Resolution 2025-33819 RESOLUTION NO. 2025-33819
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, A USE
AGREEMENT BETWEEN THE CITY AND NEW WORLD SYMPHONY, INC.
("NWS"), FOR USE OF APPROXIMATELY 323 SQUARE FEET OF CITY-OWNED
PROPERTY ADJACENT TO THE NWS LEASED PREMISES, FOR THE
INSTALLATION AND MAINTENANCE OF FLOOD BARRIER STRUCTURES; SAID
RESILIENCY PROJECT BEING FUNDED BY THE GENERAL OBLIGATION BOND
FOR ARTS AND CULTURE PROGRAM; AND FURTHER AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE THE USE AGREEMENT.
WHEREAS, the City of Miami Beach (the "City") and New World Symphony, Inc. ("NWS"), a
Florida not-for-profit corporation, are parties to a Lease Agreement dated January 5, 2004, as
amended, for the premises known as the New World Center; and
WHEREAS, NWS, in partnership with the City, has developed the New World Center and
adjacent SoundScape Park into a major civic and cultural asset offering world-class programming
and community amenities; and
WHEREAS, as part of the City's climate resilience and flood mitigation initiatives, NWS has
proposed the installation of flood barrier structures("Structures")primarily within its leased premises,
with approximately 323 square feet extending onto adjacent City-owned property; and
WHEREAS, these Structures,funded under the General Obligation Bond for Arts and Culture
(GOBAC) Program, are one of eight resiliency improvements approved for the NWS site and are
designed to provide protection during extreme weather events through passive or manual
deployment; and
WHEREAS, to proceed with the project, NWS submitted detailed design specifications and
an overlay plan, attached as Exhibits A and B to the City Commission Memorandum accompanying
this Resolution, identifying the installation location and technical configuration of the Structures; and
WHEREAS, because the installation overlaps onto City-owned property, a Use Agreement
is required to set forth the terms under which NWS may access, install, maintain, repair, and remove
the Structures; and
WHEREAS, the proposed Use Agreement (i) grants a revocable license, not a leasehold or
easement, (ii)is coterminous with the existing NWS Lease Agreement, unless earlier terminated by
the City with thirty (30) days' notice, and (iii) requires the City oversight and compliance with
applicable permitting and legal requirements; and
WHEREAS, NWS will bear all costs associated with installation, insurance, maintenance,
and restoration, and the City retains full control and may terminate the Agreement at any time with
proper notice; and
WHEREAS, the proposed Use Agreement advances the City's goals of public-private
collaboration for climate adaptation, while preserving long-term control and ensuring no financial
burden to the City; and
WHEREAS, the City Manager recommends approving, in substantial form, the Use
Agreement attached to the City Commission Memorandum accompanying this Resolution as Exhibit
D, in order to complete this project, funding through the GOBAC Program.
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 hereby approve,
in substantial form, a Use Agreement between the City and New World Symphony, Inc. ("NWS"), for
use of approximately 323 square feet of City-owned property adjacent to the NWS leased premises,
for the installation and maintenance of flood barrier structures; said resiliency project being funded
by the General Obligation Bond for Arts and Culture Program; and further authorize the City Manager
and City Clerk to execute the Use Agreement.
PASSED and ADOPTED this a3 day of 7k(y 2025.
ATTEST:
JUL 2 5 2025
Rafael E. Granado, City Clerk 1,8,,,,,,, t yen Meiner, Mayor
(INCORP ORATEO
CH•26,`,
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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Resolutions - C7 L
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Eric Carpenter, City Manager
DATE: July 23, 2025
TITLE: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, A USE
AGREEMENT BETWEEN THE CITY AND NEW WORLD SYMPHONY, INC.
("NWS"), FOR USE OF APPROXIMATELY 323 SQUARE FEET OF CITY-OWNED
PROPERTY ADJACENT TO THE NWS LEASED PREMISES, FOR THE
INSTALLATION AND MAINTENANCE OF FLOOD BARRIER STRUCTURES: SAID
RESILIENCY PROJECT BEING FUNDED BY THE GENERAL OBLIGATION BOND
FOR ARTS AND CULTURE PROGRAM; AND FURTHER AUTHORIZE THE
EXECUTIVE DIRECTOR AND SECRETARY TO FINALIZE AND EXECUTE THE
USE AGREEMENT.
RECOMMENDATION
The Administration recommends that the Mayor and City Commission approve the proposed Use
Agreement between the City of Miami Beach and New World Symphony, Inc., allowing for the
installation and maintenance of flood barrier structures that will extend into approximately 323
square feet of City-owned property.
BACKGROUND/HISTORY
The City of Miami Beach (the "City") and New World Symphony, Inc. ("NWS"), a Florida not-for-
profit corporation, have a long-standing relationship established through a Lease Agreement
dated January 5, 2004, as amended, which governs the premises known as the New World
Center. This partnership has led to the development of a world-renowned cultural facility and the
adjacent SoundScape Park, a major public amenity offering free programming and the
SoundScape Cinema Series.
As part of its flood mitigation and resiliency efforts, NWS has proposed the installation of flood
barrier structures (the "Structures") to enhance protection during extreme weather events. These
Structures are planned to be installed primarily within the leased premises, with approximately
323 square feet extending onto City-owned property. Depending on final specifications, the
Structures may be passively or manually deployed to safeguard cultural and public infrastructure.
The installation of these Structures is one of eight (8) approved projects under the City's General
Obligation Bond for Arts and Culture Program (GOBAC) (Exhibit C), authorized by voters on
November 8, 2022. Pursuant to Resolutions 2023-32523 and 2023-32593, the City Manager was
authorized to execute grant agreements to expend bond proceeds for resiliency improvements,
including those at the New World Center.
To move forward with the project, NWS submitted detailed specifications and overlay plans
(Exhibits A and B) illustrating the design and precise placement of the proposed Structures. As a
portion of the installation extends onto City-owned property, a Use Agreement (as shown in
Exhibit D, in draft form) will be prepared to clearly define NWS's rights and obligations related to
access, installation, and ongoing maintenance. The principal terms of the proposed Agreement
include:
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• Grant of License: The City grants NWS a non-exclusive, revocable license to access, install,
maintain, repair, and remove the Structures within the Access Area, as depicted in Exhibit A of
the Use Agreement. This license does not create any leasehold, easement, or other real property
interest.
• Term: The license is coterminous with the NWS Lease Agreement. unless terminated earlier by
the City upon thirty (30) days' written notice.
• City Oversight and Approvals: NWS must submit detailed design and installation plans for City
review and approval prior to commencing work. No installation may begin without formal City
consent. All work is subject to applicable laws and permitting requirements.
Maintenance and Restoration: NWS shall maintain the Structures in a safe and functional
condition throughout the term and is responsible for repairing any damage caused to City
property. Upon termination or expiration of the Agreement, NWS must remove all Structures and
restore the Access Area to its original condition.
Insurance and Indemnity: NWS is required to carry Commercial General Liability, Workers'
Compensation, Automobile, and Professional Liability insurance meeting City standards and
naming the City as an additional insured. NWS also agrees to indemnify and hold the City
harmless against any claims arising from the installation, use, or removal of the Structures, except
in cases of gross negligence or willful misconduct by the City.
Compliance and Monitoring: The Agreement includes provisions ensuring compliance with all
applicable laws, City Code requirements, environmental regulations, public records laws,
Inspector General audits, and E-Verify.
• No Leasehold Interest: The Agreement explicitly states that it is a license and not a lease, and
that no real property interest is conveyed.
ANALYSIS
The proposed Use Agreement reflects a thoughtful and strategic collaboration between the City
and New World Symphony, Inc. (NWS) that supports long-term climate resilience goals while
preserving public control over City-owned property. By authorizing the installation of passive flood
barriers within a limited portion of City land, the City enables critical flood protection measures for
a major cultural institution and the surrounding public realm without transferring any property
rights or assuming financial burden.
The Agreement incorporates robust safeguards to protect the City's interests, including strict
insurance and indemnification provisions, restoration obligations, and the City's right to terminate
the license with notice. NWS must also obtain all required permits and approvals, ensuring
regulatory compliance and transparency throughout the project. This collaborative effort
demonstrates how public-private partnerships can address local climate challenges while
maintaining fiscal and operational accountability.
FISCAL IMPACT STATEMENT
N/A
Does this Ordinance require a Business Impact Estimate?
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(FOR ORDINANCES ONLY)
If applicable, the Business Impact Estimate (BIE) was published on:
See ME at: https://www.miamibeachfl.gov/city-halt/city-clerk/meeting-notices/
FINANCIAL INFORMATION
CONCLUSION
The Administration recommends that the Mayor and City Commission approve the proposed Use
Agreement between the City of Miami Beach and New World Symphony, Inc., allowing for the
installation and maintenance of flood barrier structures that will extend into approximately 323
square feet of City-owned property, The Agreement advances the City's resilience initiatives,
supports the safeguarding of vital cultural and civic assets, and reflects a proactive, partnership-
driven approach to climate adaptation.
Applicable Area
South Beach
is this a "Residents Right to Know" item, Is this item related to a G.O. Bond
pursuant to City Code Section 2-17? Project?
No No
Was this Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481,
includes a principal engaged in lobbying? No
If so, specify the name of lobbyist(s) and principal(s):
Department
Facilities and Fleet Management
Sponsor(s)
Co-sponsor(s)
Condensed Title
Approve Use Agreement w/ NWS, Installation/Maintenance of Flood Barrier Structures. FF
Previous Action (For City Clerk Use Only)
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LICENSOR: City of Miami Beach,
a Florida Municipal Corporation.
1700 Convention Center Drive
Miami Beach. Florida 33139
LICENSEE: New World Symphony, Inc.,
a Florida not-for-profit corporation
541 Lincoln Road,
Miami Beach, FL 33139.
DATE OF EXECUTION:
NEW WORLD SYMPHONY, INC. (NWS) USE AGREEMENT
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USE AGREEMENT
THIS USE AGREEMENT (the "Agreement") is made and entered into this day of
, 2025 (the "Effective Date"), by and between the City of Miami Beach, Florida (the
"City"), a municipal corporation organized and existing under the laws of the State of Florida, with
its principal office at 1700 Convention Center Drive, Miami Beach, FL 33139, and New World
Symphony, Inc., a Florida not-for-profit corporation ("NWS"), with its principal office at 541 Lincoln
Road, Miami Beach, FL 33139.
BACKGROUND
The City of Miami Beach, Florida (the "City"), a municipal corporation organized and existing
under the laws of the State of Florida, and New World Symphony, Inc. ("NWS"), a Florida not-for-
profit corporation, are parties to that certain Lease Agreement dated January 5, 2004, as
amended, governing the premises known as the New World Center(the"Leased Premises").This
relationship has resulted in the development of a world-renowned cultural institution and the
adjacent SoundScape Park, a major public amenity offering free programming and open civic
space.
In support of its resiliency goals and NWS's initiative to safeguard cultural assets and adjacent
City-owned property, NWS has proposed the installation of passive flood barrier structures (the
"Structures") on a portion of City-owned property not currently leased by NWS (the "Access
Area"), as depicted in Exhibit"A". The City finds such action to be consistent with public interest,
provided that no leasehold or property interest is created in favor of NWS and the City retains full
rights over the Access Area.
Accordingly, the City is willing to grant NWS a non-exclusive, revocable license to use the Access
Area under the terms and conditions set forth herein.
RECITALS
WHEREAS, the City and NWS are parties to that certain Lease Agreement dated January
5, 2004, as amended, governing the premises known as the New World Center (the "Leased
Premises"); and
WHEREAS, NWS desires to install passive flood barrier structures ("Structures")adjacent
to the Leased Premises, on City-owned property not currently leased to NWS (the"Access Area"),
as shown in Exhibit "A"; and
WHEREAS, the City is willing to grant a non-exclusive, revocable license for the
installation and maintenance of such Structures on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and promises to set forth
below, the parties agree as follows:
1. GRANT OF LICENSE
The City hereby grants to NWS a non-exclusive, revocable license to enter upon, access,
install, maintain, repair, and, if necessary, remove the Structures within the Access Area, as
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shown in Exhibit "A". This Agreement does not and shall not be construed to create any
leasehold, easement, or other real property interest in favor of NWS. All rights not expressly
granted herein are reserved by the City.
2. TERM AND TERMINATION
This Agreement shall become effective upon the Effective Date and shalt remain in effect
for so long as the Lease Agreement between the City and NWS remains in effect, unless earlier
terminated as provided herein. Notwithstanding the foregoing, the City may terminate this
Agreement at any time, with or without cause, by providing NWS with thirty (30)days' prior written
notice. Upon expiration or termination of this Agreement, NWS shall, at its sole cost and expense,
remove the Structures and restore the Access Area to its condition prior to installation, ordinary
wear and tear excepted.
3. USE OF COMMON AREAS
The Licensor retains exclusive control over all common areas, including but not limited to
sidewalks, parking areas, access roads, elevators, stairways, and restrooms. The Licensee is
granted a non-exclusive right to use these areas at the Licensor's discretion.
4. ENTIRE AGREEMENT
This Agreement and the exhibits attached hereto constitute the entire Agreement
between NWS and City with respect to the subject matter hereof and shall supersede all previous
negotiations, commitments and writings. This Agreement may not be modified or amended in
any manner except by an instrument in writing signed by a duly authorized officer or
representative of both NWS and City. It is anticipated that this Agreement may be modified from
time to time as circumstances may warrant.
5. INSTALLATION AND APPROVALS
Prior to commencing any installation activities within the Access Area, NWS shall submit
detailed design plans, including drawings, specifications, dimensions, installation methods, and
manufacturer information related to the Structures (collectively, the "Plans") to the City for review
and approval. No work shall commence without the City's prior written approval of the Plans,
which may be withheld, conditioned, or delayed at the City's sole discretion. NWS shall obtain all
permits and approvals from applicable regulatory agencies and comply with all legal requirements
prior to the commencement of any work.
6. MAINTENANCE AND RESPONSIBILITIES
NWS shall be solely responsible for the maintenance, inspection, repair, and replacement
of the Structures during the term of this Agreement. NWS shall ensure the Structures are
maintained in a safe and functional condition and shall immediately address any hazards or
deficiencies. NWS shall also be responsible for promptly repairing any damage to City property
arising from or related to the installation, presence, maintenance, or removal of the Structures. All
maintenance and repair activities shall be conducted in accordance with applicable codes,
standards, and best practices.
7. RELATIONSHIP OF THE PARTIES
It is expressly understood and acknowledged that it is not the intention or purpose of
this Agreement to create, nor shall the same be construed as creating, any type of partnership,
relationship or joint venture.
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8. ARBITRATION OF DISPUTE
The Parties hereby acknowledge and agree that if the City or NWS asserts that a
dispute has arisen between the Parties under this Agreement, then any and all such disputes
shall be addressed in the manner provided in Article 22 ("Arbitration") of the Development
Agreement, which Article (for purposes of addressing disputes between the Parties pursuant
to this Agreement) shall survive termination and/or earlier expiration of the Development
Agreement
9. GOVERNING LAW AND EXCLUSIVE VENUE
This Agreement shall be governed by, and construed in accordance with, the laws of
the State of Florida, both substantive and remedial, . without regard to principles of conflict of
laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade
County, Florida, if in State Court, and the U.S. District Court, Southern District of Florida, if in
federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND NWS EXPRESSLY
WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO. OR ARISING OUT OF, THIS AGREEMENT.
10. INSURANCE REQUIREMENTS
(A) The license shall not be effective, nor shall Licensee take possession of the Premises,
until all insurance required under this section has been obtained and such insurance has
been approved by the City's Risk Manager. Licensee shall maintain and carry insurance
sufficient to cover the operations and activities to be carried out on the Premises, including
the following minimum insurance:
(1) Commercial General Liability Insurance on a recurring basis, including products
and completed operations, property damage, bodily injury and personal &
advertising injury with limits no less than $1,000,000.00. A certified copy of
Licensee's Insurance Policy must be filed and approved by the Risk Manager prior
to commencement.
(2) Workers Compensation & Employers Liability, as required pursuant to Florida
Statutes. A certified copy of Licensee's Insurance Policy must be filed and
approved by the Risk Manager prior to commencement of use.
(3) Automobile Insurance, in the amount of $1,000,000.00. If no business vehicle is
used for the operations, Licensee shall provide personal auto insurance. A
certified copy of the Licensee's Insurance Policy must be filed approved by the
Risk Manager prior to commencement.
(4) Professional Liability, in the amount of $1,000,000 [NOTE: required for
professional services or when working in such a capacity that the City determines
Professional Liability coverage to be necessary, such as working with minors
(B) All insurance policies must be issued by companies authorized to do business
under the laws of the State of Florida. The companies must be rated no less than "A-" as
to management and not less than "Class VI" as to strength by the latest edition of Best's
Insurance Guide, published by A.M. Best Company.
(C) Timely renewal certificates will be provided to the Licensor as coverage renews. The
insurance certificates for General Liability shall include Licensor and the City as an
additional insured and shall contain a waiver of subrogation endorsement. Licensee's
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insurance shall be primary and not contributory for direct claims arising out of this
Agreement under the Commercial General Liability policy. If the Professional Liability
coverage is provided on a claim made basis, then such insurance shall continue for (3)
years following the expiration or termination of this Agreement.
(D) Original certificates of insurance must be submitted to the City's Risk Manager for
approval, prior to any use, work and/or services commencing, and will be kept on file in
the Office of the Risk Manager. Licensor shall have the right to obtain from Licensee
specimen copies of the insurance policies in the event that submitted certificates of
insurance are inadequate to ascertain compliance with required coverage.
(E) The Consultant is also solely responsible for obtaining and submitting all insurance
certificates for any sub-consultants.
(F) Compliance with the foregoing requirements shall not relieve the Licensee of the liabilities
and obligations under this section or under any other portion of this Agreement.
(G) In no event shall Licensor or the City be liable, whether to Licensee or to third parties, for
an interruption or failure in the supply of any utilities or services to the Premises, or for any
damage to person or property arising from a force majeure event,environmental concerns,
theft, vandalism, HVAC malfunction, sprinklers, appliances, plumbing works within the
Premises, windows, dampness, the bursting or leaking of water pipes, any act or omission
of Licensee, or its employee, agent, contractor, invitee, guest, approved assignee, or sub-
licensee or occupant of the Premises or of any other person, or otherwise. Additionally,
all personal property placed or moved into the Premises will be at the sole risk of Licensee.
Certificates of insurance evidencing such coverage shall be delivered to the City's Risk
Management Division prior to the commencement of any work under this Agreement, and such
coverage shall not be canceled or materially altered without thirty (30) days' prior written notice
to the City.
11. INDEMNIFICATION
(A) Licensee shall indemnify, defend and hold harmless Licensor, its officers,
employees, agents and contractors from and against any and all actions (whether at law or in
equity), claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees and
costs,for personal, economic or bodily injury,wrongful death, loss of or damage to property, which
may arise or be alleged to have arisen in whole or in part by any of the following:
(1) an act of omission on the part of Licensee or any officer, employee, contractor,
agent, invitee, guest, or assignee of Licensee;
(2) any use, misuse, neglect, or unlawful use of the Premises by Licensee or any
officer, employee,contractor, agent,guest, invitee, or assignee of Licensee; and/or
(3) any breach, violation, or nonperformance of any undertaking by Licensee under
this Agreement.
To that extent, Licensee shall pay all such claims and losses and shall pay all such costs
and judgments which may issue from any lawsuit arising from such claims and losses and shall
pay all costs and attorneys' fees expended by Licensor in the defense of such claims and losses,
including appeals.
(B) Licensee expressly understands and agrees that the insurance protection required
by this Agreement or otherwise provide by Licensee shall in no way limit the Licensee's
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responsibility to indemnify, defend and hold harmless the Licensor or its officers, employees,
agents and instrumentalities as herein provided. The provisions of this section and of this
indemnification shall survive termination or expiration of this Agreement.
12. COMPLIANCE WITH LAWS
NWS shall, at its sole cost, comply with all federal, state, and local laws, rules, ordinances,
and regulations applicable to the installation, maintenance, and removal of the Structures. NWS
shall obtain and maintain all permits. licenses, and approvals required for its activities under this
Agreement.
13. DEFAULT AND REMEDIES
If either party defaults in the performance of any material term or condition of this
Agreement and fails to cure such default within thirty (30) days after written notice thereof (or if
such default cannot reasonably be cured within thirty (30) days, then if the defaulting party fails
to commence such cure within such period and diligently prosecute the same to completion), the
non-defaulting party shall have the right to terminate this Agreement and pursue any and all
remedies available at law or in equity.
14. ENVIRONMENTAL PROVISIONS
(A) Licensee shall not knowingly incorporate into, use, or otherwise place or dispose
of at the Premises any Hazardous Materials, as hereinafter defined, unless (i) such Hazardous
Materials are for use in the ordinary course of business (i.e., as with office or cleaning supplies),
(ii) notice of and a copy of the current material safety data sheet is provided to Licensor for each
such Hazardous Material (except for Hazardous Materials used by Licensee in the ordinary
course of business (i.e., as with office or cleaning supplies)), and (iii) such materials are handled
and disposed of in accordance with all applicable governmental laws, rules, and regulations. If
Licensor or Licensee ever has knowledge of the presence in the Premises or the Retail Space of
Hazardous Materials which affect the Premises, such party shall notify the other thereof in writing
promptly after obtaining such knowledge. For purposes of this Agreement, "Hazardous Materials"
shall mean: (a) petroleum and its constituents; (b) radon gas, asbestos in any form which is or
could become friable, urea formaldehyde foam insulation, transformers or other equipment which
contain dielectric fluid containing levels of polychlorinated biphenyls in excess of federal, state or
local safety guidelines, whichever are more stringent; (c)any substance, gas, material or chemical
which is or may hereafter be defined as or included in the definition of "hazardous substances,"
"hazardous materials," "hazardous wastes," "pollutants or contaminants,""solid wastes,"or words
of similar import under any applicable governmental laws, rules, and regulations including, but
not limited to, the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. § 9061 et seq.; the Hazardous Materials Transportation Act, as amended,
49 U.S.C. § 1801, et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
§ 6901, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq.;
and Florida Statutes, Chapters 376 and 403; and (d) any other chemical, material, gas, or
substance, the exposure to or release of which is regulated by any governmental or quasi-
governmental entity having jurisdiction over the Retail Space or the operations thereon.
(8) If Licensee or its employees, agents, or contractors shall ever violate the provisions
of subsection (A), above, then Licensee shall clean up, remove, and dispose of the Hazardous
Material causing the violation, in compliance with all applicable governmental standards, laws,
rules, and regulations and repair any damage to the Premises within such period of time as may
be reasonable under the circumstances after written notice by Licensor, provided that such work
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shall commence not later than thirty (30)days from such notice and be diligently and continuously
carried to completion by Licensee or Licensee's designated contractors. Licensee shall notify
Licensor of its method, time, and procedure for any clean up or removal of Hazardous Materials
under this provision; and Licensor shall have the right to require reasonable changes in such
method, time, or procedure or to require the same to be done after normal business hours or
when the Retail Space is otherwise closed (i.e., holidays) if reasonably required for the protection
of other Licensees or occupants of the Retail Space.
(C) Licensee agrees to defend, indemnify, and hold harmless Licensor, and the City
of Miami Beach, Florida(the"City")against any and all claims,costs, expenses, damages, liability,
and the like, which Licensor may hereafter be liable for, suffer, incur, or pay arising under any
applicable environmental laws, rules, and regulations and resulting from or arising out of any
breach of the covenants contained in this section, or out of any act, activity, or violation of any
applicable environmental laws, rules, and regulations on the part of Licensee, its agents,
employees, or assigns. Licensee's liability under this section shall survive the expiration or any
termination of this Agreement.
15. NO PROPERTY INTEREST
This Agreement is not intended and shall not be construed to create a leasehold interest,
easement, or any other estate or interest in real property in favor of NWS. NWS's rights under
this Agreement are strictly limited to the temporary use of the Access Area as set forth herein.
16. NO LIENS
Licensee must ensure no liens are filed against the Premises or Licensor's property and
must remove any filed liens within five (5) days. Nothing in this section implies the Licensor's
consent to subject its property to mechanic's lien liability.
IT. NOTICES
All notices from the City to NWS shall be deemed duly served upon receipt, if mailed by
registered or certified mail with a return receipt, or hand delivered, to the User at the following
address:
If to the City:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With a copy to:
City Attorney's Office
1700 Convention Center Drive
Miami Beach, FL 33139
If to NWS:
New World Symphony, Inc.
541 Lincoln Road.
Miami Beach, FL 33139
NWS and City may change the above mailing address at any time upon giving the other
party written notification. All notices under this Agreement must be in writing unless specifically
stated to the contrary herein.
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18. LICENSOR'S RIGHT OF ENTRY
Licensor or the City, and their authorized agents may enter the Premises at any
reasonable time to inspect, prevent waste, conduct necessary repairs, or address fire and life
safety concerns. Whenever feasible, Licensor will provide prior notice to Licensee, except in
emergencies where immediate action is required to prevent property damage, injury or loss of
life, as determined at the Licensor's sole discretion. This right of entry does not create any
obligation for Licensor or the City to perform work that is the Licensee's responsibility under this
Agreement, and any action taken by Licensor or the City shall not waive Licensee's obligations
or defaults.
19. LICENSEE'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
(A) Licensee shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
(B) 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.
(C) Pursuant to Section 119.0701 of the Florida Statutes, if the Licensee meets the
definition of"Contractor" as defined in Section 119.0701(1Xa), the Licensee shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) 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;
(3) 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 this Agreement if
the Licensee does not transfer the records to the City;
(4) Upon completion of this Agreement, transfer, at no cost to the City, all public
records in possession of the Licensee or keep and maintain public records required
by the City to perform the service. If the Licensee transfers all public records to the
City upon completion of this Agreement, the Licensee shall destroy any duplicate
public records that are exempt or confidential and exempt from public records
disclosure requirements. If the Licensee keeps and maintains public records upon
completion of this Agreement, the Licensee shall meet all applicable requirements
for retaining public records. Aff 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.
(D) REQUEST FOR RECORDS; NONCOMPLIANCE:
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(1) 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 Licensee of the request.
and the Licensee must provide the records to the City or allow the records to be
inspected or copied within a reasonable time.
(2) Licensee'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) unilaterally
terminate this Agreement; (2) avail itself of the remedies set forth under this
Agreement; and/or (3) avail itself of any available remedies at law or in equity.
(3) A Licensee who fails to provide the public records to the City within a reasonable
time may be subject to penalties under s. 119.10.
(E) CIVIL ACTION:
(1) If a civil action is filed against a Licensee to compel production of public records
relating to the City's contract for services, the court shall assess and award against
the Licensee the reasonable costs of enforcement, including reasonable attorneys'
fees, if:
(a). The court determines that the Licensee 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 Licensee has
not complied with the request, to the City and to the Licensee.
(2) A notice complies with subparagraph (1)(b) whether it is sent to the City's
custodian of public records and to the Licensee at the Licensee's address listed
on its contract with the City or to the Licensee'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.
(3) A Licensee who complies with a public records request within 8 business days
after the notice is sent is not liable for the reasonable costs of enforcement.
(F) IF THE LICENSEE HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, OR AS TO THE LICENSEE'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
20. INSPECTION
Licensee shall maintain its records (including financial records)pertaining to its operations
pursuant to this Agreement during the Term, and for a period of three (3) years following the
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expiration or termination of this Agreement. Such records shall be open and available to the
Licensor, as deemed necessary by the Executive Director or the Executive Director's designee,
upon ten (10) business days' written notice to Licensee.
21. INSPECTOR GENERAL AUDIT RIGHTS
(A) Pursuant to Section 2-256 of the Code of the City of Miami Beach. the City has
established the Office of the Inspector General which may, on a random basis, perform reviews,
audits, inspections and investigations on all City contracts, throughout the duration of said
contracts. This random audit is separate and distinct from any other audit performed by or on
behalf of the City.
(B) The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts, records, contracts
and transactions. In addition, the Inspector General has the power to subpoena witnesses,
administer oaths, require the production of witnesses and monitor City projects and programs.
Monitoring of an existing City project or program may include a report concerning whether the
project is on time, within budget and in conformance with the contract documents and applicable
law. The Inspector General shall have the power to audit, investigate, monitor, oversee, inspect
and review operations, activities, performance and procurement process including but not limited
to project design, bid specifications. (bid/proposal) submittals, activities of the Licensee, its
officers, agents and employees, lobbyists, City staff and elected officials to ensure compliance
with the contract documents and to detect fraud and corruption. Pursuant to Section 2-378 of the
City Code, the City is allocating a percentage of its overall annual contract expenditures to fund
the activities and operations of the Office of Inspector General.
(C) Upon ten (10) days written notice to the Licensee, the Licensee shall make all
requested records and documents available to the Inspector General for inspection and copying.
The inspector General is empowered to retain the services of independent private sector auditors
to audit, investigate, monitor, oversee. inspect and review operations activities, performance and
procurement process including but not limited to project design, bid specifications, (bid/proposal)
submittals, activities of the Licensee its officers, agents and employees, lobbyists, City staff and
elected officials to ensure compliance with the contract documents and to detect fraud and
corruption.
(D) The Inspector General shall have the right to inspect and copy all documents and
records in the Licensee's possession, custody or control which in the Inspector General's sole
judgment, pertain to performance of the contract, including, but not limited to original estimate
files, change order estimate files, worksheets, proposals and agreements from and with
successful subcontractors and suppliers, all project-related correspondence, memoranda,
instructions, financial documents, construction documents, (bid/proposal) and contract
documents, back-change documents, all documents and records which involve cash, trade or
volume discounts, insurance proceeds, rebates, or dividends received, payroll and personnel
records and supporting documentation for the aforesaid documents and records.
(E) The Licensee shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and performance of this
Agreement, for examination, audit, or reproduction, until three (3) years after final payment under
this Agreement or for any longer period required by statute or by other clauses of this Agreement.
in addition:
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•
If this Agreement is completely or partially terminated, the Licensee shall make
available records relating to the work terminated until three (3) years after any
resulting final termination settlement; and
ii. The Licensee shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Agreement until such appeals,
litigation, or claims are finally resolved.
(F) The provisions in this section shall apply to the Licensee, its officers, agents,
employees, subcontractors and suppliers. The Licensee shall incorporate the provisions in this
section in all subcontracts and all other agreements executed by the Licensee in connection with
the performance of this Agreement.
(G) Nothing in this section shall impair any independent right to the City to conduct
audits or investigative activities. The provisions of this section are neither intended nor shall they
be construed to impose any liability on the City by the Licensee or third parties.
22. E-VERIFY
(A) To the extent that Licensee provides labor, supplies, or services under this
Agreement, Licensee shalt comply with Section 448.095, Florida Statutes, "Employment
Eligibility" ("E-Verify Statute"), as may be amended from time to time. Pursuant to the E-Verify
Statute, commencing on January 1, 2021, Licensee shall register with and use the E-Verify
system to verify the work authorization status of all newly hired employees during the Term of this
Agreement. Additionally, Licensee shall expressly require any subcontractor performing work or
providing services pursuant to this Agreement to likewise utilize the U.S. Department of Homeland
Security's E-Verify system to verify the employment eligibility of all new employees hired by the
subcontractor. If Licensee enters into a contract with an approved subcontractor, the
subcontractor must provide the Licensee with an affidavit stating that the subcontractor does not
employ, contract with, or subcontract with an unauthorized alien. Licensee shall maintain a copy
of such affidavit for the duration of this Agreement or such other extended period as may be
required under this Agreement.
(B) TERMINATION RIGHTS:
(1) If Licensor has a good faith belief that Licensee has knowingly violated Section
448.09(1), Florida Statutes, which prohibits any person from knowingly employing,
hiring, recruiting, or referring an alien who is not duly authorized to work by the
immigration laws or the Attorney General of the United States, Licensor shall
terminate this Agreement with Licensee for cause, and Licensor shall thereafter
have or owe no further obligation or liability to Licensee.
(2) If Licensor has a good faith belief that a subcontractor has knowingly violated the
foregoing subsection (A), but Licensee otherwise complied with such subsection,
the City will promptly notify Licensee and order Licensee to immediately terminate
the contract with the subcontractor. Licensee's failure to terminate a subcontractor
shall be an event of default under this Agreement, entitling Licensor to terminate
this Agreement for cause.
(3) A contract terminated under the foregoing subsection (B)(1) or (B)(2) is not in
breach of contract and may not be considered as such.
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(4) Licensor or Licensee or a subcontractor may file an action with the Circuit or
County Court to challenge a termination under the foregoing subsection (B)(1) or
(B)(2) no later than 20 calendar days after the date on which the contract was
terminated.
(5) If Licensor terminates this Agreement with Licensee under the foregoing
subsection (B)(1), Licensee may not be awarded a public contract for at least 1
year after the date of termination of this Agreement.
(6) Licensee is liable for any additional costs incurred by the City as a result of the
termination of this Agreement under this section.
23. FORCE MAJEURE
(A) The City does not guarantee uninterrupted access to or use of the Premises, as
usage may be suspended or delayed due to events of force majeure, as defined herein. Neither
party shall be liable or responsible for any delay, damage, foss, failure to perform caused by a
force majeure event, provided that the affected party notifies the other in writing within ten (10)
days of gaining actual knowledge of the force majeure event.
(B) For the purposes of this provision, A "Force Majeure" event is an event that (i) in
fact causes a delay in the performance of the Licensee or Licensor's obligations under this
Agreement, and (ii) is beyond the reasonable control of such party unable to perform the
obligation, and (iii) is not due to an intentional act, error, omission, or negligence of such party,
and (iv) could not have reasonably been foreseen and prepared for by such party at any time prior
to the occurrence of the event. Subject to the foregoing criteria, Force Majeure may include events
such as war, civil insurrection, riot, fires, epidemics, pandemics, terrorism, sabotage, explosions,
embargo restrictions, quarantine restrictions, transportation accidents, strikes, strong hurricanes
or tornadoes, earthquakes, or other acts of God which prevent performance. Force Majeure shall
not include technological impossibility, inclement weather, or failure to secure any of the required
permits pursuant to this Agreement,
(C) In the event that an event of Force Majeure delays a party's performance under
this Agreement for a time period greater than thirty (30)days, Licensor may, at the sole discretion
of the Executive Director, terminate this Agreement on a given date, by giving written notice to
Licensee of such termination. If this Agreement is terminated pursuant to this section, Licensor
shall be discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this
Agreement. In no event will any condition of Force Majeure extend this Agreement beyond its
stated term.
24. LICENSEE'S COMPLIANCE WITH ANTI-HUMAN TRAFFICKING LAWS
Licensee agrees to comply with Section 787.06, Florida Statutes, as may be amended
from time to time, and has executed the Anti-Human Trafficking Affidavit, containing the
certification of compliance with anti-human trafficking laws, as required by Section 787.06(13),
Florida Statutes, a copy of which is attached hereto as Exhibit "B".
25. PROHIBITION ON CONTRACTING WITH A BUSINESS ENGAGING IN A
BOYCOTT
Licensee warrants and represents that it is not currently engaged in, and will not engage
in, a boycott, as defined in Section 2-375 of the City Code. In accordance with Section 2-
468 of 1791
375.1(2)(a) of the City Code, Licensee hereby certifies that Licensee is not currently engaged in,
and for the duration of this Agreement, will not engage in a boycott of Israel.
26. PROHIBITION ON CONTRACTING WITH AN INDIVIDUAL OR ENTITY WHICH
HAS PERFORMED SERVICES FOR COMPENSATION TO A CANDIDATE FOR CITY
ELECTED OFFICE
(A) Licensee warrants and represents that, within two (2) years prior to the Effective
Date, Licensee has not received compensation for services performed for a candidate for City
elected office, as contemplated by the prohibitions and exceptions of Section 2-379 of the City
Code.
(B) For the avoidance of doubt, the restrictions on contracting with Licensor pursuant
to Section 2-379 of the City Code shall not apply to the following:
(1) Any individual or entity that provides goods to a candidate for office.
(2) Any individual or entity that provides services to a candidate for office if those same
services are regularly performed by the individual or entity in the ordinary course
of business for clients or customers other than candidates for office. This includes,
without limitation, banks, telephone or internet service providers, printing
companies, event venues, restaurants, caterers, transportation providers, and
office supply vendors.
(3) Any individual or entity which performs licensed professional services (including
for example, legal or accounting services).
27. PROHIBITION AGAINST CONTRACTING WITH FOREIGN COUNTRIES OF
CONCERN WHEN AN INDIVIDUAL'S PERSONAL IDENTIFYING INFORMATION MAY BE
ACCESSED [NOTE: ONLY INCLUDE IF APPLICABLE)
Licensee hereby agrees to comply with Section 287.138, Florida Statutes, as may be
amended from time to time, which states that as of January 1, 2024, a governmental entity may
not accept a bid on, a proposal for, or a reply to, or enter into, a contract with an entity which
would grant the entity access to an individual's personal identifying information (P11), unless the
entity provides the governmental entity with an affidavit signed by an officer or representative of
the entity under penalty of perjury attesting that the entity does not meet any of the criteria in
Paragraphs 2(a)-(c) of Section 287.138, Florida Statutes: (a)the entity is owned by a government
of a foreign country of concern; (b) the government of a foreign country of concern has a
controlling interest in the entity; or (c) the entity is organized under the laws of or has its principal
place of business in a foreign country of concern (each a "Prohibited Entity"). A foreign country
of concern is defined in Section 287.138 (1)(c), Florida Statutes, as may be amended from time
to time, as the People's Republic of China, the Russian Federation, the Islamic Republic of Iran,
the Democratic People's Republic of Korea, the Republic of Cuba, the Venezuelan regime of
Nicolas Maduro, or the Syrian Arab Republic, including any agency of or any other entity of
significant control of such foreign country of concern. Additionally, beginning July 1, 2025, a
governmental entity may not extend or renew a contract with a Prohibited Entity. Licensee
warrants and represents that it does not fall within the definition of a Prohibited Entity, and as
such, has caused an authorized representative of Licensee to execute the ''Prohibition Against
Contracting with Entities of Foreign Countries of Concern Affidavit", incorporated herein by
reference and attached hereto as Exhibit "C".
28. NOT A LEASE
469 of 1791
It is expressly understood that no part of the Premises, buildings, structures, or equipment
referenced in this Agreement is leased. This Agreement is strictly a Use Agreement, not a lease,
and the right to use the Premises shall remain in effect only as long as all terms, conditions, and
obligations set forth herein are met.
29. WAIVER
No waiver by Licensor any time of any of the terms or conditions of this Agreement shall
be deemed at any time thereafter a waiver of the same or any other term or conditions hereof.
30. GOVERNING LAWNENUE
This Agreement shall be governed by and construed in accordance with the law of the
State of Florida. This Agreement shalt be enforceable in Miami-Dade County, Florida, and if legal
action is necessary by either party with respect to the enforcement of any or all of the terms or
conditions herein exclusive venue for the enforcement of same shall lie in Dade County, Florida.
By entering into this License, Licensee and Licensor expressly waive any rights either party may
have to a trial by jury of any civil litigation related to, or arising out of, this License.
31. NO DISCRIMINATION
In connection with the use of the Premises, Licensee 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, Licensee shaft comply fully with the City of Miami Beach Human Rights Ordinance,
codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting
discrimination in employment (including independent contractors), housing, public
accommodations, public services, and in connection with its membership or policies because of
actual or perceived race. color, national origin, religion, sex, intersexuality, gender identity, sexual
orientation, marital and familial status, age, disability, ancestry, height, weight, hair texture and/or
hairstyle, domestic partner status, labor organization membership, familial situation, or political
affiliation.
32. CHANGES AND ADDITIONS/AUTHORIZATION OF EXECUTIVE DIRECTOR
This Agreement cannot be modified or amended without the express written consent of
the parties. No modification, amendment, or alteration of the terms or conditions contained herein
shall be effective unless contained in a written document executed with the same formality and of
equal dignity herewith. The Executive Director is the administrative officer of the RDA, authorized
to approve any changes to this Agreement, provided the value of the change does not exceed
the total sum of$100,000.00; in which case the amendment to this Agreement would be subject
to approval by the members of the RDA.
33. LIMITATION OF LIABILITY/NO WAIVER OF SOVEREIGN IMMUNITY
Licensor's liability for monetary damages due to an alleged breach of this Agreement shall
not exceed One Thousand and 00/100 ($1,000.00) Dollars in total. Licensee agrees that any
claims against Licensor, whether for breach of contract or any other cause, are limited to this
maximum amount. This provision or any other provision in this Agreement shall not waive or alter
the liability limits established under Florida Statutes Section 768.28.
34. MISCELLANEOUS
(A) Modifications. This Agreement cannot be changed, amended or modified except
by agreement in writing executed by all parties hereto.
470 of 1791
(B) Headings. The section, subsection and paragraph headings contained herein are
for convenience of reference only and are not intended to define, limit, or describe the scope or
intent of any provision of this Agreement.
(C) Clauses. The illegality or invalidity of any term or any clause of this Agreement
shall not affect the validity of the remainder of the Agreement. and the Agreement shall remain in
full force and effect as if such illegal or invalid term or clause were not contained herein unless
the elimination of such provision detrimentally reduces the consideration that either party is to
receive under this Agreement or materially affects the continuing operation of this Agreement.
(0) Severability. If any provision of this Agreement or any portion of such provision or
the application thereof to any person or circumstance shall be held to be invalid or unenforceable,
or shall become a violation of any local, State, or Federal laws, then the same as so applied shall
no longer be a part of this Agreement but the remainder of the Agreement, such provisions and
the application thereof to other persons or circumstances, shall not be affected thereby and this
Agreement as so modified shall remain in full force and effect.
(E) No Waiver. No waiver of any covenant or condition of this Agreement by either
party shall be deemed to imply or constitute a waiver in the future of the same covenant or
condition or of any other covenant or condition of this Agreement,
(F) No Third Party Beneficiary. Nothing in this Agreement shall confer upon any
person or entity, other than the parties hereto and their respective successors and permitted
assigns, any rights or remedies by reason of this Agreement.
[Signatures on following page]
471 of 1791
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed; all as of this day and year first written above.
FOR CITY:
ATTEST: CITY OF MIAMI BEACH, FLORIDA
By:
Rafael E. Granado, City Clerk Eric T. Carpenter, City Manager
Date:
FOR MDPL:
ATTEST: THE NEW WORLD SYMPHONY, INC., a
not-for-profit corporation
By:
Title: Title:
Name: Name:
Date:
472 of 1791
Exhibit "A"
473 of 1791
Exhibit "B"
ANTI-HUMAN TRAFFICKING AFFIDAVIT
In accordance with Section 787.06 (13), Florida Statutes, the undersigned, on behalf of Tenant
hereby attests under penalty of perjury that Tenant does not use coercion for labor or services as
defined in Section 787.06, Florida Statutes, entitled "Human Trafficking".
I understand that I am swearing or affirming under oath to the truthfulness of the claims made in
this affidavit and that the punishment for knowingly making a false statement includes fines and/or
imprisonment.
The undersigned is authorized to execute this affidavit on behalf of Tenant.
TENANT:
, a corporation.
Name/Title: (Address)
State of
County of
The foregoing instrument was acknowledged before me by means of 0 physical presence or 0
online notarization, this day of , 202_ by
as of
, a corporation, known to me to be the
person described herein, or who produced as
identification, and who did/did not take an oath.
NOTARY PUBLIC:
(Signature)
(Print Name)
My commission expires:
474 of 1791
Exhibit "C"
PROHIBITION AGAINST CONTRACTING WITH FOREIGN COUNTRIES OF CONCERN
AFFIDAVIT
In accordance with Section 287.138, Florida Statutes, incorporated herein by reference, the
undersigned, on behalf of Tenant, hereby attests under penalty of perjury that Tenant does not
meet any of the following criteria in Paragraphs 2(a)-(c) of Section 287.138, Florida Statutes: (a)Tenant is
owned by a government of a foreign country of concern; (b)the government of a foreign country of concern
has a controlling interest in Tenant; or (c) Tenant is organized under the laws of or has its principal place
of business in a foreign country of concern.
I understand that I am swearing or affirming under oath, under penalties of perjury, to the
truthfulness of the claims made in this affidavit and that the punishment for knowingly making a
false statemtnt includes fines and/or imprisonment.
The undersigned is authorized to execute this affidavit on behalf of Tenant.
TENANT:
, a corporation.
Name/Title: (Address)
State of
County of
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑
online notarization, this day of 202_ by
as of
, a corporation, known to me to be the
person described herein, or who produced as
identification, and who did/did not take an oath.
NOTARY PUBLIC:
(Signature)
(Print Name)
My commission expires:
475 of 1791
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480 of 1791
G.O. BONA FOR ARTS & CULTURE
GRANT AGREEMENT OCT 1 1 2023
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, senioricultural 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 S4,810,000.00 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
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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 :n 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.
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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-
' Tres. 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 prirciples For example costs incurred to acquire, construct, or improve
land, buildings, and equipment generally are capital expendtures.
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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
v. any other documents or information which the City Manager may
reasonably request in connection with the Project.
1 7 Contractors and Desien 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 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 $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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485 of 1791
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. 'lice 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
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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 Grantees
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 Mav 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 15' 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./ 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
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Project_
2.11 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
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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 ,nspector 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.
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 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 OJG 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 aft 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 I
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 ($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
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.
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. Bests rating
of no fess 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
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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
do 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(ariskworks corn
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
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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.
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•
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
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:
a. "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 taw
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
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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 uuntract 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.
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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: RAFAELGRANADOIAIAMIBEACHFL.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
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•
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 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.
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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).
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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 cf
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
2'
501 of 1791
The Grantee:
New World Symphony, Inc,
500 17`'Street
Miami Beach. FL 33139
Attn. Cesar Sepulveda
With copy to:
New World Symphony, Inc.
500 17`1 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 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
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•
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 Maleure. 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 b*3reunder. 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.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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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: CITY OF MIAMI BEACH, FLORIDA
— / ' . ..
OCT t 1 1023 Ali Hudak
Rafael E. Zado
City Clerk C. Manager
ATTEST: NEW W RLD SYMPHO Y, INC.
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APPROVED AS TO
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24
504 of 1791
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 intemet.
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.
505 of 1791
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 buifdirg envelope
waterproofing since New World Center's (NWC) opering 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 facade, 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'xl 1'. 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
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part of the proposed solution will be installation of passive automats 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 elevator of the roof garden are dying; seve-al 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.
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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
Notes
1. Current budget based on proposals and discussions with various contractors,or estimated.
2 All costs subject to change until contracts are executed.
3. 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 NWS or other donors.
6. All costs submitted for reimbursement will comply with terms and conditions of the executed grant agreement.
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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 3O% 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
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EXHIBIT E
REIMBURSEMENT REQUEST
M AM BEACH
CITY OF MIAMI BEACH
REIMBURSEMENT REQUEST FORM
GRANT PROJECT No.:
GRANTEE NAME:
GRANTEE ADDRESS:
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.
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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 0 physical presence or 0 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
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