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RESOLUTION 92-20549 RESOLUTION NO. 92-20549 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE BOYS AND GIRLS CLUBS OF MIAMI, INC . FOR THE PURPOSE OF PROVIDING PROGRAMS/ACTIVITIES AND CLASSES AT TATUM PARK DURING AFTER-SCHOOL AND SUMMER VACATION HOURS FOR YOUTH FOR A TWO YEAR TERM WITH A CITY OPTION TO EXTEND FOR AN ADDITIONAL TWO YEAR TERM. Whereas, the City has determined that it would be in its best interest to enter into an Agreement with the Boys and Girls Clubs of Miami, Inc. ("Clubs") for the purpose of providing programs/activities and classes at the City of Miami Beach' s Tatum Park during after-school and summer vacation hours so as to more fully utilize the facility. WHEREAS, the Clubs desire to obtain from the City the privilege of operating programs/activities and classes at Tatum Park as described in the Agreement attached hereto, and the City desires to enter into an Agreement with the Clubs for operation of said programs/activities and classes. WHEREAS, the City Manager has recommended execution of the Agreement and the City Attorney has approved it to form. NOW THEREFORE BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH that the Mayor and the City Clerk are authorized to execute an Agreement between the City and the Clubs for the purpose of providing programs/activities and classes at Tatum Park during the after-school and summer vacation hours for a two (2) year term with a City option to extend for an additional two (2) year term. PASSED AND ADOPTED this 2 2nd day of J Y , 1992 . m A OR ATTEST: A E CITY CLERK FORM APPROVED BY: 411110!!!- --A- fL LEGAL DEPARTMENT MAL/pb • 4 , CITY OF MtAMIBEIACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 OFFICE OF THE CITY MANAGER TELEPHONE: (305) 673-7010 FAX: (305) 673-7782 COMMISSION MEMORANDUM NO. Liqq_9L DATE: July 22 , 1992 TO: Mayor Seymour Gelber and Members of the City Commission FROM: Roger M. Calqa City Manager SUBJECT: AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND BOYS AND GIRLS CLUBS OF MIAMI, INC. FOR THE USE OF TATUM PARK ADMINISTRATIVE RECOMMENDATION The Administration recommends that the City Commission approve the Agreement between the City of Miami Beach and the Boys and Girls Clubs of Miami, Inc. for the use o.f Tatum Park. BACKGROUND In an effort to continue the City's relationship with the Boys and Girls Clubs of Miami, Inc. an Agreement similar to the existing Agreement at Flamingo Park between the City and the Boys and Girls Clubs of Miami, Inc. is sought for Tatum Park. The pertinent areas of the Agreement are: 1. All programs and activities to be free of charge to all Miami Beach youth. 2 . Boys and Girls Clubs of Miami, Inc. to provide all personnel and equipment required to operate programs. 3 . Boys and Girls Clubs of Miami, Inc. to provide insurance as required by Insurance Manager. 4 . City of Miami Beach to provide Tatum Activity Center and all utilities for operation of program. 5. Boys and Girls Clubs of Miami, Inc. to provide day-to-day janitorial services at the activities building. 6. Use of areas within Tatum Park by Boys and Girls Clubs of Miami, Inc. to be coordinated and scheduled by Tatum Park Supervisor. 7 . Coordination of programs with Recreation division to prevent duplication. 7 AGENDA es, ITEM DATE 2Z-9 7-- • • ANALYSIS This Agreement will benefit the City' s youth with excellent, supervised programs. CONCLUSION This Agreement will allow the City of Miami Beach to offer programs for its youth through the Boys and Girls Clubs of Miami, Inc. b AGREEMENT BETWEEN CITY OF MIAMI BEACH AND BOYS AND GIRLS CLUBS OF MIAMI, INC. THIS AGREEMENT made the ZZ' day 7G/6 , A.D. 1992 , between the City of Miami Beach, a Munidipal Corporation of the State of Florida (hereinafter called the "City") and Boys and Girls Club of Miami, Inc. (hereinafter called the "Clubs") . WITNESSETH WHEREAS, the City has determined that it would be in its best interest to enter into an Agreement with the Clubs for the purpose of providing programs/activities and classes at Tatum Park during after-school hours and during the schools summer vacation so as to more fully utilize this facility. WHEREAS, the Clubs desire to obtain from the City the privilege of operating programs/activities and classes at Tatum Park as herein after described, and the City desires to enter into an Agreement with the Clubs for operation of said programs/activities and classes. WHEREAS, the Commission of the City of Miami Beach authorized this Agreement by the adoption of Resolution No. (0-2(09a copy of said Resolution is made a part herein as if set forth in full herein. NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained, it is agreed by the parties hereto as follows: 1. The City hereby grants to the Clubs and the Clubs hereby accept from the City, an Agreement to operate the following described services at Tatum Park in conformance with the purpose and for the period stated herein and subject to a l l the terms and conditions herein contained and fairly implied by the terms hereinafter set forth. a. TERM. This agreement shall commence on the ,Zr day of A.D. , 1992 , and shall end on the ZikP day of Tet_ti, A.D. , 1994 , for a term of two (2) years. The City may, - at its sole discretion, extend the Agreement term for up to two (2) additional years following expiration of the original two (2) year term. The City must give the Clubs written notice of its intention to extend the Agreement term not less than ninety (90) days prior to the end of the Agreement term in effect. All of the terms shall remain in effect for the option term(s) . b. FACILITIES. The City hereby provides the Clubs the following facilities and space: Use of the Tatum Park located at 8050 Byron Avenue, Miami Beach, Florida as follows: 1. The activity building, basketball courts, softball field, and football/soccer practice field for scheduled programs/activities and classes as scheduled by the Parks and Recreation Department. 2 . Access to public restrooms throughout the park. c. USE. The Clubs are hereby authorized to conduct the following kinds of business and to provide the following services, and only such business and services as set 1 forth below: To provide to the general public (youth) recreational programs, activities, or class on a first come, first serve basis. d. DAYS AND HOURS OF OPERATION. The City shall provide use of the required space in the park Six (6) days per week, Monday through Friday, from 2 : 00 P.M. to 9 : 00 P.M. , during school year and from 8 : 00 A.M. to 6: 00 P.M. during summer period. 2 . NOTICE, All notices from the City to the Clubs shall be deemed duly served if mailed by Registered or Certified Mail to the Clubs at the following addresses: c/o Wayne Blanton, Executive Director P.O. Box 330199 2805 S.W. 32 Avenue Miami, Florida 33133 All notices from the Clubs to the City shall be deemed duly served if mailed by Registered or Certified Mail to: The City Manager CITY OF MIAMI BEACH 1700 Convention Center Drive Miami Beach, Florida 33139 The Clubs or the City may change the above mailing address at any time upon giving the other parties written notification. All notices under this Agrement must be in writing. 3 . NOT A LEASE. It is expressly understood and agreed that no part, parcel, building structure, equipment or space is leased to the Clubs, that the Clubs are service providers and not Lessees; that the Clubs rights to operate shall continue only so long as the operation complies with the undertaking, provisions, agreements, stipulations and conditions of this Agreement. 4 . NO PARTNERSHIP. Nothing herein contained shall create or be construed as creating a co-partnership between the City and the Clubs or to constitute the Clubs as an agent of the City. 5. MAINTENANCE. The City agrees to furnish to the Clubs the previously identified physical facilities and space. The City agrees to provide the assigned facilities in their "as is" condition and perform necessary exterior and interior maintenance on the facility. The clubs will be responsible for set-up, break down and general clean-up of the facilities at the end of each day of their operation. If in the opinion of the City "Special Clean-Up" is required as a result of a program/activity or class offered by the Clubs the Clubs agree at its own expense, to pay the City for the above stated "Special Clean-Up" . 6. EXECUTORY AS TO APPROPRIATIONS. The City' s responsibilities which require annual appropriations are deemed executory only to the extent that funds are available for the purpose in question. 7 . ASSIGNMENT: SUBLET. The City may, by amendment to the Agreement, authorize the Clubs to expand the services provided. The Clubs may not sublet or assign this Agreement, or any part thereof. 8. EQUIPMENT/STAFF. The Clubs shall provide all equipment and supplies for the successful operation of the programs/activities for which they are responsible for 2 operating. The Clubs shall provide suitable, qualified and adequate staff, meeting all generally excepted industry standards for the recreational activities/programs or classes for which the Clubs are offering under this Agreement. 9 . OPERATIONS/EQUIPMENT. The Clubs warrants and represents that it will be directly involved in and responsible for, all aspects of the operation of recreational programs/activities and classes offered under this Agreement. The Clubs must provide and maintain at its own cost and expense, all equipment required to operate the recreational programs/activities and classes under this Agreement. The Clubs agree that the premises shall be left in the same condition as found, provided that normal wear and tear are expected. Any damage shall be the responsibility of the Clubs. 10. PERMITS: LICENSES: TAXES. The Clubs agree to obtain and pay all permits and licenses necessary for the conduct of the business and agrees to comply with all law governing the responsibility of an employer with respect to persons employed by the Clubs. The Clubs shall also be solely responsible for payment of any and all taxes levied on their operation. In addition, the Clubs shall comply with all rules, regulations and laws of the City of Miami Beach, Dade County, the State of Florida, or the U. S. Government now in force and hereafter to be adopted. 11. UTILITIES/CITY PERSONNEL. The City shall furnish all air conditioning, heat, electric service, trash receptacles and public restrooms. 12 . STORAGE. Current storage at Tatum Park is at capacity. However, the Clubs will be permitted to bring on the premises lockable storage cabinets for their sole and exclusive use to be placed in a location mutually agreed upon by both parties so long as they do not interfere with the normal operation of the park or overtly detract from the aesthetic quality of the park. The City accepts no responsibility for the security of any materials or equipment belonging to the Clubs stored or left on the premises. 13 . REMOVAL OF PROPERTY. If the Clubs leave equipment on the premises and it is not promptly removed upon notice, the City may cause same to be removed and stored at the cost and expense of the Clubs, and the City shall have a continuing lien thereon in the amount of the cost and expense of such removal and storage until paid, and may sell such personal property and reimburse itself for such cost and expense, plus the expense of the sale. 14 . COOPERATION. The Clubs agree to cooperate with the City in the conducting of surveys, to provide reports of visitor contacts, and to respond to City inquiries about public usage of their programs/activities and classes. 15. INSPECTION. The Clubs agree that the City may inspect the program/activities and classes at any time. Such inspection may be by authorized representatives of the City Manager or his designee or by any other state, county, or municipal officer or agency having responsibilities for inspections of such operations. The Club agree to undertake immediately the correction of any deficiency cited by such inspectors. 16. ANNUAL REVIEW. The Recreation Centers and Park Facilities Board shall review the performance of the Clubs under the terms of this Agreement on an annual basis and provide a report of their findings to the City Manager no later than 3 thirty (30) days prior to the commencement of the subsequent year. 17 . WAIVER OF INTERFERENCE. The Clubs hereby waive all claims for compensation for loss or damage sustained by reason of any interference with the operation by any public agency or official in enforcing their duties or any laws or ordinances any such interference shall not relieve the Clubs from any obligation hereunder. 18 . WAIVER OF LOSS FROM HAZARDS. The Clubs hereby expressly waives all claims for loss or damage sustained by the Clubs resulting from fire, water, tornado, civil commotion, or riot; and the Clubs hereby waives all rights, claims, and demands and forever releases and discharges the people of the City of Miami Beach, Florida, from all demands, claims, actions and causes of action arising from any of the aforementioned causes. 19 . NO LIENS. The Clubs agree that it will not suffer, or through its actions, or anyone under its control or supervision. cause to be filed upon the property any lien or encumbrance of any kind. In the event any lien is filed, the Clubs agree to cause such lien to be discharged within ten (10) days of written notice from the City. 20. APPLICABLE LAWS TO BE FOLLOWED. The Clubs agree to operate and maintain their operation in compliance with this Agreement, and in accordance with the applicable law and policy. 21. ORDERLY OPERATION, ETC. . The Clubs shall have a neat and orderly operation at all times, and shall be solely responsible for set-up, break-down and general clean-up of their programs/activities and classes to properly maintain the premises. The Clubs shall make available all storage areas under their control for examination at any time by the City Manager or his authorized representatives. 22 . NO IMPROPER USE. The Clubs will not use, nor suffer or permit any person to use in any manner whatsoever, the assigned facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county, or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. The Clubs will protect, indemnify, and forever save and keep harmless the City and individual m embers thereof and their agents, from and against damage, penalty, fine, judgment, expense or charges suffered, imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission of the Clubs or any employee, person or occupant. In the event of any violation by the Clubs or if the City or its authorized representative shall deem any conduct on the part of the Clubs to be objectionable or improper, the City shall have the right to suspend the operation of the program/activity or class should the Clubs fail to correct any such violation, conduct, or practice to the satisfaction of the City within twenty four (24) hours after receiving notice of the nature and extent of such violation is incurred. The clubs further agree not to commence operation during the suspension until the violation has been corrected to the satisfaction of the City. 23 . NO DANGEROUS MATERIAL. The Clubs agree not to use or permit in the facility the storage of illuminating oil, oil lamps, turpentine, benzine, naphtha, or other similar substances, or 4 explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida. 24 . NO CLAIM AGAINST CITY OFFICERS, EMPLOYEES, INDIVIDUALS. It is expressly understood and agreed by and between the parties hereto that the members constituting the City Manager's Office or Parks and Recreation Department of the City of Miami Beach, and its officers and agents acting in a representative capacity and not for their own benefit; and that the Clubs nor any occupant shall have any claim against them or any of them as individuals in any event whatsoever. 25. DEFAULT AND TERMINATION. If the Clubs fail to comply with any of the terms and conditions hereof, and such default is not cured within fifteen (15) days after written notice is given to the Clubs, the City may cancel this Agreement and revoke the privilege of the Clubs to come upon City's property for purposes for which this operation was granted and may oust and remove all parties who may be present upon or occupy any part of the premises for the purpose of exercising any rights so revoked. In addition to the foregoing, the parties shall have the right to terminate this Agreement upon thirty (30) days written notice to the other party. Continued occupancy of the facility after termination of the privilege shall constitute trespass by the Clubs, and may be prosecuted as such. 26 . PRIVILEGE. It is the intent of the City, concurred in by the Clubs, that this Agreement shall not, as against the City, vest any right in the Clubs; and shall be deemed only the grant of a privilege to the Clubs to carry out the terms of this Agreement on property of the City so long as such Agreement or privilege shall be in force, 27 . NO DISCRIMINATION. The Clubs agree that there shall be no discrimination as to race, sec, color, creed or national origin in the operation referred to by this Agreement. 28 . INDEMNIFICATION OF CITY: INSURANCE. The Clubs shall indemnify and save the City Harmless from any and all claims, liability, losses, and causes of action which may arise out of the Clubs operation under this Agreement and pay all claims and losses of any nature whatsoever in connection therewith and shall defend all suits, in the name of the City, and shall pay all costs and judgments which may issue thereon. This indemnification shall not be limited to the insurance coverage provided below. The Clubs shall carry and maintain in full force and effect at all times during their operation on City property, the following insurance coverage: a. Comprehensive General Liability in the minimum amount of One Million Dollars ($1, 000, 000.00) per occurrence for bodily injury and property damage. This policy must also contain coverage for premises operation, products and contractual liability. b. The City must be named as an additional insured on the policies required above. All Certificates of Insurance shall state: This Insurance coverage is primary to all other coverage provided by the City of Miami Beach. c. Workers ' Compensation and Employers' Liability to meet the statutory requirements of the State of Florida. d. The City shall receive thirty (30) days advance written 5 . notice of cancellation, or change of the above-mentioned policies. e. All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and must have a rating of A:X or better per A.M. Best's Key Rating Guide, latest edition. f. The Clubs shall furnish to the City original Certificates of Insurance, evidencing the required coverage, and receive approval of same, prior to the commencement of operations. g. Certificates of Insurance shall be approved by the City' s Risk Manager and kept on file in the Finance Department, Insurance and Safety Division, Third Floor, City Hall. 29 . CITY CONTROLS THE PARK AND IT'S FACILITIES. Nothing in this Agreement will preclude the City from using the public areas of the park and it's facilities for public and/or civic purposes as deemed necessary. 30. LIMITATION OF LIABILITY. The City desires to enter into this Agreement only if in so doing the City can place a limit on 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 $5, 000. 00. The Clubs hereby expresses its willingness to enter into this Agreement with the Clubs recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $5, 000. 00, less the amount of all funds actually paid by the City to the Clubs pursuant to this Agreement. Accordingly, and notwithstanding any other term or condition of this Agreement, Clubs hereby agrees that the City shall not be liable to Clubs for damages in an amount in excess of $5, 000. 00 which amount shall be reduced by the amount actually paid by the City to Clubs pursuant to this Agreement, for any action or claim for breach of contract arising out of the performance or non-performance of nay obligations imposed upon the City by this Agreement. Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City' s liability as set forth in Florida Statutes, Section 768 . 28 . 31. ARBITRATION. Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the costs of arbitration and all matter related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgment upon the award tendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, including any controversy or claim relating to the right to specific performance, shall be settled by litigation and not arbitration. 32 . FLORIDA LAW. This Agreement shall be governed by and construed in accordance with the law of the State of Florida. 6 33 . SEVERABILITY. If any provision of this Agreement (other than those relating to payment to City or Clubs right to use the premises for the purpose set forth herein) or the application thereof to any extent be declared invalid or unenforceable, then in such event, the remainder of this Agreement, or the application of such provision, other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 34 . TIME IS OF THE ESSENCE. Time is of the essence as to each term of this Agreement. 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. CITY MIAMI EACH i By: / AOR ATTEST: I City Clerk %V EXECUTIVE DIRECTOR Boys & Girls Clubs of Miami, Inc. WITNES1SES: - - (Corporate Seal) Approved as to Form: Legal Department 2/7Z . MAL/pb 7 UKU INAL REbOLUTION NO. 92-20549 Authorizing the Mayor and the City Clerk to execute an agreement between the City of Miami Beach and the Boys and Girls of Miami, Inc. for the purpose of providing programs/activities and classes at Tatum Park during after-school and summer vacation hours for youth for a two year term with a city option to extend for an additional two year term. WAMMWONIMAYMMAMM 10*