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RESOLUTION 93-20856 RESOLUTION NO. 93-20856 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI BEACH DEVELOPMENT CORPORATION (MBDC) , FOR THE PROVISION OF MANAGEMENT SERVICES TO THE OCEAN DRIVE SPECIAL IMPROVEMENT DISTRICT NUMBER 1. WHEREAS, the Mayor and City Commission on June 16, 1993 , approved Resolution 93-20701 authorizing the creation of a Special Assessment District ( The District) for the area on Ocean Drive between 5th and 15th Streets; and WHEREAS, pursuant the creation of said District, the City wishes to enter into the attached Agreement with the Miami Beach Development Corporation to provide for management of the District; and WHEREAS, said Agreement relates to the provision of certain supplemental services including sanitation; park and landscape maintenance; overall management of the District including representation of property owners through communications with the City Administration regarding these supplemental services; and those supplemental security services to be provided by the Miami Beach Police Department. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA THAT THE MAYOR AND CITY CLERK ARE HEREBY AUTHORIZED TO EXECUTE THE ATTACHED AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI BEACH DEVELOPMENT CORPORATION FOR THE PROVISION OF MANAGEMENT SERVICES TO THE OCEAN DRIVE SPECIAL IMPROVEMENT DISTRICT NUMBER ONE. PASSED and ADOPTED this 28th day of July, 1993 . V - MAYOR ATTEST: 614„.4 CITY CLERK FORM APPROVED LEAPT. Date )1.2,4"--) • 6 CITY OF MIAMI BEACH 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. Li 14013 6), )-,Q TO: Mayor Seymour Gelber and DATE: July 28, 1993 Members of the City Commission FROM: Roger M. Carat• City Manager i SUBJECT: RESOLUTION AUTHORIZING THE EXECUTION OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI BEACH DEVELOPMENT CORPORATION ADMINISTRATION RECOMMENDATION: The Administration recommends that the City Commission adopt the attached resolution authorizing the Mayor'and City Clerk to execute the agreement between the City of Miami Beach and the Miami Beach Development Corporation for the provision of district management services for the Ocean Drive Special Improvement District Number One. BACKGROUND: On June 16, 1993 , the City Commission adopted resolution 93-20811 creating a Special Assessment District for the area on Ocean Drive between 5th and 15th Streets to be known as the Ocean Drive Special Improvement District Number One. ANALYSIS: Since this is a landmark endeavor on the part of the City, the contract between the City of New York and the 34th Street Partnership, Inc. , (the very successful prototype of this type of district management) was used as a model upon which this agreement is fashioned. The City will enter into an agreement with the Miami Beach Development Corporation (MBDC) which will provide certain supplemental services which will include sanitation, park and landscape maintenance, general management of the district including representing the property owners in communications with the City on all supplemental services to be provided including the services to be provided by the Miami Beach Police Department. MBDC has worked with the Ocean Drive Association throughout the planning and redevelopment of Ocean Drive. MBDC has assisted in the development of policy standards for the area and has worked with the City and the Ocean Drive Association to develop this management program. AGENDA (R_T-1 _ T ITEM. DATE -7=-2S-9-3 Commission Memeorandum - July 28, 1993 Management Agreement Miami Beach Development Corporation General provisions of the attached agreement are as follows: I. Scope of Services to be provided through the District will include the following: o Sanitation services up to a maximum of 160 hours per week will provide for hand sweeping of streets, gutters and sidewalks; cleaning bullnose areas of each corner, cleaning side streets back to Ocean Court; washdown of trash receptacles and repair of same as needed; cleaning of buildings in Lummus Park at 6th 10th and 14th Streets; removal of litter from the park; and cleaning of park sidewalks o Park and Landscape Maintenance will provide for planting of foliage in areas within the District; sod replacement and tree replacement and planting in select areas in Lummus Park. o Management of the District will be provided through a District Manager who will be responsible for coordinating and providing for the delivery of the supplemental services within the area as provided for in this agreement. The District Manager will serve as the liasion between the property owners in the District and the City. II. AUDITS; REPORTS o The City has the right to audit, inspect, and copy any of the books, records, accounts and other documents of MBDC in connection with this agreement. o MBDC must submit quarterly reports to the City detailing the progress of the District Management Program as specified in this agreement. III. CITY REVIEW AND REMEDIES o Performance of the supplemental services provided for within this agreement is subject to the review and reasonable direction and control of the City. The City shall have the right to inspect the performance of the supplemental services and by notice to the MBDC order the performance of certain specific items as set forth in the agreement. The City may withold payment for services for failure to perform the specified services. o The provisions of this agreement do not extend the obligation or limit the right of the City at any time to perform work in its ordinary municipal capacity in relation to the District. CONCLUSION: The Administration recommends that the City Commission adopt the attached resolution authorizing the Mayor and City Clerk to execute the agreement between the City and the Miami Beach Development Corporation. The district management process provides for the determination of the needs of property owners within the District and will supply the improvements to serve those needs. RMC:km tiac C TY C' Pc'u'cz Pr—T. SEP 2 1993 Ly Tint AGREEMENT BETWEEN CITY OF MIAMI BEACH AND MIAMI BEACH DEVELOPMENT CORPORATION FOR THE PROVISION MANAGEMENT SERVICES TO THE OCEAN DRIVE SPECIAL IMPROVEMENT DISTRICT NUMBER 1 I t This Agreement (the "Agreement" ) dated as of Id4N/el between THE CITY OF MIAMI BEACH, a Florida Municipal Corporation, ( "CITY" ) located at 1700 Convention Center Drive, Miami Beach, Florida 33139, and the MIAMI BEACH DEVELOPMENT CORPORATION, a non- profit Florida Corporation, ( "MBDC" ) , located at 1205 Drexel Avenue, Miami Beach, Florida, 33139, on behalf of the OCEAN DRIVE ASSOCIATION, a sub-area council of MBDC, located at 1205 Drexel, Miami Beach, Florida 33139 . WITNESSETH: WHEREAS, pursuant to authority granted by Chapter 170 , Florida Statutes, the Mayor and City Commission of Miami Beach, Florida, approved Resolution No . 93-20811, attached hereto as Exhibit A, which authorized the establishment of the Ocean Drive Special Improvement District Number 1 (the "District" ) , which includes the area in the map attached hereto as Exhibit "B" ; and WHEREAS, the expenses incurred in the operation of any improvement or in the provision of supplemental services in the District shall be financed in accordance with the establishment of the District; and WHEREAS, the charges upon benefitted real property located within the District shall be imposed as provided in the aforestated Resolution and shall be determined, levied and collected in the 1 , same manner as general City taxes are levied and collected (the "DISTRICT CHARGES" ) ; and WHEREAS, the proceeds of the District Charges shall be held by the City, shall be separately accounted for in the books and records of the City, and shall be used only for the purposes set forth in the Program as set forth herein; and WHEREAS, the City and MBDC, in conjunction with the Ocean Drive Association, intend to create said Program, and hereby desire to enter into an Agreement pursuant to which MBDC agrees to provide District Management Services to include the supplemental services herein defined and to cause the operation of improvements as set forth in this Agreement in consideration of the District Charges . WHEREAS, the City and MBDC herein acknowledge that the Ocean Drive Association has certain rights and obligations under said Agreement as an intended third party beneficiary therein. NOW THEREFORE, the City and MBDC agree as follows : ARTICLE I GENERAL PROVISIONS Section 1 . 01 : Program The City hereby retains and engages MBDC to perform the services and cause the improvements set forth in Section 2 . 02 of this Contract, such services and improvements, collectively, are hereinafter referred to as the "Program" . 2 Section 1 . 02 : Commencement Date MBDC shall commence to undertake and perform the Program in the District on October 1, 1993 ( "COMMENCEMENT DATE" ) provided however, that in the event the City has available funding, planning and preparation work can be undertaken by MBDC pursuant to the prior approval of the City. Section 1 . 03 : Term MBDC shall undertake and perform the Program for, during and within the term ( "TERM" ) commencing on the Commencement Date and ending, unless earlier terminated pursuant to Section 7 . 01 hereof, or contingent upon the renewal of the District pursuant to the requirements of Resolution No. 93-20811, on September 30 , 1996 ( "TERMINATION DATE" ) ; provided, however, that the City, in its sole discretion shall have the option to renew this Agreement, upon the Termination Date, for a further term of three (3) years; upon terms and conditions to be agreed to by the parties and subject to the requirements of Resolution No. 93-20811 . The City shall notify MBDC of the determination to renew this Agreement sixty (60) days prior to the Termination Date . Section 1 . 04 : Authority of the City The Supplemental Services and improvements as set forth under this Agreement shall at all times be subject to the review and reasonable direction and control of the City. The City shall have the absolute right to determine the amount, quality, acceptability 3 and fitness of the work being performed by MBDC under this Agreement, and shall have the absolute right to withhold any Proceeds (as hereinafter defined) if the City determines that the provisions of this Agreement have not been materially complied with; any persons or agents duly authorized to act for and on behalf of the City shall not, by virtue of such authority or action, be liable in any manner whatsoever to the City. ARTICLE 2 SCOPE OF SERVICES/COMPENSATION Section 2 . 01 : City' s Scope of Basic Services For and during the Term, the City shall provide Basic Services including Security, Sanitation, Landscaping and Signage, and Other Services at the level currently provided by the City in its ordinary municipal capacity in relation to the District . Specifically, with respect to Sanitation Services, the City shall maintain the existing level of services and additionally provide storage containers for litter and trash collected through the MBDC' s supplementary sanitation services set forth herein, and will be responsible for disposal of same . With respect to Park and Landscape Maintenance, the City will provide general maintenance as well as general repairs to street and park furniture . The City shall be responsible for maintaining 4 • a fully operational lawn sprinkling system; maintaining all mechanical devices including bathrooms, showers and water fountains located on City owned property within the District . The City will continue to provide the current level of general landscape, maintenance and park repair services, which includes two full time people, five days per week; tree surgery, pruning services and other current service categories . Section 2 . 02 : Supplemental Services to be Provided by MBDC The Supplemental Services provided in each year of this Agreement shall be in accordance with the annual budget submitted for such year pursuant to Section 4 . 04 of the Agreement . The term "Supplemental Services" as used herein shall mean the following services, as proposed in the Program, to be delivered in relation to the District, which services shall supplement the aforestated Basic Services to be provided by the City: (a) Sanitation To supplement the current City Sanitation Division in the services to the District, MBDC shall provide additional streetsweeping services for up to a maximum of one hundred sixty (160) hours per week. Such sanitation services will include, but are not limited to the following: hand sweeping of streets, gutters, and sidewalks; cleaning bullnose areas of each corner; cleaning side streets back to Ocean Court ; washdown of trash receptacles and repair of same as needed; cleaning of buildings in 5 Lummus Park at 6th, and 14th streets; removal of litter from park and keeping of park sidewalks clean; keeping of park furniture clean and in place . (b) Park and Landscape Maintenance MBDC will provide the following as same shall be approved by the City prior to commencement of work : general landscape maintenance to include planting of all foliage in areas within the District ; sod replacement and tree planting in Lummus Park. (c) Management To the extent allowed by the City, MBDC shall be responsible for the management of the Program, particularly including the Supplemental Services set forth herein. Operations shall be directed and supervised by a salaried staff of MBDC which shall consist of a District Manager. (d) Additional Services To the extent consistent with the performance of the Supplemental Services enumerated above at a high standard of quality, Supplemental Services may include any other activities or services and purchases of equipment as so approved by the City and in accordance with the Program, which MBDC and the City determine will enhance the safety, convenience, cleanliness, attractiveness or usefulness of the District . (e) Security/Liason and Coordination MBDC shall develop and maintain means for liaison and 6 • coordination between the District and the City in the City' s provision of supplemental security services . This liaison and coordination shall include assisting the City by review of a semi- annual operation plan and the coordination of monthly meetings between MBDC and the City. Section 2 . 03 : Compensation Compensation for the Supplemental Services to be provided for the first year of the Agreement as set forth in Article 2 . 02 , shall be the amount set forth in the Proposed Annual Operating Budget in Exhibit C, attached hereto, as same shall be revised annually pursuant to the requirements of Resolution No . 93-20811 . Section 2 . 04 : Insufficient Revenues for the Provision of Supplemental Services/Termination If, in any year of the Terms of this Agreement, the Proceeds (as hereinafter defined) are not, in the aggregate, sufficient to pay for the provision of Supplemental Services then in that event MBDC may forego or reduce the provision of one or more of the Supplemental Services enumerated in Section 2 . 02 herein; provided, however, that MBDC shall give the City reasonable advance notice of its decision to forego or reduce one or more of the Supplemental Services, and shall, in addition, provide the City with a revised budget for such year of the Agreement, modified to reflect any change in the use of the Proceeds, and provided the City approves any such reductions in writing prior to the occurrence of same . 7 • If, however, following the first year of the term of this Agreement , the District is not renewed and ratified pursuant to the requirements of Resolution No. 93-20811, setting forth the procedure for same, then this Agreement shall be deemed terminated by the parties hereto . Section 2 . 05 : City Review and Remedies (a) The performance of the Supplemental Services shall be subject to the review and reasonable direction and control of the City. (b) The City shall have the right to inspect the performance of the Supplemental Services and, by written notice to MBDC, order the performance of specific items of Supplemental Services set forth in Sections 2 . 02 herein, for which MBDC has allocated Proceeds (as hereinafter defined) in the annual budget to be submitted pursuant to Section 4 . 04 of this Agreement, which it reasonably finds have not been satisfactorily performed. Where the City has issued such an order, MBDC shall promptly commence and diligently complete the work specified therein. If within fifteen (15) days following any such notice from the City to MBDC to perform specific items of work, such work has not been performed or, if the work is of such a nature as cannot be completed within such period and MBDC has not commenced to perform the work, then the City shall have the right, upon notice to MBDC, to immediately perform such work with City employees and resources, and to charge MBDC therefor and shall have the right, without limitation as to 8 other remedies, to deduct its costs of doing such work from the next installment or installments of Proceeds to be paid to MBDC. Nothing herein contained shall extend the obligation or limit the right of the City at any time to perform work in its ordinary municipal capacity in relation to the District . Section 2 . 06 Subcontracts for the Performance of Supplemental Services Subject to the applicable provisions of this Agreement , MBDC may contract for the performance of the Supplemental Services . In so doing, MBDC shall : (i) select the lowest , responsible bidder from at least three (3 ) responsible and competitive bidders, unless MBDC can justify, to the satisfaction of the City, selection of a contractor from a single source without competition or the selection of a contractor from less than three (3) bidders; (ii) comply with the insurance requirements of Article 8 . 05 hereof; and (iii) for contracts in an amount of $10 , 000 or more, obtain the approval of : (a) its Board of Directors; or a committee thereof; and (b) the City Manager or his designee . In no event shall any subcontract extend beyond the end of any City fiscal year. 9 ARTICLE 3 COMPENSATION Section 3 . 01 Manner of Payment to MBDC (a) Each calendar month, the City shall pay to MBDC, by check mailed to the office thereof, the full amount of proceeds, including any past due proceeds, which have been received by the City during the preceding calendar month. (b) Such payments shall be subject to the deductions provided in Subsection 1 . 04 . Section 3 . 02 : Monies of MBDC MBDC hereby agrees that all monies of MBDC derived from the payments to MBDC of proceeds by the City shall be used only for the provision of Supplemental Services, in accordance with the Program and in accordance with MBDC' s annual budget ; provided, however, that this section shall not limit MBDC' s lawful activities with respect to monies other than those referred to in Article 3 herein. ARTICLE 4 BOOKS AND RECORDS; AUDIT; ANNUAL REPORT Section 4 . 01 : Books and Records MBDC shall keep, in an orderly fashion, up-to-date books and records in accordance with generally accepted accounting principles and in accordance with any standards issued by the City' s Office of 10 Management and Budget, showing all its receipts and assets, including without limitation, the Proceeds from the City pursuant to this Agreement and all disbursements and liabilities, including contingent liabilities . Section 4 . 02 : Maintenance and Records MBDC shall maintain complete and accurate records in readily accessible files on all its activities in connection with this Agreement . Such records shall include but shall not be limited to the following: (a) copies of all relevant correspondence, both incoming and outgoing; (b) copies of all press releases or other publicity generated by MBDC relative to the District; (c) financial documentation such as bank statements, canceled checks, bills and receipts, requests for payment, and deposit slips relating to all financial accounts and transactions under this Agreement; (d) cash disbursement ledger, cash receipts ledger and general ledger of the MBDC; and (e) such other records and papers as the City in writing may require to be maintained. MBDC shall maintain all records relating to this Agreement for a period of at least six (6) years . This requirement shall survive the termination of this Agreement . 11 Section 4 . 03 : Audit The City shall have the right, at all reasonable times, to audit, inspect, and copy any of the books, records, accounts and other documents of MBDC in connection with this Agreement upon reasonable notice to MBDC. Section 4 . 04 : Reports (a) MBDC shall submit quarterly reports to the City, in such manner as to be mutually determined by the City and MBDC, but in any event satisfactory to the City, detailing the progress of the Program as set forth herein, including but not limited to, the progress and provision of Supplemental Services; expenditures; Program coordination; and interaction with the City, etc . (b) Prior to the Commencement Date of this Contract , MBDC shall submit to the City a detailed budget submission for its fiscal year ending September 30, 1994, and projecting Supplemental Services and expenditures required therefor, including MBDC overhead costs related to the management of the District, and the required District Charges to be levied upon real property within the District . (c) No later than April 1 of each subsequent year during the Term of this Agreement, MBDC shall submit to the City an annual report containing the following: (i) an account of the Supplemental Services actually provided prior to October 1 of its current fiscal year, including the cost of each thereof ; (ii) a projection of Supplemental Services to be undertaken for the 12 • • remainder of its current fiscal year, with financial data; (iii) a detailed account of the Supplemental Services to be undertaken for that part of its preceding fiscal year; and (iv) a budget submission for its following fiscal year, projecting Supplemental Services and expenditures required therefor, and the required District Charges to be levied upon real property within the District . (d) Special Reports MBDC shall promptly furnish to the City copies of any audit conducted by or on behalf of MBDC during the Term of this Agreement, as requested by the City from time to time . ARTICLE 5 REPRESENTATIONS AND WARRANTIES Section 5 . 01: Status and Authority of the MBDC MBDC represents and warrants that : (a) MBDC is and shall continue to be a non-profit corporation duly organized, validly existing, and in good standing under the laws of the State of Florida, and has all requisite power and authority to execute, deliver and perform this Agreement . (b) This Agreement has been duly authorized by all necessary corporate action on the part of MBDC and has been duly executed and delivered by MBDC and, assuming due execution and delivery by the City, constitutes a legal valid, binding and enforceable obligation of MBDC. 13 ti (c) The execution and delivery of this Agreement, and compliance with the provisions hereof, do not and will not conflict with or constitute a violation of or default under MBDC' s Certificate of Incorporation, by-laws, or any statute, indenture, mortgage, deed of trust, contract or other agreement or instrument to which MBDC is bound, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over MBDC or any of its activities or properties . (d) The City and MBDC herein acknowledge that the Ocean Drive Association has certain rights and obligations under this Agreement as an intended third party beneficiary herein. Specifically, the relationship between MBDC and the Ocean Drive Association for the purposes of this Agreement is more specifically at forth in Exhibit D, attached hereto. MBDC shall use all reasonable efforts in assuring that the Ocean Drive Association, where applicable, performs its obligations in accordance with the terms and conditions herein pertaining to it . A failure of the Ocean Drive Association to perform its obligations under this Agreement shall be deemed a default by MBDC under the Agreement . The City also acknowledges and agrees that as an intended third party beneficiary, the Ocean Drive Association shall have available to it all legal and equitable rights and remedies accruing from such status . 14 r Section 5 . 02 : Procurement of this Agreement MBDC warrants and represents that : (a) MBDC has not been asked to pay, nor offered to pay, nor has paid, any illegal consideration, whether monetary or otherwise, in connection with the procurement of this Agreement . (b) MBDC has not employed any person to solicit or procure this Contract, and has not made and shall not make any payment or any agreement for the payment of any commission, percentage, brokerage or contingent fee, or any other compensation in connection with the procurement of this Agreement . Section 5 . 03 : Conflict of Interest MBDC warrants and represents that : No elected official or other officer or employee of the City, or any person whose salary is payable in whole or in part from the City, shall participate in any decision relating to this Contract which affects his or her personal interest or the interest of any corporation, partnership, or association in which his or her personal interest or the interest of any corporation, partnership, or association in which he or she is directly or indirectly involved in and which would conflict in any manner or degree with the performance of the terms and conditions of this Agreement . MBDC further covenants that in the performance of this Agreement, no person having any such interest shall knowingly be employed by MBDC. 15 Section 5 . 04 : Pending Litigation The MBDC warrants and represents that there are no proceedings pending, or to the knowledge of MBDC threatened, against or affecting MBDC in any court or before any governmental authority or arbitration board or tribunal which involve the possibility of materially and adversely affecting the operation and condition (financial or otherwise) of MBDC or the ability of MBDC to perform this Agreement . MBDC is not in default with respect to any order of any court, governmental authority or arbitration board or tribunal . Section 5 . 05 : Publicity MBDC covenants and agrees that the MBDC shall give the City reasonable advance notice of any press or public event (collectively, "Publicity" ) , which MBDC plans to undertake in order to publicize the Program, and will afford representatives of the City the opportunity to participate in any Publicity event . ARTICLE 6 APPLICABLE LAWS, RULES AND REGULATIONS Section 6 . 01 : Procurement Policy Subject to the same terms and conditions set forth for subcontractors in Section 2 . 05 herein, the terms of that section shall also apply as to MBDC' s general procurement policy relative to the operation of this Agreement . Notwithstanding the foregoing 16 R I ARTICLE 7 DEFAULT, SUSPENSION OR TERMINATION Section 7 . 01 : Right to Withhold Payment, Demand Return of Payment and/or Terminate Contract Due to Acts of the MBDC (a) Notwithstanding any other rights of the City under other Sections of this Agreement, if MBDC, through any cause, is in breach of this Agreement because MBDC fails to progress with the Program in accordance with this Agreement, in the reasonable judgment of the City, or if MBDC violates any of the terms, covenants or provisions of this Agreement, or if any representations or warranty made by the MBDC in Article 5 shall prove untrue, and if, in the reasonable judgment of the City, the conduct of Agreement is such that a breach of the Agreement has occurred and the interests of the City have been or are likely to be impaired or prejudiced, the City shall give written notice to MBDC of such breach and MBDC shall have ten (10) days in which to cure . If MBDC does not cure, within this ten (10) day period, the City, at its sole option, shall have the right to notify MBDC that due to MBDC' s breach, the City will withhold payments due under the Agreement and/or demand return of payments already made which are equal to the damages the City may have already suffered due to the breach by MBDC and/or terminate the Agreement . (b) In addition to the rights of the City described in paragraph (a) , above, if MBDC, through any cause, fails to progress with the Program in accordance with this Agreement, in the 18 f provision, this Agreement shall also be subject to all office of Management and Budget Circular A-110 , Attachment 0, Procurement Standards . Section 6 . 02 : Governing Law; Venue This Contract shall be governed by and construed in accordance with the laws of the State of Florida. Section 6 . 03 : Compliance with Law MBDC agrees that all acts to be performed by it in connection with this Contract shall be performed in strict conformity with all applicable federal, state, and local laws, rules, regulations and orders . Section 6 . 04 : Equal Opportunity MBDC agrees that it will comply with the requirements of Executive Order No. 50 , annexed hereto as Exhibit E . Section 6 . 05 : Minimum Wages All persons employed by MBDC or any subcontractor of MBDC in the manufacture or furnishing of the supplies, materials, or equipment or the furnishing of work, labor or services, used in the performance of this Agreement, shall be paid, without subsequent deduction or rebate unless expressly authorized by law, not less than the minimum wage required by law, unless a higher amount is required pursuant to any other provision of this Agreement . 17 • reasonable judgment of the City, or in any other way breaches or violates any of the terms, covenants or provisions of this Agreement, or if any representation or warranty made by the MBDC in Article 5 shall prove untrue, or if, in the reasonable judgment of the City, the conduct of MBDC is such that the interests of the City have been or are likely to be impaired or prejudiced, the City shall give written notice to the MBDC of such failure, violation, breach of warranty or conduct and MBDC shall have ten (10) days in which to cure . If MBDC does not cure, within this ten (10) day period, the City shall have the right to immediately terminate this Contract . Within ten (10) days after the termination of this Agreement , whether by expiration of its term or otherwise, MBDC shall render an accounting to the City of all its assets and liabilities, deliver to the City all books, records, accounts and other documents of MBDC in connection with this Agreement, and pay to the City all Proceeds in its possession or under its control . However, if such termination occurs pursuant to Section 1 . 03 or by reason of an Event of Default set forth in Section 7 . 01, MBDC shall be entitled to retain amounts of Proceeds which it is contractually obligated to pay pursuant to contracts entered into by MBDC pursuant to this Agreement, provided said contracts were approved by the City, until such funds are disbursed pursuant to such contracts or until MBDC is released of its obligation to disburse such funds . MBDC shall pay to the City any funds with respect to which it is released. The City shall expend any funds so received 19 • r in accordance with the Program. Section 7 . 3 : Assignment of Contracts Upon Termination Upon or prior to the termination of this Agreement by expiration of its Term or otherwise, MBDC shall submit to the City adequate information as to each outstanding sub-contract . Within ten (10) days after MBDC has submitted such information, the City shall elect which, if any, of such contracts the City elects to assume, and thereupon MBDC shall assign any such contracts to the City, and the City shall assume the performance of MBDC' s obligations thereunder. However, at City' s option, MBDC shall continue to indemnify and hold harmless the City from any liability under such contracts arising after such assignment . wait such time as City releases MBDC from its primary responsibilities thereunder. MBDC shall promptly turn over to the City its records with respect to such assigned contracts . MBDC and the City each shall enter into any instruments as may be appropriate to evidence any of the above . This provision shall survive any termination of this Agreement . Section 7 .4 : No Release The termination of this Agreement, whether by expiration of its term or otherwise, shall not release MBDC from any liability to the City arising out of any act or omission of MBDC in connection with this Agreement . 20 • ARTICLE 8 MISCELLANEOUS Section 8 . 01 : Independent Contractor Notwithstanding anything contained herein to the contrary, it is specifically understood and agreed that in the performance of the terms, covenants, and conditions of this Agreement, neither MBDC nor any of its officers, directors, employees, agents, independent contractors or subcontractors shall be deemed to be acting as agents, servants, or employees of the City by virtue of this Agreement or by virtue of any approval , permit, license, grant, right or other authorization given by the City or any of its officers, agents, or employees pursuant to this Agreement, but shall be deemed to be independent contractors performing services for the City or MBDC, as the case may be, without power or authority to bind the City, and shall be deemed solely responsible for all acts taken or omitted by them in the performance of or otherwise pursuant to this Agreement . Section 8 . 02 : Indemnification (a) Except as otherwise expressly stated herein, MBDC hereby assumes liability for, and hereby agrees to indemnify, protect, defend, save and keep harmless the City from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements, including, without limitation, reasonable legal and investigative fees and 21 . J • expenses, of whatsoever kind and nature (hereinafter) called "Liabilities" ) which may be incurred by or imposed at any time (whether during the Agreement Term or thereafter) on the City (whether or not also indemnified against by any other person) and in any way relating to or arising out of, or alleged (by a person other than the City) to in any way relate to or arise out of this Contract . Such Liabilities shall include, without limitation, the following: claims or penalties arising from any violation of any federal, state or local laws, rules or regulations or the insurance requirements of Article 8 . 05 hereof, as well as any claim as the result of latent, patent and other defects, whether or not discoverable by the City, any claim the insurance as to which is inadequate, any claim for patent, trademark or copyright infringement, any tort claim or claim for damages and any claim or liability in respect to any adverse environmental impact or effects . MBDC shall assume full responsibility for the defense against or settlement of any such Liability, and the City shall cooperate with MBDC by providing, at the sole expense of MBDC, such witnesses, documents and other assistance as the City may reasonably request ; provided, however, that : (i) the City shall be consulted as to the legal counsel to be employed in respect thereof and any veto the employment of any legal counsel unacceptable to it ; and (ii) if the City shall give to MBDC notice that in its good faith judgment an important general interest of the City is involved in such Liability or potential Liability, the City shall have the right to control , in consultation with MBDC, the defense 22 i against or settlement of such Liability. (b) MBDC shall require each of its contractors and subcontractors, to agree to indemnify the City and assume liability for injuries on the same basis as MBDC under subsection (a) above . (c) The obligations of MBDC under this section shall survive the expiration or earlier termination of this Contract and are expressly made for the benefit of, and shall be enforceable by, the City without necessity of declaring this Contract in default, and the City may initially proceed directly against the MBDC under this section without first resorting to any other rights of indemnification it may have . Section 8 . 03 : 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 any unpaid sums to MBDC pursuant to this Agreement . MBDC hereby expresses its willingness to enter into this Agreement with MBDC' s recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the amount to be disbursed to MBDC pursuant to this Agreement, less the amount of any funds actually paid by the City to MBDC pursuant to this agreement . Accordingly, and notwithstanding any other term or condition of this Agreement, MBDC hereby agrees that the City shall not be liable to the MBDC for damages in an amount in excess of the amount 23 Y r a to be disbursed pursuant to this Agreement, which amount shall be reduced by the amount actually paid by the City to MBDC pursuant to this Agreement, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement . Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City' s liability as set forth in Florida Statutes, Section 768 . 28 . Section 8 . 04 : 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 . Judgement upon the award rendered 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 thereof, including any controversy or claim relating to the right to specific performance shall be 24 settled by litigation and not arbitration. 8 . 05 : Insurance MBDC shall not commence any work pursuant to this Agreement until all insurance required under this Section has been obtained and such insurance has been approved by the City' s Risk Manager. MBDC shall maintain and carry in full force during the term of this Agreement and throughout the duration of this project the following insurance : 1 . Professional Liability Insurance in the amount of $500 , 000 per occurrence on a claims made form For a claims made policy, MBDC agrees to carry four (4) years tail coverage after work is completed, or maintain a comparable policy shall include coverage for prior acts effective from the date of execution of this Agreement . A certified copy of MBDC' s (and any subconsul Cant s' or subcontractors' ) Insurance Policy must be filed and approved by the City' s Risk Manager prior to commencement of this Agreement . 2 . Comprehensive General Liability Insurance in the amount of $1, 000 , 000 single limit Bodily Injury and Property Damage coverage for each occurrence, which will include products, completed operations, and contractual liability coverages . The City must be named as an additional insured on this policy. 25 0 • 3 . Workers Compensation & Employers Liability within the statutory limits of the State of Florida. 4 . Thirty (30) days written notice of cancellation or substantial modification in the insurance coverages must be given to the City by MBDC and its insurance company. 5 . The insurance must be furnished by insurance companies authorized to do business in the State of Florida and approved by the City' s Risk Manager. 6 . Original certificates of insurance for the above coverages must be submitted to the City' s Risk Manager for approval prior to any work commencing. These certificates will be kept on file in the office of the Risk Manager, 3rd Floor, City Hall . 7 . MBDC is responsible for obtaining and submitting all insurance certificates for their consultants, and/or subcontractors . All insurance policies must be issued by companies authorized to do business under the laws of the State of Florida. The companies must be rated no less than "B+" as to management and not less than "Class VI " as to strength by the latest edition of Best' s Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the City' s Risk Manager. 26 Compliance with the foregoing requirements shall not relieve MBDC of the liabilities and obligations under this Section or under any other portion of this Agreement, and the City shall have the right to obtain from MBDC specimen copies of the insurance policies in the event that submitted certificates of insurance are inadequate to ascertain compliance with required coverages . Section 8 . 06 : Assignment MBDC shall not assign, transfer, pledge, grant any lien on, convey or otherwise dispose of this Contract or any part hereof, or of its interest herein or assign, by power of attorney or otherwise, any of the monies due or to become due under this Agreement , without the prior consent of the City. Section 8 . 07 : Claims or Actions MBDC shall look solely to the Proceeds collected by the City for this Agreement for the satisfaction of any claim or cause of action MBDC may have against the City in connection with this Agreement or the failure of the City to perform any of its obligations hereunder. No officer, director, employee, agent or other person authorized to act on behalf of the City shall have any personal liability in connection with this Agreement or any failure of the City to perform its obligations hereunder. MBDC agrees that no action against the City in connection with this Agreement shall lie or be maintained unless such action is commenced within six (6) months after (i) the termination of this Agreement, or (ii) the 27 r accrual of the cause of action, whichever is earliest . MBDC further agrees that where the Program includes improvements to property requiring entry on to private property, MBDC shall obtain a general release, releasing the City from all claims arising in performance of placing the improvements on the property, from the owner or lessee of such property. Section 8 . 08 : Notice All written notices give to MBDC by the City shall be addressed to : Denis Russ, President Miami Beach Development Corporation 1205 Drexel Avenue Miami Beach, Florida 33139 with copies to: Tony Goldman, Chairman Ocean Drive Association 1205 Drexel Avenue Miami Beach, Florida 33139 All written notices from MBDC to the City shall be addressed to : City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 with copies to : City Attorney' s Office 1700 Convention Center Drive Miami Beach, Florida 33139 All notices mailed by either party and the Ocean Drive Association shall be deemed to be sufficiently transmitted if sent by certified mail , return receipt requested. 28 In Witness Whereof, the parties hereto have hereunto caused these presents to be signed in their names by their duly authorized officers and principals, attested by their respective witnesses on the day and year first hereinabove written. Miami Be " Deve' opment Corporation ; r C' BY 1p-ef itness penis Russ, President s ki\:/ ) 4iness City of Miami Beach MA OR , CITY CLERK g1(1(,3 a :mbdcontr FORM APP'OVED LEL D 'T. BY AL , Date 29 . i I i RESOLUTION NO. 93-20856 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI BEACH DEVELOPMENT CORPORATION (MBDC) , FOR THE PROVISION OF MANAGEMENT SERVICES TO THE OCEAN DRIVE SPECIAL IMPROVEMENT DISTRICT NUMBER 1. WHEREAS, the Mayor and City Commission on June 16, 1993 , approved Resolution 93-20701 authorizing the creation of a Special Assessment District ( The District) for the area on Ocean Drive between 5th and 15th Streets; and WHEREAS, pursuant the creation of said District, the City wishes to enter into the attached Agreement with the Miami Beach Development Corporation to provide for management of the District; and WHEREAS, said Agreement relates to the provision of certain supplemental services including sanitation; park and landscape maintenance; overall management of the District including representation of property owners through communications with the City Administration regarding these supplemental services; and those supplemental security services to be provided by the Miami Beach Police Department. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA THAT THE MAYOR AND CITY CLERK ARE HEREBY AUTHORIZED TO EXECUTE THE ATTACHED AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI BEACH DEVELOPMENT CORPORATION FOR THE PROVISION OF MANAGEMENT SERVICES TO THE OCEAN DRIVE SPECIAL IMPROVEMENT DISTRICT NUMBER ONE. PASSED and ADOPTED this 28th day of July, 1993 . V -MAYOR (/:///// ATTEST: OGLE,A5k Avt\A"------ FORMCITY CLERK APPROVED LE AL PT. 0,e,@/ Date '7/2,42- CITY OF MIAMI BEACH 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. TO: Mayor Seymour Gelber and DATE: July 28, 1993 Members of the City Commission FROM: Roger M. Carlt• City Manager if ` 4 SUBJECT: RESOLUTION AUTHORIZING THE EXECUTION OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI BEACH DEVELOPMENT CORPORATION ADMINISTRATION RECOMMENDATION: The Administration recommends that the City Commission adopt the attached resolution authorizing the Mayor'and City Clerk to execute the agreement between the City of Miami Beach and the Miami Beach Development Corporation for the provision of district management services for the Ocean Drive Special Improvement District Number One. BACKGROUND: On June 16, 1993 , the City Commission adopted resolution 93-20811 creating a Special Assessment District for the area on Ocean Drive between 5th and 15th Streets to be known as the Ocean Drive Special Improvement District Number One. ANALYSIS: Since this is a landmark endeavor on the part of the City, the contract between the City of New York and the 34th Street Partnership, Inc. , (the very successful prototype of this type of district management) was used as a model upon which this agreement is fashioned. The City will enter into an agreement with the Miami Beach Development Corporation (MBDC) which will provide certain supplemental services which will include sanitation, park and landscape maintenance, general management of the district including representing the property owners in communications with the City on all supplemental services to be provided including the services to be provided by the Miami Beach Police Department. MBDC has worked with the Ocean Drive Association throughout the planning and redevelopment of Ocean Drive. MBDC has assisted in the development of policy standards for the area and has worked with the City and the Ocean Drive Association to develop this management program. AGENDA ITEM 723- DATE Commission Memeorandum - July 28, 1993 Management Agreement Miami Beach Development Corporation General provisions of the attached agreement are as follows: I. Scope of Services to be provided through the District will include the following: o Sanitation services up to a maximum of 160 hours per week will provide for hand sweeping of streets, gutters and sidewalks; cleaning bullnose areas of each corner, cleaning side streets back to Ocean Court; washdown of trash receptacles and repair of same as needed; cleaning of buildings in Lummus Park at 6th 10th and 14th Streets; removal of litter from the park; and cleaning of park sidewalks o Park and Landscape Maintenance will provide for planting of foliage in areas within the District; sod replacement and tree replacement and planting in select areas in Lummus Park. o Management of the District will be provided through a District Manager who will be responsible for coordinating and providing for the delivery of the supplemental services within the area as provided for in this agreement. The District Manager will serve as the l ias ion between the property owners in the District and the City. II. AUDITS; REPORTS o The City has the right to audit, inspect, and copy any of the books, records, accounts and other documents of MBDC in connection with this agreement. o MBDC must submit quarterly reports to the City detailing the progress of the District Management Program as specified in this agreement. III. CITY REVIEW AND REMEDIES o Performance of the supplemental services provided for within this agreement is subject to the review and reasonable direction and control of the City. The City shall have the right to inspect the performance of the supplemental services and by notice to the MBDC order the performance of certain specific items as set forth in the agreement. The City may withold payment for services for failure to perform the specified services. o The provisions of this agreement do not extend the obligation or limit the right of the City at any time to perform work in its ordinary municipal capacity in relation to the District. CONCLUSION: The Administration recommends that the City Commission adopt the attached resolution authorizing the Mayor and City Clerk to execute the agreement between the City and the Miami Beach Development Corporation. The district management process provides for the determination of the needs of property owners within the District and will supply the improvements to serve those needs. RMC:km ORIGINAL: J.ESOLUTION NO. 93-20856 Authorizing the Mayor and the City Clerk to execute an agreement between the City of Miami Beach and the Miami Beach Development Corporation (MBDC) , for the provision of management services to the Ocean Drive Special Improvement District Number 1. OWD 4 1111 101 IL\