Resolution 2019-31068 RESOLUTION NO. 2019-31068
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
FINANCE AND CITYWIDE PROJECTS COMMITTEE AT ITS SEPTEMBER 20,
2019 MEETING; WAIVING, BY 517TH VOTE, THE FORMAL COMPETITIVE
BIDDING REQUIREMENT IN SECTION 82-39(A) OF THE CITY CODE, FINDING
SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND,
FOLLOWING A PUBLIC HEARING, APPROVING, A LEASE AGREEMENT WITH
THE NEW WORLD SYMPHONY, INC (NWS), HAVING AN INITIAL TERM OF
FIVE (5) YEARS, WITH ONE (1) FOUR YEAR RENEWAL TERM; SAID
AGREEMENT PROVIDING FOR THE CONSTRUCTION, BY THE CITY, OF A
STORAGE FACILITY ENCOMPASSING THREE (3) STANDARD PARKING
SPACES AND ONE (1) ADA PARKING SPACE, ON THE GROUND FLOOR OF
THE "PENN GARAGE", LOCATED AT 1661 PENNSYLVANIA AVENUE
(LEASED PREMISES), FOR THE STORAGE OF THE LED SCREENS THAT
ARE PART OF THE AUDIONISUAL EXPANSION PROJECT AT SOUNDSCAPE
PARK, TO BE FUNDED BY THE CITY FROM PREVIOUSLY APPROPRIATED
PROJECT FUNDS, IN AN AMOUNT NOT TO EXCEED $180,000.00; AND
FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE
LEASE AGREEMENT.
WHEREAS, at the January 17, 2018 City Commission meeting, Resolution No. 2018-30158
was passed, adopting the second amendment to the capital budget for FY 2017/18 and transferring
funding, in an amount of$751,410, from the SoundScape Park concession and restroom project, to a
project which would expand the listening area in SoundScape Park; and
WHEREAS, funding for this project would come from the transfer of "Pay As You Go (Fund
302)" dollars previously appropriated to the SoundScape Park concession and restroom project; and
WHEREAS, on May 16, 2018, the Mayor and City Commission adopted Resolution No. 2018-
30300, approving, in substantial form, Amendment No. 1 to the Video and Audio System Agreement,
dated as of November 29, 2007, between the City and New World Symphony in connection with the
expansion of the video and audio system at SoundScape Park (Expansion Project), with the City
funding the expansion of the audio system, in an amount not to exceed $752,000, and NWS funding
the expansion of the video system, at NWS' sole cost and expense; and
WHEREAS, in addition to the funding identified for the Expansion Project, on November 6,
2018, the General Obligation Bond ("GO Bond") was approved by voters, allocating $4.5M in
improvements to SoundScape Park, which included building a permanent restroom facility to
accommodate the high usage of the Park; a storage facility for park maintenance needs; and the
upgrade of projectors, cameras, and servers to 4K ultra-high definition resolution; and
WHEREAS, as part of the Expansion Project, NWS would be required to purchase two (2)
portable LED modular screen video walls, mounted on a portable device, to accompany the stationary
audio system being purchased by the City; and
WHEREAS, as indicated by NWS, the LED screen video walls should be stored in a climate-
controlled facility in close proximity to the Park to ensure ease of accessibility for WALLCAST events,
which average 10-13 events per season; and
WHEREAS, NWS does not have a storage facility to house the LED screen video walls; and
WHEREAS, the Administration is recommending the use of space, on the ground floor of the
northeast section of the Pennsylvania Avenue Garage, which will permit NWS to access the screens
through the loading dock area for the NWS building; and
WHEREAS, the proposed area for the storage facility is currently being used as 3-4 parking
spaces and 1 ADA parking space, although the ADA parking space would be re-located to another
area within the same garage; and
WHEREAS, the Administration recommends approving, in substantial form, the Lease
Agreement incorporated herein by reference and attached hereto as Exhibit "1", containing the
following essential terms:
A. initial term of five (5) years with one (1)four-year renewal term, at the City's option, subject
to termination for convenience by the City, upon providing NWS with one (1) year prior
advance notice;
B. rent of$1.00 per year;
C. Leased Premises, storage space to be built by City at the site of the parking spaces;
D. the City to fund the construction of the storage facility, for a total budget cost not to exceed
$180,000;
E. the City will absorb the rental cost of the parking spaces utilized as a result of this build
out, in the amount of$4800/year; and
F. NWS will be responsible for the daily housekeeping maintenance of the storage facility and
the City will be. responsible for any capital improvements, maintenance and repairs,
including air conditioning units, and physical damage; and
WHEREAS, CIP has confirmed that a budget of $180,000 is reasonable for the scope of this
work and the City has identified $180,000 from funds originally allocated for the audio component of
the Expansion Project, which the City will not need to utilize.
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 accept the
recommendation of the Finance and Citywide Projects.Committee at its September 20, 2019 meeting;
waive, by 5/7th vote, the formal competitive bidding requirement in Section 82-39(a) of the City Code,
finding such waiver to be in the best interest of the City; and, following a public hearing, approving, a
Lease Agreement with the New World Symphony, Inc (NWS), having an initial term of five (5) years,
with one (1) four year renewal term; said agreement providing for the construction, by the City, of a
storage facility encompassing three (3) standard parking spaces and one (1) ADA parking space, on
the ground floor of the "Penn Garage", located at 1661 Pennsylvania Avenue (Leased Premises), for
the storage of the led screens that are part of the audio/visual expansion project at Soundscape Park,
to be funded by the City from previously appropriated project funds, in an amount not to exceed
$180,000.00; and further authorize the Mayor and City Clerk to execute the Lease Agreement.
PASSED and ADOPTED this 30th day of October 20j --
--
ATTEST: m� 4 Ai oI&
Dan.GO::- , Mayor
`? ` APPROVED AS TO
n; oc\10-- 1° ' FORM & LANGUAGE
Rafael E. Granado, ity Clerk :1`,��ORP &FOR EX CUTION
q(1 ,, �t` (t 0 (d-x .f- i' 1
....
7 . City Attorney j�j�r Dote
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MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: October 30, 2019
5:16 p.m. Public Hearing
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF
THE FINANCE AND CITYWIDE PROJECTS COMMITTEE AT ITS
SEPTEMBER 20, 2019 MEETING; WAIVING, BY 5/7TH VOTE, THE
FORMAL COMPETITIVE BIDDING REQUIREMENT IN SECTION 82-39(A)
OF THE CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST
INTEREST OF THE CITY; AND, FOLLOWING A PUBLIC HEARING,
APPROVING, A LEASE AGREEMENT WITH THE NEW WORLD
SYMPHONY, INC (NWS), HAVING AN INITIAL TERM OF FIVE (5) YEARS,
WITH ONE (1) FOUR YEAR RENEWAL TERM; SAID AGREEMENT
PROVIDING FOR THE CONSTRUCTION, BY THE CITY, OF A STORAGE
FACILITY ENCOMPASSING THREE (3) STANDARD PARKING SPACES
•AND ONE (1) ADA PARKING SPACE, ON THE GROUND FLOOR OF THE
"PENN GARAGE," LOCATED AT 1661 PENNSYLVANIA AVENUE (LEASED
PREMISES), FOR THE STORAGE OF THE LED SCREENS THAT ARE
PART OF THE AUDIONISUAL EXPANSION PROJECT AT SOUNDSCAPE
PARK, TO BE FUNDED BY THE CITY FROM PREVIOUSLY
APPROPRIATED PROJECT FUNDS, IN AN AMOUNT NOT TO EXCEED
$180,000.00; AND FURTHER AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE THE LEASE AGREEMENT.
RECOMMENDATION
The City Manager recommends the Mayor and Commission to accept the recommendation of
the FCWPC by waiving the competitive bid requirements by a 5/7ths vote as permitted under
Section 82-39(a) of the City Code, finding such waiver as being in the best interest of the
City, and to approve the building of a storage unit by entering into a lease agreement with New
World Symphony, as per the terms outlined in the attached resolution.
BACKGROUND/HISTORY
City staff met with representatives of NWS on February 7, 2017. The following is a summary of
the items discussed:
- NWS did not want a food and beverage concession operation in SoundScape Park. They
would prefer to look at engaging restaurants in the vicinity rather than adding another vendor and
structure.
Page 737 of 950
- NWS did not want restrooms in SoundScape Park.
- NWS wanted to close the existing restroom building in SoundScape Park and convert it to a
• storage building. •
- NWS wanted to close Lincoln Lane, making it pedestrian only, and to bring the road surface
level with the SoundScape Park grade.
- NWS did not like the current plan for trees on Drexel Avenue.
- NWS requested approval to install additional speaker towers within SoundScape Park.
- NWS wanted to create additional viewing areas within SoundScape Park outside of the current
viewing area of the WALLCAST(i.e., portable screens, permanent display, etc.).
- NWS suggested possible simulcasts and/or information pieces along Lincoln Road, using
kiosks or other methods of transmission, in order to incorporate SoundScape Park and NWS
along Lincoln Road to bring the three together.
- NWS requested the City consider installing public restroom stalls along public streets (similar
to London, Spain, New York, etc.).
This information was subsequently presented at the March 1, 2017 Commission meeting. The
Commission voted in favor of not proceeding with the food and beverage concession and
referring the remainder of the issues requested by NWS to the Neighborhood/Community
Affairs Committee (NCAC).
At the May 19,2017 NCAC meeting, NWS staff presented four recommendations for improved
amenities that would create a higher level of user experience at SoundScape Park.
These recommendations were as follows:
- Restroom/Storage Facilities - Relocation or reimagining of restroom facilities to also include
additional storage space in the existing facility or Pennsylvania Garage.
- Retail Space/Bike Center- Creative use of retail space located in Pennsylvania Garage,
possibly a Bike Center such as the facility located adjacent to Millennium Park, Chicago.
- Lincoln Lane Closure and Leveling-Activate and create an exciting southern edge for park in
coordination with James Corner Field Associates Lincoln Road Master Plan, including leveling
Lincoln Lane Road South to create pedestrian and bike access only.
- Audio and Video Systems- Expand listening and viewing areas to create outdoor "Living
Rooms" and pop up video screens.
On May 19, 2017, the NCAC passed, by acclamation, a recommendation to have staff evaluate
the cost impacts of improving the proposed amenities at SoundScape Park and subsequently
send the evaluation to the Finance and Citywide Projects Committee (FCWPC) for
consideration.
On June 7, 2017, the Mayor and City Commission moved, by acclamation, to minimize impact
of bathrooms and for staff to work out the cost of the concepts with NWS, and to refer the
financial component to the FCWPC.
On August 4, 2017, staff from Tourism, Culture and Economic Development, Parks and
Recreation and Capital Improvements Projects met with NWS staff to begin analyzing the costs
of the proposed amenities. The following table summarized estimated costs for each of the
suggested recommendations:
Page 738 of 950
Improved Amenities Scope of Work Estimated Budget
Restroom Facility Build-out Construction of new restroom $720,000 •
facilities to accommodate
occupancy of 3000 persons
Storage Facility Converting existing restroom $23,000
and storage building to a full
storage room
Lincoln Lane Closure and Pedestrianizing Lincoln Lane $3,573,000
Leveling from Washington to Drexel
Retail Space/Bike Center Stand-alone bicycle facility in $600-$1 M
a parking garage ranging in
size from 1,200 to 1,400
square feet.
Expansion of Audio and Creating additional viewing Audio$751,410
Video Systems and listening "Living Rooms Video$377,520*
*The proposal indicates the cost of the video systems would be the responsibility of NWS
City staff expressed concerns regarding the proposed amenities making use of the
Pennsylvania Garage space, specifically the restroom facility and retail bike center. Relocating
the restroom facilities to the Pennsylvania garage would create a distance and disconnect from
SoundScape Park, potentially causing a security and accessibility issue. By building restrooms
in the lower level, parking spaces that are vital to a negotiating a lease agreement with a potential
tenant would be lost.
Regarding the potential use of the Pennsylvania Garage retail space as a bike center, the
Transportation Department explained that they would be installing 53 self-service, vertical
bicycle parking racks in the 17th Street parking garage. There are 24 bicycle racks in the NE
corner of the garage, and there will be 29 in the southwest corner of the garage. Each vertical
bicycle parking rack holds one bicycle. Transportation will also be installing up to 5 u-racks at
each of these two locations. In the future, a self-service bicycle repair station will be at each of
these two locations.
On October 13, 2017, the Finance and Citywide Projects Committee made a recommendation
for staff to continue working with the New World Symphony on solving the restroom issue that
did not utilize the Penn garage space, look at Lincoln Lane closure, and do a budget
amendment to re-appropriate $751,410 of $800,000 in previously budgeted funds for a
restroom and concession facility for the audio and visual enhancement.
Funding for SoundScape Park Expansion and Improvements
Expansion ofAudio and Video Systems(the Expansion Project)-$752,000
At the January 17, 2018 City Commission meeting, Resolution 2018-30158 was passed,
adopting the second amendment to the capital budget for FY 2017/18 and approving the
SoundScape Park concession and restroom project to exclude the restrooms and transfer that
funding, in an amount of $751,410, to a project which would expand the listening area in
SoundScape Park. Funding for this amendment would come from the transfer of Pay As You
Page 739 of 950
Go (Fund 302)dollars previously appropriated to SoundScape Park project, leaving a budget of
$48,590 in this project.
On May 16, 2018, Resolution No. 2018-30300 was passed approving, in substantial form,
Amendment No. 1 to the Video and Audio System Agreement, dated as of November 29,
2007, between the City and New World Symphony for the expansion of the video and audio
system at SoundScape Park, with the City funding the expansion of the audio system, in an
amount not to exceed $752,000, and NWS funding the expansion of the video system, at NWS
sole cost and expense.
SoundScape Park Improvements (Restrooms, Storage and 4K) - GO Bond Allocation -$4.5
M
In addition to the funding identified for the Expansion Project, on November 6, 2018, the
General Obligation Bond ("GO Bond") was approved by voters allocating $4.5M in
improvements to SoundScape Park. The GO Bond funding for SoundScape Park includes the
building of a permanent restroom facility to accommodate the high usage of the park, a storage
facility and the upgrade of projectors, cameras, and servers to 4K ultra-high definition resolution.
ANALYSIS
Location of Facilities Related to SoundScape Park Expansion and Improvements
In order to timely implement the audio component of the Expansion Project, both NWS and City
staff agreed that the purchase of the audio equipment can proceed independently of the
purchase of the LED Video Walls. NWS submitted to City staff a detailed proposal, inclusive of
budget and installation timeline for the audio equipment. However, in order to complete the
video component of the Expansion Project and implement the SoundScape Park
Improvements as funded by the GO Bond allocation, the location of the LED Video Wall
storage facility needs to be identified.
1. Permanent Storage Facility for LED Video Walls
As part of the scope of work, NWS is purchasing two (2) portable LED modular screen video
walls mounted on a portable device to accompany the expanded audio system.As indicated by
NWS, the LED screen video walls should be stored in a climate controlled facility in close
proximity to the park to ensure ease of accessibility for WALLCAST events, which average 10-
13 events per season. Currently, NWS does not have an existing storage facility to
accommodate the screens and has not been able to proceed with the purchase of the LED
screen video walls. NWS has stated that off site storage is not practical due to the size and
frequency of anticipated use of the LED video walls.
The proposed space is within Pennsylvania Avenue Garage ground floor, as referenced in the
attached diagrams. This location would allow the screens to be accessed through the loading
dock area of NWS and would require the permanent use of 3-4 parking spaces and 1 ADA
parking space - the ADA parking space would be re-located to another area within the same
garage, but the 3-4 regular parking spaces would be permanently utilized for this storage facility.
The design of the proposed storage space can be found in the attached documents:
- Storage Design#1
Page 740 of 950
-Storage Design#2
- Storage Design#3
-Storage Design#4 • •
The City of Miami Beach has consulted with all internal departments including Parking, CI P, and
Tourism and Culture, and after many iterations and drawings, the administration has finalized a
plan that will physically work within the space, and the administration has agreed to absorb the
rental cost of$4800/year for the parking spaces that will be utilized as a result of this build out.
The facility will be maintained on a daily basis by NWS, but should any capital maintenance be
required (air conditioning units, physical damage, etc), the City of Miami Beach would assume
that maintenance as part of the existing agreement for SoundScape Park.
The funding source has already been identified as remaining funds from the audio / video
expansion, with CI P confirming that the budget of apps $180,000.00 allocated is reasonable for
the scope of work.
Further details pertaining to the lease agreement can be found in the attachment-"NWS Lease
Agreement- Exhibit 1"
2. New Restroom Facilities
The administration is separating this item from the storage facility, as there is still more work to
do to see if additional restrooms are feasible for SoundScape park given the budget allocation
and to determine their location.
The administration believes that waiving the competitive bid requirement for this storage unit
build out is in the best interest of the City of Miami Beach and its residents, as it will result in the
intended audio and video expansion package of Soundscape Park. Without this waiver, NWS
would be unable to purchase the LED screens, as they require a safe storage space close to
the park, in order to be utilized for various cultural programming initiatives which will be free of
charge to residents and tourists of Miami Beach.
CONCLUSION
In conclusion, the City Manager recommends waiving, by 5/7th's vote, of the formal competitive
bidding requirement in Section 82-39 (a)of the City Code,finding such waiver to be in the City's best
interest, as it will result in finalizing the audio and video expansion package of Soundscape Park.
The funds for this project have already been identified in contingency line items within existing audio/
video expansion budgets, and without this waiver, NWS will be unable to purchase the LED screens,
as they require a safe storage space close to the park, in order to be utilized for various cultural
programming initiatives which will be free of charge to residents and tourists of Miami Beach.
Applicable Area
South Beach
Is this a Resident Right to Does this item utilize G.O.
Know item? Bond Funds?
No No
Page 741 of 950
Legislative Tracking
Tourism and Culture .
ATTACHMENTS:
Description
❑ Storage Design#1
o Storage Design #2
• Storage Design#3
❑ Storage Design #4
o Resolution
o NWS Lease Agreement- Exhibit 1
Page 742 of 950
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RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE 'CITY OF
MIAMI :BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
FINANCE AND CITYWIDE PROJECTS COMMITTEE AT ITS SEPTEMBER 20,
2019 MEETING; WAIVING, BY :517TH VOTE, THE FORMAL COMPETITIVE
BIDDING 'REQUIREMENT.IN SECTION 82-39(A) OF THE CITY CODE, FINDING
SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND,
FOLLOWING A PUBLIC HEARING, APPROVING, A LEASE.AGREEMENT WITH
THE NEW WORLD SYMPHONY, INC (NWS), HAVING AN INITIAL TERM OF
FIVE (5) YEARS, WITH. ONE (1) FOUR YEAR RENEWAL TERM; SAID
AGREEMENT PROVIDING FOR THE CONSTRUCTION, BY THE CITY, OF A
STORAGE FACILITY ENCOMPASSING THREE (3) STANDARD PARKING
SPACES AND ONE (1)ADA PARKING SPACE, ON THE GROUND FLOOR OF
THE "PENN GARAGE", LOCATED AT 1661 PENNSYLVANIA AVENUE
(LEASED PREMISES), FOR THE STORAGE. OF THE LED SCREENS THAT
ARE PART OF THE AUDIOVISUAL EXPANSION PROJECT AT SOUNDSCAPE
PARK, TO BE FUNDED BY THE CITY FROM PREVIOUSLY APPROPRIATED
PROJECT FUNDS, IN AN AMOUNT NOT TO EXCEED $180,000.00; AND
FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE
LEASE AGREEMENT.
WHEREAS, at the January 17,.2018 City Commission meeting,. Resolution No. 2018-30158
was passed, adopting the second amendment to the capital budget for FY 2017/18 and transferring
funding, in an amount of$751,410, from the SoundScape Park concession and restroom project, to a
project which would expand the listening area in SoundScape Park; and
WHEREAS, funding for this project would come from the transfer of "Pay As You Go (Fund
302)"dollars previously appropriated to the SoundScape Park concession and restroom project; and
WHEREAS, on May 16, 2018, the Mayor and City Commission adopted Resolution No. 2018-
30300, approving, in substantial form, Amendment No. 1 to the Video and Audio System Agreement,
dated as of November 29, 2007, between the City and New World Symphony in connection with the
expansion of the video and audio system at SoundScape Park (Expansion Project), with the City
funding the expansion of the audio system, in an amount not to exceed $752,000, and NWS funding.
the expansion of the video system, at NWS'sole cost and:expense; and
WHEREAS, in addition to the funding identified for the Expansion Project, on November 6,
2018, the General Obligation Bond ("GO Bond") was approved by voters, allocating $4.5M in
improvements to SoundScape Park, which included building a permanent restroom facility to
accommodate the high usage of the Park; a storage facility for park maintenance needs; and the
upgrade of projectors, cameras, and servers to 4K ultra-high definition resolution;.and
WHEREAS, as part of the Expansion Project, NWS would .be required to purchase two.(2)
portable LED modularscreen video walls, mounted on a portable device, to accompany the stationary
audio system being purchased by the City; and
WHEREAS, as indicated by NWS, the LED screen video walls should be:stored in a climate-
controlled facility in close proximity to the Park to ensure ease of accessibility for r WALLCAST events,
which average 10-13 events per season; and
WHEREAS, NWS does not have.a storage facility to house the LED screen video walls; and
Page 747 of 950
WHEREAS, the Administration is recommending the use of space, on the ground floor of the
northeast section of the Pennsylvania Avenue Garage, which will permit NWS to access the screens
through the loading dock area for the NWS building; and
WHEREAS, the proposed area for the storage facility is currently being used.as 3-4 parking.
Spades and 1 ADA parking space, although the ADA parking space would be re-located to another
area within the same,garage; and
WHEREA , the Administration recommends approving, in substantial form, the Lease.
Agreement incorporated herein by reference and attached hereto as Exhibit "1", containing the
following essential'terms:
A. initial term of five (5) years with one (1:)four-year renewal term, at the City's option, subject
to termination for convenience by the City, upon providing NWS with one (1) year prior
advance notice;
B. rent of$1.00 per year„
C. Leased Premises, storage space to be built by City at the site of the parking spaces;
D. the City to fund the construction of the storage facility, for a total budget cost not to exceed
$180,000;
E. the City will absorb the rental cost of the parking spaces utilized as a result of this build
out, in the amount of$4800/year; and
F. NWS will be responsible for the daily housekeeping maintenance of the storage facility and
the City will be responsible for any capital improvements, maintenance and repairs,
including,air conditioning units, and physical damage; and
WHEREAS, CIP has confirmed that a budget of $180,000 is reasonable for the scope of this
work and the City has identified $180,000 from funds originally allocated for the audio component of
the Expansion Project, which the City will not need to utilize.
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 accept the
recommendation of the Finance and.Citywide Projects Cornmittee at its.September 20, 2019 meeting;
waive, by 5/7th vote, the formal competitive bidding requirement in Section 82-39(a) of the City Code,
finding such waiver to be in the best interest of the City; and, following a public hearing, approving, a
Lease Agreement with the New World Symphony, Inc (NWS), having an initial term of five (5) years,
with one (1) four year renewal term; said agreement providing for the construction, by the City, of a
storage facility encompassing three (3) standard,parking spaces and One (1) ADA parking space, on
the ground floor of the "Penn Garage", located at 1661 Pennsylvania Avenue (Leased Premises), for
the storage of the led screens that are part of the audio/visual expansion project at Soundscape Park,
to be funded by the City from previously appropriated project funds,, in an amount not to exceed
$180,000.00; and further authorize the Mayor and.City Clerk to execute the Lease Agreement.
PASSED and ADOPTED thie 30thclay of October 2019.
ATTEST:
Dan Gelber, Mayor
APPROVED AS TO.
FORM&LANGUAGE
Rafael E. Granada, City.Clerk &FOR ETCUTION
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Page 748 of 950 --'
City AttorneyA Dote
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EXHIBIT
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' LEASE AGREEMENT
THIS LEASE AGREEMENT ("Agreement"), made this day of
, 2019 ("Effective Date"), by and between the CITY OF MIAMI BEACH,
FLORIDA,e Florida municipal corporation, (hereinafter referred toeo"City"vor"Land|ordl,and the
y�E�V�yO��LK� SYMPHONY, INC, a Florida not-for-profit corporation, /on. (hereinafter referred' to as
~NVV��^pr^TananC'l '
1. City's Contribution/Demised Premises.
1.1 City Contribution.
Pursuant to that certain Amendment no. 1, Video and Audio System Agreement,
dated (as d d the "Audio System
between NWS and the City, NWS and the City have partnered in orderto expand the
audio video system at the City's SoundScape Park, by providing outdoor living
rooms,with the City funding the audio system,in an amount not to exceed$572,000,
and NWS funding the video component(collectively, the"Expansion Project"). As
part of the video component of the Expansion Project under the Audio System
Expansion Agreement, NWS will be providing two(2)portable pop up LED screns.
which need to be stored in a climate-controlled facility. The City has agreed to
construct a storage facility(the"Facility"), pursuant to Section 6 of this Agreement,at
the Pennsylvania Avenue Garage (the °GaFage"), owned by the City, having a
physical address of 1661 Pennsylvania Avenua, Unit 2, Miami Beach, Florida,
33139. The space encompasses three (3) standard parking spaces and one (1)
ADA parking space on the ground floor of the Garage in the location set forth on
Exhibit"A", attached hereto. The ADA parking space will be relocated to another
section of the Garage. The City will pay the parking fees associated with the parking
spaces being permanently occupied, based upon the current parking rates,as may
be modified from time to time, in the initial annual amount of$4,800.00.
1.2 The City, in consideration of the rentals hereinafter reserved to be paid and of the
covenants, conditions and agreements to be kept and performed by the Tenant,
hereby leases, lets and demises to the Tenant,and Tenant hereby leases and hires
from the City, those certain premises, located on the ground floor of the GanaQm,
identified as Unit 2 of the Pennsylvania Garage Condominium(the"Condominium"),
hereinafter referred to as the"Demised Prenminos^ described asfo||���'
. .
A Facility,having approximately square feet of slocated
within Unit 2 of the PENNSYLVANIA GARAGE CONDOMINIUM,as
recorded in Official Records Book 28080,at Page 4536,of the Public
Records of Miami-Dade County, Florida, as more particularly
described in Exhibit"A",attached hereto and incorporated herein by
reference.
2. Term.
2.1 Tenant shall be entitled to have and to hold the Demised Premises commencing on
the date when the City Manager advises Tanmnt, in writing, that the construction of
the Facility has been completed and the keys are delivered to Tenant (the
"Possession Date"). The Agreement shall have an initial term of five (5) years,
commencing on the Acceptance Date (as defined in Section 6.1) (the "Lease
Page 748cf050
Commencement Date"). For purposes of this Agreement, and including, without
limitation, Subsection 2.2 herein, a "contract year' shall be defined as that certain
period commencing on the 1st day of month that is the same as for the first full month
of the initial contract year and ending on the last day of the last month that is the
same as the last full month for the initial contract year. The first contract year shall
include any partial month in which the Possession Date occurs. Tenant shall not
occupy the Demised Premises at any time prior to the Possession Date.
2.2 Provided Tenant is in good standing and free from default(s) under Section 15
hereof, and upon written notice from Tenant,which notice shall be submitted to the
City Manager no later than sixty(60) days prior to the expiration of the initial term,
this Lease may be extended for one(1)additional four(4)year renewal term under
the same terms and conditions of this Agreement. Any extension,if approved,shall
be memorialized in writing and signed by the parties hereto (with the City hereby
designating the City Manager as the individual authorized to execute such
extensions on its behalf). The initial term and any approved renewal term shall be
referred to herein as a "Term".
In the event that the City Manager determines,in his sole discretion,not to extend or
renew this Agreement(upon expiration of the initial term or any renewal term), the
City Manager shall notify Tenant of same in writing,which notice shall be provided to
Tenant within fifteen (15) business days of the City Manager's receipt of Tenant's
written notice.
2.3 Termination for Convenience. The City may also, through its City Manager, and for its
convenience and without cause, terminate the Agreement at any time during the Term by
giving written notice to Tenant of such termination; which shall become effective a year
following receipt by Tenant of such notice. Following such termination for convenience,the
City and Tenant shall be discharged from any and all liabilities,duties,and terms arising out
of, or by virtue of, this Agreement, except with respect to any duties and obligations which
are intended to survive termination of the Agreement, including, without limitation, the
indemnification provisions of the Agreement.
In the event that the City exercises this termination for convenience provision, the City
Manager, in the City Manager's sole discretion, and without an obligation, may provide
Tenant with an alternate facility for the storage of the modular LED screen video walls.
2.4 Construction of Facility Contingency. This Agreementshall be contingent upon the City
completing the City Improvements;therefore,Tenant shall not have any leasehold interest in
the Demised Premises until the Possession Date. In the event that the City is unable to
construct the City Improvements`within one (1) year, due to funding issues or any other
unanticipated factors, the City may terminate the Agreement, by giving written notice to
Tenant of such termination; which shall become effective upon receipt by Tenant of such
notice. Following such termination, the City shall be discharged from any and all liabilities,
duties, and terms arising out of, or by virtue of, this Agreement.
3. Rent.
Tenant's payment of Rent, as defined in this Section 3, shall commence upon the Lease
Commencement Date(the"Rent Commencement Date")and,thereafter,on each first day of
each subsequent contract year. Base Rent and Additional Rent may be individually or
collectively referred to as Rent.
Page 7520 of 950
3.1 Base Rent:
Throughout the Term herein,the Base Rent for the Demised Premises shall be One
and 00/100 ($1.00) Dollar per year, payable in advance, on the first day of each
contract year.
3.2 Additional Rent:
Taxes. Concurrent with the payment of the Base Rent, Tenant shall also pay any
and all sums for all applicable tex(eo), including without |imihmUon, sales and use
taxes and Property Taxes (in accordance with Section 9), imposed, levied or
assessed against the Demised Premises. Additional Rent shall be due within fifteen
(15)days from receipt of a bill from the City.
3.3 Intentionally Omitted.
4. Location for Payments.
AUnanbyorotherpaymentedueheneundarmhm||bepaidboUleC|h/at the following address:
City of Miami Beach
Revenue Manager
1700 Convention Center DrIve, 3 Floor
Miami Beach, Florida 33139
or at such other address as the City may,from time to timnm, designate in writing.
5. Use and Possession of Demised Premises.
5.1 The Demised Premises shall ID6 used by the Tenant as a storage facility for modular
LED screen video walls and for any other component related to the Expansion
Project. No additional uses shall be permitted unless agreed to by the parties and
memorialized in writing in the form of an amendment to the Agreement. The
Demised Premises may be accessed by Tenant 24 hours and seven days per week.
Nothing herein contained shall be construed to authorize hours contrary to the laws
governing such operations.
5.2 It is understood and agreed that the Demised Premises shall be used by the Tenant
during the Term of this Agreement only for the above purpose(syuse(s), and for no
other purpose(s)and/or use(s)whatsoever.Tenant will not make or permit any use
of the Demised Premises that,directly or indirectly,is forbidden by law,ordinance or
government regulation, or that may be dangerous to life, limb or property. Tenant
may not commit(nor permit)waste on the Demised Premises; nor permit the use of •
the Demised Premises for any illegal purposes; nor commit a nuisance on the
Demised Premises. In the event that the Tenant uses the Demised Premises (or
otherwise allows the Demised Premises to be used)for any purpose(s)not expressly
permitted herein,or permits and/or allows any prohibited use(s)as provided herein,
then the City may declare this Agreement in default pursuant to Section 15 or,
restrain such improper use by ijunction or other legal action.
G. Improvements.
6.1 City Improvements.
The City agrees to construct a storage Facility on the Demised Premises, including
an air conditioning unit and a separately installed electric meter to serve the
Demised Premises exclusively(valued by the parties at an amount not to exceed
Page 75Jcf850
One Hundred Eighty Thousand and 00/100 ($180,000.00) Dollars, as more
particularly described in Exhibit"B", attached hereto and incorporated herein (the
"City Improvements").The City will be responsible for the preparation of and cost of
the architectural and engineering plans for the City Improvements. The City will use
reasonable efforts to complete the City improvements as soon as practical, but
makes no warranties or representations as to the expected construction time that it
will take to complete. The City may substitute materials or modify the building plans,
as the City,in its sole judgment and discretion,determines is necessary or desirable.
The plans for the City Improvement shall be subject to the approval of Tenant,which
approval shall not be unreasonably withheld,conditioned or delayed. As a condition
precedent to the Possession Date, Landlord shall deliver the Demised Premises to
Tenant(i)with the City Improvements substantially completed(i.e.completed except
for minor punch list items), as evidenced from a Certificate of Completion or
Certificate of Occupancy from the City's Building Department, and substantially in
accordance with the plans approved by Tenant; (ii) with a watertight roof and
structure and with all exterior doors and windows in good working order and
condition; and (iii) with all building systems, including without limitation, electrical,
NC and fire suppression systems serving the Demised Premises in good working
order and condition(collectively,the"Acceptance Date"). Tenant shall have ten(10)
days from the Possession Date("Inspection Period")to advise Landlord,in writing,of
any punch list items; otherwise Tenant shall be deemed to have accepted the
Demised Premises in"As Is"condition. Landlord will review the punch list items and
determine, in its reasonable discretion, which punch list items are required to
complete the Work. Landlord will have ninety(90)days to complete the Landlord
approved punch list items. Tenant shall not be able to use the Demised Premises
until the Acceptance Date. For the sake of clarity, the parties understand that NWS
will not purchase the modular LED video walls and any related equipment unless the
City completes the City Improvements.
6.2 As of the Acceptance Date,Tenant accepts the Demised Premises in their"AS IS"
condition. Tenant shall not be permitted to further improve the Demised Premises
without the City Manager's written consent. Any Tenant requests for additions or
alterations to the Demised Premises("Tenant improvements")shall require Tenant
to first submit plans for such improvements to the City Manager for his prior written
consent, which consent, if granted at all, shall be at the City Manager's sole and
absolute discretion.Additionally,any and all approved improvements shall be made
at Tenant's sole expense and responsibility.All permanent(fixed)improvements to
the Demised Premises shall remain the property of the City upon termination and/or
expiration of this Agreement. Upon termination and/or expiration of this Agreement,
all personal property and non-permanent trade fixtures may be removed by the
Tenant from the Demised'Premises, provided that they can be (and are) removed
without damage to the Demised Premises.Tenant will permit no liens to attach to the
Demised Premises arising from, connected with, or related to the design and
construction of any approved Tenant Improvements. Moreover, such construction
shall be accomplished through the use of licensed, reputable contractors who are
acceptable to the City. Any and all permits and or licenses required for the
installation of any approved Tenant Improvements shall be the sole cost and
responsibility of Tenant.
6.3 Notwithstanding Subsection 6.2, upon termination and/or expiration of this
Agreement,and at City's sole option and discretion,any Tenant Improvements made
by Tenant to or in the Demised Premises(unless the City Manager agrees in writing
that the Tenant Improvements need not be removed)shall,upon written demand by
the City Manager, be promptly removed by Tenant,at its expense and responsibility,
Page 7y of 950
and Tenant further hereby agrees,in such event, to restore the Demised Premises to
their original condition as of the Acceptance Date of this Agreement.
6.4 The requirements in Subsection 6.2 for submission of plans and the use of specific
contractors shall not apply to improvements (which term, for purposes of this
Subsection 6.4 only, shall also include improvements as necessary for Tenant's
maintenance and repair of the Demised Premises) which do not exceed Two
Thousand Five Hundred($2,500.00)Dollars,provided that the work is not structural,
and provided that it is permitted by applicable law.
7. City's Right of Entry.
7.1 The City Manager,and/or his authorized representatives,shall have the right to enter
upon the Demised Premises at all reasonable times for the purpose of inspecting •
same; preventing waste; making such repairs as the City may consider necessary;
and for the purpose of preventing fire, theft or vandalism. The City agrees that,
whenever reasonably possible, it shall use reasonable efforts to provide notice
(whether written or verbal), unless the need to enter the Demised Premises is an
emergency, as deemed by the City Manager, in his sole discretion, which if not
immediately addressed could cause property damage, loss of life or limb, or other
injury to persons. Nothing herein shall imply any duty on the part of the City to do any
work that under any provisions of this Agreement the Tenant may be required to
perform,and the performance thereof by the City shall not constitute a waiver of the
Tenant's default.
7.2 If the Tenant shall not be personally present to open and permit entry into the
Demised Premises at any time, for any reason, and any entry thereon shall be
necessary or permissible, the City Manager, and/or his authorized representatives,
may enter the Demised Premises by master key, or may forcibly enter the Demised
Premises without rendering the City or such agents liable therefore.
7.3 Tenant shall furnish the City with duplicate keys to all locks including exterior and
interior doors prior to (but no later than by) the Commencement Date of this
Agreement.Tenant shall not change the locks to the Demised Premises without the
prior written consent of the City Manager, and in the event such consent is given,
Tenant shall furnish the City with duplicate keys to said locks in advance of their
installation.
8. Tenant's Insurance.
8.1 Worker's Compensation Insurance as required by Florida, with Statutory limits and
Employer's Liability Insurance with limit of no less than $1,000,000 per accident for
bodily injury or disease.
8.2 Commercial General Liability Insurance on an occurrence basis, including products
and completed operations, contractual liability, property damage, bodily injury and
personal & advertising injury for vehicles while in the Tenant's care, custody and
control with limits no less than $1,000,000 per occurrence,and $2,000,000 general
aggregate
8.3 Property Insurance against all risks of loss to any tenant improvements or
betterments, including tenant's personal property, at full replacement cost with no
coinsurance penalty provision.
Page 7553 of 950
8.4 Additional Insured Status
The City of Miami Beach must be covered as an additional insured with respect to liability
arising out of work or operations performed by or on behalf of the Tenant.
8.5 Waiver of Subrogation
Tenant hereby grants to City of Miami Beach a waiver of any right to subrogation which any insurer
of the Tenant may acquire against the City of Miami Beach by virtue of the payment of any loss
under such insurance. Tenant agrees to obtain any endorsement that may be necessary to affect
this waiver of subrogation, but this provision applies regardless of whether or not the City of Miami
Beach has received a waiver of subrogation endorsement from the insurer.
8.6 Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII,unless
otherwise acceptable to the City of Miami Beach Risk Management Office.
8.7 Verification of Coverage
Tenant shall provide the required insurance certificates,endorsements or applicable policy language
effecting coverage required by this Section. All certificates of insurance and endorsements are to
be received prior to the Possession Date. However, failure to obtain the required coverage prior to
the work beginning shall not waive the Tenant's obligation to provide them. The City of Miami
Beach reserves the right to require complete, certified copies of all required insurance policies,
including endorsements required by these specifications, at any time.
8.8. Special Risks or Circumstances
The City of Miami Beach reserves the right to modify these requirements,including limits, based on
the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
8.9 Certificate Holder
CITY OF MIAMI BEACH
c/o INSURANCE TRACKING SERVICES
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FL 33139
8.10 Compliance with the foregoing requirements shall not relieve the vendor of his liability
and obligation under this section or under any other section of this agreement.
8.11 Loss or Damage.Tenant acknowledges that the Citywill be performing any maintenance
and repairs required of the City hereunder. The City shall not be liable for any death or
injury arising from or out of any occurrence in, upon, at, or relating to the Demised
Premises or damage to property of Tenant or of others located on the Demised
Premises or elsewhere in the Unit, nor shall it be responsible for any loss of or damage
to any property of Tenant or others from any cause, unless such death, injury, loss, or
damage results from the gross negligence or willful misconduct of the City.
9. Property Taxes and Assessments.
For the purposes of this Section and other provisions of this Agreement:
9.1 The term "Property Taxes" shall mean (i) real estate taxes, assessments, and
special assessments of any kind which may be imposed upon the Demised
Premises,and(ii)any expenses incurred by the City in obtaining a reduction of any
such taxes or assessments.
9.2 The term"Property Tax Year"shall mean the period of twelve(12)calendar months,
Page 7564 of 950
beginning on January 1st of each year.
9.3 Tenant shall pay,as Additional Rent pursuant to Section 3.2, for such Property Tax
Year an amount ("Property Tax Payment") relating to the Demised Premises or
Tenant's use of the Demised Premises. In the event that the Demised Premises is
assessed Property Taxes, either party may terminate the Agreement by providing the
other party with thirty(30)days notice.
10. Assignment and Subletting.
Tenant shall not have the right to assign or sublet the Demised Premises,in whole or in part,
without the prior written consent of the City Manager,which consent, if granted at all shall be
at the City Manager's sole and absolute discretion. Such written consent is not a matter of
right and the City is not obligated to give such consent. If granted as provided herein, the
making of any assignment or sublease will not release Tenant from any of its obligations
under this Agreement.
11. Operation, Maintenance, Repair and Utilities.
11.1 Tenant shall be solely responsible for the maintenance and repair of the interior of
the Demised Premises.Tenant shall,at its sole expense and responsibility,maintain
the Demised Premises, and all fixtures and appurtenances therein,and shall make
all repairs thereto,as and when needed,to preserve them in good working order and
condition. Tenant shall be responsible for all interior walls and for repairs or
maintenance which is caused as a result of the negligence of Tenant,its employees,
contractors or agents.
11.2 The City shall be responsible for the maintenance of the roof, the exterior of the
Demised Premises, all ventilation/air conditioning (VAC) equipment servicing the
Demised Premises,and the structural electrical within the Demised Premises). The
City shall maintain and/or repair those items that it is responsible for, so as to keep
same in proper working condition. Except with respect to the continuous operation
of the air conditioner serving the Demised Premises, the City Manager or his
designee, will make the determination as to whether or not a requested repair is
necessary or optional. Notwithstanding the foregoing,the City will not be responsible
for damages to the Demised Premises caused by the negligence and/or willful
misconduct of Tenant, its employees, contractors or agents.
11.4 Tenant Responsibilities for Electricity.
Tenant is solely responsible for,and shall promptly pay when due,the electric bill for
electrical usage related to the Demised Premises pursuant to the separate meter
• established for the Demised Premises.
In addition to other rights and remedies hereinafter reserved to the City, upon the
failure of Tenant to pay for such utility services(as contemplated in this Subsection
11.4) when due, the City may elect, at its sole discretion, to pay same, whereby
Tenant agrees to promptly reimburse the City upon demand.
In no event, however, shall the City be liable, whether to Tenant or to third parties,
for an interruption or failure in the supply of any utilities or services to the Demised
Premises.
11.5 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE DEMISED
PREMISES ARE BEING LEASED IN THEIR PRESENT(OR AS CONSTRUCTED)
"AS IS" CONDITION.
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12. Governmental Regulations.
Tenant covenants and agrees to fulfill and comply with all statutes,ordinances,rules,orders,
regulations,and requirements of any and all governmental bodies, including but not limited
to Federal, State, Miami-Dade County, and City governments, and any and all of their
departments and bureaus applicable to the Demised Premises, and shall also comply with
and fulfill all rules, orders, and regulations for the prevention of fire, all at Tenant's own
expense and responsibility.Tenant shall pay all cost,expenses,claims,fines,penalties,and
damages that may be imposed because of the failure of Tenant to comply with this Section,
and shall indemnify and hold harmless the City from all liability arising from each non-
compliance.
13. Liens.
Tenant will not permit any mechanics, laborers, or materialman's liens to stand against the
Demised Premises or improvements for any labor or materials to Tenant or claimed to have
been furnished to Tenant's agents or contractors, in connection with work of any character
performed or claimed to have performed on said Demised Premises,or improvements by or
at the direction or sufferance of the Tenant;provided however,Tenant shall have the right to
contest the validity or amount of any such lien or claimed lien. In the event of such contest,
Tenant shall give the City reasonable security as may be demanded by the City to insure
payment thereof and prevent sale, foreclosure, or forfeiture of the Premises or
improvements by reasons of such non-payment. Such security shall be posted by Tenant
within ten (10) days of written notice from the City, or Tenant may "bond off' the lien
according to statutory procedures. Tenant will immediately pay any judgment rendered with
all proper costs and charges and shall have such lien released or judgment satisfied at
Tenant's own expense.
14. Condemnation.
14.1 If at any time during the Term of this Agreement (including any renewal term
hereunder)all or any part or portion of the Demised Premises is taken,appropriated,
or condemned by reason of Eminent Domain proceedings,then this Agreement shall
be terminated as of the date of such taking, and shall thereafter be completely null
and void, and neither of the parties hereto shall thereafter have any rights against
the other by reason of this Agreement or anything contained therein,except that any
rent prepaid beyond the date of such taking shall be prorated to such date, and
Tenant shall pay any and all rents, additional rents, utility charges,and/or other costs
for which it is liable under the terms of this Agreement,up to the date of such taking.
14.2 Tenant shall not be entitled to participate in the proceeds of any award made to the
City in any such Eminent Domain proceeding.
15. Default.
15.1 Default by Tenant:
At the City's option, any of the following shall constitute an Event of Default under
this Agreement:
15.1.1 The Base Rent, Additional Rent, or any other amounts as may be due and
payable by Tenant under this Agreement, or any installment thereof, is not
paid promptly when and where due, and Tenant shall not have cured such
failure within five (5) days after receipt of written notice from the City
specifying such default;
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15.1.2 The Demised Premises shall be deserted, abandoned, or vacated;
15.1.3 Tenant shall fail to comply with any material term, provision, condition or
covenant contained herein other than the payment of rent and shall not cure
such failure within thirty(30)days after the receipt of written notice from the
City specifying any such default; or within sixty (60) days after receipt of
written notice from the City specifying the default, if such default is one which
reasonably cannot be cured within thirty(30)days because of circumstances
beyond Tenant's control;
15.1.4 Receipt of notice of violation from any governmental authority having
jurisdiction dealing with a law, code, regulation, ordinance or the like,which
remains uncured for a period of thirty (30) days from its issuance, or such
longer period of time as may be acceptable and approved in writing by the
City Manager, at his sole discretion;
15.1.5 Any petition is filed by or against Tenant under any section or chapter of the
Bankruptcy Act,as amended,which remains pending for more than sixty(60)
days, or any other proceedings now or hereafter authorized by the laws of
the United States or of any state for the purpose of discharging or extending
the time for payment of debts;
15.1.6 Tenant shall become insolvent;
15.1.7 Tenant shall make an assignment for benefit of creditors;
15.1.8 A receiver is appointed for Tenant by any court and shall not be dissolved
within thirty(30)days'thereafter; or
15.1.9 The leasehold interest is levied on under execution:
16. Rights on Default.
16.1 Rights on Default:
In the event of any default by Tenant as provided herein, City shall have the option to
do any of the following, in addition to and not in limitation of, any other remedy
permitted by law or by this Agreement;
16.1.1 Terminate this Agreement, in which event Tenant shall immediately
surrender the Demised Premises to the City, but if Tenant shall fail to do so'
the City may, without further notice, and without prejudice to any other
remedy the City may have for possession or arrearages in rent or damages
for breach of contract, enter upon the Demised Premises and expel or
remove Tenant and its effects in accordance with law,without being liable for
prosecution or any claim for damages therefore, and Tenant agrees to
indemnify and hold harmless the City for all loss and damage which the City
may suffer by reasons of such Agreement termination, whether through
inability to re-let the Demised Premises, or otherwise.
16.1.2 Declare the entire amount of the Base Rent and Additional Rent which would
become due and payable during the remainder of the term of this Agreement
to be due and payable immediately,in which event Tenant agrees to pay the
same at once, together with all rents therefore due, at the address of the
Page 77 of 950
City, as provided in the Notices section of this Agreement; provided,
however, that such payment shall not constitute a penalty, forfeiture, or
liquidated damage, but shall merely constitute payment in advance of the
rents for the remainder of said term and such payment shall be considered,
construed and taken to be a debt provable in bankruptcy or receivership.
16.1.3 Enter the Demised Premises as the agent of Tenant, by force if necessary,
without being liable to prosecution or any claim for damages therefore;
remove Tenant's property there from; and re-let the Demised Premises, or
portions thereof, for such terms and upon such conditions which the City
deems, in its sole discretion, desirable, and to receive the rents therefore,
and Tenant shall pay the City any deficiency that may arise by reason of
such re-letting, on demand at any time and from time to time at the office of
the City; and for the purpose of re-letting, the City may(i)make any repairs,
changes,alterations or additions in or to said Demised Premises that maybe
necessary or convenient;(ii)pay all costs and expenses therefore from rents
resulting from re-letting; and(iii)Tenant shall pay the City any deficiency as
aforesaid.
16.1.4 Take possession of any personal property owned by Tenant on said
Demised Premises and sell the same at public or private sale, and apply
same to the payment of rent due, holding Tenant liable for the deficiency, if
any.
16.1.5 It is expressly agreed and understood by and between the parties hereto that
any installments of rent accruing under the provisions of this Agreement
which shall not be paid when due shall bear interest at the maximum legal
rate of interest per annum then prevailing in Florida from the date when the '
same was payable by the terms hereof, until the same shall be paid by
Tenant. Any failure on the City's behalf to enforce this Section shall not
constitute a waiver of this provision with respect to future accruals of past
due rent. In addition, there will be a late charge of Fifty($50.00) Dollars for
any payments submitted after the due date.
16.1.6 If Tenant shall default in making any payment of monies to any person or for
any purpose as may be required hereunder,the City may pay such expense
but the City shall not be obligated to do so. Tenant, upon the City's paying
such expense, shall be obligated to forthwith reimburse the City for the
amount thereof.All sums of money payable by Tenant to the City hereunder
shall be deemed as rent for use of the Demised Premises and collectable by
the City from Tenant as rent,and shall be due from Tenant to the City on the•
first day of the month following the payment of the expense by the City.
16.1.7 The rights of the City under this Agreement shall be cumulative but not
restrictive to those given by law and failure on the part of the City to exercise
promptly any rights given hereunder shall not operate to waive or to forfeit
any of the said rights.
16.2 Default by City:
The failure of the City to perform any of the covenants,conditions and agreements of
this Agreement which are to be performed by the City and the continuance of such
failure for a period of thirty(30)days after notice thereof in writing from Tenant to the
City(which notice shall specify the respects in which Tenant contends that the City
failed to perform any such covenant, conditions and agreements)shall constitute a
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default by the City, unless such default is one which cannot be cured within thirty
(30) days because of circumstances beyond the City's control, and the City within
such thirty (30) day period shall have commenced and thereafter shall continue
diligently to prosecute all actions necessary to cure such defaults.
However, in the event the City fails to perform within the initial thirty(30)day period
provided above, and such failure to perform prevents Tenant from operating its
business in a customary manner and causes an undue hardship for Tenant, then
such failure to perform(regardless of circumstances beyond its control)as indicated
above, shall constitute a default by the City.
16.3 Tenant's Rights on Default:
If an event of the City's default shall occur,Tenant, to the fullest extent permitted by
law, shall have the right to pursue any and all remedies available at law or in equity,
including the right to sue for and collect damages, including reasonable attorney fees
and costs, to terminate this Agreement; provided however, that Tenant expressly
acknowledges and agrees that any recovery by Tenant shall be limited to the amount
set forth in Section 29 of this Agreement.
17. Indemnity Against Costs and Charges.
17.1 Tenant shall be liable to the City for all costs and charges, expenses, reasonable
attorney's fees, and damages which may be incurred or sustained by the City, by
reason of Tenant's breach of any of the provisions of this Agreement.Any sums due
the City under the provisions of this item shall constitute a lien against the interest of
the Tenant and the Demised Premises and all of Tenant's property situated thereon
to the same extent and on the same conditions as delinquent rent would constitute a
lien on said premises and property.
17.2 If either party shall deem it necessary to engage an attorney(including an in-house
attorney)to enforce the terms and conditions of this Agreement,the prevailing party
shall be entitled to recover all reasonable costs in connection with the prosecution of
such actions, including reasonable attorney's fees.
18. Indemnification Against Claims.
18.1 Tenant shall indemnify and save the City harmless from and against any and all
claims or causes of action (whether groundless or otherwise) by or on behalf of any
person, firm,or corporation, for personal injury or property damage occurring upon the
Demised Premises or upon any other land or other facility or appurtenance used in
connection with the Demised Premises, occasioned in whole or in part by any of the'
following:
18.1.1 An actor omission on the part of Tenant,or any employee,agent,contractor,
invitee, guest, assignee, sub-tenant or subcontractor of Tenant;
18.1.2 Any misuse,neglect,or unlawful use of the Demised Premises by Tenant,or
any employee, agent, contractor, invitee, guest, assignee, sub-tenant or
subcontractor of Tenant;
18.1.3 Any breach, violation, or non-performance of any undertaking of Tenant under this
Agreement;
18.1.4 Anything growing out of the use or occupancy of the Demised Premises by Tenant
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or anyone holding or claiming to hold through or under this Agreement.
18.2 Tenant agrees to pay all damages to the Demised Premises and/or other facilities used in
connection therewith, caused by Tenant or any employee,agent,contractor, guest,
or invitee of Tenant.
19. Skins and Advertising.
Without the prior written consent of the City Manager,which consent, if given at all, shall be
at the City Manager's sole and absolute discretion,Tenant shall not permit the painting and
display of any signs, plaques, lettering or advertising material of any kind on or near the
Demised Premises.All additional signage shall comply with signage standards established
by the City and comply with all applicable building codes, and any other municipal, County,
State and Federal laws.
20. Effect of Conveyance.
The term "City"and/or"Landlord" as used in the Agreement means only the owner for the
time being of the land and building containing the Demised Premises,so that in the event of
any sale of said land and building,or in the event of a lease of said building,the City shall be
and hereby is entirely freed and relieved of all covenants and obligations of the City
hereunder, and it shall be deemed and construed without further agreement between the
parties,or between the parties and the purchaser at such sale,or the lease of this building,
•
that the purchaser or Tenant has assumed and agreed to carry out all covenants and
obligations of the City hereunder.
21. Damage to the Demised Premises.
21.1 If the Demised Premises shall be damaged by the elements or other casualty not due to
Tenant's negligence, or by fire, but are not thereby rendered untenantable,as determined
by the City Manager, in his sole discretion, in whole or in part, and such damage is covered
by the City's insurance, if any, (hereinafter referred to as an"occurrence"),the City,shall,as
soon as possible after such occurrence, utilize the insurance proceeds to cause such
damage to be repaired and the Rent(Base Rent and Additional Rent)shall not be abated. If
by reason of such occurrence, the Demised Premises shall be rendered untenantable, as
determined by the City Manager, in his sole discretion,only in part,the City shall as soon as
possible utilize the insurance proceeds to cause the damage to be repaired, and the Rent
meanwhile shall be abated proportionately as to the portion of the Demised Premises
rendered untenantable; provided however, that the City shall promptly obtain a good faith
estimate of the time required to render the Demised Premises tenantable and if such time
exceeds sixty(60)days, either party shall have the option of canceling this Agreement.
21.2 If the Demised Premises shall be rendered wholly Uintenantable by reason of such
occurrence, the City shall have the option, but not the obligation, in its sole discretion, to
utilize the insurance proceeds to cause such damage to be repaired and the Rent
meanwhile shall be abated. However,the City shall have the right,to be exercised by notice
in writing delivered to Tenant within sixty(60)days from and after said occurrence, to elect
not to reconstruct the destroyed Demised Premises, and in such event,this Agreement and
the tenancy hereby created shall cease as of the date of said occurrence, the Rent to be
adjusted as of such date. If the Demised Premises shall be rendered wholly untenantable,
Tenant shall have the right, to be exercised by notice in writing, delivered to the City within
thirty (30) days from and after said occurrence, to elect to terminate this Agreement, the
Rent shall be adjusted accordingly.
21.3 Notwithstanding any clause contained in this Section 21, if the damage (other than Third
Party Damage)is not covered by the City's insurance, then the City shall have no obligation
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to repair the damage, but the City shall advise Tenant in writing within thirty(30)days of an •
occurrence giving rise to the damage and of its decision not to repair, and the Tenant may,
at any time thereafter, elect to terminate this Agreement, and the Rent shall be adjusted
accordingly.
21.4 Third Party Damage. If damage to the structure of the Demised Premises is caused by the
negligence or intentional act of a third party(other than Tenant, its employees, contractors,
or agents, or a weather related occurrence), such as a car crash or act of vandalism
(collectively,"Third Party Damage"),the City agrees to be responsible for the repairs for the
portions of the Demised Premises damaged by the third party which fall within the City's
maintenance responsibility in Section 11.2,such as the structure of the Demised Premises.
The City reserves the right to pursue the at fault party for reimbursement of said Third Party
Damage costs.
21.5 For the sake of clarity, notwithstanding anything to the contrary in this Section 21, Tenant
shall be responsible for any Third Party Damage to the Demised Premises,which falls within
Tenant's maintenance responsibility under Section 11.1 including, without limitation, the
personal property contained in the Demised Premises,which personal property is required to
be insured under Section 8.3 of the Agreement.
22. Quiet Enjoyment.
Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be evicted or
disturbed in possession of the Demised Premises so long as Tenant complies with the terms
of this Agreement.
23. Waiver.
23.1 It is mutually covenanted and agreed by and between the parties hereto that the
failure of the City to insist upon the strict performance of any of the conditions,
covenants, terms or provisions of this Agreement, or to exercise any option herein
conferred, will not be considered or construed as a waiver or relinquishment for the
future of any such conditions, covenants, terms, provisions or options but the same
shall continue and remain in full force and effect.
23.2 A waiver of any term expressed herein shall not be implied by any neglect of the City
to declare a forfeiture on account of the violation of such term if such violation by
continued or repeated subsequently and any express waiver shall not affect any term
other than the one specified in such waiver and that one only for the time and in the
manner specifically stated.
23.3 The receipt of any sum paid by Tenant to the City after breach of any condition, covenant,
term or provision herein contained shall not be deemed a waiver of such breach,but
shall be taken, considered and construed as payment for use and occupation, and
not as Rent, unless such breach be expressly waived in writing by the City. •
24. Notices.
The addresses for all notices required under this Agreement shall be as follows, or at such
other address as either party shall be in writing, notify the other:
LANDLORD: City Manager
City of Miami Beach
1700 Convention.Center Drive
Miami Beach, Florida 33139
Page of 950
With copy to: Director
City of Miami Beach
Tourism & Culture Department
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: New World Symphony
Miami Beach, Florida 33139
With copy to:
All notices shall be hand delivered and a receipt requested, or by certified mail with Return
receipt requested, and shall be effective upon receipt.
25. Entire and Binding Agreement.
This Agreement contains all of the agreements between the parties hereto, and it may not
be modified in any manner other than by agreement in writing signed by all the parties hereto
or their successors in interest.The terms, covenants and conditions contained herein shall
inure to the benefit of and be binding upon the City and Tenant and their respective
successors and assigns,except as may be otherwise expressly provided in this Agreement.
26. Provisions Severable.
If any term or provision of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be affected thereby and
each term and provision of this Agreement shall be valid and be enforced to the fullest
extent permitted by law.
27. Captions.
The captions contained herein are for the convenience and reference only and shall not be
deemed a part of this Agreement or construed as in any manner limiting or amplifying the
terms and provisions of this Agreement to which they relate.
28. Number and Gender.
Whenever used herein, the singular number shall include the plural and the plural shall
include the singular, and the use of one gender shall include all genders.
29. Limitation of Liability.
The City desires to enter into this Agreement only if in so doing the City can place a limit on
the City's liability for any cause of action for money damages due to an alleged breach by
the City of this Agreement, so that its liability for any such breach never exceeds the sum of
Ten Thousand and 00/100($10,000.00)Dollars.Tenant hereby expresses its willingness to
enter into this Agreement with Tenant's recovery from the City for any damage action for
breach of contract to be limited to a maximum amount of Ten Thousand and 00/100
($10,000.00) Dollars. Accordingly, and notwithstanding any other term or condition of this
Agreement, Tenant hereby agrees that the City shall not be liable to Tenant for damage in
an amount in excess of Ten Thousand and 00/100 ($10,000.00) Dollars 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 Section or
elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed
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•
upon the City's liability as set forth in Florida Statutes, Section 768.28.
30. Surrender of the Demised Premises.
Tenant shall,on or before the last day of the Term herein demised,or the sooner termination
thereof, peaceably and quietly leave, surrender and yield upon to the City the Demised
Premises, together with any and all equipment, fixtures, furnishings, appliances or other
personal property, if any, located at or on the Demised Premises and used by Tenant in the
maintenance, management or operation of the Demised Premises, excluding any trade
fixtures or personal property, if any, which can be removed without material injury to the
Demised Premises, free of all liens, claims and encumbrances and rights of others or
broom-clean,together with all structural changes,alterations,additions,and improvements
which may have been made upon the Demised Premises, in good order, condition and
repair, reasonable wear and tear excepted, subject,however, to the subsequent provisions
of this Section.Any property which pursuant to the provisions of this Section is removable by
Tenant on or at the Demised Premises upon the termination of this Agreement and is not so
removed may,at the option of the City,be deemed abandoned by Tenant,and either may be
retained by the City as its property or may be removed and disposed of at the sole cost of
the Tenant in such manner as the City may see fit. If the Demised Premises and personal
property, if any, be not surrendered at the end of the Term as provided in this Section.
Tenant shall make good the City all damages which the City shall suffer by reason thereof,
and shall indemnify and hold harmless the City against all claims made by any succeeding
tenant or purchaser,so far as such delay is occasioned by the failure of Tenant to surrender
the Demised Premises as and when herein required.
31. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to pay money
is involved.
32. Venue:
This Agreement shall be deemed to have been made and shall be construed and interpreted
in accordance with the laws of the State of Florida.This Agreement shall be enforceable in
Miami-Dade County, Florida, and if legal action is necessary by either party with respect to
the enforcement of any and all the terms or conditions herein, exclusive venue for the
enforcement of same shall lie in Miami-Dade County, Florida.
CITY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND TENANT
MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY
MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT.
33. Radon is a naturally occurring radioactive gas that,when it is accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it over time.
Levels of Radon that exceed Federal and State guidelines have been found in buildings in
Florida. Additional information regarding Radon and Radon testing may be obtained from
your County Public Health Unit.
34. No Dangerous Materials.
Tenant agrees not to use or permit in the Demised Premises the storage and/or use of
gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity
producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar
substances, combustible materials, or explosives of any kind, or any substance or thing
prohibited in the standard policies of fire insurance companies in the State of Florida. Any
such substances or materials found within the Demised Premises shall be immediately
removed.
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•
Tenant shall indemnify and hold the City harmless from any loss, damage, cost,or expense
of the City, including, without limitation, reasonable attorney's fees, incurred as a result of,
arising from, or connected with the placement by Tenant of any"hazardous substance"or
"petroleum products"on, in or upon the Demised Premises as those terms are defined by
applicable Federal and State Statute, or any environmental rules and environmental
regulations promulgated thereunder. The provisions of this Section 37 shall survive the
termination or earlier expiration of this Agreement.
35. Tenant's Compliance with Florida's Public Records Law.
Tenant shall comply with Florida Public Records law under Chapter 119,Florida Statutes,as
may be amended from time to time.
35.1 The term"public records"shall have the meaning set forth in Section 119.011(12),
which means all documents, papers, letters, maps, books, tapes, photographs, films,
sound recordings, data processing software, or other material, regardless of the
physical form, characteristics,or means of transmission, made or received pursuant to
law or ordinance or in connection with the transaction of official business of the City.
35.2 Pursuant to Section 119.0701 of the Florida Statutes, if the Tenant meets the
definition of"Contractor"as defined in Section 119.0701(1)(a), the Tenant shall:
35.2.1 Keep and maintain public records required by the City to perform the service;
35.2.2 Upon request from the City's custodian of public records,provide the City with a copy
of the requested records or allow the records to be inspected or copied within a reasonable time at a
cost that does not exceed the cost provided in Chapter 119, Florida Statutes or as otherwise
provided by law;
35.2.3 Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed, except as authorized by law,for the duration of
the contract term and following completion of the Agreement if the Tenant does not transfer the
records to the City;
35.2.4 Upon completion of the Agreement,transfer,at no cost to the City,all public records
in possession of the Tenant or keep and maintain public records required by the City to perform the
service. If the Tenant transfers all public records to the City upon completion of the Agreement,the
Tenant shall destroy any duplicate public records that are exempt or confidential and exempt from
public records disclosure requirements. If the Tenant keeps and maintains public records upon
completion of the Agreement,the Tenant shall meet all applicable requirements for retaining public
records.All records stored electronically must be provided to the City, upon request from the City's
custodian of public records, in a format that is compatible with the information technology systems of
the City.
35.3 Request for Records; Noncompliance.
35.3.1 A request to inspect or copy public records relating to the City's contract for services
must be made directly to the City. If the City does not possess the requested records, the City shall
immediately notify the Tenant of the request,and the Tenant must provide the records to the City or
allow the records to be inspected or copied within a reasonable time.
35.3.2 Tenant's failure to comply with the City's request for records shall constitute a breach
of this Agreement,and the City,at its sole discretion, may:(1)unilaterally terminate the Agreement;
Page 7%of 950
•
•
•
(2)avail itself of the remedies set forth under the Agreement; and/or(3)avail itself of any available .
remedies at law or in equity.
35.3.3 A Tenant who fails to provide the public records to the City within a reasonable time
may be subject to penalties under s. 119.10.
35.4 Civil Action.
35.4.1 If a civil action is filed against a Tenant to compel production of public records
relating to the City's contract for services,the court shall assess and award against the Tenant the
reasonable costs of enforcement, including reasonable attorneys'fees, if:
i. The court determines that the Tenant unlawfully refused to comply with the public
records request within a reasonable time; and
ii. At least 8 business days before filing the action,the plaintiff provided written notice
of the public records request, including a statement that the Tenant has not complied
with the request, to the City and to the Tenant.
35.4.2 A notice complies with subparagraph 35.4.1(ii)if it is sent to the City's custodian of
public records and to the Tenant at the Tenant's address listed on its contract with the City or to the
Tenant's registered agent. Such notices must be sent by common carrier delivery service or by
registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the
sender and with evidence of delivery, which may be in an electronic format.
35.4.3 A Tenant who complies with a public records request within 8 business days after the
notice is sent is not liable for the reasonable costs of enforcement..
35.5 IF THE TENANT HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE TENANT'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO@MIAMIBEACHFL.GOV
PHONE: 305-673-7411
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
Page 79 of 950
•
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed, all as of the day and year first above written, indicating their agreement.
Attest: CITY OF MIAMI BEACH, FLORIDA
RAFAEL E. GRANADO, CITY CLERK DAN GELBER, MAYOR
(PRINT NAME)
(Date)
Attest: NEW WORLD SYMPHONY,INC.
WITNESS
(PRINT NAME)
(PRINT NAME)
WITNESS
(PRINT NAME)
(Date)
Page Mof 950
EXHIBIT"A"
SKETCH AND LEGAL DESCRIPTION FOR DEMISED PREMISES
•
Page 7%of 950
EXHIBIT "B"
CITY'S IMPROVEMENTS
Page 769e 950
Resolutions - R7 B
Mi/ MI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: October 30, 2019
5:16 p.m. Public Hearing
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF
THE FINANCE AND CITYWIDE PROJECTS COMMITTEE AT ITS
SEPTEMBER 20, 2019 MEETING; WAIVING, BY 5/7TH VOTE, THE
FORMAL COMPETITIVE BIDDING REQUIREMENT IN SECTION 82-39(A)
OF THE CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST •
INTEREST OF THE CITY; AND, FOLLOWING A PUBLIC HEARING,
APPROVING, A LEASE AGREEMENT WITH THE NEW WORLD
SYMPHONY, INC (NWS), HAVING AN INITIAL TERM OF FIVE (5) YEARS,
WITH ONE (1) FOUR YEAR RENEWAL TERM; SAID AGREEMENT
PROVIDING FOR THE CONSTRUCTION, BY THE CITY, OF A STORAGE
FACILITY ENCOMPASSING THREE (3) STANDARD PARKING SPACES
AND ONE (1) ADA PARKING SPACE, ON THE GROUND FLOOR OF THE
"PENN GARAGE," LOCATED AT 1661 PENNSYLVANIA AVENUE (LEASED
PREMISES), FOR THE STORAGE OF THE LED SCREENS THAT ARE
PART OF THE AUDIONISUAL EXPANSION PROJECT AT SOUNDSCAPE
PARK, TO BE FUNDED BY THE CITY FROM PREVIOUSLY
APPROPRIATED PROJECT FUNDS, IN AN AMOUNT NOT TO EXCEED
$180,000.00; AND FURTHER AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE THE LEASE AGREEMENT.
(ITEM TO BE SUBMITTED IN SUPPLEMENTAL)
BACKGROUND/HISTORY
ANALYSIS
Applicable Area
South Beach
Is this a Resident Right to Does this item utilize G.O.
Know item? Bond Funds?
No No
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Legislative Tracking
Tourism and Culture
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