RESOLUTION 93-20858 f f
RESOLUTION NO. 93-20858
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA AUTHORIZING THE MAYOR AND THE
CITY CLERK TO EXECUTE A THIRD AMENDMENT TO THE AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH AND THE HOLOCAUST
MEMORIAL COMMITTEE, INC.
WHEREAS, the City of Miami Beach (the "City") and the
Holocaust Memorial Committee, Inc. (the "Committee") entered into
an Agreement relating to the Holocaust Monument on July 31, 1987
(the "Agreement") ; and
WHEREAS, the City and the Committee entered into a First
Amendment on January 23 , 19 91 and a Second Amendment on February 5,
1992 ; and
WHEREAS, the City and the Committee wish to further amend the
Agreement to provide for certain additional changes, as referenced
by the attached Amendment Agreement; and
WHEREAS, said attached Third Amendment has been recommended by
the City Manager and approved as to form by the City Attorney.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and
the City Clerk are hereby authorized to execute the attached Third
Amendment to Agreement between the City of Miami Beach and the
Holocaust Memorial Committee, Inc.
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PASSED and ADOPTED this 28th . : o f July 1993
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VICE-MAYOR
ATTEST: FORM APPROVED
6ILEGAL SEPT.
TY CLERK
BY
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OFFICE OF THE CITY ATTORNEY
64 C;;Amil Wald
F L O R 1 D A
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LAURENCE FEINGOLD ��, P 0 BOX O
MIAMI BEACH. FLORIDA 331'.9-2032
CITY" ATTORNEY H26
COMMISSION MEMORANDUM NO. - 3 TELEPHONE (305)673-7470
TELECOPY 305)673-7002
DATE: JULY 28, 1993
TO: MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSION
FROM: LAURENCE FEINGOLD ///,;')
CITY ATTORNEY \\/:
ROGER M. CARLTO
CITY MANAGER
SUBJECT: THIRD AMENDMENT TO AGREEMENT BETWEEN CITY OF MIAMI BEACH
AND THE HOLOCAUST MEMORIAL COMMITTEE, INC.
The City Administration and this office have jointly negotiated the
attached Third Amendment to the Agreement between the City of Miami
Beach and the Holocaust Memorial Committee, Inc. (Holocaust
Memorial Lease Agreement) , following meetings with counsel for the
Memorial Committee and members of said organization. We would
therefore recommend that the Mayor and City Commission authorize
the Manager and City Clerk to execute the attached Third Amendment.
In summary, the attached Amendment provides for the following
amendments to the existing Agreement.
1. The City shall pay for all water, electricity and gas
consumed on the premises and the Committee agrees to pay
for all telephone charges related to same.
2 . The Committee shall be responsible for all costs for
security at the Memorial when it is open, and the City
shall be responsible for such costs when the Memorial is
closed. The parties also agree to activate the existing
electronic security system on the premises within thirty
days of execution of this Amendment.
3 . The City has also agreed to pay for all security costs
incurred by the Committee retroactively, as of July 1,
1993 .
4 . Paragraph 4A of the original Agreement relating to the
composition of the Memorial Board of Trustees has been
amended to include that a member, to be designated by the
City Manager, be appointed to the twelve member Board of
Trustees. In addition to the existing twelve member
Board, three ad hoc, non-voting members, residents of the
City of Miami Beach, are also to be appointed to the
Board.
5. The Committee agrees to deposit the $250, 000 cash deposit
with Barnett Bank Trust Co. required pursuant to its
Agreement with the City, within thirty (30) days of
execution of this Amendment.
6 . Paragraph 3C of the original Agreement, which required
the City to contract for maintenance of the Memorial has
been deleted. The Committee has agreed to be responsible
for maintenance.
AGENDA
ITEM
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7 . An "Annual Insurance" provision has been added. All
general liability shall be covered by the City ' s Self
Insurance Program. The City also agrees to purchase all-
risk property damage coverage insuring the Memorial
against such risks, including hurricanes. The City shall
not be required to purchase said insurance if it cannot
obtain same within a commercially reasonable premium
cost; said cost as agreed to by the parties not to exceed
$10, 000.
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THIRD AMENDMENT TO AGREEMENT BETWEEN CITY OF MIAMI BEACH
AND THE HOLOCAUST MEMORIAL COMMITTEE, INC.
THIS THIRD AMENDMENT TO AGREEMENT entered into this 2 -7-77(-
day
of &C7CI# 67L. , 1993 by and between the City of Miami Beach,
a Florida municipal corporation, (the "City") , and the Holocaust
Memorial Committee, Inc. , a non-profit Florida corporation (the
"Committee") .
WITNESSETH
Whereas, the City and the Committee entered into an Agreement
relating to a Holocaust Monument in the City of Miami Beach on July
31, 1987 (the "Agreement") ; and
Whereas, the City and the Committee entered into a First
Amendment to the Agreement on January 23 , 1991; and
Whereas, the City and the Committee entered into a Second
Amendment to the Agreement on March 13 , 1992 ; and
Whereas, issues have arisen between the parties with respect
to their rights and obligations under the Agreement; and
Whereas, the parties wish to resolve these matters addressed
under the Agreement by entering into this Third Amendment to the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
Agreement herein contained and other good and valuable
considerations, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. The foregoing recitals are true, correct and accurate and
are hereby incorporated herein by reference.
2 . The following Paragraph 8, to be entitled "Utilities" is
hereby added to the Agreement as:
8. UTILITIES. The City agrees to pay for all water,
electricity and gas consumed on the premises. The Committee
agrees to pay for all telephone charges relating to the
premises, including any cost related to the telephone line for
the electronic security system.
3 . The following paragraph 9, to be entitled "Security" is
hereby added to the Agreement as:
9. SECURITY. The Committee shall be responsible for all
costs for security at the Memorial when it is open, at
such levels and using such means as the Committee, in its
sole discretion, deems reasonable. The City shall be
responsible for all costs for security at the Memorial
when it is closed, at such levels and using such means as
the City, in its sole discretion, deems reasonable. The
parties agree that the existing electronic security
system located on the premises shall be activated within
thirty (30) days of execution of this Third Amendment.
The Committee shall pay all maintenance and repair costs
relating to the electronic security system. Each party
agrees to notify the other of any events; circumstance or
information which may create a security risk at the
Memorial and indicate a need for increased security.
In addition, within days of execution of this Third
Amendment, the City shall pay all costs for security incurred
by the Committee retroactively to July 1, 1993 .
4 . Paragraph 4A of the Agreement relating to the composition
of the Board of Trustees is hereby amended to read as follows:
4A. Composition
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The Holocaust Memorial shall have a Board of
Trustees of twelve (12) members consisting of
the following:
(1) The designee of the City Manager of the
City of Miami Beach, which designee shall not
be the City Manager but shall be an employee
of the City.
(2) The department head of the City of Miami
Beach responsible for Parks and Recreation.
(3) Ten (10) members designated at the sole
discretion and choice of the Committee. Each
of the ten (10) members who are initially
designated by the Committee shall serve for
his or her life, or earlier resignation or
incapacity. Within ninety (90) days of the
death, resignation or incapacity of any
Committee designated member such member shall
be replaced by the majority vote of the
remaining Committee designated members or
successors then serving. The initial ten
members are hereby designated by the Committee
as follows: 1. Norman Braman; 2 . Dr. Helen N.
Fagin; 3 . George Goldbloom; 4 . Ezra Katz ; 5 .
Harry B. Smith; 6. Jack Chester; 7 . Kenneth
Treister; 8 . David N. Schaechter; 9 . Rabbi
Solomon Schiff; and 10. Abe Resnick, (but only
as an ex-officio, non-voting member, until
such time as Abe Resnick shall no longer hold
elected office in the City of Miami Beach, and
at such time he shall become a full member
with voting privileges) .
(4) In addition to the above, there shall be
three ad hoc non-voting members, to be
appointed by the Board of Trustees, which ad
hoc members shall be residents of the City of
Miami Beach having a strong interest in the
maintenance and preservation of the Holocaust
Memorial and its attraction as a tourist
destination.
5. The Committee agrees to deposit the $250, 000 cash deposit
with Barnett Bank Trust Company N.A. , required pursuant to
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paragraph 3 of the Agreement within thirty (3 0) days of execution
of this Third Amendment by both parties.
6. Paragraph 3 C of the Agreement entitled "City of Contract
for Maintenance" is hereby deleted in its entirety and replaced
with the following:
c. Committee to Contract for Maintenance
Committee agrees to be responsible for the maintenance of
the Holocaust Memorial in accordance with the maintenance
standards set forth in exhibit "G" , and shall be entitled
to use the net income from the trust fund, or so much
thereof as is required to pay for the maintenance.
Committee shall be responsible for any and all shortfalls
of income from the trust fund.
7 . The following paragraph 7 entitled "Annual Insurance" is
hereby made a part of the Agreement:
7 . INSURANCE
a. General Liability. Injury to persons or property
of third parties occurring on the Memorial property
shall be covered by the City' s Self Insurance
Program, and the City shall defend all such claims
in the same manner as it defends claims arising on
other City properties, including such defenses and
liability limits as may be available to the City
under F.S. 768 . 28.
b. All-Risk Property Damage. Provided that such
insurance is available at commercially reasonable
rates, except as provided in this subsection below,
the City agrees to purchase all-risk property
damage coverage insuring the Memorial improvements
against such risks, including but not limited to
hurricanes, in the amount of $1. 75 million
replacement costs with a $100, 000 deductible. City
agrees to apply the proceeds received from any
claim under the policy to repair or replace the
damaged improvement. However, the City shall have
no duty to repair and/or replace damaged
improvements which are not insured or not insurable
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at commercially reasonable rates. "Commercially
reasonable rates" is hereby defined to mean an
annual premium costs of less than $10, 000 .
In the event that the City cannot purchase all-risk
property damage coverage at the above-defined rate,
then the Committee shall have the option to
contribute any premium costs, in addition to and in
excess of City' s required maximum rate cost (i.e.
$10, 000) . The Committee shall so notify the City
in writing of its decision to supplement City's
annual premium costs contribution and secure all-
risk property damage coverage.
8 . The following paragraph 8 entitled "Annual Statements" is
hereby made a part of the Agreement:
8 . Annual Statement. Within thirty (30) days following the
end of each calendar year the Committee shall furnish to
the City Manager a statement, sworn to as true, accurate
and complete by the Committee ' s Chief Financial Officer
listing the amount of Committee ' s gross receipts,
expenses and profit or loss from the Memorial premises.
The form of the statement shall be subject to the
approval of the City Manager.
9 . The following paragraph 9 entitled "Maintain and
Examination of Records" is hereby made a part of the Agreement:
9 . MAINTENANCE AND EXAMINATION OF RECORDS
9 . 1 Records to be Maintained Committee agrees to
maintain records and accounts concerning the
operation of the Memorial premises that include a
breakdown of gross receipts, expenses and profit
and loss statement. Committee will maintain
accurate point of sale recording devices on the
premises which will record and show the payment for
every sale made or service provided on the
premises, and such other records shall be
maintained as would be required by an independent
CPA in order to audit a statement of Committee 's
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annual gross receipts and profit and loss statement
pursuant to generally accepted accounting standards
consistently applied.
9 . 2 Inspection and Audit Committee agrees to maintain
its financial records pertaining to the operation
of the premises for a period of three (3) years
after the conclusion of any calendar year and
further agrees that such financial records shall be
open and available to City or City's
representative, and the City in its sole discretion
may use an independent account firm to perform an
audit, for an examination at offices at all
reasonable times during business hours. Committee
shall maintain all such records at the Committee
offices in Miami.
City shall be entitled to audit Committee' s
records pardoning to the operation of the premises
as often as once each calendar year during the term
of this Agreement and once within the two-year
period following termination of this Agreement,
regardless of whether such termination results from
the natural expiration of the term or for any other
reason. City shall be responsible for paying all
costs associated with such an audit.
10. This Third Amendment shall supersede the Agreement and
all previous Amendments and in the event of any inconsistency in
the terms of the Agreement or any Amendments thereto and the terms
and conditions of this Third Amendment, this Third Amendment shall
prevail . All other terms and conditions of the Agreement and
previous Amendments are hereby ratified and confirmed.
11. By entering into this Third Amendment neither party
waives nor intends to waive any right which it may have which is
not addressed in the Agreement or any Amendment thereto, including
this Third Amendment.
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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 secretary and
City Clerk on the day and year first hereinabove written.
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CITY OF IAMI BEACH
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By: dim6. AIL _
Ma •
ATTEST:
Y
City Clerk
HOLO : • - ' , EMORIAL OMMITTEE, INC.
a n. vrPrt profit orida corporation
/ By: 060 6e,_______
esident
ATT. ': 45P
4404111,
Corporatl Secretary
PNB: l :jm
FORM APPROVED
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7/21/93 LEGAL DJA.
By Af
Date
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ORIGINAL
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.Ii i �BSOL�TTION NO. 93-20858
A resolution of the Mayor and City
Commissf_on of the City of Miami Beach,
Florida authorizing the Mayor and the
City Clerk to execute a third amendment
to the agreement between the City of
Miami Beach and the Holocaust Memorial
Committee, Inc.
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