Resolution 2019-30922 RESOLUTION NO. 2019-30922
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE AMENDMENT NO. 2
TO THE COLLABORATION, FUNDING AND MANAGEMENT
AGREEMENT BETWEEN THE CITY AND THE SABRINA COHEN
FOUNDATION, INC. FOR AN ADAPTIVE RECREATION CENTER,
WITH SUCH AMENDMENT NO. 2 EXTENDING THE FUNDRAISING
SCHEDULE AND DEADLINES IN SECTION 7.1.B OF THE
AGREEMENT BY TWELVE (12) MONTHS, IN ORDER TO PROVIDE
THE FOUNDATION WITH ADDITIONAL TIME TO RAISE DONATIONS
FOR THE DESIGN AND CONSTRUCTION OF THE ADAPTIVE
RECREATION CENTER.
WHEREAS, on October 31, 2017, the Mayor and City Commission adopted Resolution
No. 2017-30082, approving a Collaboration, Funding and Management Agreement("Agreement")
with the Sabrina Cohen Foundation, Inc. (the "Foundation"), for the Foundation to raise the funds
and be responsible for all of the expenses related to the City's design, development and
construction of an Adaptive Recreation Center(the"Center"), to be located within a portion of the
City's "P72" surface parking lot at 53rd Street and Collins Avenue (the "P72 Lot"); and
WHEREAS, the Agreement provides that the City would be the owner of the Center,
which would be used for the primary purpose of providing the general public and, specifically,
persons living with physical and cognitive disabilities, including seniors living with disabilities and
able-bodied individuals with temporary injuries, with an accessible access point to the beach and
related beach programming; and
WHEREAS, on July 2, 2018, pursuant to the Agreement's terms, the Mayor and City
Commission adopted Resolution No. 2018-30377, and approved, in the City's proprietary
capacity, the Foundation's proposed Concept Plan for the Center; and
WHEREAS, on January 16, 2019, the City Commission approved Amendment No. 1 via
Resolution No. 2019-30671 updating certain technical references, consistent with the Concept
Plan approved by the City Commission on July 2, 2018 and applicable provisions of the City Code;
and
WHEREAS, the City and the Foundation desire to amend the Agreement, a copy of
which is attached to the Commission Memorandum accompanying this Resolution, to extend the
fundraising schedule and deadlines in Section 7.1.b by a period of twelve (12) months, in order
to provide the Foundation with additional time to raise the requisite donations for the design and
construction of the Adaptive Recreation Center.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission
hereby approve and authorize the Mayor and City Clerk to execute Amendment No. 2 to the
Collaboration, Funding and Management Agreement between the City and the Sabrina Cohen
Foundation, Inc. for an Adaptive Recreation Center, with such Amendment No. 2 extending the
Fundraising Schedule and Deadlines in Section 7.1.b by twelve (12) months, in order to provide
the Foundation with additional time to raise donations for the design and construction of the
Adaptive Recreation Center.
PASSED and ADOPTED this 31 day of 71ffr , 2019.
DAN GELBER, MAYOR
ATTEST:
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RAFA L E. GRANADO, CITY CLERK
APPROVED AS TO
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Resolutions - C7 L
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 31, 2019
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE AMENDMENT NO. 2 TO THE
COLLABORATION, FUNDING AND MANAGEMENT AGREEMENT
BETWEEN THE CITYAND THE SABRINA COHEN FOUNDATION, INC. FOR
AN ADAPTIVE RECREATION CENTER, WITH SUCH AMENDMENT NO. 2
EXTENDING THE FUNDRAISING SCHEDULE AND DEADLINES IN
SECTION 7.1.B OF THE AGREEMENT BY TWELVE (12) MONTHS, IN
ORDER TO PROVIDE THE FOUNDATION WITH ADDITIONAL TIME TO
RAISE DONATIONS FOR THE DESIGN AND CONSTRUCTION OF THE
ADAPTIVE RECREATION CENTER.
RECOMMENDATION
Approval of Amendment No. 2 to the Agreement between the City and the Sabrina Cohen
Foundation, Inc. for an Adaptive Recreation Center.
ANALYSIS
On October 31, 2017, the Mayor and City Commission adopted Resolution No. 2017-30082,
approving an Agreement with the Sabrina Cohen Foundation, Inc. (the "Foundation"), for the
Foundation to raise the funds and be responsible for all of the expenses related to the City's design,
development and construction of an Adaptive Recreation Center (the "Center")to be located within a
portion of the City's"P72" surface parking lot at the 53rd Street and Collins Avenue (the"P72 Lot").
The City would be the owner of the Center, which will be used for the primary purpose of providing
the general public and specifically, persons living with physical and cognitive disabilities, including
seniors living with disabilities and able-bodied individuals with temporary injuries, with an accessible
access point to the beach and related beach programming.
The Agreement between the City and the Foundation was executed on November 2, 2017 (Exhibit
«1„
Subsequently, on July 2, 2018, pursuant to the Agreement's terms, the Mayor and City Commission
adopted Resolution No. 2018-30377, and approved, in the City's proprietary capacity, the
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Foundation's proposed Concept Plan for the Center.
On January 16, 2019, the City Commission approved Amendment No. 1 (Exhibit "2") via Resolution
No. 2019-30671 updating certain technical references, consistent with the Concept Plan approved
by the City Commission on July 2, 2018 and applicable provisions of the City Code.
The City and the Foundation desire to make an additional amendment to the Agreement, simply to
extend the fundraising schedule and deadlines in Section 7.1.b by 12 months in order to allow
additional time for large donors to contribute.
Currently the Foundation has had until July 2, 2019 to raise 25% of the funds for the Adaptive
Recreation Center. The Foundation has requested an extension of twelve (12) months to the
fundraising schedule as the initial donations are the most difficult to secure.
The proposed amendment is attached as Exhibit"3" hereto.
Legislative Tracking
Parks and Recreation
Sponsor
Commissioner Joy Malakoff
ATTACHMENTS:
Description
❑ Exhibit 1 - Collaboration Funding and Management Agreement between CMB and Sabrina
Cohen Foundation
❑ Exhibit 2-Amendment No. 1
o Exhibit 3-Amendment No. 2
o Resolution
Page 239 of 1288
aul-7 — 30cV)
COLLABORATION, FUNDING AND MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
THE SABRINA COHEN FOUNDATION, INC.
FOR
AN ADAPTIVE RECREATION CENTER
THIS AGREEMENT, is made and executed on this 2nd day of November, 2017, by and
between the CITY OF MIAMI BEACH, a municipal corporation organized and existing under the
laws of the State of Florida ("City"), and THE SABRINA COHEN FOUNDATION, INC., d/b/a
The Sabrina Cohen Foundation, a Florida not-for-profit corporation, whose principal office is
located at 1800 Sunset Harbour Drive, #2406, Miami Beach, Florida, 33139 ("FOUNDATION")
(each, a "Party," and collectively, the "Parties").
RECITALS:
WHEREAS, since 2015, the City has explored opportunities to provide greater access to
the City's beaches to persons living with physical and cognitive disabilities, including through
development of a wellness center on City-owned property; and
WHEREAS, the City is the owner of certain real property located at and around 5301
Collins Avenue, which includes City Fire Station 3, the parking lot areas east and south of Fire
Station 3, 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 to use a
portion of the Property to provide expanded parks and recreation services to the public,
including persons living with physical and cognitive disabilities, seniors living with disabilities,
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and able-bodied individuals with temporary injuries; and
WHEREAS, 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, and 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 approached the City with a proposal to
provide the necessary funding for the design, development, and construction of a City-owned
adaptive recreational facility (hereinafter referred to as the "Adaptive Recreation Center" or
"Center") which, once completed, will be used in accordance with this Agreement for the
purposes specified herein, with the intent of providing an accessible access point to the beach,
and beach programming for persons living with physical and cognitive disabilities, seniors living
with disabilities, and able-bodied individuals with temporary injuries; and
WHEREAS, on March 22, 2017, Commissioner Joy Malakoff sponsored a referral to the
Finance and Citywide Projects Committee ("Finance Committee"), for discussion of a possible
agreement with the FOUNDATION for the Center at the Property; and
WHEREAS, on April 17, 2017, the City conducted a community outreach meeting to
obtain public input as to the conceptual terms of the FOUNDATION's proposal; and
WHEREAS, on April 22, 2017, the Finance Committee discussed the FOUNDATION's
proposal for the Center, obtained public input with respect to the FOUNDATION's proposal, and
directed the. Administration to work with the FOUNDATION to develop an agreement with
respect thereto; and
WHEREAS, the City and the FOUNDATION prepared an agreement with the proposed
terms for the FOUNDATION's funding of the design, development and construction costs for the
Center, and management and operation thereof, which was presented to the City Commission
at its July 26, 2017 meeting; and
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WHEREAS, at the July 26, 2017 City Commission meeting, following public input and
discussion, the Mayor and City Commission endorsed the concept for the Center at the
Property, and referred the proposed.Agreement to the Finance Committee for further review and
comment; and
WHEREAS, at the July 28, 2017 Finance Committee meeting, the Finance Committee
discussed the terms of the proposed Agreement, provided additional direction to the
Administration and City Attorney's Office with regard to proposed terms for the Agreement, and
provided the public with an additional opportunity to comment on the proposed Agreement; and
WHEREAS, at the. September 20, 2017 Finance Committee meeting, the Finance
Committee considered a revised draft of the proposed Agreement (incorporating the Finance
Committee's July 28, 2017 comments, as well as other negotiated terms), heard additional
public input and comment, and favorably recommended that the City Commission approve this
Agreement; and
WHEREAS, following further public input, on .Ocr,,b CV 31, 2017, the City Commission
adopted Resolution No. 2017- 3b1)ta-, and approved this Agreement; and concluded that,
subject to the FOUNDATION's obligation to cover the costs for the design, development and
construction of the Center, the City is desirous of forging a partnership with FOUNDATION to
manage the proposed Center on a portion of the Property, and has deemed that it would be in
the City's best interest to utilize FOUNDATION's prior experience in developing adaptive beach
programming in Miami Beach.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, it is agreed by the parties hereto as follows:
SECTION 1. INCORPORATION OF RECITALS. The above recitals are true and correct and
are incorporated by reference as if fully set forth herein.
SECTION 2. THE PREMISES; GRANT OF RIGHTS.
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2.1. The premises shall consist of a footprint of approximately (but not more than )
5,000 square feet of land located east of 5301 Collins Avenue, on a portion of the Property
described in Exhibit"A," attached hereto, and which shall contain a two-story building of up to a
maximum (but no more than) 10,000 sq. ft., with a maximum (but not to exceed) height of
twenty four (24) feet, and with the final precise location on the Property to be determined by,
and subject to the final approval of, the City Commission, as part of the design development
process outlined in Section 6 of this Agreement (the approved location/site of the Center on the
Property shall hereinafter be referred to as the"Premises").
2.2. The City, as of the Possession Date (as defined in Section 3 herein), and
provided that the FOUNDATION has (i) raised all of the funds required for the design,
development, and construction of the Center, and (ii) timely and satisfactorily complied with all
of its obligations pursuant to Sections 4, 5 and 6 of this Agreement, grants to FOUNDATION,
and FOUNDATION accepts from the City, this Agreement for the exclusive use, management,
coordination, and operation of the Center, for the Term (as defined in Section 3 herein), in
conformance with the purposes stated herein, and subject to all the terms and conditions set
forth herein. As of the Possession Date, and during the Term, FOUNDATION shall have the
primary useand occupation of the Premises and the Center, and shall be responsible for the
Center's management, operation, programming, and maintenance.
2.3. As of the Possession Date, FOUNDATION shall accept the Premises and the
Center, in their "as is" condition, and, except as specifically provided herein, without any
representations or warranties of any kind or nature whatsoever by City as to their respective
condition or as to their use or occupancy which may be made thereof.
2.4. At no time shall the Premises or the Center include, nor reduce, any existing
Beach View Park greenspace.
SECTION 3. EFFECTIVE DATE; POSSESSION DATE; TERM.
3.1 This Agreement shall be effective on the date it is signed by both Parties
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("Effective Date").
3.2 The term of this Agreement shall commence on the date of issuance of a final
certificate of occupancy by the City of Miami Beach Building Department for the. Center
("Possession Date"), and shall continue thereafter for a term of nine(9) years (the "Term").
3.3 Within thirty (30) days after the Possession Date, the City Manager and
FOUNDATION shall execute a written memorandum, filed with the City Clerk, for the purpose of
memorializing the Possession Date, the date of expiration 'of the Term, and the use period
referenced in Section 5 of this Agreement.
SECTION 4. DEVELOPMENT OF ADAPTIVE RECREATION CENTER.
4.1. The FOUNDATION agrees to cover any and all hard and soft costs required for
the design, development and construction of the Center including, without limitation, any permit
fees or impact fees that may be required, and any and all furniture, fixtures and equipment
required to manage and operate the Center for its intended purposes (Collectively, all such
design, development, and construction costs shall be hereinafter referred to as the "Project
Costs").
4.2. THE FOUNDATION ACKNOWLEDGES THAT THE CITY HAS NOT
IDENTIFIED OR APPROPRIATED. ANY CITY (OR OTHER) FUNDS FOR THE DESIGN,
DEVELOPMENT,AND CONSTRUCTION OF THE CENTER, OR FOR ANY PROGRAMMING,
MANAGEMENT OR OPERATION COSTS AT THE CENTER. THE FOUNDATION FURTHER
ACKNOWLEDGES AND AGREES THAT BY ENTERING INTO THIS AGREEMENT, THE
CITY SHALL HAVE NO OBLIGATION TO CONTRIBUTE ANY FUNDS FOR THE PROJECT
COSTS, OR FOR ANY PROGRAMMING, MANAGEMENT OR OPERATION COSTS. ANY
CITY FUNDING COMMITMENTS WITH RESPECT THERETO SHALL REQUIRE PRIOR CITY
COMMISSION APPROVAL, WHICH APPROVAL, IF GIVEN AT ALL, SHALL BE AT THE ,
CITY COMMISSION'S SOLE DISCRETION.
4.3. In order to permit the FOUNDATION time to engage in the necessary
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fundraising, the City will not use the Premises or dedicate the Premises for any purpose other
than its current use as a municipal surface parking lot, for the period of time provided in Section
7 hereof(during which time, the FOUNDATION shall be required to actively raise the necessary
funds to cover the Project Costs).
4.4. Any funds the City accepts from the FOUNDATION for the Center shall be used
exclusively to support the design, development and construction of the Center. Any donations
transferred by the FOUNDATION to the City for the Center (the "Project Donations") shall be
accounted for separately, in a restricted special revenue fund, and used solely by the City for
payment of Project Costs.
4.5. The Parties acknowledge and agree that the Premises and Center shall be
owned by the City, as a parks and recreation building under the auspices of the City's Parks and
Recreation Department. At all times, City shall retain ownership of the Premises and the
Center. With respect to furniture, fixtures and equipment, the FOUNDATION shall own any
furniture, non-permanent fixtures, and equipment that is paid for with FOUNDATION funds. The
City shall own all permanent fixtures, as well as any equipment, non-permanent fixtures and
furniture paid for by the City, if any, as part of the City's Parks and Recreation Department asset
inventory.
4.6. The City's Office of Grants Administration shall meet and work with the
FOUNDATION in good faith to identify potential grant opportunities that may be available to
either the City, the FOUNDATION, or both, in support of the design, development, and
construction of the Center. The FOUNDATION shall otherwise be responsible for applying for
any grants in support of the Center. With respect to grant opportunities that may only be
available to the City (in its capacity as a public entity), the City, in good faith, may, at its sole
discretion, apply for such grants, provided that the City shall have no obligation to apply for
grants that require a City funding match, unless such grant application is approved by the City
Commission, and which approval shall be at the City Commission's sole discretion. Except as
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•
otherwise stated above, City's sole obligation pursuant to this subsection shall be to meet with
the FOUNDATION to assist in identifying potential grant opportunities for the FOUNDATION to
follow-up on, at its discretion.
4.7. The FOUNDATION agrees that, as part of its fundraising efforts, it will not accept
any donation, grant, or other funds for the design, development or construction of the Center
that contains any restriction or imposes any requirements on the City (other than the general
restriction that any donation, grant, or other funds be applied for the design, development or
construction of the Center); and, specifically, the FOUNDATION shall not accept any donation,
grant or other funds that include, without limitation, any requirement of specific programming at
the Center, any requirement that would involve the expenditure of public funds, or any limitation
with respect to the City's selection of any manager/operator for the Center. All donations,
grants, or other funding that require any interior or exterior naming rights shall be subject to the
provisions of this Agreement, including Section 16 hereof, and the City's Naming Ordinance, as
codified in Chapter 82, Article VI, Sections 82-501 through 82-505 of the City Code, as may be
amended from time to time. The City's intent with respect to the foregoing is not to restrict the
FOUNDATION's fundraising efforts, but rather to ensure that any funds transferred to the City
for the design, development, and construction of the Center are strictly for the Project Costs,
and do not include any additional use restrictions or other commitments that the City
Commission has not previously approved.
SECTION 5. APPROVED PERMITTED USES OF THE ADAPTIVE RECREATION CENTER.
5.1. The City agrees that following the issuance of a final certificate of occupancy for
the Center, the Center shall be used solely (i) as an adaptive recreation center serving persons
living with physical and cognitive disabilities, seniors living with disabilities, and able-bodied
individuals with temporary injuries; and (ii) for ancillary uses reasonably or logically connected
thereto (such ancillary uses including, without limitation, strength, conditioning, cardio,
resistance training, yoga, meditation, art and music classes, wellness programs or related
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activities, charitable fundraisers, specialty sales [such as sunscreen lotion, towels, and the like],
and the sale of food and non-alcoholic beverages), as well as supporting beach access and
connectivity programs including, without limitation, adaptive surf and scuba, shoreline flotation
and swimming programming (together, the uses in Section 5.1(i) and 5.1(ii) shall be defined as,
and may hereinafter be referred to as, the "Approved Uses")._ The Premises shall be used by
FOUNDATION solely and exclusively for the Approved Uses, or such other uses as may be
approved by the City Commission, as set forth in Section 5.2 below, and for no other purposes
or uses whatsoever.
5.2. In the event that the FOUNDATION seeks to use the Premises for any use other
than the Approved Uses, the FOUNDATION shall notify the City Manager of the proposed new
use, in writing. If the City Manager determines that the proposed new use is not reasonably or
logically connected to the Approved Uses, 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 discretion, and which shall be memorialized as an amendment to this
Agreement.
5.3. In no event shall the Center be used as a hall for hire, banquet hall, or
similar third-party venue rental, or for the sale of alcoholic beverages (provided,
however, that the FOUNDATION may serve alcoholic beverages at charitable fund-raisers
at the Premises from time to time).
5.4. If the FOUNDATION uses the Premises or the Center for any purposes and/or
uses not expressly approved in Section 5 herein, such use shall be considered a default under
this Agreement and the City shall be entitled to all remedies, including termination of this
Agreement (upon expiration of the applicable notice and cure period), as set forth in Section 27
herein. In addition, notwithstanding any other terms of this Agreement, the City shall be entitled
to seek immediate relief, whether at law or equity, to restrain such improper use(s).
5.5. If at any time during the Term, the FOUNDATION or any successor organization
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is not able to cover the operating, maintenance and programming costs for the Center, in the
manner as contemplated herein, the City shall use good faith efforts to seek another qualified
vendor to assume the maintenance and programming obligations described herein and, in the
event that the City is unable to secure an agreement with another qualified vendor, the City shall
assume control of the Center and shall use the Center for the most closely-related Parks
Department purposes, as determined by the City Commission in its reasonable discretion,
provided, however, that.the Center building shall continue to serve as an accessible entry point
to the beach. In determining the most"closely related" Parks Department purposes, the Parties
agree that the City may use the Center for Parks Department programming, such as providing
general wellness or recreational programming, in combination with beach accessibility (which
may be satisfied, without limitation and by way of example only, by making available electric
beach chairs at the Premises, and providing space within the Center for persons to temporarily
store their wheelchairs while the electric beach chairs are in use).
5.6. Following the Possession Date, and for a period of forty (40) years thereafter, the
City agrees that the Center building shall be used for the benefit of the public, for the Approved
Uses and purposes as provided herein, pursuant to Sections 5.1 through 5.5 of this Agreement.
5.7. The provisions of this Section 5 shall specifically survive termination of this
Agreement.
SECTION 6. PROJECT ADMINISTRATION AND BUDGET FOR DESIGN, DEVELOPMENT
AND CONSTRUCTION OF ADAPTIVE RECREATION CENTER.
6.1. The budget of the Project Costs for the design, development, and construction of
the Center shall be subject to the mutual agreement of the City and the FOUNDATION, and
subject to final approval by the City Commission. The budget shall include a 10% contingency
for the City to cover unforeseen circumstances and Project Costs, and the Center will be
designed to this budget.
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6.2. The design, development, and construction of the Center shall be administered
as a City project in accordance with all City procurement and applicable laws, including, without
limitation, LEED certification requirements, and the budget for the Center shall reflect such
requirements. The City shall be responsible for entering into the contract with the architect-
engineer, the construction contractor, and any ancillary professionals or other vendors required
to complete the Center and related improvements, and the City's Capital Improvements Office
shall serve as the contract administrator. Once the budget for the Project Costs is established,
the FOUNDATION and City shall finalize the project schedule, outlining proposed timeframes
for FOUNDATION's fund-raising efforts (based on the milestones set forth in Section 7 of this
Agreement), and timeframes for the completion of Project-related deliverables.
a. No later than six (6) months following the Effective Date, the
FOUNDATION, at its sole cost and expense, shall submit to the City Manager a preliminary
draft concept design, and a proposed operating plan, with sufficient detail to enable the City to
accurately estimate the Project Costs, including construction costs, FF&E costs, and the
operation and maintenance costs of the Center ("Draft Concept Plan"). The Draft Concept Plan
shall, at a minimum, include details with respect to the proposed design for the Center, including
layout and siting, preliminary elevations, size of building footprint, height, and other
improvements and appurtenances proposed upon the Premises. Upon the FOUNDATION's
submission of the Draft Concept Plan to the City Manager, the City Manager shall have sixty
(60) days to review and provide the FOUNDATION with any comments thereto, including
comments with respect to a preliminary estimate of Project Costs.
b. Following the City Manager's review of the Draft Concept Plan and
development of a preliminary estimate of the Project Costs, as outlined in this Section 6, the
FOUNDATION may submit and seek City Commission approval of two (2) versions of its
concept design, including: (i) a base concept design, with a proposed design and scope
sufficient to meet the intended purposes of the Center (the "Base Concept Design"); and (ii) an
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enhanced concept design, with additional design features or components that may be included
if the FOUNDATION exceeds its fund-raising goals ("Enhanced Concept Design") (collectively,
the Base Concept Design and the Enhanced Concept Design shall be referred to herein as the
"Concept Plan"). At a minimum, the Concept Plan shall include landscaped, vegetative "green"
roof elements, and shall ensure that no public access to the City's beach is blocked. In
considering the FOUNDATION's proposed Concept Plan, the City Commission shall also
consider the City Manager's comments or recommendations, if any, with respect to the
proposed Concept Plan.
c. The Concept Plan shall be subject to approval by the Mayor and City
Commission at a regularly noticed meeting, which approval shall not be unreasonably withheld.
Should the City Commission decline to approve the Concept Plan, the City Commission may
either grant the FOUNDATION additional time to submit a revised, Concept Plan for its
consideration, or the Commission may terminate this Agreement, at its sole discretion. In the
event of termination of this Agreement pursuant to this subsection, each Party shall bear its own
costs and expenses incurred in connection with this Agreement, and, except as otherwise
stated in this Agreement, neither Party shall have any further liability to the other.
6.3. The design documents, including plans and specifications, for the Center, shall
be developed consistent with the approved Concept Plan. During the design development
period, the FOUNDATION agrees to provide City with input with respect to design development.
The City agrees to provide full consideration to the FOUNDATION's input, particularly with
respect to aspects of the design that may enhance the use of the Premises for its intended
accessibility-related purposes. All design documents, plans and specifications shall be subject
to City Manager'sfinal approval, and all applicable governmental requirements, including
regulatory approval by the Historic Preservation Board and agencies having jurisdiction over the
Premises.
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6.4. As part of the design development process, the City shall require the
architect/engineer to provide an updated estimate of the construction costs, and the estimate of
total Project Costs shall be adjusted accordingly, with the budget for the Center to be subject to
City Commission approval. In the event the estimates to design/construct the Facility exceed
available funds, or in the event cost overruns with respect to the Project Costs are anticipated or
experienced during the construction of the Center, the City and the FOUNDATION shall work
together to either identify additional funds or adjust the project scope, as necessary. Except for
the expenditure of the funds received from the FOUNDATION,for the Center, City shall have no
obligation to expend any funds to design, construct, equip or operate the Center.
In the event the Center and related improvements are developed, designed and
constructed for less than the amounts contributed by the FOUNDATION for Project Costs, then
any unused Project Donations shall be returned to the FOUNDATION within 60 days following
(i) the issuance of a Certificate of Occupancy and (ii) receipt of a certificate of final
payment/release of all claims from the construction contractor.
6.5. The City Manager, at his or her discretion, may requestthe participation of a
FOUNDATION representative on the evaluation committee for the architect/engineer or
contractor for the project.
SECTION 7. MILESTONES
7.1 The initial milestones for the project are as follows:
a. No later than six (6) months following the Effective Date, the
FOUNDATION shall submit to the City Manager the Draft Concept Plan.
b. The FOUNDATION commits to the following fundraising schedule and
deadlines, based on the estimated budget of Project Costs for the Base Concept Design:
(i) 25% of Project Costs raised (in cash, donation pledges and grant
commitments) within twelve (12) months following the City Commission's approval of the
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Concept Plan;
(ii) 50% of Project Costs raised (in cash, donation pledges and grant
commitments) within twenty-four (24) months following the City Commission's approval of the
Concept Plan; and
(iii) 100% of Project Costs raised (in cash, donation pledges and grant
commitments) within thirty-six (36) months following the City Commission's approval of the
Concept Plan.
7.2 The City shall not enter into any binding agreement with an architect/engineer for
the design of the Center until all of the following events have occurred:
a. the FOUNDATION has transferred the funds sufficient to cover the total
contract amount for architectural/engineering fees; and
b. the FOUNDATION has evidenced to the City's Financial Officer that 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 anticipated to be fulfilled
within nine (9) months following execution of the agreement between City and the
architect/engineer; and
c. any naming rights associated with donations or grants are approved
pursuant to Section 16 herein and the City's Naming Ordinance, but only if such donation is (i)
contingent upon naming rights being conferred, and (ii) if the amount of the donation is required
for purposes of covering the total contract amount for architectural and engineering services for
the Center.
d. The City's agreement with the architect for the Center shall be subject to
the City Commission's prior approval.
e. City will initiate the design solicitation process to select the
architect/engineer for the project, as referenced herein, within ninety (90) days following the
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FOUNDATION's transfer of the funds required for design (currently estimated to be $500,000),
and satisfaction of the requirements of this Section 7.2 (and subsections thereof).
7.3 The City shall not enter into a binding agreement with a construction contractor
for the Center until such time as all of the following events have occurred:
a. the FOUNDATION transfers the funds sufficient to cover the total
estimated construction costs, and
b. any naming rights associated with donations or grants are approved
pursuant to Section 16 herein and the City's Naming Ordinance, but only if such donation is (i)
contingent upon naming rights being conferred, and (ii) if the amount of the donation is required
for purposes of covering the total contract amount for the construction of the Center.
c. The City's agreement with the contractor for the Center shall be subject to
the City Commission's prior approval.
d. City will initiate the construction bid process to select the contractor for
the project, as referenced herein, on the later of(i) the date of completion of design; and ninety
(90) days after the FOUNDATION has transferred the funds required for construction (currently
estimated to be $4 million) and satisfied the requirements of this Section 7.3 (and subsections
thereof).
7.4 As provided in Section 29.4 of this; Agreement, the City may terminate this
Agreement for its convenience if the FOUNDATION has not contributed the total Project Costs
to the City within three (3) years following the City Commission's approval of the Concept Plan,
or if the FOUNDATION has not met any of the fund-raising milestones set forth in.this Section 7
of this Agreement. Prior to exercising its right to terminate this Agreement for failure to achieve
any of the fund-raising milestones provided in this Section 7, the City, through its City Manager,
shall first provide the FOUNDATION with advance written notice of the City's intent to terminate
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the Agreement for failure to achieve a fund-raising milestone, and a thirty(30) day opportunity to
cure the fund-raising deficiency.
7.5 In the event the FOUNDATION and City agree upon a final Project budget in an
amount other than $4.5 million, the milestone amounts identified in this Section 7 shall be
adjusted on a proportionate basis.
SECTION 8. OPERATION AND MANAGEMENT OF THE ADAPTIVE RECREATION
CENTER.
8.1: From and after the Possession Date, and subject to the Approved Uses in
Section 5 (as same may be amended from time to time), and the terms, limitations and required
approvals contained in this Agreement, FOUNDATION is authorized and required, and shall
have the exclusive right to:
a. Manage and direct the Center and coordinate and supervise all Approved
Uses thereof at the Premises;
b. Maintain and provide for the day-to-day maintenance and housekeeping
for the Premises;
c. Supervise and direct all Center employees and personnel consistent with
the provisions of this Agreement;
d. Maintain and supervise detailed, accurate and complete financial and
other recordsof all its activities under this Agreement in accordance with generally accepted
accounting principles. All financial records maintained pursuant to this Agreement shall be
retained by FOUNDATION as long as such records are required to be retained pursuant to
Florida Public Records Law, and shall be made available upon reasonable notice by the City;
e. Develop and implement programs and activities which support and
promote the goals and priorities and Approved Uses, as set forth in Section 5; and
f. Coordinate with the City for such public use of the Premises by the City,
as set forth in Section 12.2 of the Agreement, which coordination and cooperation shall not be
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unreasonably withheld. Such public uses of the Premises by the City shall be conducted
pursuant to policies and procedures, which shall be established and mutually agreed upon by
FOUNDATION and the City, within six(6) months ofthe Effective Date..
8.2. Opening Date. The FOUNDATION shall commence operations pursuant to this
Agreement and shall open the Center to the general public within thirty (30) days following the
Possession Date.
8.3. Hours of Operation. The City and FOUNDATION herein agree that the hours of
operation for the Premises 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 and FOUNDATION. The parties recognize and acknowledge that,
under certain circumstances (e.g., community events, special programming, etc.),
FOUNDATION will be permitted to extend its hours of operation, but in no event shall said hours
be shortened without the prior written approval of the City Manager or his designee, which
approval shall not be unreasonably withheld.
8.4. High Impact Citywide Events. Upon notice by the City Manager or his or her
designee, the FOUNDATION agrees to close the Center for a maximum of fourteen (14) days
per year, to accommodate City's parking needs during Citywide special events (such as the
annual boat show). The City shall provide the Foundation with at least fourteen (14) days
advance written notice, for the FOUNDATION to close the Center for a special event pursuant
to this Section.
SECTION 9. REVENUE FROM ADAPTIVE RECREATION CENTER RELATED
ACTIVITIES/FINANCIAL RECORDS AND REPORTS.
9.1 Revenue from Premises-Related Activities. The City herein acknowledges that
FOUNDATION may derive revenues from a portion of the uses it conducts at the Center,
including, but not limited to, classes, wellness programs or related activities, charitable
fundraisers for the FOUNDATION or Center, specialty sales (such as sunscreen lotion, towels,
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Foundation-related merchandise, and the like), and the sale of food and non-alcoholic
beverages. FOUNDATION herein acknowledges that all revenue generating uses conducted
upon or from the Premises must,be directly related to, consistent with, or used to help fund
FOUNDATION's management,operation, and maintenance of the Premises and Center and, in
the event that revenue(s) pertaining to the Premises exceed expenses during an annual
accounting period, the City and FOUNDATION agree that such excess, if any, may also be
applied by FOUNDATION to support the programming of FOUNDATION. Any revenue-
generating uses conducted upon or from the Premises that are not consistent with the uses in
this subsection, shall first be approved, in writing, by the City Manager or his designee, prior to
commencement of same.
9.2 Financial Records and Reports. FOUNDATION shall keep on the Premises, or
such other place within Miami Dade County, Florida,. as approved by the City, true, accurate,
and complete records and accounts of all receipts and expenses for any and all uses, services,
programs, events, activities, and/or revenue generating activities/operations being conducted
and/or transacted upon or from the Premises pursuant to this Agreement andshall give the City,
or its designated representative, access during reasonable business hours to examine and audit
such records and accounts. Throughout the term of this Agreement, no later than one hundred
and twenty (120) days following the closing of FOUNDATION's fiscal year (October 1s` —
September 30th, which is also the City's fiscal year), FOUNDATION shall provide the City
Manager or his designee, with an annual report of all activities and/or operations conducted
pursuant to this Agreement for the prior year, along with audited financial statements. Said
statements shall be certified as true, accurate and complete by FOUNDATION and by its
certified public accountant.
SECTION 10. ANNUAL BUDGET AND FUNDING FOR THE ADAPTIVE RECREATION
CENTER.
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10.1 THIS AGREEMENT IS MADE WITH THE EXPRESS CONSIDERATION,
UNDERSTANDING AND AGREEMENT THAT THE FOUNDATION SHALL BE
RESPONSIBLE FOR, AND WILL CONTRIBUTE THE FUNDS REQUIRED TO, DESIGN,
DEVELOP, CONSTRUCT AND THEREAFTER. OPERATE, MANAGE AND PROGRAM THE
CENTER. FOUNDATION FURTHER ACKNOWLEDGES AND UNDERSTANDS THAT THE
CITY SHALL IN NO WAY BE OBLIGATED TO SUPPLEMENT AND/OR OTHERWISE
CONTRIBUTE ANY FUNDS FOR FOUNDATION'S DAY-TO-DAY OPERATION,
MAINTENANCE AND/OR PROGRAMMING.
10.2 Annual Budget for the Adaptive Recreation Center. Throughout the Term of this
Agreement, FOUNDATION shall prepare and present, by July 1st of each City fiscal year
(October 1 - September 30th), a proposed, detailed line item annual operating budget for the
Center, for review and approval by the City Manager and/or his designee, which approval shall
not be unreasonably withheld. 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 the Center;
b. Operating expenses of the Center;
c. Administrative, labor and general expenses;
d. Marketing, advertising and promotion expenses;
e. Utility costs;
f. Regular repairs and maintenance costs (to the extent such repairs and
maintenance are the responsibility of FOUNDATION, as provided herein);
and
g. In addition to subsection (f) above, identify for the City, such long term
capital repairs and maintenance of facility infrastructure (which the City is
responsible for, as provided herein); in conjunction with this subsection (f)
FOUNDATION agrees to allow the City and/or its designee access to the
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Premises, as the City may deem necessary for the purpose of the City
conducting its own facility assessment methodology (as is used by the
City in assessing the condition of other City-owned structures).
10.3 Programmatic Plan. Accompanying FOUNDATION's proposed annual budget
shall be the Center programmatic plan for the upcoming fiscal year, detailing the then-known
(planned) activities, events, and operations, and the number of users anticipated. The annual
programmatic plan, including, without limitation, with respect to proposed events at the Center,
shall also be subject to the City Manager's or his designee's review and approval, which
approval shall not be unreasonably withheld.
SECTION 11. MAINTENANCE, REPAIRS, AND ALTERATIONS.
11.1 General Maintenance and Repair. FOUNDATION agrees to maintain the Center,
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 Center.
Except as expressly provided in this Agreement, it is understood by the parties hereto that
FOUNDATION shall not be responsible to pay for any costs related to capital repairs or other
improvements or infrastructure that may be required after the Possession Date (i.e. including,
but not limited to, roof, structural elements and infrastructure, HVAC, plumbing and sewer lines,
major electrical, and similar capital improvements) for the Center or the Premises, or repairs, if
any, that may be required to correct any construction-related deficiencies performed by any City
contractors. Notwithstanding the preceding sentence, FOUNDATION shall provide the City with
prompt notice of needed capital and/or infrastructure repairs that are deemed to be required,
and the City shall have a reasonable time thereafter to commence said repairs, at City's cost
and expense.
11.2 Dav to Day Maintenance. FOUNDATION shall, at its sole cost and expense, to
the satisfaction of the City, keep, maintain, and repair the Center, and all improvements,
fixtures, and equipment thereon (except for those items the City is responsible for as set forth in
subsection 11.1 above), in good, clean, and sanitary order. FOUNDATION assumes sole
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responsibility and expense for day to day housekeeping, janitorial services, and routine
maintenance of the interior of the Center, 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 Center, including all garbage 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 the Term, a maintenance
and repair contract, approved by the City Manager or his designee, , providing for the
preventative maintenance and repair of all air conditioning units servicing the Premises.
FOUNDATION shall comply with all applicable State, Miami-Dade County, and City
laws, codes, rulesor other governmental requirements with regard to its obligations under this
Section.
11.3 Alterations. In the event that FOUNDATION desires or deems it appropriate to
make alterations, additions, or improvements to the Center after the Possession Date, it will
submit plans for same to the City, for the prior written approval of the City Manager or his
designee. No such alterations, improvements, or additions shall be made without the express
written approval of the City Manager and, if approved, shall be made at FOUNDATION's sole
cost and expense, and shall become the property of the City upon termination 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 Center or the Premises as a result of any such alterations,
improvements, or additions.
11.4 Labor/Personnel/Materials/Equipment/Furnishings. FOUNDATION must provide
and maintain, at its sole cost and expense, all labor, personnel, materials, equipment, and
furnishings, as reasonably required, to operate the Center as an adaptive recreation center, in
accordance with the Approved Uses set forth in Section 5 hereof. In the event any materials,
equipment, and/or furnishings are lost, stolen, or damaged, they shall be promptly replaced or
repaired (funding permitting) at the sole cost and expense of the FOUNDATION.
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1.1.5 Orderly Operation. FOUNDATION shall have a, neat and orderly operation at all
times and shall be solely responsible for the necessary housekeeping services to properly
maintain the Center. There shall be no living quarters nor shall anyone be permitted to live
within the Center. FOUNDATION shall make the Center available for inspection during hours of
operation by the City Manager or his authorized representative(s).
11.6 Security. FOUNDATION shall be responsible for and provide reasonable security
measures which may be required to protect the Center and any of the materials, equipment,
and furnishings thereon. Under no circumstances shall the City be responsible for any stolen or
damaged materials, equipment, and furnishings, nor shall the City be responsible for any
stolen or damaged personal property of FOUNDATION's employees, contractors, patrons,
guests, invitees, and/or other third parties.
SECTION 12. ANNUAL REPORTS FOR USE OF PREMISES/CITY USE OF PREMISES.
12.1 FOUNDATION shall provide an annual written report of the activities and events
scheduled in and pertaining to the Center and, with each such report, shall report on the
activities which actually occurred and the approximate number of persons participating in those
activities during the previousyear. Any revenue-generating activity(ies) conducted upon or from
the Center must be in accordance with those provided in Section 9 of this Agreement (or,
otherwise approved by the City in accordance therein). All revenues received by FOUNDATION
in connection with uses conducted upon or from the Center shall be dedicated exclusively to
help fund FOUNDATION's management, operation, and maintenance of the Center. In the
event that revenue(s) pertaining to the Center exceed expenses during an annual accounting
period, the City and FOUNDATION agree that such excess, if any, shall first be applied to
provide for the programming and Approved Uses of the Center intended for the next fiscal year,
then to offset any contributions previously made by the City (other than capital improvements as
described in Section 11 of this Agreement), if any, and may then be applied by FOUNDATION
to support the general programming of FOUNDATION. For purposes herein, "revenues" shall
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also be deemed to include public/private grant funding, and unrestricted donations and
contributions received by FOUNDATION specifically ear-marked toward the operation,
management and programming of the Center. No portion of the net earnings resulting from the
activities of FOUNDATION at the Center shall inure to the benefit of any private individual.
12.2 As provided in Section 5.3 of the Agreement, in no event shall the Center be
used as a hall for hire, banquet hall, or similar third-party venue rental, or for the sale of
alcoholic beverages (provided, however, that the FOUNDATION may serve alcoholic beverages
at charitable fund-raisers or community events at the Center from time to time).
12.3 Notwithstanding the foregoing, the City Manager or his designee, shall have the
absolute and final authority in overseeing FOUNDATION's activities with regard to this
Agreement and its operation and management of the Center, such that the City is assured that
the Center is being operated and utilized in accordance with the terms of this Agreement.
12.4 Use by the City. FOUNDATION and the City have agreed that the Center may be
used by the City for wellness or other programming consistent with the Approved Uses and the.
requirements of Section 5. Consistent with this, the City shall have the right to use the Center,
subject to availability, without the payment. of any rental or use fee, except that direct out-of-
pocket expenses incurred in connection with such uses (including reasonable expenses
incurred by FOUNDATION in order to open and make the Premises available in connection with
a City use thereof) shall be paid by the City. FOUNDATION and the City .agree to develop
mutually acceptable guidelines (such as advance notice requirements for any City use, to permit
City's use of the Premises, in accordance with the terms herein, in a manner that does not
unduly disrupt the FOUNDATION's operations or programming).
SECTION 13. ASSIGNMENT.
FOUNDATION may not assign this Agreement, or any part thereof, without theprior
written approval of the City Commission, which approval shall be given, if at all, at the sole
discretion of the City Commission. Any assignment made in violation of this Section 13 shall be
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null and void. This Agreement is made with the understanding that FOUNDATION shall at all
times, throughout the term of this Agreement, remain a not-for-profit exempt corporation under
the Internal Revenue Code. This Agreement shall automatically terminate in the event the
Internal Revenue Service revokes the FOUNDATION's exempt public charity status.
SECTION 14. USE OF THE ADAPTIVE RECREATION CENTER IS PRIMARY.
The Center and the Premises shall exist for the use of the public, for the Approved Uses
consistent with Section 5 and the terms of this Agreement, and the public's right to such use
shall not be infringed upon by any act of the FOUNDATION or any third-party.
SECTION 15. PERMITS; LICENSES; UTILITIES, TAXES; ASSESSMENTS.
15.1 Licenses, Permits, Compliance with Laws. FOUNDATION shall pay any fees
imposed by law for licenses or permits for any uses or activities of FOUNDATION upon the
Center or under this.Agreement. The FOUNDATION agrees to comply with all laws, ordinances,
rules and governmental requirements that may be applicable to its performance under this
Agreement, including, without, limitation, laws or governmental requirements now in force or
hereafter to be adopted by the City, Miami-Dade County, the State of Florida, and the U.S.
Government.
15.2 Utilities. The FOUNDATION shall pay to the City, before delinquency any and all
charges for utilities at or on the Center (including, but not limited to, water, electricity, gas,
heating, cooling, sewer and telephone, trash collection, and other expenses associated with the
operation of the Premises).
15.3 Procedure If Taxes Assessed. FOUNDATION agrees to and shall pay before
delinquency all taxes and assessments of any kind assessed or levied upon the Center or the
Premises by reason of this Agreement, or by reason of the business or other activities of
FOUNDATION upon or in connection with the Center or the Premises. The Parties agree that
the operation and uses of the Center and the Premises and those operations and uses
convenient and necessary therefore, are for public purposes and, therefore, no ad valorem taxes
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should be assessed by the Miami-Dade County Tax Appraiser. If, however, said taxes are
assessed by said Property Tax. Appraiser, FOUNDATION shall be responsible for payment of
same.
SECTION 16. SIGNAGE; NAMING RIGHTS
16.1 FOUNDATION shall provide, at its sole cost and expense, required signs at all
public approaches to the Center, as determined by FOUNDATION in its reasonable discretion,
said signage containing substantially the following language:
r I
OPERATED BY THE SABRINA COHEN FOUNDATION
16.2 The FOUNDATION shall have the right to erect interior signage, including,
without limitation, temporary interior signage (such as banners, which shall be subject to the
City Manager's or designee's prior written approval which will not be unreasonably withheld)
and exterior signage; provided, however, that in the case of permanent interior or exterior
signage, the names affixed_thereon (including, without limitation, any sponsor names) shall be
subject to approval as required by the City's Naming Ordinance, as codified in Chapter 82,
Article VI, Sections 82-501 through 82-505 of the City Code, as may be amended from time to
time.
16.3 In no event may any interior or exterior signage include the names of any
company selling the following types of products: guns, tobacco, alcohol, gambling, and medical
marijuana.
16.4 All advertising, signage and postings shall be approved by the City and shall be
subject to all applicable planning and zoning requirements of the City.
SECTION 17. FORCE MAJEURE.
17.1 The performance of any act by FOUNDATION or the City hereunder may be
delayed or suspended at any time while, but only so long as, either Party is hindered in or
prevented from performance by acts of God (including, without limitation, hurricanes), the
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elements of war, rebellion, strikes, lockouts, fire, explosion or any other casualty or occurrence
not due to FOUNDATION's or City's negligence and beyond the reasonable control of the
Parties.
17.2 Premises Unusable. In the event a Force Majeure renders the Center or the
Premises untenantable, in whole or in part, as determined by City, the City may, at its sole
option and discretion: (i)elect, as soon as practicable, to utilize the insurance proceeds to repair
the damaged property; or (ii) elect not to repair or restore the damaged property and, in such
event (and provided further that FOUNDATION does not elect, and/or does not comply with the
procedures for FOUNDATION's repair of the Center using its own funds), this Agreement shall
be terminated as of the date of said occurrence of damage or casualty. Notwithstanding the
preceding sentence, in the event the. (a) City elects not to restore or repair the damage; (b)
FOUNDATION gives written notice to the City within sixty (60) days of the casualty that
FOUNDATION is willing to undertake the repair the damage with its own or other available
funds; (c) within twelve (12) months following such notice, FOUNDATION proves, to the City's
sole satisfaction and discretion, that it has adequate funds immediately available to undertake
the repair; and (d) the City and FOUNDATION, each acting in its reasonable discretion, agree
within a reasonable time (but not to exceed six (6) months unless otherwise extended in writing
by City Manager) after the City deems that FOUNDATION has demonstrated that it has
adequate funds to undertake the repair, to the conditions, timing, plans, procedures,
contractors, subcontractors, disbursement mechanisms and other matters with respect to the
repair, then and in that event, FOUNDATION shall be entitled to effect the repair with its own
funds; provided that FOUNDATION 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. INSPECTION.
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FOUNDATION agrees that the Center may be inspected at any time upon reasonable
notice by authorized representatives of the City, or by any other State, County, Federal and/or
municipal officer or agency having responsibilities for inspections of such operations and/or
Center. FOUNDATION agrees to promptly undertake the correction of any deficiency cited by
such inspectors on the Center, which is properly the responsibility of FOUNDATION pursuant to
this Agreement. The City agrees to promptly undertake the correction of any deficiency cited by
such inspectors on the Center, which is properly the responsibility of the City pursuant to this
Agreement.
The City Manager or his designated representatives shall have the right to enter upon
the Center at all reasonable times to examine the condition and use thereof; (including, without
limitation, for the purpose of assessing the condition of the facility, as also referenced in
subsection 10.2(g), provided, only, that such right shall be exercised in such manner so as not
to interfere with FOUNDATION in the conduct of FOUNDATION's activities on the Center; and if
the Center is damaged by fire, windstorm or by other casualty that causes the Center to be
exposed to the elements, then the City may enter upon the Center to make emergency repairs;
but if the City exercises its option to make emergency repairs, such act or acts shall not be
deemed to excuse FOUNDATION from his obligation to keep the Center in repair. If City makes
any emergency repairs pursuant tothe terms hereof, FOUNDATION shall reimburse the City for
all such repairs, to the extent said repairs are the obligation of the FOUNDATION under the
terms of this Agreement, upon receipt.by FOUNDATION of City's notice of repairs made and
statement and proof of costs incurred.
SECTION 19. WAIVER OF INTERFERENCE.
FOUNDATION hereby waives all claims for compensation for loss or damage sustained
by reasons of any interference with its operation and management of the Center by any public
agency or official as a result of their enforcement of any laws or ordinances or of any of the
rights reserved to the City herein. Any such interference shall not relieve FOUNDATION from
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any obligation hereunder.
SECTION 20. INSURANCE.
FOUNDATION shall maintain, at FOUNDATION's sole cost and expense, the following
types of insurance coverage at all times throughout the Term of this Agreement:
a. General liability insurance with not less than the following
limits:
General aggregate $2,000,000
Personal and advertising (injury) $1,000,000
(Per occurrence) $1,000,000
Fire damage $ 100,000
Medical Expense $ 5,000
b. Workers Compensation Insurance shall be required under
the.Laws of the State of Florida.
c. Automobile Insurance shall be provided covering all
owned, leased, and hired vehicles and non-ownership
liability for not less than the following limits (only if
FOUNDATION provides transportation services):
Bodily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
Property Damage $ 500,000 per accident
d. Property Insurance (fire, windstorm, other perils) shall be
the responsibility of the City in an amount not less than the
final total Project Costs.
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days written notice to 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 name the City as an additional named insured. All
such policies shall be obtained from companies authorized to do business in the State of Florida
with an A.M. Best's Insurance Guide (latest edition) rating acceptable to the City's Risk
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Manager, and any replacement or substitute company shall also be subject to the approval of
the City's Risk Manager. Should FOUNDATION fail to obtain, maintain or renew the policies of
insurance referred to above, in the required amounts, the City may, at its sole discretion, obtain
such insurance, and any sums expended by City in obtaining said insurance, shall be repaid by
FOUNDATION to City.
SECTION 21. INDEMNIFICATION.
21.1 FOUNDATION shall indemnify, hold harmless and defend the City, its agents,
servants and employees from and against any claim, demand or cause of action of whatsoever
kind or nature to the extent arising out of any error, omission,,or negligent act of FOUNDATION,
its agents, servants or employees in connection with the performance of the FOUNDATION's
obligations under this Agreement.
21.2 In addition, FOUNDATION shall indemnify, hold harmless and defend the City, its
agents, servants and employees from and against any claim, demand or cause of action of
whatever kind or nature arising out of any misconduct of FOUNDATION not included in
subsection 21.1 above and for which the City, its agents, servants or employees are alleged to
be liable. This subsection shall not apply, however, to any such liability as may be the result of
the gross negligence or willful misconduct of the City, its agents, servants or employees.
21.3 Subrogation. The terms of insurance policies referred to in Section 20 shall
preclude subrogation claims against FOUNDATION, the City and their respective officers,
employees and agents.
21.4 The provisions of this Section 21 shall survive the termination and/or expiration of
this Agreement.
SECTION 22. NO LIENS.
FOUNDATION agrees that it will not suffer, or through its actions or anyone under its
control or supervision, cause to be filed upon the Center or the Premises any lien or
encumbrance of any kind. In the event any lien is filed, FOUNDATION agrees to cause such
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lien to be discharged within thirty (30) days of reciept of notice from the City concerning the
subject lien, and in accordance with the applicable law. If this is not accomplished, the City may
automatically terminate this Agreement, without further notice to FOUNDATION.
SECTION 23. FOUNDATION EMPLOYEES AND MANAGERS.
23.1 The City and FOUNDATION recognize that in the performance of this
Agreement, it shall be necessary for FOUNDATION to retain qualified individuals to effectuate
and optimize FOUNDATION's management and operation of the Center. FOUNDATION shall
conduct background checks for its employees working at the Center, consistent with the criteria
utilized by the City for evaluating applicants for employment. Any such individuals, whether
employees, agents, independent contractors, volunteers, and/or other, retained by
FOUNDATION for such purpose(s) shall not be. deemed to be agents, employees, partners,
joint venturers or associates of the City, and shall not obtain any rights or benefits under the civil
service or pension ordinances of the City or any rights generally afforded classified or
, unclassified employees of the City; further they shall not be deemed entitled to the Florida
Worker's Compensation benefits as employees of the City. Additionally, FOUNDATION, and/or
any employees, agents, independent contractors, volunteers, and/or others, acting under the
authority and/or with the permission of FOUNDATION for the purpose set forth herein, shall
never have been convicted of any offense involving moral turpitude or a felony. Failure to
comply with this provision shall constitute cause for the termination of this Agreement upon
thirty (30) days written notice and opportunity to cure. FOUNDATION shall have an
experienced manager or managers overseeing the Center at all times. Any criminal activity at
the Center caused by or knowingly permitted by FOUNDATION shall result in automatic
termination of this Agreement.
23.2 Contract Administration.
a. The City's contract administrator shall be the City Manager and/or his
designee. FOUNDATION shall name a specific individual to serve as its
contract administrator.
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b. The City's contract administrator shall have the authority to give all
approvals for the City while administering this Agreement, with the
exception of items which would require City Commission approval. The
City's contract administrator:
(i) Shall be the liaison between the City and FOUNDATION on all
matters relating to this Agreement.
(ii) Shall be responsible for ensuring that any information supplied by
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
Center).
c. FOUNDATION shall name an individual who shall serve as the general
manager of the Center 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
operation of the Center.
(iii) Shall be responsible for providing supervision and direction to the
Center's employees, agents, contractors, and/or volunteers.
23.3 "Key Person" Clause. The Parties acknowledge that, in recognition of the
success of the FOUNDATION's adaptive beach days, and Ms. Sabrina Cohen's instrumental
efforts with regard thereto, the City's selection of the FOUNDATION, and Ms. Sabrina Cohen's
participation as part of the FOUNDATION's Board and/or management, is an integral and
primary consideration for City's decision to approve this Agreement. Accordingly, the
FOUNDATION shall exercise its best efforts to ensure the continuing, ongoing and active
participation of Ms. Sabrina Cohen as part of the Adaptive Recreation Center project.
SECTION 24. NO IMPROPER USE.
FOUNDATION will not use, nor suffer or permit any person to use in any manner
whatsoever, the Center or the Premises for any improper, immoral or offensive purpose, or for
any purpose in violation of any Federal, State, County, or municipal ordinance, rule, order or
30
Page 269 of 1288
regulation, or of any governmental rule or regulation now in effect or hereafter enacted or
adopted. FOUNDATION shall not use the Center or the Premises for any unlawful purpose and
shall comply with all laws, permitting, and licensing requirements now in force -or hereafter
adopted, applicable to the Center or the Premises or the uses and activities conducted on the
Center or the Premises. FOUNDATION agrees not to use the Center or the Premises for, or to
permit operation of any offensive or dangerous activity, nuisance or anything against public
policy. Except as may result from acts of force majeure, FOUNDATION agrees that it will not
allow the Center or the Premises to become unoccupied or vacant. FOUNDATION shall take
appropriate precautions to prevent fire 'on the Center or the Premises, maintaining existing fire
detection devices and extinguishing equipment at all times.
SECTION 25. NO DANGEROUS MATERIALS.
FOUNDATION agrees not to use or permit in the Center or the Premises the storage of
illuminating oils, oil lamps, turpentine, gasoline, benzine, naphtha, or other similar substances,
or explosives or any kind, or any substance or thing prohibited in the standard policies of fire
insurance companies in the State of Florida.
SECTION 26. NO CLAIM AGAINST CITY OFFICERS, EMPLOYEES, INDIVIDUALS.
It is expressly understood and agreed by and between the parties hereto that all
individuals, employees, officers, and agents of the City are acting in a representative capacity
and not for their own benefit; and that neither 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 conjunction with any acts or duties which are reasonably
related to the performance of their duties.
SECTION 27. DEFAULT AND TERMINATION.
If either Party fails to perform in accordance with any of the terms and conditions of this
Agreement, and such default is not cured within thirty (30) days after written notice is given, the
non-defaulting Party shall have the right to terminate this Agreement and, as the case may be,
31
Page 270 of 1288
either vacate or re-enter the Center, without further notice or demand. At its option, either Party
may also pursue any and all legal remedies available to seek redress for such default. The
default and termination rights afforded the parties in this Section 27, shall in no way limit or
otherwise preclude the City from exercising such other rights to terminate this Agreement, as
may be expressly provided in other sections hereto.
SECTION 28. PROCEDURE UPON EXPIRATION AND/OR TERMINATION BY CITY.
28.1 FOUNDATION shall, on or before the last day of the term herein, or the sooner
termination thereof, peaceably and quietly leave, surrender and yield unto the City, the Center,
together with any and all fixtures located at or on the Center and used by FOUNDATION in the
maintenance, management or operation of the Center, excluding any equipment, furnishings,
appliances or other personal property which can be removed without material injury to the
Premises, free of all liens, claims and encumbrances and rights of others, and broom-clean,
together with all structural changes, alterations, additions, and improvements which may have
been made upon the Center, in good order, condition and repair, reasonable wear and tear
excepted, subject, however, to the subsequent provisions of this subsection. Any property
which pursuant to the provisions of this subsection is removable by FOUNDATION on or at the
Center upon the termination of this Agreement and is not so removed may, at the option of the
City, be deemed abandoned by FOUNDATION, and either may be retained by the City as its
property, or may be removed and disposed of by. City, at the sole cost of the FOUNDATION, in
such manner as the City may see fit. If the Center isnot surrendered at the end of the term as
provided in this subsection, FOUNDATION shall make good to the City all damages which the
City shall suffer by reason thereof, and shall indemnify, the City against all claims made by a
succeeding occupant(if any), so far as such delay is occasioned by the failure of FOUNDATION
to surrender the Premises as and when herein required.
28.2 FOUNDATION covenants and agrees that it will not enter into agreements
(whether express or implied) relating to the Center for a period of time beyond the stated
32
Page 271 of 1288
expiration date of this Agreement.
28.3 In the event of termination of this Agreement for any reason, if the City is still in
possession or control of unexpended Project Donations then, along with its notice of termination
(assuming the City is terminating) or, within thirty (30) days of receipt of a notice of termination
from the FOUNDATION, the City shall provide the FOUNDATION with an accounting of the
Project Donations, along with a check in an amount equal to the unexpended Project Donations
in the CITY's possession or control.
SECTION 29. TERMINATION FOR CONVENIENCE OR FOR LACK OF FUNDING.
29.1. The FOUNDATION and the City, through its City Manager, shall each have the
right to terminate this Agreement for convenience at any time prior to City's execution of the
agreement with the architect/engineer for the design of the Center, with each Party to bear its
own costs and fees.
29.2. The FOUNDATION and the City, through its City Manager, shall each have the
right to terminate this Agreement for convenience without penalty or liability if, pursuant to
Section 6 of this Agreement, the City and FOUNDATION are unable to agree on the final budget
of the Project Costs for the design, development, and construction of the Center.
29.3. The FOUNDATION shall have the right to, terminate this Agreement for its
convenience if, as part of the design reviews for the Center, changes to the plans and
specifications are required by the applicable City boards or agencies having jurisdiction, and
such changes render the Center economically unfeasible.
29.4. If the FOUNDATION has not contributed the total Project Costs to the City within
three (3) years following. the City Commission's approval of the Concept Plan, or if the
FOUNDATION has not met any of the milestones set forth in Section 7 of this Agreement, the
City, through its City Manager, may terminate this Agreement for its convenience.
29.5. In the event that FOUNDATION has insufficient funding at any time during the
Term, such that it can no longer manage and operate the Premises in accordance with the
33
Page 272 of 1288
goals.and priorities and uses herein, then the City may, at its sole discretion: (i) supplement
any lack or loss of funds in order to allow FOUNDATION to continue to manage and operate
the Center; or(ii)terminate this Agreement for its convenience.
29.6. Any termination for convenience shall be effective upon thirty (30) days written
notice to the other Party. In the event of a termination for convenience of this Agreement
pursuant to this Section 29 or any subsection thereof, the procedure upon termination, as set
forth in Section 28, shall govern and control, and, except as otherwise stated herein, neither
Party shall have any liability or owe any further obligation to the other Party.
SECTION 30. NOTICES.
All notices from the City to FOUNDATION shall be deemed duly served if mailed by
registered or certified mail to FOUNDATION at the following address:
Sabrina Cohen Foundation, Inc.
1800 Sunset Harbour Drive#2406
Miami Beach, Florida 33139
Attention:
All notices from FOUNDATION to the,City shall be deemed duly served if mailed by registered
or certified mail to City at the following address:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
with copies to: City of Miami Beach
1700 Convention Center Drive, 3rd Floor
Miami Beach, Florida 33139
Attention: Asset Manager
FOUNDATION and the City may change the above mailing addressed at any time upon giving
the other Party written notification. All notice under this Agreement must be in writing.
SECTION 31. NO DISCRIMINATION.
34
Page 273 of 1288
The FOUNDATION agrees to comply with City of Miami Beach Human Rights
Ordinance, as codified in Chapter 62 of the City Code, as may be amended from time to time,
prohibiting discrimination in employment, housing, public accommodations, or public services,
on the basis of actual or perceived race, color, national origin, religion, sex, intersexuality,
sexual orientation, gender identity, familial and marital status, age, ancestry, height, weight,
domestic partner status, labor organization membership, familial situation, political affiliation, or
disability.. All facilities located on the Center shall be made available to the public, subject to
the right of FOUNDATION to establish and enforce reasonable rules and regulations to provide
for the safety, orderly operation and security of the facilities.
SECTION 32. VENUE/WAIVER OF JURY TRIAL/DISPUTE MEDIATION.
32.1 This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Florida, both substantive and remedial, without regard to principles of
conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be
Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of
Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND
FOUNDATION EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL
BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS
AGREEMENT.
32.2 If a dispute arises out of, or related to, this Agreement, or the breach thereof, and
if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to
settle the dispute by mediation administered by the American Arbitration Association, or other
similar alternative dispute resolution organization, person or source agreeable to the parties,
before resorting to litigation or other dispute resolution procedure.
SECTION 33. LIMITATION 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
35
Page 274 of 1288
this Agreement, so that its liability for any such breach never exceeds the sum of $10,000.
Contractor hereby expresses his willingness to enter into this Agreement with Contractor's
recovery from the City for any damage action for breach of contract to be limited to a maximum
amount of$10,000, less the amount of all funds 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 City shall not be liable to the Contractor for damages in an
amount in excess of $10,000, which amount shall be reduced by the amount actually paid by
the City to Contractor pursuant to this Agreement, for any action or claim for breach of contract
arising out of the performance or non-performance of any obligations imposed upon the City by
this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any
way intended to be a waiver of the limitation placed upon the City's liability as set forth in
Section 768.28, Florida Statutes.
SECTION 34. MISCELLANEOUS PROVISIONS.
34.1 City's Governmental Capacity. Nothing in this Agreement or in the parties' acts or
omissions in connection herewith shall be deemed in any manner to waive, impair, limit or
otherwise affect the authority of the City in the discharge of its police or governmental power.
34.2 Representation on FOUNDATION Board of Directors. The FOUNDATION
agrees that the City Manager, or his or her designee, shall be a voting member of the
FOUNDATION's Board of Directors ("Board"), as of the Effective Date, with voting power
equivalent to 1/6th of the total members of the Board. For example, if the Board consists of six
(6) members (including the City Manager or designee), the City Manager's (or designee's) vote
shall be equivalent to one (1) vote; if the Board consists of twelve (12) members, the City
Manager's vote shall be equivalent to two (2)votes; and so on.
34.3 Entire Agreement. This Agreement, together with the attachments hereto,
contains all of the promises, agreements, conditions, inducements and understandings between
36
Page 275 of 1288
City.and FOUNDATION concerning the operation and management of the Center, and there are
no promises, agreements, conditions; understandings, inducements, warranties or
representations, oral or written, express or implied, between them other than as expressly set
forth herein and in such attachments thereto or as may be expressly contained in any
enforceable written agreements or instruments executed simultaneously herewith by the parties
hereto.
34.4 Waiver; Modification. No covenant, agreement, term or condition of this
Agreement shall be changed, modified, altered, or waived except by a written instrument of
change, modification, alteration, or waiver executed by City and FOUNDATION. No waiver of
any default shall affect or alter this Agreement, but each and every covenant, agreement, term
and condition of this Agreement shall continue in full force and effect with respect to any other
then existing or subsequent default thereof.
34.5 Remedies Cumulative. Each right and remedy of either Party provided for in this
Agreement shall be cumulative and shall be in addition to every other right or remedy provided
for in this Agreement, or now or hereafter existing at law or in equity or by statute or otherwise
(except as otherwise expressly limited by the terms of this Agreement), and the exercise or
beginning of the exercise by a Party of any one or more of the rights or remedies provided for in
this Agreement, or now or hereafter existing at law or in equity or by statute or otherwise (except
as otherwise expressly limited by the terms of 'this Agreement), shall not preclude the
simultaneous or later exercise by such Party of any or all other rights or remedies provided for in
this Agreement or now or hereafter existing at law or in equity or by statute or otherwise (except
as otherwise expressly limited by the terms of this Agreement).
34.6 Performance at Each Party's Sole Cost and Expense. Unless otherwise
expressly provided in this Agreement, when either Party exercises any of its rights, or renders or
performs any of its obligations hereunder, such Party shall do so at its sole cost and expense.
34.7 Time is of the Essence. Time is of the essence with respect to all matters in, and
37
Page 276 of 1288
requirements of, this Agreement as to both City and FOUNDATION including, but not limited to,
the times within which the FOUNDATION must raise the Project Donations necessary for the
design, development and construction of the Center, and the times within which the City must
commence and complete construction of the Center.
34.8 No Representations. City and FOUNDATION have made no representations
herein as to the condition of the Premises.
34.9 Partnership Disclaimer. FOUNDATION acknowledges, represents and confirms
that it is an independent contractor in theperformance of all activities, functions, duties and
obligations pursuant to this Agreement.
The parties hereby acknowledge that it is not their intention to create between
themselves a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or
agency relationship for the purpose of this Agreement, or for any other purpose whatsoever.
Accordingly, notwithstanding any expressions or provisions contained herein, nothing in this
Agreement, shall be construed or deemed to create, or to express an intent to create, a
partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership, or agency
relationship of any kind or nature whatsoever between the parties hereto. The provisions of this
Section 34.9 shall survive termination and/or expiration of this Agreement.
34.10 Nota Lease. It is expressly understood and agreed that no part of the Property or
Center, or any part, parcel, building, structure, equipment or space is leased to FOUNDATION;
that this Agreement is solely in the nature of a funding and management agreement, and is not
a lease, and in no event shall this Agreement be construed to confer any legal or equitable
interest of any kind whatsoever in the Center or the Premises. The FOUNDATION's license to
operate and manage the Center shall continue only so long as this Agreement remains in effect,
and provided further that FOUNDATION complies with the undertakings, provisions,
agreements, stipulations and conditions of this Agreement.
38
Page 277 of 1288
34.11 No Third Party Rights. Nothing in this Agreement, express or implied, shall confer
upon any person, other than the Parties hereto and their respective successors and assigns,
any rights or remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals tobe affixed; all as of this day and year first written above.
Attest: "'�'' OF MIAMI..B A '' :;
-7- •'.......? ......*•6/ / '
ic+Ai. i ..--. /----. . *-- 4t V79
City CI-rk �P �R ` ip ,;n payor •
• .SNC° --..r•-•'''
`,( /1c;>/:1 :r
STATE OF FLORIDA ) i.• • • � /"
' - e.
..,
COUNTY OF MIAMI-DADE ).SS : , CH
S'�
The foregoing instrument was acknowledged before me this 31 day of
CDcAor , 2017, by Mayor Philip Levine and Rafael 'Granado, 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.
``Sk.
WITNESS my hand and official seal, this Ji day of ECDe)( , 2017.
My Commission Expires: LI _n rvD , 06 II ' .
Notary Public, State of Florio t at Large
,••1N:;%. •, NICHOLASEKALLERGIS I Commission No.:
;'r`.�'�. : Notary Public-State of Florida
•; tiu Commission tr GG 141820
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., ;.,�• KandedthraughNlatennalrmlaryAssn.
APPROVED AS TO
FORM&LANGUAGE
FO EXECUTION
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City Attorney I 4.9Date
39 '
Page 278 of 1288
Attest: SABRINA COHEN FOUNDATION, INC.
Aks.A4AA-ii
Name: l!:�fi'>niik ls J Sabrina ohen, President
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 42 day of
• , 2017, by Sabrina Cohen, on behalf of the Sabrina Cohen Foundation, Inc.,
known to me to be the person described in and who executed the foregoing instrument, and
acknowledged to and before me that they executed said instrument for the purposes therein
expressed.
cgAd
WITNESS my hand and official seal, this day of )'L V rn-t') , 2017.
My Commission Expires: LI
5--)/tr? #,
Notary P '•lic, State of Florida at Large
ti;Y'P•.,, nota YAMILEXic_5��MORALo(Eflorlda S 1 ommis- on No.:
Cory pobmmission600071355
" �t,r• My Comm.Expires Mar 16,2021
f ov Bonded through National Notary Ann,
40
Page 279 of 1288
EXHIBIT A
[SKETCH OF PREMISES]
41
Page 280 of 1288
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AMENDMENT NO. 1 TO THE
COLLABORATION, FUNDING AND MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
THE SABRINA COHEN FOUNDATION, INC.
FOR AN ADAPTIVE RECREATION CENTER
This Amendment No. 1 (Amendment) to the Collaboration, Funding and Management
Agreement dated November 2, 2017 ("Agreement"), by and between the City of Miami
Beach ("City's,and the Sabrina Cohen Foundation, Inc. (the"Foundation"), is entered into
as of this day of� fy-2019:
CifErt
RECITALS
WHEREAS, on October- 31, 2017, the Mayor and City Commission adopted
Resolution No. 2017-30082, approving and authorizing the Mayor and City Clerk to
execute the Agreement with the Foundation, for the Foundation to raise the funds and be
responsible for all of the expenses related to the City's design, development and
construction of an Adaptive Recreation Center("Center"), to be located within a portion of
the City's "P72" surface parking lot at 53rd Street and Collins Avenue (the"P72 Lot"); and
WHEREAS, the City would be the owner of the Center, which would be used for the
primary purpose of providing the general public and specifically, persons living with
physical and cognitive disabilities, including seniors living with disabilities and able-bodied
individuals with temporary injuries, with an accessible access point to the beach and
related beach programming; and
•
WHEREAS, on July 2, 2018, pursuant to the Agreement's terms, the Mayor and City
Commission adopted Resolution No. 2018-30377, approving, in the City's proprietary
capacity, the Concept Plan for the Center, a copy of which is attached hereto and
incorporated by reference as Exhibit"A-1'; and
WHEREAS, the City and the Foundation desire to amend the Agreement and
accomplish the purposes outlined in this Amendment No. 1.
NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the City and Consultant hereby agree to amend the Agreement as
follows:
1. ABOVE RECITALS.
The above recitals are true and correct and are incorporated as part of this
Amendment.
Page 282 of 1288
2. MODIFICATIONS. The Agreement is hereby amended (deleted items struck
through and inserted items underlined)as follows:
a. Section 2.1 of the Agreement is hereby amended to read as follows:
The premises shall consist of a footprint of approximately (but not more than ) 5,000
square feet of land located east of 5301 Collins Avenue, on a portion of the Property
described in Exhibit "A" attached hereto, and which shall contain a two-stem sinale
building with floorplates not to exceed 5,000 square feet
than) 10,000 sq. ft. (excluding exterior balconies or walkwaysl, with a maximum
(but not to exceed)height of twenty four(24)feet, measured from Base Flood Elevation+
5 feet to the roof of the building, in accordance with the City's Land Development
Regulations, and with the Center to be located on
the northeast corner of the Lot, as set forth in Exhibit "A-1" approved by the City
Commission in Resolution No. 2018-30377.
(the approved location/site of the Center on the Property shall
hereinafter be referred to as the"Premises").
b. Section 6.3 is hereby amended to read as follows:
The design documents, including plans and specifications, for the Center, shall be
developed consistent with the approved Concept Plan. During the design development
period, the FOUNDATION agrees to provide City with input with respect to design
development. The City agrees to provide full consideration to the FOUNDATION'S input,
particularly with respect to aspects of the design that may enhance the use of the Premises
for its intended accessibility-related purposes. All design documents, plans and
specifications shall be subject to City Manager's final approval, and all applicable
governmental requirements, including regulatory approval by the
Design Review Board and agencies having jurisdiction over the Premises, in accordance
with the Citv's Land Development Regulations.
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the Agreement shall
remain unchanged and in full force and effect. In the event there is a conflict
between the provisions of this Amendment and the Agreement, the provisions of
this Amendment shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their appropriate officials, as of the date first entered above.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
Page 283 of 1288
SABRINA COHEN FOUN►ATION INC.:
By: --fig, _, •• ,m - ow
Name: Name:
Secretary , 22 . (,al President
CITY OF MIAMI BEACH, FLORIDA:
ATTEST:
zil,;17,
Y•
/ 32
Rafael Gran-do, C' CI.r Dan Gelber, Mayor
ion,la x
1 —".•,_ '�
0 �� 1 FORM&LANGUAGE
INCORP ORATED; &FOAAPPROVED AS TO
EXECUTION
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Page 284 of 1288
AMENDMENT NO. 2 TO THE
AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
THE SABRINA COHEN FOUNDATION, INC.
FOR AN ADAPTIVE RECREATION CENTER
This Amendment No. 2 (Amendment) to the Funding, Collaboration and Management
Agreement dated November 2, 2017 ("Agreement"), by and between the City of Miami
Beach ("City"), and the Sabrina Cohen Foundation, Inc. (the "Foundation"), is entered
into as of this day of July, 2019:
RECITALS
WHEREAS, on October 31, 2017, the Mayor and City Commission adopted
Resolution No. 2017-30082, approving and authorizing the Mayor and City Clerk to
execute the Agreement with the Foundation, for the Foundation to raise the funds and
be responsible for all of the expenses related to the City's design, development and
construction of an Adaptive Recreation Center("Center") to be located at a portion of the
City's "P72" surface parking lot at the 53rd Street and Collins Avenue (the "P72 Lot"); and
WHEREAS, the City would be the owner of the Center, which will be used for the
primary purpose of providing the general public and specifically, persons living with
physical and cognitive disabilities, including seniors living with disabilities and able-
bodied individuals with temporary injuries, with an accessible access point to the beach
and related beach programming; and
WHEREAS, on July 2, 2018, pursuant to the Agreement's terms, the Mayor and
City Commission adopted Resolution No. 2018-30377, approving, in the City's
proprietary capacity, the Concept Plan for the Center, a copy of which is attached hereto
and incorporated by reference as Exhibit."A-1"; and
WHEREAS, on January 16, 2019, the City Commission approved Amendment No.
1 via Resolution No. 2019-3067 updating certain technical references, consistent with
the Concept Plan approved by the City Commission on July 2, 2018 and applicable
provisions of the City Code; and
WHEREAS, the City and the Foundation desire to amend the Agreement and
accomplish the purposes outlined in this Amendment No. 2.
NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the City and Consultant hereby agree to amend the Agreement
as follows:
Page 285 of 1288
1. ABOVE RECITALS.
The above recitals are true and correct and are incorporated as part of this
Amendment.
2. MODIFICATIONS. The Agreement is hereby amended (deleted items struek
through and inserted items underlined) as follows:
Section 7.1.b of the Agreement is hereby amended as follows:
b. The FOUNDATION commits to the following fundraising schedule and
deadlines, based on the estimated budget of Project Costs for the Base Concept
Design:
(i) 25% of Project Costs raised (in cash, donation pledges and grant
commitments)within twelve (12) twenty-four(24) months following the
City Commission's approval of the Concept Plan;
(ii) 50% of Project Costs raised (in cash, donation pledges and grant
commitments) within twenty-four--(-24) thirty-six (36) months following
the City Commission's approval of the Concept Plan;
(iii) 100% of Project Costs raised (in cash, donation pledges and grant
commitments) within thifty-six-(36) forty-eight (48) months following
the City Commission's approval of the Concept Plan.
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the Agreement shall
remain unchanged and in full force and effect. In the event there is a conflict
between the provisions of this Amendment and the Agreement, the provisions of
this Amendment shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their appropriate officials, as of the date first entered above.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
Page 286 of 1288
SABRINA COHEN FOUNDATION, INC.:
By:
Name: Name:
Secretary President
CITY OF MIAMI BEACH, FLORIDA:
ATTEST:
By:
Rafael Granado, City Clerk Dan Gelber, Mayor
APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION
Okk-ar l(9� l
City Attorney z ) Date
Page 287 of 1288