charity under the Internal
Revenue Code, entitled to solicit and accept donations in the State of Florida for charitable
purposes; and
WHEREAS, the Foundation currently operates a successful adaptive beach day program
within the City of Miami Beach, with accessible beach programming at or near Allison Park; and
WHEREAS, in view of the limited funding available to the City to support its City-wide
parks and recreational needs, the Foundation desires to collaborate with the City to provide the
necessary funding for the design, development and construction of a City-owned adaptive
recreational facility, with the intent of providing an accessible access point to the beach, and
beach programming, for persons living with physical and cognitive disabilities, seniors, and able-
bodied individuals with temporary injuries (the "Facility"); and
WHEREAS, it is anticipated that the Foundation will raise approximately $4.5 million for the
design, development and construction of the Facility; and
WHEREAS, the City would be the owner of the Facility, which will be used for the primary
purpose of providing the general public and specifically, persons living with physical and cognitive
disabilities, seniors, and able-bodied individuals with temporary injuries, with an accessible access
point to the beach and related beach programming; and
WHEREAS, the Facility would be located on a portion of the P72 Lot adjacent to Beach
View Park, with a footprint of approximately 5,000 square feet, and a maximum height of twenty
four (24) feet (for a total of approximately 10,000 square feet); and
WHEREAS, the site map for the P72 Lot is attached as Exhibit "A" to the Commission
Memorandum accompanying this Resolution, with the final location of the Facility within the P72
Lot to be determined by the City Commission as part of the design development process; and
WHEREAS, at the April 21, 2017 Finance and Citywide Projects Committee ("Finance
Committee"), the Administration was directed to continue to develop an agreement, based on the
term sheet presented to the Finance Committee;
WHEREAS, at the July 26, 2017 City Commission meeting, the Mayor and City
Commission conceptually endorsed the Foundation's proposal; authorized the Foundation to
commence fundraising for the design, development and construction of the Facility; and referred
the proposed agreement to the Finance Committee for further review and consideration.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission, hereby endorse and approve, in concept, the proposal from the Sabrina Cohen
Foundation, Inc., a Florida not-for-profit corporation, for the Foundation, a public charity, to fund-
raise and contribute all of the expenses related to the City's design, development and construction
of a City-owned Parks and Recreation facility, to be located at a portion of the City's "P72" surface
parking lot at 53`d Street and Collins Avenue, and which Facility, once completed, will be used as
an adaptive recreation center serving persons with physical and cognitive disabilities, seniors, and
able-bodied individuals with temporary injuries, with the intent of expanding the City's accessible
beach programming for the benefit of the general public; authorizing the Foundation to commence
fund-raising for the design, development and construction of the Facility; and referring to the
Finance and Citywide Projects Committee the proposed agreement between the City arid the
Foundation for further review and consideration.
PASSED and ADOPTED this day of J-141y 2017.
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Resolutions - R7 AC
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 26, 2017
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE PROPOSAL FROM THE SABRINA
COHEN FOUNDATION, INC., A FLORIDA NOT-FOR-PROFIT CORPORATION
("FOUNDATION"), FOR THE FOUNDATION, A PUBLIC CHARITY, TO FUND-
RAISE AND CONTRIBUTE ALL OF THE EXPENSES RELATED TO THE CITY'S
DESIGN AND CONSTRUCTION OF A CITY-OWNED PARKS AND RECREATION
FACILITY, TO BE LOCATED AT A PORTION OF THE CITY'S "P72" SURFACE
PARKING LOT AT 53RD STREET AND COLLINS AVENUE (THE "P72 LOT"), AND
WHICH FACILITY, ONCE COMPLETED, WILL BE USED AS AN ADAPTIVE
RECREATION CENTER SERVING PERSONS WITH PHYSICAL AND COGNITIVE
DISABILITIES, SENIORS, AND ABLE-BODIED INDIVIDUALS WITH TEMPORARY
INJURIES, WITH THE INTENT OF EXPANDING THE CITY'S ACCESSIBLE
BEACH PROGRAMMING FOR THE BENEFIT OF THE GENERAL PUBLIC (THE
"FACILITY"); PROVIDING THAT THE FOOTPRINT FOR THE FACILITY SHALL BE
APPROXIMATELY, BUT NOT MORE THAN, 5,000 SQUARE FEET, WITH A
MAXIMUM HEIGHT OF TWENTY FOUR (24) FEET, AND CONTAINING A
BUILDING HAVING NO MORE THAN 10,000 SQUARE FEET, WITH THE FINAL
LOCATION FOR THE FACILITY AT THE P72 LOT TO BE DETERMINED BY THE
CITY COMMISSION; PROVIDING THAT ALL PLANS AND SPECIFICATIONS FOR
THE FACILITY SHALL BE SUBJECT TO APPROVAL BY THE CITY; AND
FURTHER, PROVIDING FOR THE FOUNDATION TO MANAGE, OPERATE AND
MAINTAIN THE ADAPTIVE RECREATION CENTER ON THE CITY'S BEHALF,
FOR A TERM OF NINE (9) YEARS AND THREE HUNDRED SIXTY FOUR DAYS,
COMMENCING UPON THE CITY'S COMPLETION OF THE CONSTRUCTION OF
THE FACILITY; FURTHER ACCEPTING THE WRITTEN RECOMMENDATION OF
THE CITY MANAGER (AS FURTHER SET FORTH IN THE CITY COMMISSION
MEMORANDUM ACCOMPANYING THIS RESOLUTION)AND WAIVING, BY 5/7TH
VOTE, THE FORMAL COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY, AND APPROVING, IN
SUBSTANTIAL FORM, A FUNDING, COLLABORATION AND MANAGEMENT
AGREEMENT WITH THE FOUNDATION; AND AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE AN AGREEMENT SUBSTANTIALLY IN THE FORM
ATTACHED TO THE COMMISSION MEMORANDUM ACCOMPANYING THIS
RESOLUTION.
RECOMMENDATION
Accept the proposal from the Sabrina Cohen Foundation, Inc.,a Florida not-for-profit corporation("Foundation"),for
Page 2000 of 2495
the Foundation, a public charity, to fund-raise and contribute all of the expenses related to the City's design and
construction of a City-owned parks and recreation facility, to be located at a portion of the City's "P72" surface
parking lot at 53rd Street and Collins Avenue (the "P72 lot"), and which facility, once completed, will be used as an
adaptive recreation center serving persons with physical and cognitive disabilities, seniors, and able-bodied
individuals with temporary injuries, with the intent of expanding the City's accessible beach programming for the
benefit of the general public(the "Facility'); providing that the footprint for the Facility shall be approximately, but not
more than, 5,000 square feet, with a maximum height of twenty four(24)feet, and containing a building having no
more than 10,000 square feet, with the final location for the Facility at the P72 Lot to be determined by the City
Commission; providing that all plans and specifications for the Facility shall be subject to approval by the City; and
further, providing for the Foundation to manage, operate and maintain the adaptive recreation center on the City's
behalf,for a term of nine (9)years and three hundred sixty four days, commencing upon the City's completion of the
construction of the Facility;further accepting the written recommendation of the City Manager(as further set forth in
the City Commission memorandum accompanying this Resolution)and waive, by 5/7ths vote,the formal competitive
bidding requirement, finding such waiver to be in the best interest of the City, and approving, in substantial form, a
Funding, Collaboration and Management Agreement with the Foundation and authorizing the Mayor and City Clerk
to execute an agreement substantially in the form attached to the Commission memorandum accompanying this
Resolution.
ANALYSIS
At the March 22, 2017 City Commission meeting, a discussion on a possible arrangement with the Sabrina Cohen
Foundation, Inc., a Florida not-for-profit corporation(the "Foundation"), for the construction and operation of a City-
owned adaptive recreation center at a portion of the City's "P72" surface parking lot located at 53rd Street and
Collins Avenue (the "Facility'), was referred to the Finance & Citywide Projects Committee by Commissioner
Malakoff.
The Foundation's concept for the Facility,which would be a City-owned building under the aegis of the City's Parks
and Recreation Department,represents the Foundation's attempt to(1)build on the successful implementation of the
adaptive beach days that provide disabled persons with the ability to enjoy the City's beaches;and (2)respond to the
main community concerns and objections raised with respect to an earlier proposed project at a different location,
Allison Park.
Specifically,the Foundation's proposal for the project is as follows:
• The Foundation,as a public charity,will raise 100%of the funding required for the design and construction of a
City-owned Facility,with no City funds used for the development of the Facility.
• The City would not proceed with the design and construction of the Facility until the Foundation has raised
sufficient funds for design and construction,and has transferred such funds to the City. It is anticipated that the
project costs will be approximately$4.5 million, subject to further refinement during the design development
process.
• The City would be the owner of the Facility,with the primary purpose of providing the general public and
specifically, persons living with physical and cognitive disabilities, seniors, and able-bodied individuals with
temporary injuries,with an accessible access point to the beach and related beach programming.
• The Facility would be located on a portion of the P72 surface parking lot adjacent to Beach View Park,with a
footprint of approximately 5,000 square feet,and a maximum of two stories(for a total of approximately 10,000
square feet). The final location of the Facility within the P72 Lot shall be determined by the City
Commission as part of the design development process. The site map for the P72 Lot is attached as
Exhibit A.
Page 2001 of 2495
• The Facility would not impact any greenspace or park land,and would be designed and developed with
the intent of minimizing impacts to parking spaces.
• In view of the Foundation's commitment to funding 100%of the design and construction costs for the Facility,
and its experience with adaptive beach programming,if the Foundation raises the funding and the
Facility is built,the Foundation would also manage and operate the Center on the City's behalf,for a
term of less than ten (10)years. All operational and maintenance costs would be the responsibility of the
Foundation.
• Among other potential events of termination, the City may terminate the agreement for its
convenience if the Foundation does not raise the requisite project funding within three(3)years.
At the April 21, 2017 Finance and Citywide Projects Committee ("Finance Committee"), this item was discussed
and direction was given for the City to continue to develop an agreement, based on the aforementioned terms,which
were presented to the Finance Committee. The proposed Agreement attached hereto has not been reviewed by the
Finance Committee.
The Administration has worked with the City Attorney's Office to draft the proposed Collaboration, Funding and
Management Agreement, attached as Exhibit"B" to this Commission Memorandum. The Administration has also
conducted its first phase of community outreach inviting the three neighboring condominiums to a public
input/informational meeting on April 17, 2017, where City Staff, Sabrina Cohen and Miami Beach Residents
discussed the location and operation of the potential Center. One of the top concerns for the residents was available
parking at lot P72. Residents voiced their concern over insufficient parking and that the Center should be built at a
different other location. The Parking Department was asked to provide data regarding P72 usage. Parking survey
data shows P72 has 139 park spaces and on average 53%of the lot is empty.
At the April 21,2017 Finance Committee meeting,the Administration expressed that one of the top concerns for the
residents was for parking at the P72 parking lot, with a number of residents indicating that there is currently
insufficient parking,and that the Center should be built at another location.
The proposed Agreement, it must be noted, does not guarantee a project. Rather, the Agreement outlines the
framework for the City and Foundation to further develop the project, and specifically, for the Foundation to conduct
the fund-raising that will be required for the project,with initial milestones for progress and funding of the project.
If it is the direction of the City Commission to accept the proposal from the Foundation and proceed with the
proposed project at the proposed location, as outlined above, I would suggest that the Agreement also reflect the
following:
a. A requirement that within six months of the date of adoption of this resolution,the Foundation submit drawings,
plans and operating plan with sufficient detail to enable the City to accurately estimate the construction costs,
the costs of FF&E,and the operation and maintenance costs of the Facility;
b. A schedule of fundraising thresholds and deadlines based upon the cost estimates(i.e.25%of funds by end of
year one;50%by end of year two;and 100%by end of year three plus the first year's O&M costs);and
c. The City's right to terminate if any of the foregoing deliverables and deadlines are not met.
If the City Commission decides to accept the Foundation's proposal,then the City Manager recommends the waiver
of the formal competitive bidding requirements with respect to the Foundation's management of the Facility, for a
term of less than ten(10)years. Specifically, if the Facility is constructed,it would be in the best interest of the City to
permit the Foundation to manage and operate the Facility for a term of less than ten (10) years, in view of(i) the
Foundation's successful implementation of adaptive beach programming in Miami Beach, and (ii) the financial
commitments the Foundation is undertaking to raise all of the funds for the design and construction of the project, as
well as the maintenance and operation of the Facility(other than capital repairs,which will be the City's responsibility
Page 2002 of 2495
as the owner of the Facility).
Since May 2016, the Foundation has operated an Adaptive Beach Day program, serving over 600 unique visitors
including Miami Beach, Miami-Dade and Broward residents as well as tourists from abroad. Visitors have included
disabled individuals, seniors, veterans, and children with special needs. The program has volunteers ranging from
high school students,college students,physical therapy students to locals.Each Beach Day is consistently averaging
approximately 100 visitors, with 25-40 disabled participants. In the last year, the Foundation has had over 800
individuals sign-in for an Adaptive Beach Day. More information on the Foundation and its Leadership can be found
at:http://sabrinasadaptivebeach.com/.
There is precedent in the City for similar arrangements involving not-for-profits. The City partnered with
the Boys and Girls Club for the construction of a facility in Flamingo Park to offer programming for
children. The City entered into a Management Agreement with Unidad in connection with the
construction and operation of a senior citizen center in Bandshell Park in North Beach.
Legislative Tracking
Parks and Recreation
Sponsor
Commissioner Joy Malakoff
ATTACHMENTS:
Description
o Exhibit A- Site Map of P72
Exhibit B—Collaboration, Funding and Management Agreement between The City of Miami Beach, Florida
and The Sabrina Cohen Foundation, Inc. for an Adaptive Recreation Center
o Exhibit C - Sabrina Cohen Foundation Leadership Information
o Exhibit D - Resolution
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p a
f
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July 18, 2017 DRAFT
COLLAB a RATION, FUNDING AND MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
THE SABRINA COHEN FOUNDATION, INC.
FOR
AN ADAPTIVE RECREATION CENTER
THIS AGREEME T, is made and executed as of this day of ,2017, by and
between the CITY OF IAMI BEACH, a municipal corporation organized and existing under the
laws of the State of Flor da ("City"), and Sabrina Cohen Foundation, Inc., a Florida not-for-profit
corporation,whose prin•ipal office is located at 1800 Sunset Harbour Drive,#2406, Miami Beach,
Florida, 33139 ("FOUND TION") (each, a"Party,"and collectively, the"Parties").
WITNESSETH
RECITALS:
WHEREAS,The ity is the owner of certain real property located at and around 5301 Collins
Avenue, which includes ity Fire Station 3, the parking lot areas east and south of Fire Station 3,
Beach View Park, and a.sociated facilities (the"Property"}; and
WHEREAS, in a effort to provide enhanced recreational programming at Beach View Park
and greater access to t e City's beaches, the City desires to expand the footprint available for
Beach View Park faciliti=s, without reducing any existing Park greenspaces and
WHEREAS, in f rtherance of the foregoing, the City desires to repurpose a portion of the
existing surface parking lot area, described more fully below, to provide expanded parks and
recreation services to th- public, including persons living with physical and cognitive disabilities,
seniors, and able-bodi-. individuals with temporary injuries; and
Page 2005 of 2495
July 18, 2017 DRAFT
WHEREAS,FO NDATION is a Florida not-for-profit corporation of the State of Florida,that
exists as a 501(c)3 publ c charity under the Internal Revenue Code, entitled to solicit and accept
donations in the State • Florida for charitable purposes. The Foundation currently operates a
successful adaptive be-ch day program within the City of Miami Beach, with accessible beach
programming at or near •Ilison Park; and
WHEREAS, in vi-w of the limited funding available to the City to support its City-wide parks
and recreational needs, = e Foundation desires to collaborate with the City to providethe necessary
funding for the design a d construction of a City-owned adaptive recreational facility which, once
completed, will be use in accordance with this Agreement for the purposes specified herein
("Adaptive Recreation C nter"),with the intent of providing an accessible access point to the beach,
and beach programmin , for persons living with physical and cognitive disabilities, seniors, and
able-bodied individuals ith temporary injuries; and
WHEREAS, the ity has identified a portion of the Property as an ideal location for the
proposed Adaptive Recr ation Center; and
WHEREAS,the City is desirous of forging a partnership with FOUNDATION to manage the
proposed Adaptive Rec -ational Center on the Property, and has deemed that it would be in the
City's best interest to tilize FOUNDATION'S prior experience in developing adaptive beach
programming in Miami B-ach; and
WHEREAS,the ( ity is desirous that FOUNDATION play a primary role in the operation and
management of the prop•sed Adaptive Recreation Center, as set forth in the terms and conditions
of this Agreement, and
NOW THEREF'RE, in consideration of the premises and the mutual covenants and
conditions herein contai ed, it is agreed by the parties hereto as follows:
SECTION 1. THE PR=MISES. GRANT OF RIGHTS.
1.1. The Pre ises shall consist of a footprint of approximately,but not more than,5,000
square feet of land beat=d east of 5301 Collins Avenue, on a portion of the"P72"surface parking
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July 18, 2017 DRAFT
lot generally described in Exhibit"A"attached hereto,and which shall contain a two-story building of
up to 10,000 sq. ft., with a maximum height of twenty four (24) feet thereon, and with the final
precise location at the 'roperty to be determined by the City Commission, as part of the design
development process o tined in Section 5 of this Agreement(the Premises").
1.2. The City, as of the Possession Date (as defined in Section 2 herein), grants to
FOUNDATION, and FO NDATION accepts from the City, this Agreement for the exclusive use,
management, coordinati•n, and operation of the Adaptive Recreation Center on the Premises,for
the Term (as defined in Section 2 herein), in conformance with the purposes and for the period
stated herein, and subj- to all the terms and conditions set forth herein. As of the Possession
Date, and during the Trrm, FOUNDATION shall have the primary use and occupation of the
Premises,and shall be r-sponsible for its management,operation,programming,and maintenance.
1.3. As of the "ossession Date, FOUNDATION shall accept the Premises, in its"as is"
condition,and without a representations or warranties of any kind or nature whatsoever by City as
to its condition or as to t e use or occupancy which may be made thereof.
1.4. At no tim- shall the Premises include, nor reduce, any existing Beach View Park
greenspace.
SECTION 2. EFFECT! E DATE' POSSESSION DATE. TERM.
2.1 This Agr ment shall be effective on the date it is signed by both Parties("Effective
Date").
2.2 The term of this Agreement shall commence on the date of issuance of a final
certificate of occupancy by the Miami Beach Building Department for the Adaptive Recreation
Center on the Premises `Possession Date"),and shall continue thereafter for a period of nine years
and three hundred and ixty four days (9 years, 364 days) (the"Term").
2.3 Within thifty(30)days after the Possession Date,the City Manager and Foundation
shall execute a written m morandum,filed with the City Clerk,for the purpose of memorializing the
Possession Date,the da e of expiration of the Term,and the use period referenced in Section 4.1 of
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July 18, 2017 DRAFT
this Agreement.
SECTION 3. DEVELO MENT OF ADAPTIVE RECREATION CENTER.
3.1. The Fou ation agrees to solicit contributions and grant funds to cover the costs of
development, design a d construction of the Adaptive Recreation Center including, without
limitation, any and all f rniture, fixtures and equipment required to manage and operate the
Premises for its intende• purposes (collectively, these costs shall be referred to as the "Project
Costs"). The parties sha I jointly develop the estimated budget for Project Costs,and anticipate that
donor/grant funds (from sources other than City or City-related grant entities)will be sufficient to
cover the Project Costs.
3.2. The Fou dation acknowledges that the City has not identified or appropriated any
City funds for the des gn and construction of the Adaptive Recreation Center, or for any
programming or operatic s at or on the Premises,and that such funds may not be forthcoming. The
Foundation further ackn■wledges and agrees that by entering into this Agreement, the City shall
have no obligation to co ribute any funds for the Project Costs,and any funding commitments with
respect thereto shall req ire City Commission approval,which approval,if given at all,shall be atthe
City Commission's sole iscretion.
3.3. In order to permit the Foundation time to engage in necessary fundraising,the City
will not use the Premise-or dedicate the Premises for any purpose other than its current uses as a
municipal surface parki g lot, until sufficient funds are raised to cover the Project Costs, or the
expiration or earlier term nation of this Agreement.
3.4. At all tim--,City shall retain ownership of the Premises and the Adaptive Recreation
Center. With respect to urniture,fixtures and equipment, the Foundation shall own any furniture,
non-permanent fixtures, =nd equipment that is paid for with Foundation funds. The City shall own all
permanent fixtures, in a•dition to any equipment, non-permanent fixtures and furniture paid for by
the City, if any.
3.5. Any fund- the City accepts from the Foundation for the Adaptive Recreation Center
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July 18, 2017 DRAFT
shall be used exclusively to support the design and construction of the Adaptive Recreation Center.
3.6. The City's Office of Grants Administration shall meet with the Foundation to identify
potential grant opportunities that may be available to either the City, the Foundation, or both, in
support of the design and construction of the Adaptive Recreation Center. With respect to grant
opportunities that may only be available to public entities such as the City(orfor which,for whatever
reason, the parties agree that it would be more advantageous for the City to directly serve as the
applicant),the City will,at its sole discretion,apply for such grants. The Foundation shall otherwise
be responsible for applying for any grants in support of the Adaptive Recreation Center.
3.7. The Foundation agrees that, as part of its fundraising efforts, it will not accept any
donation, grant or othe funds for the development or construction of the Adaptive Recreation
Center that contains an restriction or imposes any requirements on the City other than those
expressly contained in Section 4, including, without limitation, any requirement of specific
programming at the Pre ises, any requirement that would involve the expenditure of public funds,
or any limitation with res•ect to the City's selection of any manager/operator for the Premises. All
donations that include a y interior or exterior naming rights shall be subject to the provisions of this
Agreement. The City's i tent with respect to the foregoing is not to restrict the Foundation's ability to
solicit donations for any heritable purpose, but rather to ensure that any donations transferred to
the City for the design an• construction of the Adaptive Recreation Center are strictly for the Project
Costs and do not incluse any additional use restrictions or other commitments that the City
Commission has not pr- iously approved, (other than the restriction that the donation be used for
the purposes outlined h-rein).
SECTION 4. APPRO ED PERMITTED USES OF THE ADAPTIVE RECREATION CENTER.
4.1 The City .grees that,commencing on the Possession Date,and for a period of forty
(40)years thereafter,th; Premises shall be primarily used as an adaptive recreation center mainly
serving persons living wi h physical and cognitive disabilities, seniors, able-bodied individuals with
temporary injuries.
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July 18, 2017 DRAFT
4.2 Notwithst nding the foregoing, if Foundation, or other third-party, funding is not
available to cover the o erating costs for the Adaptive Recreation Center as contemplated herein,
the Premises shall be used for the most closely-related Parks Department purposes, which may
include a combination of adaptive programming with other general Parks Department programming,
with the intent for the Pr=mises to continue to serve as an accessible access point to the beach for
persons living with phy-ical and cognitive disabilities, seniors and able-bodied individuals with
temporary injuries, (for rty (40) years from the date the Premises is opened to the public). In
determining programmin, for the Premises,the City agrees to evaluate the feasibility of relocating to
the Premises any other-daptive programming offered elsewhere in the City,such as City programs
offering electric beach c airs for use by persons with physical disabilities(hereinafter,the foregoing
City approved program , activities, services, and uses by FOUNDATION with respect to the
Premises,whether reve ue generating or not, shall be collectively referred herein to as the"uses"
and/or the "approved u es"). In the event that FOUNDATION seeks to use the Premises for
additional programs, se ices, activities and uses which are materially different than the approved
uses, as specifically en merated herein,then each such proposed new use shall be subject to the
prior written approval of the City Commission which approval, if given at all, shall be at the City
Commission's sole dis.retion, and which shall be memorialized as an amendment to this
Agreement. Notwithsta ding the preceding,FOUNDATION shall not be required to obtain the City's
prior written consent if a proposed new use is reasonably related to the approved uses set forth
herein: for purposes of t: is Section 4, the term "reasonably related"shall refer to a proposed new
use that is neither a -ubstantive change in the approved uses, nor represents a material
programmatic change in said approved uses.
4.3 The Pre ises shall be used by FOUNDATION solely and exclusively for the uses set
forth in this Section 4,or -uch other uses as may be approved by the City,and for no other purposes
or uses whatsoever. In k e event that FOUNDATION uses the Premises for any purposes and/or
uses not expressly perm tted in Section 4 herein,such use shall be considered a default under this
6
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July 18, 2017 DRAFT
Agreement and the City s all be entitled to all remedies, including termination of this Agreement,as
set forth in Section 27 he ein. In addition, notwithstanding any other terms of this Agreement,the
City shall be entitled to s=ek immediate relief, whether at law or equity, to restrain such improper
use(s).
SECTION 5. PROJEC ADMINISTRATION AND BUDGET FOR DESIGN AND
CONSTRUCTION OF ADAPTIVE RECREATION CENTER.
5.1 The preli inary budget of the Project Costs for the development, design and
construction of the Adapt ve Recreation Center shall be developed after the concept design for the
Adaptive Recreation Cen er is approved by the City and the Foundation,and shall be subject to the
mutual agreement of th= Foundation and the City. The preliminary budget shall include a 10%
contingency to cover unf.reseen circumstances and Project Costs, and the Adaptive Recreation
Center will be designed t. this budget.
5.2 The devel■pment,design and construction of the Adaptive Recreation Center shall
be administered as a Ci project in accordance with all City procurement and applicable laws,
including, without limitat on, LEED certification requirements, and the budget for the Adaptive
Recreation Center shall r-flect such requirements.The City shall be responsible for entering into the
contract with the architec-engineer,the construction contractor, and any ancillary professionals or
other vendors required t• complete the Adaptive Recreation Center and related improvements,and
the City's Capital Impr. ements Office shall serve as the contract administrator. Once the
preliminary budget for Pr i ject Costs is established,the Foundation and City shall establish a project
schedule,outlining prop•sed timeframes for Foundation's fund-raising efforts,and the completion of
Project-related deliverab es.
5.3 The City s all not enter into any binding agreement with an architect/engineerforthe
design of the Adaptive '-creation Center until all of the following events have occurred:
(1) th- Foundation has transferred the funds sufficient to cover the total contract
a ount for architectural/engineering fees; and
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(2) the Foundation has evidenced to the City that has it has received total
donation pledges or grant commitments in an amount sufficient to cover the
remaining Project Costs, and that such pledges and commitments are
a ticipated to be fulfilled within nine (9) months following execution of the
ag reement between City and the architect/engineer; and
(3) a , naming rights associated with donations or grants are approved
p rsuant to Section 16 herein and the City's Naming Ordinance, but only if
su h donation is(1)contingent upon naming rights being conferred,and(ii)if
th- amount of the donation is required for purposes of covering the total
co tract amount for architectural and engineering services for the Adaptive
R-creation Center.
5.4 The City hall not enter into a binding agreement with a construction contractor for
the Adaptive Recreation enter until such time as all of the following events have occurred:
(1) th- Foundation transfers the funds sufficient to cover the total estimated
co struction costs, and
(2) a naming rights associated with donations or grants are approved
p $suant to Section 16 herein and the City's Naming Ordinance, but only if
su h donation is(i)contingent upon naming rights being conferred,and(ii)if
th- amount of the donation is required for purposes of covering the total
co tract amount for the construction of the Adaptive Recreation Center.
5.5 The Faun•ation agrees to provide and pay for the initial concept rendering for the
Adaptive Recreation Ce ter("Concept Plan Design")detailing the proposed improvements for the
Adaptive Recreation Ce ter in sufficient detail; the layout and siting, including without limitation,
preliminary elevations, i cluding, but not limited to, size of building footprint, number of stories,
heights; and other imp .vements and appurtenances proposed upon the Premises. Upon
FOUNDATION's initial s bmission of the proposed Concept Plan Design to the City, the City
Manager shall have 21 •ays to review and provide the Foundation with any comments to the
proposed Concept Plan design. Following review by the City Manager,the Concept Plan Design
shall be subject to appro al by the Mayor and City Commission at a regularly scheduled meeting.
Should the City Commiss on decline to approve the Concept Plan Design,then this Agreement shall
automatically terminate a d be of no further force or effect, unless the City Commission deems to
grant an extension, at its sole discretion. In the event of automatic termination of this Agreement
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pursuant to this subse ion, each Party shall bear its own costs and expenses incurred in
connection with this Agr ement, and neither Party shall have any further liability to the other.
5.6 The desi•n documents, including plans and specifications, for the Adaptive
Recreation Center, shall be developed consistent with the approved Concept Plan Design. During
the design developmen' period, the Foundation agrees to provide City with input with respect to
design development. he City agrees to provide full consideration to the Foundation's input,
particularly with respect o aspects of the design that may enhance the use of the Premises for its
intended accessibility-re ated purposes. All design documents, plans and specifications shall be
subject to City's final app oval,and pursuant to all applicable governmental requirements, including
regulatory approval by he Design Review Board and agencies having jurisdiction over the
Premises.
5.7 As part of the design development process, the City shall require the
architect/engineer to pro ide an updated estimate of the construction costs,and the estimate of total
Project Costs shall be ..djusted accordingly. In the event the estimates to design/construct the
Facility exceed availabl- funds, or in the event cost overruns with respect to the Project Costs are
anticipated or experienc:d during the construction of the Adaptive Recreation Center,the City and
the Foundation shall war together to either identify additional funds or adjust the project scope,as
necessary. Except fort e expenditure of the funds received from the Foundation for the Adaptive
Recreation Center,City -hall have no obligation to expend any funds to design,construct,equip or
operate the Adaptive Re reation Center.
5.8 In the a ent the Adaptive Recreation Center and related improvements are
developed,designed an• constructed for less than the amounts contributed by the Foundation for
Project Costs,then any nused funds shall be returned to the Foundation within 60 days following(I)
the issuance of a Certific=te of Occupancy and (ii)receipt of a certificate of final payment/release of
all claims from the const uction contractor.
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5.9 Any donat ons transferred by the Foundation to the City for the Adaptive Recreation
Center shall be accounte• for separately from any other City funds, in a restricted special revenue
fund, and used solely for •ayment of Project Costs.
5.10 The initial iiestones for the project are as follows:
a. Cit. will initiate the design solicitation process to select the architect/engineer
for the project, as referenced in Section 5.3, once the Foundation has
tra sferred to the City$500,000 for the project.
b. Ci• will initiate the construction bid process to select the contractor for the
project, as referenced in Section 5.4, once the Foundation has raised an
ad■itional$4 million.
In the event the Foundati„n and City agree upon a final Project budget in an amount other than$4.5
million, the milestone am•unts identified in this Section 5.10 shall be adjusted on a proportionate
basis.
SECTION 6. OPERATI•N AND MANAGEMENT OF THE ADAPTIVE RECREATION CENTER.
6.1. From and :fter the Possession Date, and subject to the approved uses in Section 4
(as same may be amen•ed from time to time), and the terms, limitations and required approvals
contained in this Agree ent, FOUNDATION is authorized and required, and shall have the
exclusive right to:
c. M-nage and direct the Adaptive Recreation Center and coordinate and
su•ervise all approved uses thereof at the Premises;
d. M-intain and provide for the day-to-day maintenance and housekeeping for
th= Premises;
e. S pervise and direct all Adaptive Recreation Center employees and
pe sonnet consistent with the provisions of this Agreement;
f. M-intain and supervise detailed,accurate and complete financial and other
re,ords of all its activities under this Agreement in accordance with generally
ac epted accounting principles. All financial records maintained pursuant to
thi: Agreement shall be retained by FOUNDATION as long as such records
ar required to be retained pursuant to Florida Public Records Law,and shall
b made available upon reasonable notice by the City;
g. D velop and implement programs and activities which support and promote
th goals and priorities and approved uses, as set forth in Section 4; and
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h. C ordinate with the City for such public use of the Premises by the City, as
s t forth in Section 10.2 of the Agreement, which coordination and
c operation shall not be unreasonably withheld. Such public uses of the
P mises by the City shall be conducted pursuant to policies and procedures,
w ich shall be established and mutually agreed upon by FOUNDATION and
th City,within six(6) months of execution of this Agreement by the parties
h reto.
6.2. The Parti s agree and acknowledge that,in furtherance of,and consistent with,the
approved uses, FOUN •TION and the City may agree to provide certain recreation and leisure
activities at the Premis-s that will be programmed through the City's Parks and Recreation
Department, or such oth-r provider as the City may reasonably delegate, and provided, however,
that any such activities d not interfere with the primary approved uses. FOUNDATION and the City
hereby agree to use be-t efforts in mutually determining and agreeing upon the time, place, and
manner in the coordinati.n of such services and programs within the Premises, and further agree
that each Party will be r-sponsible for its respective costs associated with the provision of said
services and programs.
6.3. Opening Date. The Foundation shall commence operations pursuant to this
Agreement and shall op-n the Adaptive Recreation Center to the general public within thirty (30)
days following the Poss;ssion Date.
6.4. Hours of operation. The City and FOUNDATION herein agree that the hours of
operation for the Premis-s shall not exceed 8:00 AM to 9:00 PM,Monday through Sunday,with the
final normal operating hours (within the parameters set forth herein)to be determined on mutual
agreement of the City an• Foundation. The parties recognize and acknowledge that, under certain
circumstances(i.e.spec al events, special programming,etc.), FOUNDATION will be permitted to
extend its hours of opera ion, but in no event shall said hours be shortened without the prior written
approval of the City Man:ger or his designee, which approval shall not be unreasonably withheld.
SECTION 7. REVENU FROM ADAPTIVE RECREATION CENTER RELATED
ACTIVITI SIFINANCIAL RECORDS AND REPORTS.
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7.1 Revenue rom Premises-Related Activities. The City herein acknowledges that
FOUNDATION may deri e additional revenues from a portion of the uses it conducts upon or from
the Premises,including, 4.ut not limited to,special events on the Premises,specialty sales,classes,
and sale of food and be erages. FOUNDATION herein acknowledges that any and all revenue
generating uses conduct-d upon or from the Premises must be directly related to,consistent with,or
used to help fund FOUN mATION's management, operation,and maintenance of the Premises and,
in the event that reven e(s) pertaining to the Premises exceed expenses during an annual
accounting period,the Ci and FOUNDATION agree that such excess,if any,may also be applied
by FOUNDATION to su•port the programming of FOUNDATION. Any revenue-generating uses
conducted upon or from 1 e Premises that are not consistent with the uses in this subsection, shall
first be approved,in writi g,by the City Manager or his designee, prior to commencement of same.
7.2 Financial 'ecords and Re•arts. FOUNDATION shall keep on the Premises,or such
other place within Mia i Dade County, Florida, as approved by the City, true, accurate, and
complete records and ccounts of all receipts and expenses for any and all uses, services,
programs,events,activiti ,and/or revenue generating activities/operations being conducted and/or
transacted upon or from the Premises pursuant to this Agreement and shall give the City, or its
designated representati , access during reasonable business hours to examine and audit such
records and accounts. hroughout the term of this Agreement, no later than one hundred and
twenty (120) days followi g the closing of FOUNDATION's fiscal year(October 1st —September
30th, which is also the 's fiscal year), FOUNDATION shall provide the City Manager or his
designee, with an annu I report of all activities and/or operations conducted pursuant to this
Agreement for the prior ar, along with audited financial statements. Said statements shall be
certified as true, accurat and complete by FOUNDATION and by its certified public accountant.
SECTION 8. ANNUAL UDGET AND FUNDING FOR THE ADAPTIVE RECREATION CENTER.
8.1. Throughout the term of this Agreement,FOUNDATION shall prepare and present,on
October 1st of each City fiscal year (October 1 -September 30th), a proposed, detailed line item
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annual operating budget for the Adaptive Recreation Center,for review by the City Manager and/or
his designee. 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, but not be limited to, the following detailed projections:
a. Gross revenues by categories from all revenue sources and revenue
generating activities derived from or upon the Premises;
b. Operating expenses of the Adaptive Recreation Center/Premises;
c. Administrative, labor and general expenses;
d. Marketing, advertising and promotion expenses;
e. Ut lity costs;
f. R-gular repairs and maintenance costs (to the extent such repairs and
m-intenance are the responsibility of FOUNDATION, as provided herein);
a d
g. In=ddition to subsection(f)above,identify for the City,such long term capital
re'airs and maintenance of facility infrastructure (which the City is
re ponsible for, as provided herein); in conjunction with this subsection (f)
F tl UNDATION agrees to allow the City and/or its designee access to the
Pr-miles, as the City may deem necessary for the purpose of the City
co ducting its own facility assessment methodology(as is used by the City in
a =essing the condition of other City-owned structures).
8.2. Program atic Plan. Accompanying FOUNDATION's proposed annual budget shall
be the Adaptive Recreat on Center programmatic plan for the upcoming fiscal year, detailing the
then-known(planned)us-s,activities,events,and operations, and the number of users anticipated.
SECTION 9. MAINTE ANCE, REPAIRS.AND ALTERATIONS.
9.1 General aintenance and Repair. FOUNDATION agrees to maintain the Premises,
and every part thereof, in good condition during the term of the Agreement, including the plumbing,
doors and windows, and will not suffer or permit any strip or waste of the Premises. Except as
expressly provided in thi Agreement,it is understood by the parties hereto that FOUNDATION shall
not be responsible to r for any costs related to capital repairs or other improvements or
infrastructure that maybe required after the Possession Date(i.e. including,but not limited to, roof,
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structural elements and i frastructure,HVAC,plumbing and sewer lines,major electrical,and similar
capital improvements) for the Premises, or repairs, if any, that may be required to correct any
construction-related defi iencies performed by any City contractors. Notwithstanding the preceding
sentence, FOUNDATIO shall provide the City with prompt notice of needed capital and/or
infrastructure repairs th-t are deemed to be required, and the City shall have a reasonable time
thereafter to commence said repairs, at City's cost and expense..
9.2 Da to D- y Maintenance. FOUNDATION shall, at its sole cost and expense,to the
satisfaction of the City,k ep, maintain,and repair the Premises,and all improvements,fixtures,and
equipment thereon (ex -pt for those items the City is responsible for as set forth in subsection 9.1
above), in good,clean,a d sanitary order. FOUNDATION assumes sole responsibility and expense
for day to day houseke-ping, 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 FOUNDATION's use of the
Premises,including all g-rbage disposal generated by its operations and activities. At City's option,
FOUNDATION shall be required to obtain, and continuously maintain in good standing, at its
expense, throughout th; Term, a maintenance and repair contract, approved by the City, with a
service company previ n usly approved in writing by the City, providing for the preventative
maintenance and repair of all air conditioning units servicing the Premises.
Notwithstanding he City and FOUNDATION's respective roles with regard to maintenance
and repair of the Premis-s, FOUNDATION shall comply with any and all State,Miami-Dade County,
and City laws, codes, rul-s and regulations, etc. with regard to its respective obligations.
9.3 In the ev- t that FOUNDATION desires or deems it appropriate to make alterations,
additions,or improveme is to the Premises after the Possession Date,it will submit plans for same
to the City, for the prior ritten approval of the City Manager or his designee. No such alterations,
improvements, or additi.ns shall be made without the express written approval of the City and, if
approved,shall be made at FOUNDATION's sole cost and expense,and shall become the property
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of the City upon terminati n of this Agreement. FOUNDATION 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, improvement , or additions.
9.4 Labor/Pe -onnel/Materials/Es ui•ment/Fumishin•s. FOUNDATION must provide and
maintain, at its sole cost -nd expense, all labor,personnel, materials,equipment, and furnishings,
as reasonably required, t. operate the Premises as an adaptive recreation center, in accordance
with the approved uses s forth herein. In the event any materials, equipment, and/or furnishings
are lost,stolen, or dama g ed,they shall be promptly replaced or repaired (funding permitted)at the
sole cost and expense o•the FOUNDATION.
9.5 Orderly O'eration.FOUNDATION shall have a neat and orderly operation at all times
and shall be solely respo sible for the necessary housekeeping services to properly maintain the
Premises. There shall •- no living quarters nor shall anyone be permitted to live within the
Premises.FOUNDATIO shall make the Premises available for inspection during hours of operation
by the City Manager or hi- authorized representative.
9.6 Security. 'OUNDATION shall be responsible for and provide reasonable security
measures which may be -quired to protect the Premises and any of the materials,equipment,and
furnishings thereon. Un.er no circumstances shall the City be responsible for any stolen or
damaged materials,equi•ment, and furnishings, nor shall the City be responsible for any stolen or
damaged personal props of FOUNDATION's employees,contractors, patrons,guests, invitees,
and/or other third parties
SECTION 10. ANNUAL -EPORTS FOR USE OF PREMISES/CITY USE OF PREMISES FOR
SPECIAL VENTS!RECEPTIONS!COMMUNITY MEETINGS,AND GENERALLY.
10.1 FOUNDA ION shall provide an annual written report of the activities and events
scheduled in and pertain i g to the Premises and,with each such report,shall report on the activities
which actually occurred =nd the number of persons participating in those activities during the
previous month. Any rev=nue-generating activity(ies)conducted upon or from the Premises must be
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in accordance with tho provided in Section 7 of this Agreement(or, otherwise approved by the
City in accordance ther in). All revenues received by FOUNDATION in connection with uses
conducted upon or from he Premises shall be dedicated exclusively to help fund FOUNDATION's
management,operation,and maintenance of the Premises. In the event that revenue(s)pertaining
to the Premises exceed xpenses during an annual accounting period,the City and FOUNDATION
agree that such excess, any, shall first be applied to offset any contributions previously made by
the City, if any, and m-y then be applied by FOUNDATION to support the programming of
FOUNDATION. For pu •oses herein, ''revenues" shall also be deemed to include public/private
grant funding,and unres icted donations and contributions received by FOUNDATION specifically
ear-marked toward the o•eration, management and programming of the Premises. No portion of
the net earnings resulting from the activities of FOUNDATION at the Premises shall inure to the
benefit of any private ind vidual.
Notwithstanding t e foregoing, the City Manager or his designee, shall have the absolute
and final authority in ove seeing FOUNDATION'S activities with regard to this Agreement and its
operation and managem nt of the Premises,such that the City is assured that the Premises is being
operated and utilized in -ccordance with the terms of this Agreement.
10.2 Use b th- Ci . FOUNDATION and the City have agreed that the Premises may be
used for programming c.nsistent with the primary uses, and serve as an adjunct to the adjacent
Beach View Park. Consi-tent with this,the City shall have the right to use the Premises,or any part
thereof,subject to availa•ility,for the benefit of the community for such purposes including, but not
limited to, recreational p ograms sponsored by the City, public meetings, training classes, City
sponsored special event-,and other public purposes as deemed necessary by the City,without the
payment of any rental or se fee, except that direct out-of-pocket expenses incurred in connection
with such uses (includin reasonable expenses incurred by FOUNDATION in order to open and
make the Premises avai able in connection with a City use thereof) shall be paid by the City.
FOUNDATION and the ity agree to develop mutually acceptable guidelines and regulations to
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permit City and commun ty use of the Premises, in accordance with the terms herein.
SECTION 11. FOUNDA ION'S CONTRIBUTION.
11.1 This Agr-ement is made with the express consideration, understanding and
agreement that FOUND'TION will contribute the funds required to design,construct and operate
the Adaptive Recreation Center on the Premises.
11.2 In addition to the Foundation's contribution for the design and construction of the
Adaptive Recreation Ce ter,throughout the Term of this Agreement,and as further consideration
for this Agreement, FOU DATION shall also use its best efforts to continue to obtain public/private
grant funding and individ, al/corporate contributions, not only for such other capital renovations and
improvements as may b- mutually agreed to by the Parties hereto but, more importantly, for the
continued operation and support of the Adaptive Recreation Center(and to sustain the approved
uses contemplated in thi• Agreement). FOUNDATION hereby warrants and represents that such
approved uses shall, t roughout the Term of this Agreement, be funded and operated, at
FOUNDATION'S sole 'bst and expense. It is the intent of the City and FOUNDATION that
FOUNDATION will use r=asonable efforts to increase its funding forthe maintenance,operation and
programming of the Pre ises, and toward sustaining and increasing the approved uses, on a
continuing basis.
Similarly, the •ity and FOUNDATION herein agree that a vital component of
FOUNDATION's missio statement, with respect to this Agreement, is to use its best efforts;
specifically, to obtain pu•lic/private funding contributions to construct and operate the Adaptive
Recreation Center, and E• continue to operate and manage the Premises in accordance with the
highest levels of service. Accordingly, FOUNDATION herein represents that it shall use its best
efforts with respect to un.ertaking a coherent and consistent grants writing and submittal effort,not
only to fund the design and construction of the Adaptive Recreation Center, but to fund the
continued management nd operation of the Adaptive Recreation Center and the Premises.
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FOUNDATION f rther acknowledges and understands that the City shall in no way be
obligated to supplemen, and/or otherwise contribute any funds for FOUNDATION's day-to-day
operation and mainten-nce of the Premises, except as may be otherwise set forth in this
Agreement.
SECTION 12. ASSIGN ENT.
FOUNDATION ay not assign this Agreement,or any part thereof,without the prior written
approval of the City Com ission,which approval shall be given,if at all, at the sole discretion of the
City. Any assignment m.de in violation of this Section 12 shall be null and void. This Agreement is
made with the understa ding that FOUNDATION shall at all times, throughout the term of this
Agreement, remain a not for-profit corporation. In the event that FOUNDATION ceases to be a not-
for-profit corporation, or he City, through the City Manager, in his sole discretion and judgment,
determines that the Pre ises is not being used for the stated purposes in Section 4,this Agreement
shall be subject to termi ation upon thirty(30) days written notice by the City to FOUNDATION.
SECTION 13. USE OF HE ADAPTIVE RECREATION CENTER IS PRIMARY.
The Adaptive Re reation Center and Premises shall exist for the use of the public, for the
approved uses consiste t with Section 4 and the terms of this Agreement, and the public's right to
such use shall not be inf inged upon by any act of the FOUNDATION or any third-party.
SECTION 14. PERMIT'• LICENSES.
FOUNDATION a•rees to obtain and pay for all permits and licenses necessary for the
conduct of its operation - d activities on the Premises and agrees to comply with all laws governing
the responsibility of a employer with respect to persons employed by FOUNDATION.
FOUNDATION shall als. be solely responsible for payment of any and all taxes levied on the
Premises and its operations. In addition, FOUNDATION shall comply with all rules,regulations and
laws of the City;Miami-D-de County;the State of Florida;and the U.S.Government,now in force or
hereafter to be adopted.
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SECTION 15. LICENSES/PERMITS UTILITIES TAXES AND ASSESSMENTS.
15.1 Licenses Permits Utilities. FOUNDATION shall pay any fees imposed by law for
licenses or permits for -ny uses or activities of FOUNDATION upon the Premises or under this
Agreement and shall pa to the City, before delinquency any and all charges for utilities at or on the
Premises(including,but i of limited to,water,electricity,gas,heating,cooling,sewer and telephone,
trash collection, and oth-r expenses associated with the operation of the Premises).
15.2 Procedur- If Taxes Assessed. FOUNDATION agrees to and shall pay before
delinquency all taxes an assessments of any kind assessed or levied upon FOUNDATION or the
Premises by reason o this Agreement or by reason of the business or other activities of
FOUNDATION upon or i connection with the Premises. The Parties agree that the operation and
uses of the Premises an those operations and uses convenient and necessary therefore, are for
public purposes and, th refore, no ad valorem taxes should be assessed by the Dade County Tax
Appraiser.If, however,s id taxes are assessed by said Property Tax Appraiser,FOUNDATION shall
be responsible for paym nt of same.
SECTION 16. SIGNAG .
FOUNDATION -hall provide, at its sole cost and expense, required signs at all public
approaches to the Pre ises, as determined by FOUNDATION in its reasonable discretion, said
signage containing subs antially the following language:
OPERAT D BY SABRINA COHEN FOUNDATION, INC.
All advertising, -ignage and postings shall be approved by the City and shall be subject to
all applicable planning a d zoning requirements of the City.
The Foundation -hall have the right to erect interior signage, including, without limitation,
temporary banners(tern t orary signage is subject to City Manager's approval)and exterior signage;
provided,however,that t a names affixed thereon(including,without limitation,any sponsor names)
shall be subject to appro al as required by the City's Naming Ordinance,as codified in Chapter 82,
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Article VI,Sections 82-5 1 through 82-505 of the City Code,as may be amended from time to time.
In no event may any interior or exterior signage include the names of any company selling
the following types of pr ducts: guns,tobacco, alcohol, gambling, and medical marijuana.
SECTION 17. FORCE AJEURE.
17.1. The perf■rmance of any act by FOUNDATION or the City hereunder may be delayed
or suspended at any tim- while, but only so long as, either Party is hindered in or prevented from
performance by acts a, God ( including, without limitation, hurricanes), the elements of war,
rebellion, strikes, locko ts, fire, explosion or any other casualty or occurrence not due to
FOUNDATION's or City'- negligence and beyond the reasonable control of the Parties.
17.2. Premise- Unusable. In the event a Force Majeure renders the Premises
untenantable, in whole •r in part, as determined by City, the City may, at its sole option and
discretion; (i)elect, as s.on as practicable,to utilize the insurance proceeds to repair the damaged
property; or(ii) elect not o repair or restore the damaged property and, in such event(and provided
further that FOUNDATI•N does not elect, and/or does not comply with the procedures for
FOUNDATION's repair . the Premises using its own funds),this Agreement shall be terminated as
of the date of said occur -nce of damage or casualty. Notwithstanding the preceding sentence,in
the event the (a) City el:cts not to restore or repair the damage; (b) FOUNDATION gives written
notice to the City within so (60)days of the casualty that FOUNDATION is willing to undertake the
repair the damage with i own or other available funds; (c)within twelve(12)months following such
notice, FOUNDATION p ones, to the City's sole satisfaction and discretion, that it has adequate
funds immediately avail-ble to undertake the repair; and (d) the City and FOUNDATION, each
acting in its reasonable d scretion,agree within a reasonable time(but not to exceed six(6)months
unless otherwise extend d in writing by City Manager)after the City deems that FOUNDATION has
demonstrated that it has adequate funds to undertake the repair,to the conditions,timing, plans,
procedures,contractors, ubcontractors,disbursement mechanisms and other matters with respect
to the repair,then and in hat event, FOUNDATION shall be entitled to effect the repair with its own
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funds; provided that FOU DATION must complete any and all repairs and/or restoration no later
than eighteen (18) months from the date of the City's approval of FOUNDATION's funding
capability.
SECTION 18. INSPECTI'N.
FOUNDATION a•rees that the Premises may be inspected at any time upon reasonable
notice by authorized rep -sentatives of the City, or by any other State, County, Federal and/or
municipal officer or age cy having responsibilities for inspections of such operations and/or
Premises. FOUNDATIO agrees to undertake immediately the correction of any deficiency cited by
such inspectors on the Pr-mises,which is properly the responsibility of FOUNDATION pursuant to
this Agreement.
The City or its age.is shall have the right to enter upon the Premises at all reasonable times
to examine the condition -nd use thereof;(including,without limitation,for the purpose of assessing
the condition of the facili , as also referenced in subsection 8.1(g), provided, only,that such right
shall be exercised in su- manner so as not to interfere with FOUNDATION in the conduct of
FOUNDATION's activitie-on the Premises;and if the Premises are damaged by fire,windstorm or
by other casualty that cau-es the Premises to be exposed to the elements,then the City may enter
upon the Premises to ake emergency repairs; but if the City exercises its option to make
emergency repairs, such act or acts shall not be deemed to excuse FOUNDATION from his
obligation to keep the Pr-mises in repair. If City makes any emergency repairs pursuant to the
terms hereof, FOUNDA ION shall reimburse the City for all such repairs upon receipt by
FOUNDATION of City's n•tice of repairs made and statement and proof of costs incurred.
SECTION 19. WAIVER +F INTERFERENCE.
FOUNDATION he eby waives all claims for compensation for loss or damage sustained by
reasons of any interferen e with its operation and management of the Premises by any public
agency or official as a res It of their enforcement of any laws or ordinances or of any of the rights
reserved to the City her=in. Any such interference shall not relieve FOUNDATION from any
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obligation hereunder.
SECTION 20. INSURA CE.
FOUNDATION s all maintain,at FOUNDATION's sole cost and expense,the following types
of insurance coverage a all times throughout the term of this Agreement:
a. G-neral liability insurance with not less than the following
Ii its:
G-neral aggregate $2,000,000
P,rsonal and advertising (injury) $1,000,000
(Per occurrence) $1,000,000
Fie damage $ 100,000
M-dical Expense $ 5,000
b. orkers Compensation Insurance shall be required under
th= Laws of the State of Florida.
c. A tomobile Insurance shall be provided covering all owned,
le:sed, and hired vehicles and non-ownership liability for not
le-s than the following limits(only if FOUNDATION provides
tr-nsportation services):
B..dily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
P operty Damage $ 500,000 per accident
d. P operty Insurance(fire,windstorm,other perils)shall be the
re-possibility of the City.
The policies of in=urance referred to above shall not be subject to cancellation or changing
coverage except upon least thirty (30) days written notice to City and then subject to the prior
written approval of City. FOUNDATION shall provide City with a Certificate of Insurance for each
such policy, which shall ame the City as an additional named insured. All such policies shall be
obtained from compani=s authorized to do business in the State of Florida with an A.M. Best's
Insurance Guide(latest dition)rating acceptable to the City's Risk Manager,and any replacement
or substitute company s all also be subject to the approval of the City's Risk Manager. Should
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FOUNDATION fail to o tain, maintain or renew the policies of insurance referred to above, in the
required amounts, the ity may, at its sole discretion, obtain such insurance, and any sums
expended by City in obtining said insurance, shall be repaid by FOUNDATION to City.
SECTION 21. INDEMN FICATION.
21.1 FOUND TION shall indemnify, hold harmless and defend the City, its agents,
servants and employee-from and against any claim,demand or cause of action of whatsoever kind
or nature arising out of =rror, omission, or negligent act of FOUNDATION, its agents, servants or
employees in connecti a n with the performance of the Foundation's obligations under this
Agreement.
21.2 In additio , FOUNDATION shall indemnify, hold harmless and defend the City, its
agents,servants and em.loyees from and against any claim,demand or cause of action of whatever
kind or nature arising ou t of any misconduct of FOUNDATION not included in subsection 21.1 above
and for which the City, i agents, servants or employees are alleged to be liable. This subsection
shall not apply, howeve to any such liability as may be the result of the willful misconduct of the
City, its agents, servant-or employees.
21.3 Subro.aton. The terms of insurance policies referred to in Section 20 shall
preclude subrogation c aims against FOUNDATION, the City and their respective officers,
employees and agents.
21.4 The provi ions of this Section 21 shall survive the termination and/or expiration of this
Agreement.
SECTION 22. NO LIEN -.
FOUNDATION a rees that it will not suffer,or through its actions or anyone under its control
or supervision, cause to e filed upon the Premises any lien or encumbrance of any kind_ In the
event any lien is filed, F UNDATION agrees to cause such lien to be discharged within ten (10)
days therefrom,and in a ordance with the applicable law. If this is not accomplished,the City may
automatically terminate t is Agreement,without further notice to FOUNDATION.
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SECTION 23. FOUND TION EMPLOYEES AND MANAGERS.
23.1 The City nd FOUNDATION recognize that in the performance of this Agreement,it
shall be necessary for OUNDATION to retain qualified individuals to effectuate and optimize
FOUNDATION's mana ement and operation of the Premises. Foundation shall conduct
background checks for i employees working at the Premises,consistent with the criteria utilized by
the City for evaluating pplicants for employment. Any such individuals, whether employees,
agents, independent co tractors, volunteers, and/or other, retained by FOUNDATION for such
purpose(s)shall not be eemed to be agents,employees,partners,joint venturers or associates of
the City,and shall not o tain any rights or benefits under the civil service or pension ordinances of
the City or any rights gen rally afforded classified or unclassified employees of the City;further they
shall not be deemed en tied to the Florida Worker's Compensation benefits as employees of the
City. Additionally, FO NDAT1ON, and/or any employees, agents, independent contractors,
volunteers,and/or other ,acting under the authority and/or with the permission of FOUNDATION for
the purpose set forth h rein, shall never have been convicted of any offense involving moral
turpitude or felony. Failu e to comply with this provision shall constitute cause for the termination of
this Agreement. FOUN ATION shall have an experienced manager or managers overseeing the
Premises at all times. A y criminal activity on the Premises caused by or knowingly permitted by
FOUNDATION shall res It in automatic termination of this Agreement.
23.2 Contract 'dministration.
a. T e City's contract administrator shall be the City Manager and/or his
thsignee. FOUNDATION shall name a specific individual to serve as its
c. tract administrator.
b. T e City's contract administrator shall have the authority to give all approvals
fo the City while administering this Agreement,with the exception of items
w ich would require City Commission approval. The City's contract
a•ministrator:
(1) Shall be the liaison between the City and FOUNDATION on all
matters relating to this Agreement.
(ii) Shall be responsible for ensuring that any information supplied by
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Page 2028 of 2495
4
July 18, 2017 DRAFT
FOUNDATION is property distributed to the appropriate City
departments.
(iii) Shall be responsible for contract compliance by FOUNDATION
(including, without limitation, FOUNDATION's activities,
programming, operations, management, and maintenance of the
Premises).
c. FO NDATION shall name an individual who shall serve as the general
ma ager of the Premises and who:
(i) Shall be the liaison between the City and FOUNDATION 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 the
Premises'employees, agents, contractors, and/or volunteers.
SECTION 24. NO IMPR o PER USE.
FOUNDATION w II not use, nor suffer or permit any person to use in any manner
whatsoever, the Premise for any improper, immoral or offensive purpose, or for any purpose in
violation of any Federal, tate, County, or municipal ordinance, rule, order or regulation, or of any
governmental rule or regu ation now in effect or hereafter enacted or adopted. FOUNDATION shall
not use the Premises fo any unlawful purpose and shall comply with all laws, permitting, and
licensing requirements n• in force or hereafter adopted, applicable to the Premises or the uses
and activities conducted o the Premises. FOUNDATION agrees not to use the Premises for,or to
permit operation of any a ensive or dangerous activity, nuisance or anything against public policy.
Except as may result fro , acts of force rnajeure, FOUNDATION agrees that it will not allow the
Premises to become uno• upied or vacant. FOUNDATION shall take appropriate precautions to
prevent fire on the Pre ises, maintaining existing fire detection devices and extinguishing
equipment at all times.
SECTION 25. NO DANGEROUS MATERIALS.
FOUNDATION ag ees not to use or permit in the Premises the storage of illuminating oils,oil
lamps, turpentine, gasolin , benzine, naphtha, or other similar substances, or explosives or any
25
Page 2029 of 2495
July 18, 2017 DRAFT
kind,or any substance or hing prohibited in the standard policies of fire insurance companies in the
State of Florida.
SECTION 26. NO CLAI AGAINST CITY OFFICERS EMPLOYEES INDIVIDUALS.
It is expressly and,-rstood and agreed by and between the parties hereto that all individuals,
employees, officers, and :gents of the City are acting in a representative capacity and not for their
own benefit; and that n-ither FOUNDATION, nor any of its employees, agents, contractors,
volunteers and/or others, shall have any claim against them or any of them as individuals in any
event whatsoever in co junction with any acts or duties which are reasonably related to the
performance of their duti-s.
SECTION 27. DEFAUL AND TERMINATION.
If either Party fail- to perform in accordance with any of the terms and conditions of this
Agreement,and such def ult is not cured within thirty(30)days after written notice is given,the non-
defaulting Party shall hay the right to terminate this Agreement and, as the case may be, either
vacate or re-enter the Pr mises,without further notice or demand. At its option, either Party may
also pursue any and all le al remedies available to seek redress for such default. The default and
termination rights afforde the parties in this Section 27,shall in no way limit or otherwise preclude
the City from exercising s ch other rights to terminate this Agreement,as may be expressly provided
in other sections hereto.
SECTION 28. PROCED RE UPON EXPIRATION AND/OR TERMINATION BY CITY.
28.1 FOUNDA ON shall, on or before the last day of the term herein, or the sooner
termination thereof, peac ably and quietly leave, surrender and yield unto the City,the Premises,
together with any and all xtures located at or on the Premises and used by FOUNDATION in the
maintenance, manageme t or operation of the Premises, excluding any equipment, furnishings,
appliances or other per-anal property which can be removed without material injury to the
Premises, free of all lien-, claims and encumbrances and rights of others, and broom-clean,
together with all structural hanges,alterations,additions,and improvements which may have been
26
Page 2030 of 2495
I
July 18, 2011 DRAF
made upon the Premise , in good order, condition and repair, reasonable wear and tear excepted,
subject, however,to the ubsequent provisions of this subsection. Any property which pursuant to
the provisions of this su section is removable by FOUNDATION on or at the Premises upon the
termination of this Agre ment and is not so removed may, at the option of the City, be deemed
abandoned by FOUND TION, and either may be retained by the City as its property, or may be
removed and disposed o by City,at the sole cost of the FOUNDATION,in such manner as the City
may see fit. If the Pre ises are not surrendered at the end of the term as provided in this
subsection, FOUNDATI N shall make good to the City all damages which the City shall suffer by
reason thereof, and shat indemnify,the City against all claims made by a succeeding occupant(if
any),so far as such dela is occasioned by the failure of FOUNDATION to surrender the Premises
as and when herein requ red.
28.2 FOUNDA ION covenants and agrees that it will not enter into agreements(whether
express or implied)relati g to the Premises fora period of time beyond the stated expiration date of
this Agreement.
SECTION 29. TERMINA ION FOR CONVENIENCE OR FOR LACK OF FUNDING.
29.1. The Foun•ation and the City shall each have the right to terminate this Agreement for
convenience at any time •nor to City's execution of the agreement with the architect/engineer for the
design of the Adaptive R•creation Center, with each Party to bear their own costs and fees.
29.2. The Foun•ation and the City shall each have the right to terminate this Agreement for
convenience without penalty or liability if, pursuant to Section 5 of this Agreement, the City and
Foundation are unable to -gree on the budget of the Project Costs for the development,design and
construction of the Adapti e Recreation Center, or identify additional funds or agree upon project
scope reductions,if either•r both are needed in the event that the anticipated Project Costs exceed
available funds.
29.3. The Found:tion shall have the right to terminate this Agreement for its convenience
if, as part of the design r-views for the Adaptive Recreation Center, changes to the plans and
27
Page 2031 of 2495
1
July 18, 2017 DRAFT
specifications are require, by the applicable City boards or agencies having jurisdiction, and such
changes render the Adap ive Recreation Center economically unfeasible.
29.4. If the Fou dation has not contributed the total Project Costs to the City within three
(3)years following the E :ctive_Date, City may terminate this Agreement for its convenience.
29.5. In the eve t that FOUNDATION loses its funding at any time during the Term,such
that it can no longer man-ge and operate the Premises in accordance with the goals and priorities
and uses herein, then th= City may, at its discretion: (i) supplement any lack or loss of funds in
order to allow FOUNDAT ON to continue to manage and operate the Center; or(ii)terminate this
Agreement for its conven nce.
29.6. Anytermin=tion for convenience shall be effective upon thirty(30)days written notice
to the other Party. In the -vent of a termination for convenience of this Agreement pursuant to this
Section 29 or any subs= ion thereof, neither Party shall have any liability or owe any further
obligation to the other Pa .
SECTION 30. NOTICES.
All notices from t e City to FOUNDATION shall be deemed duly served if mailed by
registered or certified mai to FOUNDATION at the following address:
Sa,rina Cohen Foundation, Inc.
Attntion: 1800 Sunset Harbour Drive#2406
Mi:mi Beach, Florida 33139
All notices from FOUND ION to the City shall be deemed duly served if mailed by registered or
certified mail to City at th= following address:
Ci of Miami Beach
Ci Manager
1710 Convention Center Drive
Mi-mi Beach, Florida 33139
with copies to: Ci of Miami Beach
Att;ntion: Asset Manager
17.0 Convention Center Drive, 3n1 Floor
Mi-mi Beach, Florida 33139
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Page 2032 of 2495
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FOUNDATION and the C may change the above mailing addressed at any time upon giving the
other Party written notific-tion. All notice under this Agreement must be in writing.
SECTION 31. NO DISC IMINATION.
FOUNDATION a.rees that there shall be no discrimination as to race, sex, color, creed,
national origin, physical andicap, or sexual orientation in the operations referred to by this
Agreement;and further,t ere shall be no discrimination regarding any use,service,maintenance or
operation of the Premise.. All facilities located on the Premises shall be made available to the
public; subject to the ri.ht of FOUNDATION to establish and enforce reasonable rules and
regulations to provide for he safety, orderly operation and security of the facilities.
SECTION 32. VENU IVER OF JURY TRIAUDISPUTE MEDIATION.
32.1. This Agre=merit shall be governed by,and construed in accordance with,the laws of
the State of Florida, both .ubstantive and remedial,without regard to principles of conflict of laws.
The exclusive venue for -ny litigation arising out of this Agreement shall be Miami-Dade County,
Florida, if in state court, a d the U.S. District Court, Southern District of Florida, if in federal court.
BY ENTERING INTO THI+ AGREEMENT, CITY AND FOUNDATION EXPRESSLY WAIVE ANY
RIGHTS EITHER PAR MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO, OR ARISI G OUT OF, THIS AGREEMENT.
32.2. If a dispute arises out of, or related to,this Agreement,or the breach thereof,and if
the dispute cannot be se led 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 resol tion organization, person or source agreeable to the parties, before
resorting to litigation or at er dispute resolution procedure.
SECTION 33. LIMITATI■N OF LIABILITY.
The City desires to enter into this Agreement only if in so doing the City can place a limit on
its liability for any cause of action for money damages due to an alleged breach by the City of this
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July 18, 2017 DRAF
Agreement, so that its Ii bility for any such breach never exceeds the sum of$10,000. Contractor
hereby expresses his wi Iingness to enter into this Agreement with Contractor's recovery from the
City for any damage act on for breach of contract to be limited to a maximum amount of$10,000,
less the amount of all fu ds actually paid by the City to Contractor pursuant to this Agreement.
Accordingly,and notwithstanding any other term or condition of this Agreement,Contractor
hereby agrees that the C shall not be liable to the Contractor for damages in an amount in excess
of$10,000, which amou t shall be reduced by the amount actually paid by the City to Contractor
pursuant to this Agree ent, for any action or claim for breach of contract arising out of the
performance or non-pe ormance of any obligations imposed upon the City by this Agreement.
Nothing contained in thi- paragraph or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation pl=cad upon the City's liability as set forth in Section 768.28,Florida Statutes.
SECTION 34. MISCEL, 'NEOUS PROVISIONS.
34.1 Ci 's Goiernmental Ca.aci . Nothing in this Agreement or in the parties' acts or
omissions in connection erewith shall be deemed in any manner to waive,impair,limit or otherwise
affect the authority of th= City in the discharge of its police or governmental power.
34.2 Entire A. eement.This Agreement,together with the attachments hereto,contains all
of the promises, agree ents, conditions, inducements and understandings between City and
FOUNDATION concerni g the operation and management of the Premises (except for funding
commitments by the City CDBG,and/or FEMA which may be expressly committed for the Premises
under separate grant =greements), and there are no promises, agreements, conditions,
understandings, induce ents, 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 a y enforceable written agreements or instruments executed simultaneously
herewith by the parties h-reto.
34.3 Waiver odification etc. No covenant, agreement, term or condition of this
Agreement shall be chan ed,modified,altered,or waived except by a written instrument of change,
30
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I
July 18, 2017 DRAFT
modification, alteration, o waiver executed by City and FOUNDATION. No waiver of any default
shall affect or alter this Ag eement,but each and every covenant,agreement,term and condition of
this Agreement shall co tinue in full force and effect with respect to any other then existing or
subsequent default there.f.
34.4 Remedies Cumulative._Each right and remedy of either Party provided for in this
Agreement shall be cumu ative and shall be in addition to every other right or remedy provided for in
this Agreement,or now o hereafter existing at law or in equity or by statute or otherwise(except as
otherwise expressly limit.• by the terms of this Agreement), and the exercise or beginning of the
exercise by a Party of an one or more of the rights or remedies provided for in this Agreement, or
now or hereafter existing -t law or in equity or by statute or otherwise(except as otherwise expressly
limited by the terms of thi-Agreement),shall not preclude the simultaneous or later exercise by such
Party of any or all other ights or remedies provided for in this Agreement or now or hereafter
existing at law or in equi or by statute or otherwise (except as otherwise expressly limited by the
terms of this Agreement).
34.5 Performan e at Each Party's Sole Cost and Expense. Unless otherwise expressly
provided in this Agreeme t,when either Party exercises any of its rights,or renders or performs any
of its obligations hereund-r, such Party shall do so at its sole cost and expense.
34.6 Time is of he Essence. Time is of the essence with respect to all matters in, and
requirements of,this Agr--ment as to both City and FOUNDATION including, but not limited to,the
times within which FOU DATION must commence and complete construction of the Adaptive
Recreation Center.
34.7 No Repres-ntations.City and FOUNDATION have made no representations herein
as to the condition of the 'remises.
34.8 Partnershi, Disclaimer. FOUNDATION acknowledges,represents and confirms that
it is an independent contr_ctor in the performance of all activities,functions, duties and obligations
pursuant to this Agreeme.t.
31
IPage 2035 of 2495
I
July 18, 2017 DRAFT
The parties hereb 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 thi- Agreement, or for any other purpose whatsoever. Accordingly,
notwithstanding any expr-ssions or provisions contained herein,nothing in this Agreement,shall be
construed or deemed to create, or to express an intent to create, a partnership, joint venture,
tenancy-in-common, join tenancy, co-ownership, or agency relationship of any kind or nature
whatsoever between the •arties hereto. The provisions of this Section 34.8 shall survive termination
andiar expiration of this •4 reement.
34.9 Not a Lea a_It is expressly understood and agreed that no part, parcel, building,
structure, equipment or s ace is leased to FOUNDATION;that this Agreement is a management
agreement and nota leas ;and that FOUNDATION's right to operate,manage,and coordinate the
Premises shall continue o ly so long as FOUNDATION complies with the undertakings,provisions,
agreements, stipulations -nd conditions of this Agreement.
34.10 No Third a Ri•hts. Nothing in this Agreement, express or implied, shall confer
upon any person, other t Y n the Parties hereto and their respective successors and assigns, any
rights or remedies under r by reason of this Agreement.
32
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July 18, 2017 DRAFT
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.
Attest: CITY OF MIAMI BEACH
City Clerk Philip Levine, Mayor
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DM:1E )
The foregoing instrument was acknowledged before me this day of
,2017 by Mayor Philip Levine and Rafael Granada,City 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 hard and official seal,this day of , 2017.
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
APPROVED As TO
FORM&LANGUAGE
&FOR EXECUTION
IP 1 1 A 7/5/
,„tri 'awl, 17
OF Att°17411 144e paft'7'--.
33
Page 2037 of 2495
•
OT 8A C3VORICA
Ft:AUDI, App
1410i4aa:
+st3
Page 2038 of 2495
July 18, 2017 DRAFT
Attest: SABRINA COHEN FOUNDATION, INC.
Secretary President
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DAE )
The foregoing instrument was acknowledged before me this day of
, 201 , by , on behalf of the Sabrina Cohen
Foundation, Inc., known o me to be the persons described in and who executed the foregoing
instrument, and acknow edged to and before me that they executed said instrument for the
purposes therein expres-ed.
WITNESS my ha d and official seal, this day of , 2017.
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
34
Page 2039 of 2495
July 18, 2017 DRAFT
EXHIBIT A
P72 SURFACE PARKING LOT
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Page 2040 of 2495
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Page 2041 of 2495
1
Sabrina Goan Foundation
, putting lives beck into motion
SABRINA COHEN. Founder/ President
Sabrina is the voice and face of the Foundation.A C5 quadriplegic, as the result of a spinal
cord injury from a car accident in 1992, she has been a health advocate for research and
rehabilitation since her injury. Sabrina established the Sabrina Cohen Foundation in 2006 to
raise funds for research and quality of life fitness initiatives for the disabled community. Sabrina
continuously travels tirelessly and extensively—from schools and universities to scientific
conferences—to be a spokesperson for this cause.
JASPER NELISSEN. Director
VP/General Manager Conill Miami at Saatchi & Saatchi Worldwide, Jasper has brought a
distinctive flair to the agency while expanding the office's client businesses and staff levels.As
Saatchi & Saatchi's Director of Global Reinvention from 2006-10, Jasper was involved with
developing work process, company strategy and transformation programs. He has trained
employees in Europe,Asia and the U.S., and managed organizational change in a number of
key markets, including Germany and the Netherlands. Jasper was previously an Account
Director at Saatchi & Saatchi, where he led efforts on European and global accounts.
CHARLOTTE LIBOV, Communications Director
Medical writer/author at Newsmax Health. Charlotte Libov has written about medical and
health care topics for more than 15 years. Since becoming a health book author in 1993, she
has written or co-written five books, including The Woman's Heart Book, which was adapted by
PBS for a documentary, and received a book award from the American Medical Writers
Association. Before becoming a medical author and freelancer, she was a New York Times
contributor and has written health articles for Ladies'Home Journal, Neurology Now, and
Arthritis Today. She is also a professional speaker on women's health issues and has
appeared on radio and television health shows. Libov has a bachelor's degree with honors
from the University of Connecticut and a master's degree in mental health counseling from the
University of Oregon.
ANGEL PARDO. Director
Angel Pardo is the President of Doctors Medical Rentals, DMR Corporation, an Assistive
Technology provider specializing in meeting the needs of clients ranging from Neo-Natal to
Bariatric, with experience caring for those with ALS, Cerebral Palsy, Muscular Dystrophy and
Spinal Cord Injury. DMR's state-of-the-art facility is located in South Florida, with an evaluation
area and full diagnostic capabilities for repair with a large inventory of parts - all of which is fully
accessible. DMR has been a proud sponsor of the Sabrina Cohen Foundation since its
inception.
ARYAN RASHED, Director
With a strong passion for the fitness and wellness industry,Aryan is the co owner of JetSet
Pilates also known as JetSet Miami. Aryan's clients range from beginners to professional
athletes and celebrities. JetSet fuses principles of Pilates, balance, flexibility, strength, core,
circuit, and strength training. Aryan created her own JetSet adaptive fitness program currently
Page 2042 of 2495
Sabrina Calan Foundation
putting lives bock into motor;
taught at Jackson Memorial Hospital and the Miami VA and is looking forward to working with
Sabrina Cohen Foundation to continue to implement training for paralysis community and
beyond. Aryan is also an attorney, barred in Florida and Washington DC, received her
Master's from Stanford University, earned her BA from UC Berkeley, worked at the Women and
Public Policy Program at Harvard University, has been a featured expert on various fitness and
wellness forums, and currently serves as an ambassador for Lululemon South Miami.
BERNIE SIEGEL, Director
Bernard Siegel, J.D., is the founder and Executive Director of Genetics Policy Institute (GPI), a
nonprofit organization with offices in Palm Beach, Florida; Silicon Valley, California and
Washington, D.C. He founded and co-chairs the annual World Stem Cell Summit, founded and
serves editor-in-chief of the peer-reviewed World Stem Cell Report and is the editor of the 360
Stem Cell & Regenerative Medicine weekly newsletter. He founded and is the spokesperson
for the Stem Cell Action Coalition, a 100+ member international alliance of nonprofits and
research institutions leading the global "Pro-Cures Movement."
Dr. John Chae, M.D.
Cleveland FES Center
Professor and Director of Research, Physical Medicine and Rehabilitation
Director, Stroke Rehabilitation
Dr. Joshua Hare, M.D.
University of Miami
Louis Lemberg Professor of Medicine
Director, Interdisciplinary Stem Cell Institute
Dr. Hunter Peckham Ph.D.
Case Western Reserve University
Donnell Institute, Professor
Director, Functional Electrical Stimulation Center
Dr. Rajiv Ratan, M.D., Ph.D.
Cornell University
Professor of Neurology and Neurobiology
Director, Burke-Cornell Medical Research Institute
Page 2043 of 2495
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Foundation
Executive Summa
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puttingwesback into motion
in 2012, Sabrina Cohen, Disabled Advocate and
President of the Sabrina Cohen Foundation (SCFE,
approached her hometown with a novel idea:
Let's create a Beach for ALL.
Today, SGF's mission revolves around the foundation's largest undertaking to date — a
partnership with the City of Miami Beach that includes multiple initiatives to provide disabled
individuals, veterans, children with special needs and the elderly the same perks of living in
South Florida as everyone else —Access to the beach and ocean.
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Sabrina Cohen Foundation
Founded in 2006, the Sabrina Cohen Foundation (SCF) is a 501c3 nonprofit
organization dedicated to funding innovative programs that provide a better quality of
life for those living with paralysis and other conditions. Beach access is a main initiative
of SCF, who will play a leading role in the day-to-day management of the Adaptive
Recreation Center and fundraising activities for long-term sustainability.
Sabrina o,entionFoundation
Executive Summary 12017
putting lives bask into motion
In the summer of 2016, SCF launched "Adaptive Beach Days," a program that takes
place twice a month with specialized staff I volunteers, plus adaptive beach equipment
to make a day at the beach possible to anyone. The demand far this program emerged
rapidly. To date, the program has served:
• Over 1,500 visitors including Miami Beach,
Miami-Dade and Broward County residents
• Tourists from France, Turkey, Venezuela and Italy
• Disabled individuals, sen4
iors, veterans and
children with speN.
cial needs
• Volunteers range from high school students, college
. , � , students, physical therapy students and locals
• Participants range between 5 -65 years' old
Each "adaptive beach day" attracts approximately 100 guests, with 25 - 40 of them being
disabled participants. Because of the growing demand, expanding the current program with
more days and securing a permanent location with a structure to. house all equipment on
site, is needed. For this, the development of a first of a kind, all-inclusive Adaptive
Recreation Center is being proposed.
Foundation Sponsors Include:
CHRISTOPHER DANA
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� Sabrina Cohen Foundation Executive Summary 12017
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PROPOSED SITE:
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Designed with a universal design approach, the Center will welcome the entire
community to a safe and comfortable environment. Components will include:
• Max height 24" feet (two levels), and up to 10,000 sq. ft total
• Storage area for Adaptive Equipment - access decks and beach wheelchairs
• Accessible Changing Stations / Locker Rooms / Restrooms
• Snack Bar/ Nutrition Zone to stay hydrated and cool
• Open Space Exercise Area
• Program Space / Group Classes (Yoga /Art/ Music/ Meditation)bPSCJC1diC ,' Executive Summary 12017
puttmo lives bee intra on
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Why Is Inclusive Recreation Important?
When people with disabilities are creating their everyday to-do list, they oftentimes
prioritize a lot of things over fun. Leisure isn't something that is put at the top of their list
for various reasons, such as limited transportation, recreational places aren't accessible
and people with disabilities don't often think about recreation for themselves because
society has "included them" by letting them watch, rather than finding a way for them to
participate in activities. In most communities, the beach is a "no-go zones" for the
disabled because the sand is difficult to navigate for someone visually impaired or with
mobility issues.
• Recreation is a great stress reducer and can help to relieve symptoms of anxiety
and depression.
• Allows people an opportunity to laugh and feel joyful.
• Provides an opportunity to develop new friendships.
• Helps someone feel a part of the community and to feel empowered by a sense
of inclusiveness.
• Enables one to learn about themselves and discover activities they are good
at. The Solution:
The Adaptive Recreation Center will be the first ever state-of-the-art facility on the east
coast catering exclusively to individuals living with disabilities. Participants will indulge in
a uniquely empowering experience, combining physical fitness with recreational
activities that promote mental and spiritual wellness. The center will feature a diverse
menu of programs and amenities for everyone at a single convenient location, featuring
wheelchair accessible entrances and a pathway with decking that extends from landside
to Oceanside, a truly one-of-a-kind seaside destination, inviting disabled people to live
healthier, longer, and more joyful lives.
"People with disabilities should have the same opportunity to
improve their health and enhance their abilities as everyone."
Sabrina Cohen -oundation Executive Summary 12017
putting 1i es back into motion
• Approximately 56 million Americans today have a disability.
• The obesity rate for children with disabilities in the U.S. is 38% higher than for
children without disabilities.
• Adults with disabilities are physically active about half as often as adults
without disabilities (12% vs. 22%).
• By the year 2030, 71.5 million Baby Boomers will be over the age of 65 and
demanding services and environments that address their age-related physical
changes.
• President's Council on Fitness,Sports&Nutrition I I Can Do It, You Can Do It
Who will be Served
Disabled Citizens: Assuming that incidence rates by age remain the same, by 2030
nearly 24% of the total U.S. population will be disabled (and over 15% severely
disabled). The total disabled population will increase by 30.9 million and the severely
disabled population will increase by 21 million, when compared to 1997.
Senior Citizens: The largest demographic shift since 19th century urbanization is upon
us. There are currently 43 million Americans age sixty-five and over, comprising 13% of
the population. By 2030 this number will swell to an estimated seventy-two million
people, nearly 1 of every 5 people. This demographic transition will affect nearly all
aspects of our economic and political structures and will have profound effects on our
infrastructure and public resources.
Wounded Warriors: Over 48,000 servicemen and women have been physically injured
in the recent military conflicts. In addition to the physical wounds, it is estimated as many
as 400,000 service members live with the invisible wounds of war including combat-
related stress, major depression, and post-traumatic stress disorder. Another 320,000
are believed to have experienced a traumatic brain injury while on deployment.
• U.S.Census Bureau, 1997 and 2001
F oundatior Executive Summary 12017
t putting fives back into motion
"Putting lives back into motion
Community Volunteer Benefits: Over the past two decades a growing body of
research indicates that volunteering provides individual health benefits in addition to
social ones. Those who volunteer have lower mortality rates, greater functional ability,
and lower rates of depression later in life than those who do not volunteer. Perhaps the
biggest benefit people get from volunteering is the satisfaction of incorporating service
into their lives and making a difference in their community and country. The Adaptive
Recreation Center will aim to provide worthwhile and invaluable reasons to serve, such
as pride, satisfaction, and accomplishment. We will be recognized as a place where we:
, Solve Problems for the disabled
- Strengthen our Community
. Improve Lives
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Executive Summary 12017
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Sabana Cohen Fou dationµ
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$5M CAMPAIGN
Proposed Adaptive Recreation Center:
Size: 10,000 ft.2 max - Square/Rectangular Building
RAISE: FEATURES
$500K Design & Architecture Welcome Center
$3.5M Center Build Out Storage area for beach equipment
$200K Equipment/ Furniture Locker rooms/ Restrooms
$300K Operations Juice bar/ Healthy snack zone
$500K Reserve Fund Exercise / Group Classes room
Scope of Project:
NOTE: This is just a rough estimate of the building details. Exact layout TBD
Snack Zone
Welcome Center
41111 417N:
Open Space ",.•, ;'`'
Exercise Zone
r€ Changing Rooms
GroupClasses
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On-site Storage
Beach
Access
Executive Summary 2017
Sabrina Cohen Foundaion
putting lives back into motion
-Phase I — Launch "Adaptive Beach Days" to go from concept to
reality; Spearhead Adaptive Playground initiative; Receive land use
approvals and permits to develop an Adaptive Recreation Center
-Phase II - Launch capital campaign; Apply for grant funding /
sponsorships and national marketing campaign
- Phase III — Recreation Center build out
Fundraising Campaign Gift Table
(Appx. Number/ Range Of Gifts anticipated to Reach $5M Goal)
Number Of Gifts: In the Range of: Total:
4 $500,000 $2,000,000
4 $250,000 $1,000,000
10 $100,000 $1,000,000
10 $50,000 $500,000
12 $25,000 $300,000
20 Under$25,000 $200,000
SOURCES OF FUNDS WILL INCLUDE:
• Pledges/Major Gifts
• Foundations
• Grants
• General Contributors
• Sabrina Cohen Foundation Auxiliary Board
• Kickoff Launch Party (+Ongoing Events)
• Communications/Social Media Campaigns
Sabrina Cohen Foundation Executive Summary 12017
putting laves back into motion
NAMING OPPORTUNITIES:
Open Space Exercise Area Accessible Changing Room
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Healthy Snack Zone Welcome Center
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Healing Room / Program Activities Spacious Storage Area
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Fates°$." .;
The SCF Adaptive Recreation Center will give donors the chance to show their support through:
'Naming Opportunities throughout the Center•Foundation sponsorship opportunities as deemed appropriate
A Benefactor's Wall or monument within the Center Corporate sponsorships prominently displayedCill dation
Foun
1,-, Executive Summary 2017
J tting lives beck irate rrr t: n
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With the development of the Adaptive Recreation Center,
the Sabrina Cohen Foundation will continue to defy odds,
push limits and inspire others to reach their full potential.
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"Treat a person as he is, and he will remain as he is.
Treat him as he could be, & he will become what he should be."
Coach Jimmy Johnson
HISTORY: Sabrina Cohen, a c5 quadriplegic is a nationally recognized figure in the field of
disability health and fitness advocacy. She is a national winner in Self Magazine's "Women
Doing Good" competition, a WebMD American Health Hero and winner of the "Overcoming
Adversity" category in the America Inspired National Competition. A motivational speaker since
the age of 14, she has appeared on CNN, The Today Show, has been honored by the American
Red Cross, and received a Certificate of Special Congressional Recognition by Congresswoman
Debbie Wasserman Schultz for outstanding contributions and efforts on behalf of the community
and government.
For more information about this project, contact us at 305.968.8024
or sabrina(�sabrinacohenfoundation.orq.
Visit SCF online at www.sabrinacohenfoundation.orq
abri a Cohen Founda i Executive Summary 2017
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