G.O Bond For Arts & Culture Grant Agreement Between CMB & New World Symphony, Inc.2 a23-3Z513
G.O. BOND FOR ARTS 8+ 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 New World Symphony, Inc., a Florida not -for -
profit corporation ("Grantee") (the City and Grantee each, a "Party" and collectively,
the "Parties").
RECITALS
WHEREAS, New World Symphony. Inc. is an independent operator of the
City -owned performing arts venue located at 500 17th Street, Miami Beach, FL 33139,
as more particularly described in Exhibit A; and
WHEREAS, New World Symphony, Inc. entered into a lease with the City
dated January 5, 2004 for an initial term of 55 Years with four (4) successive periods
of ten (10) years each and the option of the Tenant per Resolution No. 2003-25333;
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 Facility -wide enhancements (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 $4,810,000.00 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 $5,700,000.00, which includes a grant
award in the amount of $4.810,000,00 and a contingency in the amount of $890,000.00,
as set forth in greater detail below; 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 Nos. 2023-32523 and 2023-32593,
which specifically authorize the City Manager to execute grant agreements 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; Contingency. The City hereby awards a grant to Grantee in
the aggregate sum of $4,810,000.00 (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. The City Manager (or her
designee) may increase the Grant Award by an amount not to exceed
$890,000.00 (the "Contingency") if the Grantee establishes to the reasonable
satisfaction of the City Manager (or her designee) with appropriate
documentation that unforeseen conditions or other factors beyond the
reasonable control of the Grantee have resulted in increased costs for the
Project, provided (a) the use of Contingency funds must satisfy all
requirements and comply with all restrictions applicable to the use of Grant
Award funds, including without limitation the requirements set forth in Section
1.5 below and (b) the Contingency may not be used by Grantee to alter or
expand the Project scope as set forth in Exhibit B.
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.
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
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. Grant Award funds may be used to pay for costs of project
supervision by an owner's representative or by Grantee's own employees,
provided (i) such costs must constitute capital expenditures as defined in Treas.
Reg. Section 1.150-1 and (ii) if an employee of Grantee or an affiliate provides
supervision, only such portion of such employee's base salary, employment
taxes and employer -provided benefits as is directly related to Project
supervision may be reimbursable with Grant Award funding, and Grantee shall
cause such employee to maintain daily time records so that an appropriate
allocation may be determined. Not more than fifteen percent (15%) of the Grant
Award may be used to pay for architectural and engineering services required
to develop and submit all construction documents and other submittals
(including revisions) necessary to obtain all permits for the Project, as well as
all other so-called "design costs," including without limitation interior design,
lighting design, sound design and landscaping design. 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 reasonably accessible to the public
during reasonable and customary business hours, provide public exposure and
benefit the public unless otherwise noted in this Agreement. For at least twenty-
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.
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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 during
reasonable and customary business hours to all Miami Beach residents and
members of the general public; and (c) use the facility and/or equipment
acquired and/or improved under the Project for the benefit of the public. If the
Grant Award is for less than $1,000,000. then Grantee shall not be deemed in
breach of subparagraph (a) in the foregoing sentence if Grantee uses its best
efforts to secure the funding necessary to comply with such obligations and
nevertheless fails to secure such funding.
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 May 31, 2026. 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
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
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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
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.
ARTICLE 2
BUDGET AND FUNDING
2.1 Proiect 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 $4,810,000.00 (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. Prior to the submission of any Reimbursement Request
(as defined below), Grantee shall supplement Exhibit C to include 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
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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 Cesar Sepulveda, Vice President of Facilities. 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 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 reasonable general accounting
standards, 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)(each, a
"Reimbursement Request"), 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, Contractor
payment applications, 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 twenty-five (25) business 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
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 May 31, 2023, 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 1511' 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.
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2.6 Bank Accounts. 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.
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.
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
work or product(s); (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 process and resolve claims for defects and/or warranty
issues expeditiously. 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
2.5(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 2.5(d) and 2.9, 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
H.
Project.
2.1 1 Failure to Submit Reports. Failure by the Grantee to submit the reports required
pursuant to Section 2.5(d), 2.9 and 2.10 shall constitute a default, and the City
Manager may, subject to any applicable cure period set forth in Article 6, 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. Commencing on the date of commencement
of construction for the Project (or if the Project does not entail construction,
commencing upon receipt of the first Reimbursement Request) and continuing
through the date that is twenty-five (25) years following completion of the Project,
the City Manager may monitor and conduct an evaluation of the Grantee's Project,
which may include visits, upon reasonable notice, by City representatives to:
observe the construction and implementation of the Project, to evaluate the public
impact of the Project and to confirm Grantee's compliance with the terms of this
Agreement, including without limitation the requirements set forth in Section 1.5
and Exhibit D. Upon request, the Grantee shall provide the City Manager with
notice of all general activities that benefit the public and Project -related events. In
the event the City Manager concludes, as a result of such monitoring and/or
evaluation, that the Grantee is not in compliance with the terms 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 thirty (30) calendar 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
thirty (30) calendar 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 "Grant Books and Records"). The
Grant 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 Grant 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 Grant 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
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 Grant Books and Records and all related financial
records of Grantee. 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.
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 Grant 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,.
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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.
f. 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
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
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
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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
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
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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 VII
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 (S1,000,000.00) 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
Injury Liability and Property Damage Liability and Two Million Dollars
($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.
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.
Insurance is to be placed with insurers with a current A.M. Best's rating
of no less than ANII, 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
13
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(c�riskworks.com
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. Any contract between Grantee
and its Contractors with a contact price that is equal to or greater $50,000 and the
architect's agreement between Grantee and Consultant with fees in excess of
$9,000 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
14
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
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. If Grantee is an agency or subdivision of the State
of Florida, the foregoing provisions shall be subject to any applicable provisions
of Section 762.28 that may apply to Grantee.
4.7 Indemnification Obligation Includes Defense Through Appeals. For the 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.
15
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.
52 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 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
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
16
the definition of "Contractor" as defined in Section 1 19.0701(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
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.
17
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.
(ii) 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.
(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: RAFAELGRANADO()MIAMIBEACHFL.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
18
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, without regard to materiality, 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 described in Section 6.1(a) and/or the
occurrence of a breach of any material covenant or provision of this
Agreement, and such default is not cured within the applicable cure period
in Section 6.1(a) or 6.1(b), respectively, 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.
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 thattermination 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.
19
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,
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 Award is not increased (except in the
manner allowed pursuant to section 1.2).
20
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
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
21
The Grantee:
New World Symphony, Inc.
500 171-1 Street
Miami Beach, FL 33139
Attn. Cesar Sepulveda
Wth copy to:
New World Symphony, Inc.
500 17" Street
Miami Beach FL 33139
Attn. David Phillips
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
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
resolve between themselves, the
obligation, to submit their dispute
a dispute arises, that the Parties cannot
Parties shall have the option, but not the
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
22
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 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.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
23
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: CITY OF MIAMI BEACH, FLORIDA
- 7A �
/ /
Rafael E. i6r2nado Ali T. Hudak
City Clerk Cify Manager
ATTEST:
NEW W RLD SYMPHO Y, INC.
r
Presid nt
oW4r �('r-� to 5
Print Name
24
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECurION
Gty Akamy Doe
EXHIBIT A
DESCRIPTION OF GRANTEE'S OPERATIONS AND PUBLIC PURPOSE
The New World Symphony, America's Orchestral Academy (NWS), prepares graduates of music
programs for leadership roles in professional orchestras and ensembles. Since its co-founding in 1987
by Artistic Director Laureate Michael Tilson Thomas and Lin and Ted Arison, NWS has helped launch
the careers of more than 1,150 alumni worldwide. In fall 2022 Stephane Deneve was named Artistic
Director of the New World Symphony.
A laboratory for the way music is taught, presented and experienced, the New World Symphony
consists of young musicians who are granted fellowships lasting up to three years. The fellowship
program offers in-depth exposure to traditional and modern repertoire, professional development
training and personalized experiences working with leading guest conductors, soloists and visiting
faculty. Relationships with these artists are extended through NWS's extensive distance learning via
the internet.
NWS Fellows take advantage of the innovative performance facilities and state -of -the art practice and
ensemble rooms of the Frank Gehry-designed New World Center, the campus of the New World
Symphony and home of the Knight New Media Center.
In the hopes of joining NWS, more than 1,500 recent music school and conservatory graduates
compete for about 35 available fellowships each year. The Fellows are selected for this highly
competitive, prestigious opportunity based on their musical achievement and promise, as well as their
passion for the future of classical music.
MISSION
The mission of the New World Symphony is to prepare graduates of music programs for leadership
roles in orchestras and ensembles around the world.
VISION
The New World Symphony envisions a strong and secure future for classical music and will redefine,
reaffirm, express and share its traditions with as many people as possible. Diversity, equity, inclusion
and belonging are high priorities for the New World Symphony. It is critical in the preparation of the
Fellows for leadership roles in orchestras and ensembles, and an essential part of the future for
classical music.
STATEMENT OF PURPOSE
The New World Symphony is dedicated to the artistic, personal and professional development of
outstanding instrumentalists. The NWS fellowship program provides graduates of music programs the
opportunity to enhance their musical education with the finest professional training. A laboratory for
musical education and expression, the New World Symphony, through a wide range of performance
and instructional activities, seeks to develop in its participants the full complement of skills and
qualifications required of 21st-century first-class musicians. The program offers in-depth exposure to
traditional and modern repertoire, with the active involvement of leading guest conductors, soloists and
visiting faculty. The relationships with these artists are extended through NWS's pioneering
experimentation with distance learning and performance.
EXHIBIT B
PROJECT DESCRIPTION
Over the next three years NWS will undertake eight distinct projects that were approved for GO
Bond funding by the Miami Beach GO Bond Oversight Committee, the City Commission, and
voters. In approximate order in which they will be started these projects are:
Exterior Paint and Stucco Repairs
This project represents the first comprehensive repair, repaint, and building envelope
waterproofing since New World Center's (NWC) opening in 2011. The building has shown signs
of exterior paint and stucco deterioration. There are no current water penetration issues, but a
preventative comprehensive repair is needed to avoid such problems. This project will involve
protection of building design elements, pressure cleaning exterior fapade, repair of stucco
cracks and holes mainly found of the building exterior, caulking, priming, application of masonry
sealer, and finish paint. After the exterior paint and stucco work some surfaces in the interior of
the building will need to be color matched to the newly painted exterior due to our large glass
facades. Metal beams in and around the building will also be prepped, primed, and repainted.
Work is estimated to take five to six weeks, weather permitting, and should be scheduled for the
summer so as not to interfere with NWS activities.
Replacement of Acoustical Panels Throughout NWC
There are about 1100 acoustical panels in almost all spaces at NWC. These panels are sound
absorbing acoustical foam panels wrapped in specialized white canvas. The panels range in
size from 4'x2' to as large as 4'x11'. Original to the opening of the building, these panels have
begun to yellow and stain from the reaction to UV light and the glue used to adhere the canvas
in addition to normal dirt and dust accumulation. This discoloration is very evident since the
panels are hung everywhere in the building against pure white walls. Estimated lead time for
materials acquisition is six weeks. The actual installation may take another six weeks and will
require the rental of a dumpster and lifts for installation. This work can be scheduled around
building programs but ideally done in the summer.
Replace Main Fire Alarm Panel
The current fire alarm system (panel, peripherals, etc.) has been deemed obsolete by its vendor
(Siemens). This model panel along with ancillary devices will no longer be supported by the
manufacturer after June 2022 due to supply chain issues. A complete replacement of the fire
panel, detectors, devices, and sensors is needed. This project will need engineering and
permitting from several city departments, mainly Fire.
Facility Wide Power Stabilization (Electrical Surge and Drops)
FPL estimates an average of 49 annual power disturbances at NWC. This does not include
power issues due to storms, planned outages, or repairs. Due to the extremely expensive and
sensitive technology housed inside the building, some purchased via past GO Bonds, NWS
must install equipment onsite to protect against power drops and surges caused by these
disturbances. This equipment may include upgrades but not limited to the following systems:
UPS systems, battery storage, switchgear, generators, transfer switches, surge protection
upstream of specific equipment, and lightning protection. A full electrical system survey and
inventory will be done to determine the most cost-effective implementation plan. Monitoring
equipment will be installed at specific electrical distribution devices throughout the building. After
a period of data collection with this equipment then an electrical engineer will be hired to design
interventions and offer solutions to the identified problems. Once the solutions are agreed upon
the engineer will create drawings for permitting and implementation may begin.
Flood Barriers
This project will protect the most at -risk portions of the building from flooding, mainly the almost
200 feet of the east side and the accompanying stairway exits that lead to the street. The main
part of the proposed solution will be installation of passive automatic flood barriers. Barriers will
provide 48" of additional height protection from Floods above BFE (estimated 100- and 500-year
flood estimates). These barriers will automatically activate without the need for electricity or
manpower by using the flood water's hydrostatic pressure to raise the barriers. The barriers
automatically lower when the flood recedes returning to their normal hidden position. When not
in use the barriers will blend in seamlessly into the plaza ground. The design will be done by the
manufacturer and an engineering team. A local general contractor will be hired, and a project
timeline will be established considering the activity schedule for NWC and Soundscape Park.
Redesigned Roof Garden with New Trellis
The original gumbo limbo trees on the east elevation of the roof garden are dying; several have
been lost already and the others are struggling. These trees are prominent when one is on the
roof, and they can be seen from Soundscape Park. After extensive research for alternative
species that would survive the unique conditions on the rooftop, a different plan was identified.
Frank Gehry has designed a simple pergola, or trellis, that can be installed in the existing
planter boxes, and these will be covered with bougainvillea. This will require minimal
maintenance and link the roof garden more directly with Soundscape Park.
Acoustical Resurfacing of Performance Hall "Sails"
One of the most prominent design features inside the performance hall are the five acoustical
"sails" floating above the stage. These sails double as large projection screens for the
performance hall immersive projection system. The current finish on the sails is original and has
discolored from normal wear and tear and a water leak that stained one of the sails. Due to its
acoustical properties and use as a projection surface, the finish is a special material called
Baswaphon that requires specialized removal, prep, and application methods. Work requires
extensive masking and protection of lighting, seating and stage areas.
Elevator Modernization
NWC has two passenger elevators and one freight elevator. As seen with many building
systems and equipment, supply chain issues and manufacturer decisions have made equipment
obsolete before their "normal" end of life. This modernization will improve the safety and
reliability of the elevators. Initial work will begin with the replacement of the machine seals to the
elevators. This will be done in a staged process to ensure at least 2 elevators are working at all
times.
EXHIBIT C
BUDGET, FUNDING SOURCES AND CASH FLOW SCHEDULE
Original
Cash Flows
Project Description
Budget
Start
End
Exterior Paint and Stucco
250,000
May 2023
Aug 2023
Replace Acoustical Panels
150,000
May 2023
Sep 2023
Replace Main Fire Alarm Panels
255,000
June 2023
July 2024
Facility -Wide Power Stabilization
150,000
Jun 2023
Jun 2024
Flood Barriers
650,000
Aug 2023
Sep 2024
New Pergola (Trellis) for Roof Garden
750,000
May 2024
Sep 2025
Acoustical Resurfacing of Performance Hall Sails
500,000
Jun 2024
Sep 2024
Elevator Modernization
750,000
May 2023
Sep 2026
Mark -Ups
1.355,072
Contingency
889,928
Sep 2026
Totals
5,700,000
Notes
1. Current budget based on proposals and discussions with various contractors, or estimated.
2. All costs subject to change until contracts are executed-
1 Some projects will require several contractors or subcontractors.
4. Some projects will require permits and other city approvals.
5. Total cost in excess of $5,700,000 will be funded by NW S or other donors.
6. All costs submitted for reimbursement will comply with terms and conditions of the executed grant agreement.
EXHIBIT D
ADDITIONAL PUBLIC BENEFIT
New World Symphony provides a long and deep slate of public benefits as part of its core
mission. To name a few:
Continuing
• The hugely successful, expensive to produce, and still unequaled anywhere
WALLCAST® concerts, all free to the public, 9-12 per season.
• A free December holiday concert for city residents, which is also streamed on Miami
Beach TV.
• At least 15 free concerts annually, an average of 30% of NWS concerts
o Pre -season concerts
o Musician Forums
o Inside the Music series
o Solo Spotlight series
o Sounds of the Season concert
• Education concerts, free.
• School and other community visits, free.
• Community center visits, free.
• Rehearsal observations, free.
• MusicLab every May with Miami Beach Senior High and other Miami -Dade schools, free.
• The annual spring Side -by -Side concert with many Miami Beach student participants,
free.
• Yoga mornings, free.
• Participation in Culture Crawl, free.
• Soundscape Cinema Series, free, generally October to June.
• Brass quintet in Soundscape Park for the Miami Marathon, free.
• Musicians on Golf Carts with the Lincoln Road BID, free.
• Letting small community groups and organizations use space in New World Center for
minimal labor costs and no or highly discounted rental fees.
New/Additional
• NWS's newest program is the mobile WALLCAST® series, free. The Mobile
WALLCAST® program will foster long-term, collaborative relationships with a broad
representation of arts, culture, education, and community centers that serve the
residents of diverse communities. Currently the largest mobile wall in South Florida, the
23x13 screen consists of state-of-the-art LED panels and a sound system. This program
will serve SoundScape Park and neighborhoods across Miami Beach and Miami -Dade
County with WALLCAST® concert content. Four to six annual activations are planned,
with more possible depending on site, partner and deployment team availability.
NWS reserves the right to add, delete or modify any of these programs based on success,
viability, sponsorships, and resource availability.
4.12.2023
EXHIBIT E
REIMBURSEMENT REQUEST
M AMI BEACH
CITY OF MIAMI BEACH
REIMBURSEMENT REQUEST FORM
GRANT PROJECT No.:
UKAN I tit NAML:
GKANTEE ADDRE55:
GRANTEE CONTRACT ADMINISTRATOR:
GRANTEE CONTRACT ADMINISTRATOR'S E-
MAIL ADDRESS:
REQUEST No.
NOTE:
Capitalized terms used herein and not otherwise defined shall have the meaning given to them in the Grant
Agreement. Pursuant to the executed Grant Agreement, Grantee shall submit to the City a completed, signed
and notarized Reimbursement Request Form, along with (i) the monthly status report described in subsection
(2.5 d), 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. 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 Disbursements
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 twenty-five (25) business 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 reimbursement
obligations of the City shall be fully subject to and contingent upon the availability of funding solely from the
GOBAC Program funds.
--------------------------------- - -------
Amount of Grant Award:
- ....... -------.--------..........--...........-.-.--.......-.. --- ---- - ....--------------- ----
Less Previous Total Disbursements:
Balance Available:
Funds Requested -This Disbursement:
Certification of Payment: I certify that the above expenses were necessary and reasonable for the completion of
the Project and in accordance with the terms and conditions set forth in Agreement . I further
warrant and represent that these expenses have not been, and will not be, covered by any other third party funding
source, including under any other separate agreement between the City and Grantee or any other grant
agreement between the Grantee and any other party.
Grantee
Report Prepared By:
Name Signature/Date
STATE OF FLORIDA
COUNTY OF MIAMI DADE
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online
notarization, this _ day of , 20_, by _(name) , as _(title) for
_(company) He/she is personally known to me or ( ) produced
as identification.
Notary Public
Print Name:
My Commission Expires:
City of Miami Beach
Report Reviewed By:
Name
Signature/Date
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
Office of the City Manager
Tel: 305-673-7010 . Fax: 305-673-7782
TRANSMITTAL
TO: Alina T. Hudak, City Manager SENT VIA: Hand
CC: Eric T. Carpenter, Deputy City Manager
FROM: Maria Hernandez, GO Bond Program Director. (I,$
DATE: October 11, 2023
SUBJECT: G.O. Bond for Arts & Culture Grant Agreement
New World Symphony
Attached please find the boilerplate template Grant Agreement for the New World
Symphony. There are no changes to the template document as approved by the City
Commission. It has been signed by the Grantee and form approved by the City Attorney's
office.
Please sign where indicated so I may send to the City Clerk for final execution.
We are committed to providing excellentpublic service and safety to all who live, work, andplay in our vibrant, topical, historic community