Resolution 2023-32523RESOLUTION NO. 2023-32523
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING FORM OF GRANT AGREEMENT TO
BE EXECUTED BY ORGANIZATIONS RECEIVING GRANT AWARDS FUNDED
FROM THE PROCEEDS OF THE CONTEMPLATED GENERAL OBLIGATION
BOND FOR ARTS & CULTURE ISSUANCE; AND FURTHER AUTHORIZING
THE CITY MANAGER AND CITY CLERK TO EXECUTE A GRANT
AGREEMENT WITH EACH OF THE G.O. BOND GRANTEES WITH THE
AMOUNT OF GRANT AWARD AND ADDITIONAL PUBLIC BENEFIT FOR
EACH GRANTEE TO BE APPROVED BY THE CITY COMMISSION.
WHEREAS, a key objective in the City's 2019 Strategic Plan, Through the Lens of
Resilience is the need for improving the resiliency of arts and cultural institutions in the City,
including addressing facility needs and related affordable or workforce housing in the City; and
WHEREAS, to support this effort, the City proposed a general obligation bond issue to
construct and improve facilities throughout the City of Miami Beach; and
WHEREAS, at the July 20, 2022 Commission meeting, the Mayor and Commission
approved Resolution No. 2022-32261, authorizing a special election, submitting to the electorate
of the City of Miami Beach the question asking whether the City shall be authorized to issue
general obligation bonds, not exceeding $159,000,000, to improve facilities for resiliency of arts
and cultural institutions throughout the City (the "G.O. Bonds for Arts & Culture"), including
museums, performance venues, artistic playgrounds, senior/cultural centers, botanical garden,
aquatic sculpture park, and related artist/workforce housing; and
WHEREAS, some of the projects that will be funded by the G.O. Bonds for Arts & Culture
will require the City to enter into grant agreements with the recipient cultural institutions; and
WHEREAS, at the November 16, 2022 Commission meeting, the Mayor and Commission
approved Resolution No. 2022-32405 directing the Administration and City Attorney's Office to
negotiate and secure public benefits for residents of the City as part of the grant agreements with
cultural arts organizations that will receive G.O. Bond for Arts & Culture funds, which could include
public access requirements, discounted tickets to residents and free performances or other
activations; and
WHEREAS, the City Attorney's office, working with City staff that will be involved in the
deployment of the G.O. Bond for Arts & Culture, prepared a form of grant agreement (the "Grant
Agreement Template") to be executed by the cultural arts institutions that will receive grants
funded by the G.O. Bond for Arts & Culture; and
WHEREAS, the Grant Agreement Template, a copy of which is attached as Exhibit A to
this Resolution, was reviewed and approved by bond counsel and tax counsel; and
WHEREAS, the Office of the Inspector General was afforded the opportunity to provide
comments to the Grant Agreement Template; and
WHEREAS, the Administration recommends that the Mayor and City Commission
approve the Grant Agreement Template and authorize the City Manager to execute agreements
in the form of the Grant Agreement Template
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 of the City of Miami Beach, Florida approve the form of grant agreement to be
executed by cultural organizations receiving grant awards funded from the proceeds of the
contemplated General Obligation Bond for Arts & Culture issuance, which form is attached as
Exhibit A to this Resolution; and further, authorize the City Manager and City Clerk to execute a
grant agreement in such form with each of the G.O. Bond for Arts & Culture grantees with the
amount of grant award and additional public benefit for each Grantee to be approved by the city
commission.
PASSED and ADOPTED this 27 day of ParGk , 2022.
ATTEST LIAR 2923
Rafael E' Granado, City Clerk
Dan Gelber, Mayor
IN CORP OR„T,cO;:
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
(_"'V_� 3--i0 - Z3
City Attorney nite4 Date
MIAMI BEACH
Resolutions - C7 G
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Alina T. Hudak, City Manager
DATE: March 27, 2023
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING FORM OF GRANT
AGREEMENT TO BE EXECUTED BY ORGANIZATIONS RECEIVING
GRANT AWARDS FUNDED FROM THE PROCEEDS OF THE
CONTEMPLATED GENERAL OBLIGATION BOND FOR ARTS & CULTURE
ISSUANCE; AND FURTHER AUTHORIZING THE CITY MANAGER AND
CITY CLERK TO EXECUTE A GRANT AGREEMENT WITH EACH OF THE
G.O. BOND GRANTEES.
(ITEM TO BE SUBMITTED IN SUPPLEMENTAL)
SUPPORTING SURVEY DATA
TBD
FINANCIAL INFORMATION
N/A
Applicable Area
Citywide
Is this a "Residents Right
to Know" item, pursuant to
City Code Section 2-14?
Yes
Does this item utilize G.O.
Bond Funds?
Yes
Strategic Connection
Prosperity - Market and promote Miami Beach as a world class arts, culture, and quality
entertainment destination.
Legislative Tracking
G.O. Bond
Page 304 of 1292
EXHIBIT A
FORM OF GRANT AGREEMENT FOR G.O. BOND FOR ARTS & CULTURE GRANTEES
Agenda Item C 76-
Date 3-27-Z3
M,!A^,11BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Honorable Mayor Dan Gelber anq Members of the City Commission
FROM: Alina T. Hudak, City Manag r {
DATE: March 27, 2023
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING FORM OF GRANT
AGREEMENT TO BE EXECUTED BY ORGANIZATIONS RECEIVING
GRANT AWARDS FUNDED FROM THE PROCEEDS OF THE
CONTEMPLATED GENERAL OBLIGATION BOND FOR ARTS &
CULTURE ISSUANCE; AND FURTHER AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE A GRANT AGREEMENT
WITH EACH OF THE G.O. BOND GRANTEES WITH THE AMOUNT OF
GRANT AWARD AND ADDITIONAL PUBLIC BENEFIT FOR EACH
GRANTEE TO BE APPROVED BY THE CITY COMMISSION.
BACKGROUND
At the July 20, 2022 Commission meeting, the Mayor and Commission approved Resolution No.
2022-32261, authorizing a special election, submitting to the electorate of the City of Miami Beach
the question asking whether the City shall be authorized to issue general obligation bonds, not
exceeding $159,000,000, to improve facilities for resiliency of arts and cultural institutions
throughout the City (the "G.O. Bonds for Arts & Culture"), including museums, performance
venues, artistic playgrounds, senior/cultural centers, botanical garden, aquatic sculpture park,
and related artist/workforce housing.
On November 8, 2022, the voters of the City of Miami Beach approved the issuance of $159
million in Arts and Culture Bonds as follows:
For Bonds 15,142 64.80%
Against Bonds 8,226 35.20%
ANALYSIS
Some of the projects that will be funded by the G.O. Bonds for Arts & Culture will require the City
to enter into grant agreements with the recipient cultural institutions, and at the November 16,
2022 Commission meeting, the Mayor and Commission approved Resolution No. 2022-32405
directing the Administration and City Attorney's Office to negotiate and secure public benefits for
residents of the City as part of the grant agreements. By way of example, the public benefits to
be secured by the City in the grant agreements could include public access requirements,
discounted tickets to residents and free performances or other activations.
The City Attorney's office, working with City staff that will be involved in the deployment of the
G.O. Bond for Arts & Culture, prepared a form of grant agreement (the "Grant Agreement
Template") to be executed by the cultural arts institutions that will receive grants funded by the
G.O. Bond for Arts & Culture. The Grant Agreement Template, a copy of which is attached as
Exhibit A to this Resolution, was reviewed and approved by bond counsel and tax counsel. The
Office of the Inspector General was afforded the opportunity to provide comments to the Grant
Agreement Template.
rovisions in the Grant Aareement Template include the followina:
• Agreement will establish amount of grant to be funded to the Grantee on a reimbursement
basis (amount of each grant will be subject to Commission approval) (Section 1.2)
• Grantee is required to provide an additional public benefit in accordance with Resolution
No. 2022-32405 (Section 1.3)
• City's obligation to fund contingent upon (a) actual issuance of bonds and (b) continuing
permissibility of funding under applicable law (Section 1.4)
• Grantee may use grant award solely to pay for capital expenditures; funds may not be
used for any other purpose including to pay for operating expenses, ordinary maintenance
and repairs (Section 1.5)
• For 25 years from completion, Grantee must (a) maintain the Project, (b) keep the Project
open to all Miami Beach residents and members of the general public, (c) use the facility
improved and/or equipment acquired for the benefit of the Public and (d) allow all Miami
Beach residents and visitors equal access and use of the Project (Section 1.5)
• Agreement will establish a timeframe for the Grantee to achieve Substantial Completion
(Section 1.6)
• Agreement will include an exhibit reflecting the Grantee's total budget, funding sources
(including the grant award) and cash flow schedule (Section 2.1)
• Grantee solely responsible for cost overruns (Section 2.2)
• Grantee must submit reimbursement requests in accordance with a form to be attached
as an exhibit, along with supporting documentation (Sections 2.5(a) and (b))
• Grantee must submit monthly and annual status reports throughout the course of the
Project (Section 2.5(d) and 2.9)
• City Manager may monitor and evaluate Grantee's operations and the Project (Section
3.1)
• City Manager may request return of funds if used for non -Project costs (Section 3.1)
• The City Manager has customary audit rights (Section 3.2)
• The Office of the Inspector General has customary audit rights (Section 3.3)
• The Agreement includes standard insurance and indemnification provisions (Article 4)
• The Agreement includes customary legal compliance provisions, including anti-
discrimination and public records act requirements (Article 5)
• The Agreement includes customary default provisions (Article 6); if Grantee improperly
uses Grant funding, the City may require the Grantee to reimburse the City for all grant
funding provided, in addition to other remedies
CONCLUSION
The Administration recommends that the Mayor and City Commission approve the Grant
Agreement Template and authorize the City Manager to execute agreements in the form of the
Grant Agreement Template with each of the G.O. Bond for Arts & Culture grantees, with the
amount of grant award and additional public benefit for each grantee to be approved by the City
Commission.
2
Applicable Area
Is this a "Residents Right
To Know" item, pursuant to
City Code Section 2-17?
No
Attachment:
Does this item Utilize G.O.
Bond Funds?
Yes
Exhibit A — Form of G.O. Bond for Arts and Culture Grant Agreement
This GRANT AGREEMENT (this "Agreement") is made as of this day of
2023 (the "Effective Date"), by and between the City of Miami
Beach, Florida, a municipal corporation duly organized and existing under the laws of
the State of Florida (the "City"), and , a Florida not -
for -profit corporation ("Grantee") (the City and Grantee each, a "Party" and
collectively, the "Parties").
RECITALS
WHEREAS, [Describe Grantee, its existing facilities and public benefits], as
more particularly described in Exhibit A; and
WHEREAS, [Describe any pre-existing agreements between the City and
Grantee, if relevant]; and
WHEREAS, on July 20, 2022, the Mayor and City Commission of the City of Miami
Beach approved Resolution No. 2022-32261 calling for a November 8, 2022 special
election for the purpose of submitting to the electorate of the City of Miami Beach a
question asking whether the City should be authorized to issue general obligation bonds,
from time to time, not exceeding $159,000,000 in aggregate principal amount (the
"Bonds"), payable from unlimited ad valorem taxes, to improve facilities for resiliency of
arts and cultural institutions throughout the City, including museums, performance
venues, artistic playgrounds, senior/cultural centers, botanical garden, aquatic sculpture
park and related artist/workforce housing (the "GO Bond for Arts and Culture Program" or
the "GOBAC Program"); and
WHEREAS, a majority of the City's residents who voted in the November 8, 2022
special election approved the GO Bond for Arts and Culture Program; and
WHEREAS, Resolution 2022-32261 contemplated that if approved in the
referendum, the GO Bond for Arts and Culture Program would provide funding for specific
projects; and
WHEREAS, the Grantee is undertaking [INSERT PROJECT DESCRIPTION] (the
"Project"), as more specifically described in Exhibit B, which was specifically approved as
part of the GOBAC Program or is otherwise eligible for funding through the GOBAC
Program; and
WHEREAS, the Project is estimated to cost $ and will be
funded from the sources listed in Exhibit C, including funding from the GOBAC Program,
subject to and contingent upon the availability of GOBAC Program proceeds; and
WHEREAS, the Project is eligible for funding from the GO Bond for Arts and
Culture Program in a total amount not to exceed $ ;and
WHEREAS, the Project will result in physical improvements to an area, facility,
resource or site to increase its ability or capacity to serve the public; and
WHEREAS, on November 16, 2022, the Mayor and City Commission of the City
of Miami Beach approved Resolution No. 2022-32405 requiring the City Administration
and the Office of the City Attorney to negotiate and secure public benefits in the grant
agreements with each cultural arts organization that receives GOBAC Program proceeds;
and
WHEREAS, the Mayor and City Commission of the City of Miami Beach and the
governing board of the Grantee have authorized, by resolution, their respective
representatives to enter into this Agreement describing their respective rights and
obligations in the funding for, and construction of, the Project; and
NOW, THEREFORE, pursuant to Resolution No. 2023- , which specifically
authorizes the City Manager to execute grant agreements and other required contracts
and documents to expend the GOBAC Program bonds proceeds for the purposes
described in such resolution, and in consideration of the premises and the mutual
covenants and conditions herein contained and the mutual benefits to be derived from
this Agreement, it is agreed by the Parties hereto as follows:
ARTICLE 1
GRANT
1.1 Recitals. The Recitals above are true and correct and are incorporated herein
by reference.
1.2 Award of Grant. The City hereby awards a grant to Grantee in the aggregate
sum of $ (the "Grant Award"), to be funded by the City
solely from the Bonds proceeds on a reimbursement basis, to design and
construct the Project and/or to acquire equipment. The City shall have no
obligation to disburse to Grantee any portion of the Grant Award which
remains unused at the completion of the Project and Grantee shall have no
claim to such unused portion of the Grant Award.
1.3 Public Purpose. The Grant Award is awarded to this Grantee based on the
understanding that the Grantee is performing a public purpose through the
programs, projects, and services. Use of these funds for any program component
not meeting this condition will be considered a material breach of the terms of this
Agreement and will allow the City to seek all available remedies including, but not
limited to those outlined in Section 6.2. In consideration of the Grant Award, in
addition to Grantee's obligations pursuant to Sections 1.5 and 1.6 and other
provisions of this Agreement, to comply with Resolution No. 2022-32405, Grantee
shall provide the additional public benefit described in Exhibit D. [DRAFTING
NOTE: INCLUDE DESCRIPTION OF ADDITIONAL PUBLIC BENEFIT IN
EXHIBIT D.]
1.4 Funding Contingencies. The City's obligation to fund all or any portion of the
Grant is subject to and contingent upon (a) issuance of the Bonds and (b) such
2
funding continuing to be allowed and permissible pursuant to applicable law,
as same may be amended from time to time. If (x) the Bonds are not issued
for any reason or (y) the City's performance and obligation to Grantee with
respect to the Grant Award is disallowed or rendered impermissible by
applicable law, then City's obligation to fund the Grant Award shall be
extinguished, and neither Party shall have any further liability or obligation to
the other with respect to the Grant Award or this Agreement, except for any
liability or obligation which expressly survives the term of this Agreement.
1.5 Use of Grant Award. Grantee may use the Grant Award disbursed to Grantee
by the City pursuant to the terms of this Agreement solely to pay for capital
expenditures as defined in Treas. Reg. Section 1.150-1' and may not be for
any other purpose including to pay for operating expenses, ordinary
maintenance and repairs, or to acquire equipment having a useful life of less
than one year. Not more than fifteen percent (15%) of the Grant Award may be
used to pay for design costs. It is expressly understood and agreed, that any
building, structure or other site into which the Project (including equipment
acquired) is incorporated and, in whole or in part, with the Grant Award must be
open and accessible to the public (as applicable), provide public exposure and
benefit the public unless otherwise noted in this Agreement. For at least twenty-
five (25) years from the completion of the Project, the Grantee shall (a) maintain,
repair, upgrade and/or replace the Project (or portion thereof) and, if applicable,
the facility into which the Project is incorporated; (b) keep the Project and, if
applicable, the facility into which the Project is incorporated, open to all Miami
Beach residents and members of the general public, (c) use the facility and/or
equipment acquired and/or improved under the Project for the benefit of the
public; and (d) allow all Miami Beach residents and visitors equal access and
use of the Project.
1.6 Substantial Completion of the Project. Grantee shall use commercially
reasonable best efforts to ensure the Project achieves Substantial Completion
(as defined below) on or before For purposes of this
Agreement, "Substantial Completion" means
(a) If the Project (or portion thereof) entails construction, the date when the
work constituting the Project, as certified in writing by the Grantee and
the lead Consultant (i.e., the "architect of record" or the "engineer of
record," as the case may be), if any, has been developed, designed,
engineered and constructed in accordance with the applicable contract
documents such that all conditions of permits and regulatory agencies
have been satisfied and the Project is ready for occupancy, utilization
and continuous commercial operation for the uses and purposes
intended by the Grantee, without material interference from incomplete
or improperly completed work and with only minor punch list items
remaining to be completed, all as reasonably determined by the
' Treas. Reg. Section 1.150-1(b) defines "capital expenditure" as: any cost of a type that is properly chargeable to capital
account ... under general Federal income tax principles. For example, costs incurred to acquire, construct, or improve
land, buildings, and equipment generally are capital expenditures.
Consultant, and evidenced by (1) the issuance of a Certificate of
Occupancy or Certificate of Completion by the authority having
jurisdiction (if applicable); (2) the issuance of a Certificate of
Substantial Completion by the lead Consultant for any portion of the
Project for which a Consultant was engaged; and/or (3) such other
documentation as the City Manager may reasonably request as
evidence that the Project has achieved Substantial Completion.
(b) if the Project (or portion thereof) entails the purchase of equipment, the
date that such equipment has been installed in accordance with all
applicable manufacturer instructions and building codes such that the
Grantee will be able to use such equipment for its intended purpose(s).
On or before the Substantial Completion date of the Project, Grantee shall
submit to the City:
i. applicable contract documents relating to the Project (or portion
thereof);
ii. copies of all agreements, permits, and licenses, and all insurance
policies or certificates, if any, pertaining to the Project (or portion
thereof);
iii. all manufacturers, suppliers' and subcontractors' warranties duly
assigned to Grantee (the "Warranties), and all maintenance and
operating instructions pertaining to the completed work; including the
standard manufacturer's warranty for all fixtures and equipment
purchased in relation to the Project (or portion thereof) and a minimum
one (1) year warranty for all work contracted or associated with the
Project;
iv. bills of sale, purchase documentation, or assignments evidencing title
for the Project (or portion thereof) vesting in Grantee; and
v. any other documents or information which the City Manager may
reasonably request in connection with the Project.
1.7 Contractors and Design Consultants. The contractors hired by Grantee in
connection with the construction of the Project may be individually referred
to as a "Contractor" or collectively referred to herein as "Contractors". The
lead architect or lead engineer, as applicable, retained by Grantee in
connection with the design of the Project is referred to herein as the
"Consultant". The Contractors and Consultant shall hold all required
licenses to perform the services under the contract and shall not be a
Contractor or Consultant who is currently debarred or otherwise not in
good standing with the City.
4
ARTICLE 2
BUDGET AND FUNDING
2.1 Project Cost. As referenced in this Agreement, the "Project Cost" shall mean
the hard and soft capital costs necessary for the construction of the Project
and/or the acquisition of equipment necessary to implement the Project.
Grantee has estimated that the total Project Cost shall be $
[DRAFTING NOTE: INSERT SAME AMOUNT HERE AS INCLUDED IN THE
RECITALS] (the "Budget"), as more particularly set forth in Exhibit C hereto.
Exhibit C reflects all sources of funding for the Project, and the sum of such
sources must equal or exceed the Budget. Exhibit C also includes a cash flow
schedule detailing anticipated dates and amounts to be received from other
Project funding sources, if any, and estimated dates and amounts of payments
due to the Consultant, Contractors and other third parties (the "Cash Flow
Schedule"). If at any time the Grantee anticipates that the actual Project Cost will
exceed the Budget, Grantee shall provide immediate written notice to the City
which shall include: (a) a revised, detailed cost estimate for the Project Cost
and (b) documentary evidence reasonably satisfactory to the City regarding
Grantee's sources of funding for all costs in excess of the Budget. Grantee
shall be permitted to modify the Budget to increase any line item(s) by
decreasing other line item(s) to account for changes in actual costs so long as
such modifications do not alter the scope of the original Project or reduce the
useful life of assets acquired with the Grant Award. If Grantee wishes to revise
the scope of the Project to enable it to complete the Project within the Budget, the
Grantee must obtain the approval of the City Commission.
2.2 Grantee Solely Responsible for Project Expenses and Cost Overruns. The
Grantee agrees to be responsible for all work performed and all expenses
incurred in connection with the Project. The Grantee may contract as
necessary to complete the Project, including entering into contracts with
vendors for services and commodities, provided that it is understood by the
Grantee that the City shall not be liable to any such vendors for any expenses
or liabilities incurred pursuant to any contracts or agreements the Grantee may
enter into with such vendors, and that the Grantee shall be solely liable to all
such vendors for all expenses and liabilities incurred under such contracts or
agreements. Without limiting the generality of the foregoing, the City shall
have no obligation to fund any Project Cost in excess of the Grant Award and
Grantee shall be solely responsible for any Project Cost in excess of the
Budget as required and necessary to complete the Project.
2.3 Grant Managers. Each of the City and the Grantee shall designate an individual
to serve as grant manager (the "City Grant Manager" and "Grantee Grant
Manager," respectively). The initial City Grant Manager shall be the Director of
the Facilities and Fleet Management Department and the initial Grantee Grant
Manager shall be [INSERT NAME]. If a different grant manager is
designated by either Party after execution of this Agreement, notice of the name
and contact information of the new grant manager will be submitted in writing to
the other Party and maintained in the respective parties' records. A change of
61
grant manager does not require a formal amendment or change order to the
Agreement.
2.4 Administration of Grant Award by Grantee. The Grantee shall administer the Grant
Award responsibly and in accordance with standard accounting practices,
including by developing and adhering to a Project budget based upon reasonable
estimates of expenditures necessary to complete the Project within the Budget.
All expenditures will be subject to the terms of this Agreement.
2.5 Reimbursement Requests, Monthly Progress Reports and Payments. Subject
to the terms and conditions of this Agreement, the Grant Award shall be paid
by the City to Grantee as follows:
a. The Grant Award shall be paid to Grantee in installments on a
reimbursement basis (each such installment, a "Grant Disbursement"). In
order to request a Grant Disbursement, Grantee shall submit to the City a
completed, signed and notarized Reimbursement Request, in the form
attached as Exhibit E hereto (or such other form as the City may require), along
with (i) the monthly status report described in subsection (d), below and (ii) all
appropriate supporting documentation, including, without limitation, the
applicable contract (including the schedule of values), licensing and insurance
information for Contractors, estimate(s),invoice(s), evidence of payment
(receipts), warranty information and any other documentation with respect to
the Project which may be requested by the City Grant Manager (collectively,
the items identified in (i) and (ii), the "Supporting Materials"). Any
Reimbursement Request for purchases of equipment, materials or personal
property shall require (A) that the purchase of such equipment, materials or
personal property qualify as a capital expenditure pursuant to Treas. Reg.
Section 1.150-1(b) and related I.R.S. guidance, as determined by the City in
its sole discretion, and (B) documentation that such equipment, materials
and/or personal property have been delivered to Grantee, and are in Grantee's
possession, in Miami Beach, Florida, as conditions precedent to payment. The
Grantee shall be solely responsible for submitting all documentation required
by this Agreement.
b. Project Costs shall be identified, tracked, accounted for, invoiced,
and paid by Grantee in a manner that clearly distinguishes the Project Costs
from other costs incurred by Grantee. The City shall make Grant Disbursement
to the Grantee by check or wire transfer, as the City determines in its sole
discretion. Grantee shall submit to the City Grant Manager a Reimbursement
Request together with all Supporting Materials on or before the 15th of each
month for any sums expended in connection with the Project for the preceding
month. Provided that an uncured default does not exist, and that Grantee is otherwise
in compliance with the terms of this Agreement, the City will make the Grant
Disbursement within forty-five (45) calendar days of its receipt of an
acceptable Reimbursement Request and all Supporting Materials. Grantee
understands and agrees that reimbursements to the Grantee will be made
solely in accordance with applicable state and federal laws. Any and all
[01
reimbursement obligations of the City shall be fully subject to and contingent
upon the availability of funding solely from the GOBAC Program funds.
C. Grantee shall also be responsible for reporting, on a continuous,
on -going basis any contractual relationship established to perform work or
services on the Project, including start date and project schedule, reflecting a
target Substantial Completion date not later than [DRAFTING
NOTE: INSERT SAME DATE AS USED IN SECTION 1.6.], in the Monthly Status
Report. Additional reports may be required at the discretion of the City Manager
or her designee.
d. To demonstrate that the Grant Award has been used in accordance
with the description of the Project as reflected in Exhibit "B" and the Budget as
outlined in Exhibit "C", and that Grantee has met and fulfilled all requirements as
outlined in this Agreement, Grantee shall submit a Monthly Status Report to the
City on or before the 151h day of each month (whether or not a Reimbursement
Request is Submitted), to include, at a minimum, (i) a brief narrative describing
the Project status, (ii) a spreadsheet reflecting the actual expenditures as of
the end of the preceding month compared against the Budget, (iii) an updated
Project schedule, if applicable, and (iv) a certification by an officer of Grantee
that Grantee is meeting or has fulfilled all Project and financial requirements.
2.6 Bank Accounts and Bonding. Monies received pursuant to this Agreement shall
be kept in accounts in established Florida banks, credit unions or savings and loan
associations whose identity shall be disclosed in writing, with the identity and title
of individuals whom the Grantee authorizes to withdraw or write checks on Grant
Award funds from the banking institution identified in the bank account disclosure.
These accounts must be segregated from other accounts maintained by the
Grantee. All persons authorized to withdraw funds from the Grant Award account
must be bonded by a reputable licensed firm. The cost of obtaining a fidelity bond
may not be paid out of the Grant Award unless these expenses constitute capital
expenditures.
2.7 Expenditure Deadline. The Grantee shall spend or commit all of the Grant Award
on or before three (3) years from the grant execution date (the "Expenditure
Deadline"). Any Grant Award funds not spent or committed by the Expenditure
Deadline or for which a Project extension has not been requested shall revert to
the City and this Agreement shall be terminated in accordance with the provisions
of this Agreement. A Project extension may be requested in writing from the City
Manager at least thirty (30) business days prior to the Expenditure Deadline. The
City Manager may, in her sole discretion, grant an extension of up to one (1) year
from the Expenditure Deadline so long as such extension will not significantly alter
the Project including its quality, impact, or benefit to the organization, the City or
its residents. Additional extensions (not to exceed one (1) year in any event) may
be authorized by the City Commission if the Grantee can document in a written
request sufficient Project progress and good cause for such additional extension.
2.8 Payment Does Not Constitute Waiver of Claims or Warranties.
INA
Notwithstanding anything contained in this Agreement, payment of the Grant
Award shall not constitute a waiver of claims by the City for: (i) faulty or defective
product; (ii) failure of the work to be in strict accordance with the approved final
plans and specifications for the Project; or (iii) the terms of any warranties
required by the applicable contract documents. The Grantee shall use best
efforts to fully cooperate with and assist the City in resolution of any issues with
regard to the City's claims for defects and/or warranty issues. All warranties
shall commence on the date of Substantial Completion of the Project (or
portion thereof), unless otherwise provided.
2.9 Annual Report. In addition to the monthly reports required pursuant to Section
2.4(d), above, Grantee shall submit on or prior to September 30th of each year
from the date of execution of this Agreement through the expiration or termination
of this Agreement, a written report to the City Manager demonstrating that Grantee
is fulfilling its purpose and has complied with all applicable City, Miami -Dade
County, state and federal requirements. The City Manager may also request that
a compilation statement and/or independent financial audit and accounting for the
expenditure of the Grant Award funds be prepared by an independent certified
public accountant at Grantee's expense.
2.10 Final Report. In addition to the monthly and annual reports required pursuant to
Sections 2.4(d) and 2.8, above, within thirty (30) days of completion of the Project,
the Grantee shall submit a final written report to the City Manager demonstrating
that Grantee is fulfilling its purpose and has complied with all applicable City,
Miami -Dade County, state and federal requirements, and which report shall
include, at a minimum: (a) the date the Project (or area of the facility incorporating
the Project) was placed in service (b) the useful life of the Project, and (c) the
amount of the Grant Award applied for each asset or improvement constituting the
Project.
2.11 Failure to Submit Reports. Failure by the Grantee to submit the reports required
pursuant to Section 2.4(d), 2.7 and 2.9 shall constitute a default, and the City
Manager may, subject to any applicable cure period, terminate this Agreement in
accordance with the provisions of Article 6. Further, the City Manager must
approve these reports for the Grantee to be deemed to have met all conditions of
the Grant Award.
ARTICLE 3
MONITORING AND AUDITING
3.1. Program Monitoring and Evaluation. The City Manager may monitor and conduct
an evaluation of the Grantee's operations and the Project, which may include visits
by City representatives to: observe the Project and/or Grantee's programs,
procedures, and operations; discuss the Grantee's programs with the Grantee's
personnel; and/or evaluate the public impact of the Project. Upon request, the
Grantee shall provide the City Manager with notice of all meetings of its Board of
Directors or governing board, general activities and Project -related events. In the
event the City Manager concludes, as a result of such monitoring and/or
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evaluation, that the Grantee is not in compliance with the terms of this Agreement
or that there are other reasons which significantly impact on the Grantee's ability
to fulfill the terms and conditions of this Agreement, then the City Manager must
provide in writing to the Grantee, within thirty (30) business days of the date of
said monitoring/evaluation, notice of the inadequacy or deficiencies noted which
may significantly impact on the Grantee's ability to complete the Project within a
reasonable time frame or otherwise fulfill the terms of this Agreement. If Grantee
refuses or is unable to address the areas of concern within ten (10) business days
of receipt of such notice from the City Manager, then the City Manager may, in her
sole discretion, take other actions which may include reduction or rescission of the
Grant Award, or withholding Grant Award funds until such time as the Grantee can
demonstrate that such issues have been corrected. Further, in the event that the
Grantee uses any portion of the Grant Award for costs not associated with the
Project or that do not constitute capital expenditures (collectively, "Non -Project
Costs") and the Grantee refuses or is unable to replace the amount so used into
the Grant Award bank account within ten (10) business days from the date such
unauthorized use is discovered, then the City Manager may request the return of
such portion of the Funding Allocation award as was used to pay for Non -Project
Costs. The City Manager may also institute a moratorium on applications from the
Grantee to City grants programs for a period of up to one (1) year or until the
deficient areas have been addressed to the satisfaction of the City Manager,
whichever occurs first.
3.2. Accounting, Financial Review, Access to Records and Audits by City Manager.
The Grantee shall maintain accurate and complete books and records for all
receipts and expenditures of the Grant Award and the Project in conformance with
reasonable general accounting standards (the "Books and Records"). The Books
and Records, as well as all documents pertaining to payments received and made
in conjunction with the Grant Award, such as vouchers, bills, invoices, receipts and
canceled checks, shall be retained in a secure place and in an orderly fashion in
a location within the City of Miami Beach by the Grantee for at least three (3) years
after the later of: (a) the Expenditure Deadline specified in Section 2.6; (b) the
extended Expenditure Deadline, as approved by the City Manager, if any; (c) the
completion of a City requested or mandated audit or compliance review; or the (d)
conclusion of a legal action involving the Grant Award, the Grantee and/or Project
or activities related to the Grant Award (the period determined pursuant to the
foregoing, the "Audit Period"). The Grantee shall use reasonable commercial
efforts to maintain the Books and Records in such a manner that it will not be
unduly costly or difficult for the City to segregate, ascertain or identify the use of
the Grant Award and to determine Grantee's compliance with the terms and
conditions of the Grant during an audit by the City. The City Manager may examine
the Books and Records at the Grantee's offices or other approved site under the
direct control and supervision of the Grantee during regular business hours and
upon reasonable notice. Furthermore, the City Manager may, upon reasonable
notice and at the City's expense, audit or have audited all financial records of the
Grantee, whether or not purported to be related to the Grant Award or the Project.
3.3. Inspector General. Pursuant to Section 2-256 of the Code of the City of Miami
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Beach (the "Code"), the City has established the Office of the Inspector General
("OIG") which may, pursuant to Section 2-256(f) of the Code, review, audit,
inspect, and investigate city contracts, programs, projects, procurements, and
expenditures associated with all general obligation bonds issued by the City,
including but not limited to the Bonds. This random audit is separate and distinct
from any other audit performed by or on behalf of the City. In connection with the
foregoing:
a. Grantee acknowledges that the OIG shall be authorized to review, audit,
inspect and investigate the Books and Records and all financial records of
Grantee, whether or not purported to be related to the Grant Award or the
Project. In addition, the Inspector General shall have the power to subpoena
witnesses, administer oaths, require the production of witnesses and monitor
City projects and programs. Monitoring of the Grant Award and the Project
may include the issuance of reports concerning whether the Project is on time,
within Budget and in conformity with plans, specifications, other contract
documents and applicable law.
b. At any time during the Audit Period and upon ten (10) days written notice to
Grantee, the Grantee (and any other party that is subject to these provisions)
shall make the Books and Records and any other documents and records in
the Grantee's possession, custody or control which in the Inspector General's
sole judgment, pertain to performance of this Agreement, including, but not
limited proposals and agreements from and with successful contractors and
design consultants, all Project -related correspondence, memoranda,
instructions, financial documents, construction documents, and contract
documents, and any supporting documentation for the foregoing.
c. The OIG shall have the power to report and/or recommend to the City
Commission whether the Project or any related program, contract or
transaction is or was necessary and, if deemed necessary, whether the
method used for implementing the Project or related program, contract or
transaction is or was efficient both financially and operationally. Monitoring of
the Project may include reporting whether the project is on time, within budget
and in conformity with plans, specifications, and applicable law. The OIG shall
have the power to analyze the need for, and reasonableness of, proposed
change orders
d. The OIG is authorized to investigate any alleged violation by Grantee of the
City's Code of Conduct, as set forth in Chapter 2, Article VII of the Code.
e. The OIG is empowered to retain the services of independent private sector
auditors to conduct one or more of the functions set forth in this Section 3.3.
The provisions in this section shall apply to the Grantee, its contractors and
their respective officers, agents and employees. The Grantee shall
incorporate the provisions in this Section 3.3 in all contracts and other
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agreements executed by its contractors in connection with the performance of
this Agreement.
g. Nothing in this Section 3.3 shall impair any independent right to the City to
conduct audits or investigative activities, including without limitation, the City's
audit rights pursuant to Section 3.2. The provisions of this Section 3.3 are
neither intended nor shall they be construed to impose any liability on the City
by the Grantee, its contractors or third parties for such monitoring or
investigation or to the failure to have conducted such monitoring or
investigation and neither the City nor the OIG shall have any obligation to
exercise any of its respective rights for the benefit of the Grantee.
ARTICLE 4
INSURANCE AND INDEMNIFICATION
[DRAFTING NOTE: RISK MANAGEMENT TO REVIEW INSURANCE PROVISIONS IN GENERAL AND
REQUIREMENTS FOR EACH GRANT AGREEMENT ON A CASE -BY -CASE BASIS.]
4.1 Insurance Requirement for Grantee. Grantee shall provide, or cause to be
provided, and maintain, or cause to be maintained, in force at all times during
the Project, at its sole cost and expense, the following types of insurance
coverage throughout the Term of the Agreement or until final acceptance of
the Project, whichever is later:
a. Worker's Compensation Insurance as required by Florida Statute 440, with
Employer's Liability Insurance, with no less than $1,000,000 per accident
for bodily injury or disease; and
b. Commercial General Liability Insurance on an occurrence basis,
contractual liability, property damage, bodily injury and personal &
advertising injury with limits no less than $1,000,000 per occurrence
and $2,000,000 aggregate.
4.2 Insurance Requirement for Contractors. Each Contractor for the construction
of the Project (or any portion) shall purchase and maintain the following
insurance coverages:
a. Worker's Compensation Insurance as required by Florida Statute 440, with
Employer's Liability Insurance, with no less than $1,000,000 per accident
for bodily injury or disease;
b. Commercial General Liability Insurance on an occurrence basis,
contractual liability, property damage, bodily injury and personal &
advertising injury with limits no less than $1,000,000 per occurrence
and $2,000,000 aggregate.
c. Automobile Liability Insurance covering all owned, non -owned and
hired vehicles used in connection with the work, in an amount not less
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than $1,000,000 combined single limit per occurrence, for bodily injury
and property damage;
d. Builder's Risk insurance utilizing an "All Risk" coverage form, with limits
equal to the completed value of the contract for the construction of the
Project and no coinsurance penalty provision. The City of Miami Beach
and Grantee shall be a Loss Payee with respect to this coverage.
e. A payment and performance bond (the "P&P Bond") of the form and
containing all the provisions set forth in this Section. The P&P Bond
shall be in the form of dual obligee bonds from the Contractor, naming
the City and Grantee as dual obligees. The P&P Bond shall be in the
amount of one hundred percent (100%) of the contract amount,
guaranteeing to City and Grantee the completion and performance of
the work under the contract and payment of all subcontractors. The P&P
Bond shall continue in effect for one year after completion and
acceptance of the Project with liability equal to one hundred percent
(100%) of the cost of the work, or an additional P&P Bond shall be
conditioned that Grantee will, upon notification by City, correct any
defective or faulty work or materials which appear within one year after
completion of the Work. The surety company shall have at least the
following minimum ratings in the latest revision of Best's Insurance
Report:
Amount of Bond Ratings Category
500,001 to 1,020,000
B+
Class 1
1,020,001 to 2,000,000
B+
Class II
2,000,001 to 5,000,000
A
Class III
5,000,001 to 10,000,000
A
Class IV
10,000,001 to 25,000,000
A
Class V
25,000,001 to 50,000,000
A
Class VI
50,000,001 or more
A
Class V11
4.3 Insurance Requirement for Consultant. The Consultant shall provide, or
cause to be provided, and maintain, or cause to be maintained, in force at
all times during the Project the following insurance coverages:
a. Professional Liability Insurance with limits of liability provided by
such policy not less than One Million Dollars ($1,000,000.00) each
claim to assure City the indemnification specified in Section 4.4. Such
policy may carry a commercially reasonable deductible, not to exceed
One Hundred Thousand Dollars ($100,000.00) for each claim. The
Certificate of Insurance for Professional Liability Insurance shall
reference the applicable deductible and the Project.
b. Comprehensive General Liability with minimum limits of One Million
Dollars ($1,000,000.00) per occurrence combined single limit for Bodily
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Injury Liability and Property Damage Liability and $2,000,000
aggregate.
4.4 General Provisions Applicable to Insurance. The following provisions shall
apply to insurance required to be provided by the Grantee, Contractors and
Consultant.
a. 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
Grantee.
b. Grantee hereby grants, and shall cause each Contractor and the
Consultant to grant, a waiver of any right to subrogation which any insurer
of Grantee, Contractor or Consultant may acquire against the City of Miami
Beach by virtue of the payment of any loss under such insurance. Grantee
agrees to obtain, and shall cause each Contractor and the Consultant to
obtain, any endorsement that may be necessary to effect 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.
c. 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.
d. Grantee 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 any
work commencing. However, failure to obtain the required coverage prior
to the work beginning shall not excuse Grantee's obligation to obtain (and
to cause its Contractors and the Consultant to obtain) the required
coverages. 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.
e. 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.
Certificate Holder
CITY OF MIAMI BEACH
c/o EXIGIS Insurance Compliance Services
P.O. Box 947
MURRIETA, CA 92564
All certificates of insurance, endorsements, exemption letters shall be
submitted to the City's servicing agent, EXIGIS, at:
Certificates-miamibeach(cDriskworks.com
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f. Compliance with the foregoing requirements shall not relieve the Grantee of
its liability and obligation under this section or under any other section of
this agreement.
4.5 Indemnification by Contractors and Consultant. The contracts between
Grantee and its Contractors and the architect's agreement between Grantee and
Consultant shall provide that Contractor or Consultant (as applicable) shall defend,
indemnify and save harmless the City, its officers, agents and employees, from or
on account of any injuries or damages, received or sustained by any person or
persons during or on account of any construction activities of Contractor or
Consultant (as applicable), or any of its subcontractors, subconsultants, agents,
servants, or employees connected with the Project; or by or in consequence of any
negligence of Contractor or Consultant (as applicable), or any of its
subcontractors, subconsultants, agents, servants, or employees (excluding
negligence of the City), in connection with the construction activities of Contractor
or Consultant (as applicable), or any of its subcontractors, subconsultants, agents,
servants, or employees connected with the Project; or by use of any improper
materials or by or on account of any act, error or omission of Contractor or
Consultant (as applicable) or any subcontractor, subconsultants, agents, servants
or employees, except to the extent any such injuries or damages are caused by
City. The contracts between Grantee and its Contractors and the architect's
agreement between Grantee and the Consultant shall further provide that
Contractor or Consultant (as applicable) shall indemnify and save harmless City
(a) against any claims or liability arising from or based upon the violation of any
City, Miami -Dade County, state or federal laws, bylaws, ordinances or regulations
by Contractor, its subcontractors, agents, servants or employees (excluding
negligence of City); and (b) from all such claims and fees, and from any and all
suits and actions of every name and description that may be brought against City
on account of any claims, fees, royalties, or costs for any invention or patent, and
from any and all suits and actions that may be brought against City for the
infringement of any and all patents or patent rights claimed by any person, firm, or
corporation. The contracts between Grantee and its Contractors and the
architect's agreement between the Grantee and the Consultant shall provide that
the Contractors' and Consultant's indemnification obligations to the City shall
survive the expiration or termination of such agreements.
4.6 Indemnification by Grantee. The Grantee shall indemnify and hold harmless the
City and its officers, employees, agents and instrumentalities from any and all
liability, losses or damages, including attorneys' fees and costs of defense, which
the City or its officers, employees, agents or instrumentalities may incur as a result
of claims, demands, suits, causes of actions or proceedings of any kind or nature
arising out of, relating to or resulting from the performance of this Agreement by
the Grantee or its employees, agents, servants, partners, principals,
subconsultants or subcontractors. Grantee shall pay all claims and losses in
connection therewith and shall investigate and defend all claims, suits, or actions
of any kind or nature in the name of the City, where applicable, including appellate
proceedings, and shall pay all costs, judgments, and attorneys' fees which may
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issue thereon. Grantee expressly understands and agrees that any insurance
protection required by this Agreement or otherwise provided by the Grantee shall
in no way limit the responsibility to indemnify, keep and save harmless and defend
the City or its officers, employees, agents and instrumentalities as herein
provided. Grantee's obligation to indemnify the City pursuant to the foregoing
shall survive the expiration or termination of this Agreement. Grantee recognizes
the broad nature of this indemnification and hold harmless clause, and voluntarily
makes this covenant and expressly acknowledges the receipt of good and
valuable consideration, provided by the City in support of the obligation in
accordance with the laws of the State of Florida. Nothing herein shall be construed
to waive any of the City's rights set forth in Section 768.28, Florida statutes.
Nothing contained in this Agreement shall be deemed a waiver of sovereign
immunity by the City. This paragraph shall survive the expiration or early
termination of this Agreement.
4.7 Indemnification Obligation Includes Defense Through Appeals. Forthe avoidance
of doubt, the indemnification provided above shall obligate each Contractor, the
Consultant or Grantee (as applicable) to defend at its own expense to and through
appellate, supplemental or bankruptcy proceeding, or to provide for such defense,
at City's option, any and all claims of liability and all suits and actions of every
name and description that may be brought against City which may result from the
operations and activities under or as a consequence of this Agreement performed
by the applicable indemnitor and its respective subcontractors, subconsultants, and
anyone directly or indirectly employed by such indemnitor.
ARTICLE 5
COMPLIANCE
5.1 Compliance with Laws. In its performance of this Agreement, Grantee shall
comply with all applicable laws, ordinances, and regulations of the City, Miami -
Dade County, the State of Florida, and the federal government, as applicable.
5.2 No Discrimination. In connection with the Project, Grantee shall not exclude
from participation in, deny the benefits of, or subject to discrimination anyone
on the grounds of race, color, national origin, sex, age, disability, religion,
income or family status. Additionally, Grantee shall comply fully with the City
of Miami Beach Human Rights Ordinance, codified in Chapter 62 of the Code,
as may be amended from time to time, prohibiting discrimination in
employment, housing, public accommodations, and public services on
account of actual or perceived race, color, national origin, religion, sex,
intersexuality, gender identity, sexual orientation, marital and familial status,
age, disability, ancestry, height, weight, domestic partner status, labor
organization membership, familial situation, or political affiliation.
5.3 Compliance with County's Conflict of Interest and Code of Ethics Ordinance.
Grantee herein agrees to adhere to and be governed by all applicable laws
as it relates to conflicts of interest including, without limitation, Section 2-11.1
of the Code of Miami -Dade County (the County's Conflict of Interest and Code
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of Ethics Ordinance), as may be amended from time to time, and by Chapter
2, Article VII of the Code, as may be amended from time to time (collectively,
the "Conflict Statutes"), both of which are incorporated by reference as if fully
set forth herein. Grantee covenants that, in connection with its performance
of this Agreement, it presently has no interest and shall not acquire any
interest, directly or indirectly, which could constitute a conflict of interest, as
described under the Conflict Statutes. Grantee further covenants that in the
performance of this Agreement, Grantee shall not employ any person having
any such conflict of interest.
5.4 Compliance with Florida Public Records Law. Grantee shall comply with
Florida Public Records law under Chapter 119, Florida Statutes, as may be
amended from time to time, as follows:
"Public Records" Defined. 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.
b. Obligations of "Contractors" as defined under Florida Public Records Act.
Pursuant to Section 119.0701 of the Florida Statutes, if the Grantee meets
the definition of "Contractor" as defined in Section 119.0701(1)(a), the Grantee
shall:
(i) Keep and maintain public records required by the City to perform the
service;
(ii) 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;
(iii) 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 Grantee does not
transfer the records to the City;
(iv) Upon completion of the Agreement, transfer, at no cost to the City,
all public records in possession of the Grantee or keep and maintain
public records required by the City to perform the service. If the
Grantee transfers all public records to the City upon completion of the
Agreement, the Grantee shall destroy any duplicate public records
that are exempt or confidential and exempt from public records
disclosure requirements. If the Grantee keeps and maintains public
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records upon completion of the Agreement, the Grantee 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.
c. Request for Records; Noncompliance.
(i) 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 Grantee of the request, and the Grantee must provide the
records to the City or allow the records to be inspected or copied
within a reasonable time.
(ii) Grantee'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) avail itself of the remedies set forth under the
Agreement; and/or (2) avail itself of any available remedies at law or
in equity.
(iii) If Grantee who fails to provide the public records to the City within a
reasonable time, it may be subject to penalties under Section 119.10,
Florida Statutes.
d. Civil Action.
(i) If a civil action is filed against Grantee to compel production of public
records relating to the City's contract for services, the court shall
assess and award against Grantee the reasonable costs of
enforcement, including reasonable attorney fees, if:
A. The court determines that Grantee unlawfully refused to
comply with the public records request within a reasonable
time; and
B. At least 8 business days before filing the action, the plaintiff
provided written notice of the public records request, including
a statement that the Grantee has not complied with the
request, to the City and to Grantee.
(i i) A notice complies with subparagraph (1)(b) if it is sent to the City's
custodian of public records and to Grantee at the Grantee's
address listed on its contract with the City or to the Grantee'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.
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(iii) If Grantee complies with a public records request within 8 business
days after the notice is sent is not liable for the reasonable costs of
enforcement.
e. Questions. IF THE GRANTEE HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
GRANTEE'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: RAFAELGRANADOO)MIAMIBEACH FL.GOV
PHONE: 305-673-7411
ARTICLE 6
DEFAULT AND REMEDIES
6.1 Events of Default. Each of the following shall constitute a default by Grantee
a. If Grantee uses all or any portion of the Grant Award for costs not
associated with the Project and Grantee fails to refund the unauthorized
disbursement within thirty (30) days after written notice of the default is
given to Grantee by the City.
b. If Grantee shall breach any of the other covenants or provisions in this
Agreement, and Grantee fails to cure its default within thirty (30) days after
written notice of the default is given to Grantee by the City; provided,
however, that if not reasonably possible to cure such default within the
thirty (30) day period, such cure period shall be extended for up to ninety
(90) days following the date of the original notice, if within thirty (30) days
after such written notice, Grantee commences diligently and thereafter
continues to cure.
6.2 Remedies
a. Upon the occurrence of a default as provided in Section 6.1, and such
default is not cured within the applicable cure period, the City, in addition to
all other remedies conferred by this Agreement, may require that Grantee
reimburse the City for all Grant Award funding provided by the City
hereunder. At the City's sole discretion, the City may, from amounts
otherwise appropriated to Grantee (or due to Grantee pursuant to any other
agreement), withhold, deduct or set off any amounts that the City
reasonably believes are sufficient to reimburse the City for any default
under this Agreement.
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b. The City may institute litigation to recover damages for any default or to
obtain any other remedy at law or in equity (including specific performance,
permanent, preliminary or temporary injunctive relief, and any other kind
of equitable remedy).
c. Upon the occurrence of a default by Grantee which remains uncured within
the time periods provided in Section 6.1, the City may terminate this
Agreement, upon written notice to Grantee. Upon termination of this
Agreement under this section, the City shall have no further liability or
obligation to Grantee. Grantee understands and agrees that termination of
this Agreement under this section shall not release Grantee from any
obligation occurring prior to the effective date of termination.
d. In the event Grantee fails to reimburse the Grant Award to the City as
required by subsection a, in addition to all other remedies conferred onto
the City under this Agreement, Grantee agrees to transfer to the City all
title and interest in and to any personal property that has been purchased
with Grant Award funds but not installed as a fixture.
e. Any failure of the City to exercise any right or remedy as provided in this
Agreement shall not be deemed a waiver by the City of any claim for
damages it may have by reason of the default.
f. The rights and remedies of the City are cumulative and the exercise by the
City of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies
for the same default or any other default.
ARTICLE 7
GENERAL PROVISIONS
7.1 Relationship of the Parties. It is expressly understood and intended that the
Grantee, as the recipient of GOBAC Program funds, is not an officer,
employee or agent of the City, the City Commission, nor the City
department(s) administering the GOBAC Program or the Grant Award.
Further, for purposes of this Agreement, the Project or activity, the parties
hereto agree that the Grantee, its officers, agents and employees are
independent contractors and solely responsible for the Project. The Grantee
shall take all actions as may be necessary to ensure that its officers, agents,
employees, assignees and/or subcontractors shall not act as, nor give the
appearance that they are, agents, servants, joint venturers, collaborators or
partners of the City, the City Commission or the department(s) administering
the GOBAC Program or the Grant Award. No Party or its officers, elected or
appointed officials, employees, agents, independent contractors or
consultants shall be considered employees or agents of any other Party, nor
to have been authorized to incur any expense on behalf of any other Party,
nor to act for or to bind any other Party, nor shall an employee claim any right
in or entitlement to any pension, workers' compensation benefit,
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unemployment compensation, civil service or other employee rights or
privileges granted by operation of law or otherwise, except through and
against the entity by whom they are employed.
7.2 Entire Agreement. This Agreement states the entire understanding and
agreement between the Parties and supersedes any and all written or oral
representations, statements, negotiations or agreements previously existing
between the Parties with respect to the subject matter of this Agreement. The
parties agree that there are no commitments, agreements, or understandings
concerning the subject matter of this Agreement that are not contained in this
Agreement, and that this Agreement contains the entire agreement between
the parties as to all matters contained herein. Accordingly, (a) no deviation
from the terms hereof shall be predicated upon any prior representations or
agreements, whether oral or written and (b) any oral representations or
modifications concerning this Agreement shall be of no force or effect.
7.3 Amendment. This Agreement may be amended only with the written approval
of the Parties. The City Manager, on behalf of the City, shall have authority to
amend or modify this Agreement, including any changes to the budget for the
Project, provided that the changes do not materially change the scope of the
Project and the amount of the Grant Monies are not increased.
7.4 No Assignment. The Grantee is not permitted to assign this Agreement or any
portion thereof. Any purported assignment will render this Agreement null and
void and subject to immediate rescission of the full amount of the Grant Award
and reimbursement by the Grantee of its full value to the City.
7.5 Waiver. No waiver shall be effective unless in writing and signed by the Party
against whom enforcement is sought. Such waiver shall be limited to provisions of
this Agreement specifically referred to herein and shall not be deemed a waiver of
any other provision. No waiver shall constitute a continuing waiver unless the
writing states otherwise. Failures or waivers to insist on strict performance of any
covenant, condition, or provision of this Agreement by the Parties, their successors
and assigns shall not be deemed a waiver of any of its rights or remedies, nor shall
it relieve the other Party from performing any subsequent obligations strictly in
accordance with the terms of this Agreement.
7.6 Time of the Essence. The Parties agree that time is of the essence in the
performance of each and every obligation under this Agreement.
7.7 No Third -Party Beneficiary Rights. The terms of this Agreement inure to the
benefit of only those Parties named herein. This Agreement is not intended
to and shall not be construed to give any third party any interest or rights,
including without limitation third -party beneficiary rights, with respect to or in
connection with any agreement or provision contained herein or contemplated
hereby.
7.8 Notices. Any notice, consent or other communication required to be given
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under this Agreement shall be in writing, and shall be considered given when
delivered in person or sent by facsimile or electronic mail (provided that any
notice sent by facsimile or electronic mail shall simultaneously be sent
personal delivery, overnight courier or certified mail as provided herein), one
(1) business day after being sent by reputable overnight carrier or three (3)
business days after being mailed by certified mail, return receipt requested, to
the parties at the addresses set forth below (or at such other address as a
party may specify by notice given pursuant to this Section to the other party):
The City:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Director of Facilities and Fleet Management Department
With copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: City Attorney
The Grantee
(INSERT ADDRESS]
7.9 Further Acts. In addition to the acts recited in this Agreement, the Parties
agree to perform, or cause to be performed, any and all such further acts as
may be reasonably necessary to consummate the transactions contemplated
hereby. Each of the Parties agrees that it will execute and deliver all such
documents and instruments as may be necessary and appropriate to
effectuate the terms of this Agreement.
7.10 Partial Invalidity. In the event that any provision of this Agreement is declared
by any court of competent jurisdiction or any administrative judge to be void
or otherwise invalid, all of the other terms, conditions and provisions of this
Agreement shall remain in full force and effect to the same extent as if that
part declared void or invalid had never been incorporated in the Agreement
and in such form, the remainder of the Agreement shall continue to be binding
upon the Parties
7.11 Counterparts; Electronic Signatures. This Agreement may be executed in
counterparts and by electronic signature (e.g. via DocuSign, accompanied by
the confirming e-signature certificate) and may be transmitted by facsimile
copy or e-mailed PDF file, each of which when so executed and delivered shall
be deemed to be an original and all of which, when taken together, shall
constitute one and the same instrument. Upon request by any party receiving
an executed counterpart by facsimile or PDF (by e-mail) to also receive an
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ink -signed original, the other party shall provide original ink -signed signature
pages as soon as practicable, but failure to do so shall not affect the validity,
enforceability, or binding effect of this Agreement.
7.12 Optional Mediation. In the event a dispute arises, that the Parties cannot
resolve between themselves, the Parties shall have the option, but not the
obligation, to submit their dispute to mediation. The mediator or mediators
shall be impartial, shall be selected by the Parties, and the cost of the
mediation shall be borne equally by the Parties.
7.13 Governing Law; Venue; Attorneys' Fees. This Agreement shall be governed
by and construed in accordance with the laws of the State of Florida without
regard to its conflict of laws principles. The City and Grantee agree to submit
to service of process and jurisdiction of the State of Florida for any controversy
or claim arising out of or relating to this Agreement or a breach of this
Agreement. Venue for any court action between the Parties for any such
controversy arising from or related to this Agreement shall be in the Eleventh
Judicial Circuit in and for Miami -Dade County, Florida, or in the United States
District Court for the Southern District of Florida, in Miami -Dade County,
Florida.
7.14 Force Maieure. Whenever a period of time is herein prescribed for the taking
of any action by a Party hereunder, such Party shall not be liable or
responsible for any delays (including, without limitation, any delay by the City
in making the Reimbursement, nor shall such Party be obligated to perform
hereunder, nor deemed to be in default hereunder, if the required action or
performance of a Party is prevented due to strikes, riots, acts of God, shortages
of labor or materials, epidemics, pandemics, war, governmental laws,
regulations or restrictions, or any other cause whatsoever beyond the control
of such Party.
7.15 Captions. Captions as used in this Agreement are for convenience of
reference only and do not constitute a part of this Agreement and shall not
affect the meaning or interpretation of any provisions herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their
names by their duly authorized officials as of the date first set forth above.
ATTEST:
Rafael E. Granado
City Clerk
ATTEST:
Secretary
Print Name
CITY OF MIAMI BEACH, FLORIDA
Alina T. Hudak
City Manager
[GRANTEE NAME]
President
Print Name
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EXHIBIT A
DESCRIPTION OF GRANTEE'S OPERATIONS AND PUBLIC PURPOSE
EXHIBIT B
PROJECT DESCRIPTION
EXHIBIT C
BUDGET, FUNDING SOURCES AND CASH FLOW SCHEDULE
EXHIBIT D
ADDITIONAL PUBLIC BENEFIT
EXHIBIT E
REIMBURSEMENT REQUEST