HomeMy WebLinkAboutManagement Agreement with Unidad of Miami Beach, Inc.
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MANAGEMENT AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
UNIDAD OF MIAMI BEACH, INC.
FOR THE
NORTH BEACH SENIOR CENTER
THIS AGREEMENT, is made and executed as ofthis 10 ~ day of )",IeJll6f.-2006, by and
between the CITY OF MIAMI BEACH, a municipal corporation organized and existing under the
laws ofthe State of Florida (the City), and UNIDAD of Miami Beach, Inc., a Florida not-for-profit
corporation, whose principal office is located at 1701 Normandy Drive, Miami Beach, Florida,
33141, Miami Beach, Florida 33139-1821 (UNIDAD).
WITNESSETH
RECITALS:
WHEREAS, the City is the owner of that certain facility currently referred to as the North
Shore Community Center (and hereinafter referred to as the Senior Center or, in the alternative, the
Premises), located at 7251 Collins Avenue, Miami Beach, Florida 33139; and
WHEREAS, the City, through its Five Year Consolidated Plan (2003 through 2007), has
noted a continued "high priority" need for senior services and senior oriented community centers;
and
WHEREAS, UNIDAD is a Florida not-for-profit corporation which has developed a proven
track record in providing senior employment services, senior training and related elderly services;
and
WHEREAS, the City is desirous of forging a partnership with UNIDAD to manage a
comprehensive senior center on the Premises, and has deemed that it would be in the City's best
interest to utilize UNIDAD's prior expertise and skills in developing programming in this Senior
Center; and
WHEREAS, in particular, the North Beach community has been identified as an area in high
need and low supply of senior programming and has, through a community consensus process,
identified the creation of a senior center as a top priority, as part of the revitalization of the North
Beach park corridor;
WHEREAS, the City has identified the Premises as an ideal facility for the proposed
Senior Center; the facility is in proximity to both Normandy Drive and Collins Avenue, providing
ready pedestrian access for seniors in the North Beach community, and adjacent barrier island
communities; and
WHEREAS, the proposed Senior Center will attract seniors to participate by offering a
range of wholesome activities; seniors involved at the Center will become familiar with a full range
of social services, including employment, counseling, support groups, health information, nutrition,
and cultural offerings; and
WHEREAS, concurrent with its desire to engage UNIDAD in the programming of a
comprehensive senior center, and in order to effectively and fully accomplish such purpose(s), the
City has also identified the need for capital improvements to the Senior Center and has committed to
appropriating funds for the renovation and rehabilitation of the Senior Center; and
WHEREAS, rather than independently seek out and purchase a building, and rehabilitate and
program a comprehensive senior center on its own, using its own funding and technical and
intellectual resources, UNIDAD has been engaged in discussions with the City with regard to the
aforestated "partnership of resources", and is ready, willing and able to contribute substantial
financial resources, obtained through Federal capital grant programs administered by the City and
Miami-Dade County, toward augmenting the City's proposed capital renovation and improvement of
the Senior Center, in order to develop and operate a full service multi-purpose facility; and
WHEREAS, the City is desirous that UNIDAD playa primary role in the operation and
management of the proposed Senior Center, as set forth in the terms and conditions of this
Agreement, and
WHEREAS, in order to optimize its ability to raise monies, through public grant programs
and/or such other sources as may be available to it, it is vital that UNlDAD (and the City)
demonstrate a long-term commitment toward the parties' intended use and programming of the
Premises as a comprehensive senior center; to that end, UNIDAD has requested, and the City has
deemed it in the best interest of the public, particularly the City's elderly population, that the
foregoing Agreement have as long a term as possible.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, it is agreed by the parties hereto as follows:
SECTION 1.
The City hereby grants to UNIDAD, and UNIDAD hereby accepts from the City, this
Agreement for the exclusive use, management, coordination, and operation of the Premises, as
more fully described and delineated in the sketch attached hereto and incorporated herein as Exhibit
"A", in conformance with the purposes and for the period stated herein, and subject to all the terms
and conditions herein contained and fairly implied by the terms hereinafter set forth.
SECTION 2. TERM.
This Agreement shall be for an initial term of forty (40) years, commencing on the 30th day of
September, 2006, and ending on the 29th day of September, 2046.
At the expiration ofthe initial term herein, and provided that (i) UNIDAD is in good standing
and free from default hereunder, and (ii) UNIDAD continues to operate and manage the Senior
Center in accordance with the approved uses (as hereinafter defined) and for the stated purposes
herein, this Agreement shall be automatically renewed for a maximum of four (4) additional ten (10)
year terms, under all ofthe terms and conditions contained herein.
In the event that UNIDAD determines not to renew the Agreement, it shall notify the City of
same, in writing, no less than one (1) year prior to the end of the initial term, or a renewal term, as
the case may be.
SECTION 3. PREMISES.
The Premises subject to this Agreement shall be those facilities and spaces more specifically
described in Exhibit "A", attached and incorporated herein. Subject to the terms ofthis Agreement,
UNlDAD shall have the primary use and occupation ofthe Premises and shall be responsible for its
management, operation, programming, and maintenance.
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UNIDAD acknowledges that it has examined the Premises and knows the condition thereof
and accepts the Premises in its present condition, "as is," and without any representations or
warranties of any kind or nature whatsoever by City as to its condition or as to the use or occupancy
which may be made thereof.
SECTION 4. GOALS AND PRIORITIES/APPROVED USES.
4.1 In keeping with the high priority cited in the City of Miami Beach Five-Year
Consolidated Plan (2003-2007), for the need in the City for senior services and senior centers, the
parties hereto recognize and acknowledge the vital need for a comprehensive senior activity and
community center, particularly within the North Beach community.
4.2 The North Beach community is home to a large concentration of seniors, many of
whom are low-income seniors. Seniors, in general, and low-income seniors in particular, are
vulnerable to cultural and social isolation, to misinformation and exploitation, and to ignorance of
services available to them. The Senior Center will offer an attractive facility and program where
seniors will want to come for its variety of social, recreational, and cultural activities. While at the
Senior Center, seniors will discover a range of services -- counseling, employment, nutrition, and
health support services -- which will address the issues most frequently faced by seniors. UNIDAD
and the City have identified that the need is particularly acute for a Center which is not exclusively a
feeding center nor a day care center for seniors, but rather a magnet center which will attract seniors
through wholesome activities who would otherwise not connect with the services which should be
available to them.
4.3 The parties hereto have determined that it is in the City's best interest to bring
together the City's resources, together with UNIDAD's proven track record in operating senior
employment, cultural enrichment, and related senior services, as well as UNIDAD's intended
funding contributions (to supplement the City's proposed funding contribution) and UNIDAD's
commitment to manage and operate the Premises, at its sole cost and expense; all toward the
development and management of a comprehensive senior center.
The goal and priorities which the Senior Center's programs will attain include the following:
· Enhanced access to employment training and placement opportunities for seniors
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who want and need to work.
. Enhanced access to counseling, to support groups for health issues and nutrition
awareness.
. Improved mental and physical health for regular participants in Center programs.
. Enhanced access to social services for low-income seniors, particularly in the North
Beach community, including services to victims of discrimination, abuse and neglect.
. A greater range of cultural offerings, particularly those of interest to seniors, which
will serve not only North Beach seniors, but also the entire community.
4.4 The Senior Center shall be managed and developed as a multi-purpose community
resource, centered on the provision of services and programs and the improvement of the quality of
life for senior citizens, and which is intended to include, the following programs, services, activities,
and uses:
. Operation of an elderly community service program to provide job placement
for seniors;
. Operation of senior employment training programs;
. Senior meals center for the North Beach area elderly community (subject to funding
availability);
. Senior recreational activities, classrooms, special interests, lectures, etc.; and
. Cultural activities and special events.
(hereinafter, all such City approved programs, activities, services, and uses by UNIDAD in
and ofthe Senior Center, whether revenue generating or not, shall be collectively referred herein to
as the "uses" and/or the "approved uses")In the event that UNIDAD seeks to use the Senior Center
for additional programs, services, activities and uses which are materially different than the
approved uses, as specifically enumerated herein, then each such proposed new use shall be subject
to the prior written approval of the City which approval, if given at all, shall be at the City's sole
discretion, and which shall be memorialized as an amendment to this Agreement.
Notwithstanding the preceding sentence, UNlDAD shall not be required to obtain the City's prior
written consent if a proposed new use is reasonably related to the approved uses set forth herein;
for purposes ofthis Section 4, the term "reasonably related" shall refer to a proposed new use that
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is neither a substantive change in the approved uses, nor represents a material programmatic change
in said approved uses.
4.5 The Senior Center shall be used by UNIDAD solely and exclusively for the uses set
forth in this Section 4, or such other uses as may be approved by the City. It is understood and
agreed that the Senior Center shall be used by UNIDAD during the entire term of this Agreement
only for the purposes and/or uses described in (and/or otherwise approved pursuant to) Section 4, and
for no other purposes or uses whatsoever. In the event that UNIDAD uses the Senior Center for any
purposes and/or uses not expressly permitted in Section 4 herein, such use shall be considered a
default under this Agreement and the City shall be entitled to all remedies, including termination of
this Agreement, as set forth in Section 27 herein. In addition, notwithstanding any other terms ofthis
Agreement, the City shall be entitled to seek immediate relief, whether at law or equity, to restrain
such improper use(s).
SECTION S. OPERATION AND MANAGEMENT OF THE SENIOR CENTER.
5.1 Subject to the approved uses in Section 4 (as same may be amended from time to
time), and the terms, limitations and required approvals contained in this Agreement, UNIDAD is
authorized and required, and shall have the exclusive right to:
a. Manage and direct the Senior Center and coordinate and supervise all
approved uses thereof;
b. Maintain and provide for the day-to-day maintenance and housekeeping for
the Premises;
c. Supervise and direct all Senior Center employees and personnel consistent
with the provisions of this Agreement;
d. Maintain and supervise detailed, accurate and complete financial and other
records of all its activities under this Agreement in accordance with generally
accepted accounting principles. All financial records maintained pursuant to
this Agreement shall be retained by UNIDAD as long as such records are
required to be retained pursuant to Florida Public Records Law, and shall be
made available upon reasonable notice by the City;
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f. UNIDAD will be allowed to book and promote events at the Senior Center,
but only at prevailing rates, fees and prices, as shall be approved by the City
Manager prior to same. UNIDAD shall require that all users of the Senior
Center provide certificates of insurance evidencing appropriate insurance, as
required and approved by the City's Risk Manager. Such insurance is to be
kept in force at all times by all users and shall name the City and UNIDAD as
additional insureds.
g. Develop and implement programs and activities which support and promote
the goals and priorities and approved uses, as set forth in Section 4; and
h. Coordinate with the City for such public use of the Premises by the City, as
set forth in Section 10.2 of the Agreement, which coordination and
cooperation shall not be unreasonably withheld. Such public uses of the
Premises by the City shall be conducted pursuant to policies and procedures,
which shall be established and mutually agreed upon by UNIDAD and the
City, within six (6) months of execution of this Agreement by the parties
hereto.
5.2. The parties agree and acknowledge that, in furtherance of, and consistent with, the
goals and priorities and approved uses, UNIDAD and the City may agree to provide certain
recreation and leisure activities at the Senior Center that will be programmed through the City's
Parks and Recreation Department, or such other provider as the City may reasonably delegate.
UNIDAD and the City hereby agree to use best efforts in mutually determining and agreeing upon
the time, place, and manner in the coordination of such services and programs within the Senior
Center, and further agree that each party will be responsible for its respective costs associated with
the provision of said services and programs.
5.3 Hours of Operation. The City and UNIDAD herein agree that normal hours of
operation for the Senior Center shall be from 10:00 AM to 5 :00 PM, Monday through Fridays. The
parties recognize and acknowledge that, under certain circumstances (i.e. special events, special
programming, etc.), UNIDAD will be permitted to extend its hours of operation, but in no event shall
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said hours be shortened without the prior written approval of the City Manager or his designee,
which approval shall not be unreasonably withheld.
REVENUE FROM SENIOR CENTER RELATED
ACTIVITIES/FINANCIAL RECORDS AND REPORTS.
6.1 Revenue from Senior Center Related Activities. The City herein acknowledges
that UNIDAD may derive additional revenues from a portion ofthe uses it conducts upon or from the
Premises, including, but not limited to, special events on the Premises, specialty sales, classes,
lectures, and sale offood and beverages. UNIDAD herein acknowledges that any and all revenue
generating uses conducted upon or from the Premises must be directly related to, consistent with, or
used to help fund UNIDAD's management, operation, and maintenance ofthe Senior Center and, in
the event that revenue( s) pertaining to the Senior Center exceed expenses during an annual
accounting period, the City and UNIDAD agree that such excess, if any, may also be applied by
UNIDAD to support the programming ofUNIDAD. Any revenue generating uses conducted upon
or from the Premises that are not consistent with the uses in this subsection 6.1, shall first be
approved, in writing, by the City Manager or his designee, prior to commencement of same.
6.2 Financial Records and Reports. UNIDAD shall keep on the Premises, or such other
place within Miami Dade County, Florida, as approved by the City, true, accurate, and complete
records and accounts of all receipts and expenses for any and all uses, services, programs, events,
activities, and/or revenue generating activities/operations being conducted and/or transacted upon or
from the Premises pursuant to this Agreement and shall give the City, or its designated
representative, access during reasonable business hours to examine and audit such records and
accounts. Throughout the term ofthis Agreement, no later than one hundred and twenty (120) days
following the closing ofUNIDAD's fiscal year (October 1st - September 30th, which is also the
City's fiscal year), UNIDAD shall provide the City Manager or his designee, with an annual report
of all activities and/or operations conducted pursuant to this Agreement for the prior year, along with
audited financial statements. Said statements shall be certified as true, accurate and complete by
UNlDAD and by its certified public accountant.
SECTION 6.
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SECTION 7. BUDGET AND FUNDING FOR THE SENIOR CENTER.
7.1 Throughout the term of this Agreement, UNIDAD shall prepare and present, on
October 1st of each City fiscal year (October 1 - September 30th, which is also UNIDAD's fiscal
year) a proposed, detailed line item annual operating budget for the Senior Center, for review by the
City Manager and/or his designee. Said budget shall include a projected income and expense
statement; projected year end balance sheet; statement of projected income sources~ and application
of funds. Additionally, the budget shall also include, but not be limited to, the following detailed
projections:
a. Gross revenues by categories from all revenue sources and revenue
generating activities derived from or upon the Senior Center;
b. Operating expenses of the Senior Center;
c. Administrative, labor and general expenses;
d. Marketing, advertising and promotion expenses;
e. Utility costs;
f. Regular repairs and maintenance costs (to the extent such repairs and
maintenance are the responsibility ofUNIDAD, as provided herein) ; and
e. In addition to subsection (f) above, identify for the City, such long term
capital repairs and maintenance of facility infrastructure (which the City is
responsible for, as provided herein); in conjunction with this subsection (f)
UNIDAD agrees to allow the City and/or its designee access to the Premises,
as the City may deem necessary for the purpose of the City conducting its
own facility assessment methodology (as is used by the City in assessing the
condition of other City-owned structures including, without limitation, the
methodology implemented by the City through the "Vanderbilt Facilities
Advisors" (VFA) software).
7.2 Proe:rammatic Plan. Accompanying UNIDAD's proposed annual budget shall be
the Senior Center programmatic plan for the upcoming fiscal year, detailing the then-known
(planned) uses, activities, events, and operations, and the number of users anticipated.
SECTION 8. [INTENTIONALLY DELETED]
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SECTION 9. MAINTENANCE, REPAIRS, AND ALTERATIONS.
9.1 General Maintenance and Repair. UNIDAD agrees to maintain the interior ofthe
Premises, and every part thereof, in good condition during the term ofthe Agreement, including the
plumbing, doors and windows, and will not suffer or permit any strip or waste of the Premises.
Except as expressly provided in this Agreement, it is understood by the parties hereto that UNIDAD
shall not be responsible nor required to pay for any costs related to capital improvements or
infrastructure (i.e. including, but not limited to, roof, structural elements and infrastructure, HV AC,
plumbing and sewer lines, major electrical, etc.) for the Premises. Notwithstanding the preceding
sentence, UNIDAD shall provide the City with prompt notice of needed capital and/or infrastructure
repairs that are deemed to be within the City's respective maintenance responsibilities, and the City
shall have a reasonable time thereafter to commence said repairs.
9.2 Dav to Dav Maintenance.
UNIDAD shall, at its sole cost and expense, to the satisfaction ofthe City, keep, maintain,
and repair the Premises, and all improvements, fixtures, and equipment thereon (except for those
items the City is responsible for as set forth in subsection 9 .1 above), in good, clean, and sanitary
order. UNIDAD assumes sole responsibility and expense for day to day housekeeping, janitorial
services, and routine maintenance of the interior of the Premises, and all improvements, fixtures,
and equipment thereon. This shall include, without limitation, daily removal of litter, garbage and
debris generated by UNIDAD's use ofthe Premises, including all garbage disposal generated by its
operations and activities.
Notwithstanding the City and UNIDAD's respective roles with regard to maintenance and
repair ofthe Premises, UNIDAD shall comply with any and all State, Miami-Dade County, and City
laws, codes, rules and regulations, etc. with regard to its respective obligations.
9.3 In the event that UNIDAD desires or deems it appropriate to make alterations,
additions, or improvements to the Premises (other than the Proposed Improvements contemplated in
subsection 9.7) it will submit plans for same to the City, for the prior written approval of the City
Manager or his designee. No such alterations, improvements, or additions shall be made without the
express written approval of the City and, if approved, shall be made at UNIDAD's sole cost and
expense, and shall become the property ofthe City upon termination ofthis Agreement. UNIDAD
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shall not have the right to create or permit the creation of any lien attaching to the City's interest in
the Premises as a result of any such alterations, improvements, or additions.
9.4 Labor/Personnel/Materials/EQuipment/Furnishine:s.
UNIDAD must provide and maintain, at its sole cost and expense, all labor, personnel,
materials, equipment, and furnishings, as reasonably required, to operate the Premises as a full
service comprehensive senior center, in accordance with the approved uses set forth herein. In the
event any materials, equipment, and/or furnishings are lost, stolen, or damaged, they shall be
promptly replaced or repaired (funding permitted) at the sole cost and expense of the UNIDAD.
9.5 Orderly Operation.
UNlDAD shall have a neat and orderly operation at all times and shall be solely
responsible for the necessary housekeeping services to properly maintain the Senior Center. There
shall be no living quarters nor shall anyone be permitted to live within the Premises. UNIDAD shall
make the Premises available for inspection during hours of operation by the City Manager or his
authorized representative.
9.6 Security.
UNIDAD shall be responsible for and provide reasonable security measures which
may be required to protect the Premises and any of the materials, equipment, and furnishings
thereon. Under no circumstances shall the City be responsible for any stolen or damaged materials,
equipment, and furnishings, nor shall the City be responsible for any stolen or damaged personal
property ofUNIDAD's employees, contractors, patrons, guests, invitees, and/or other third parties.
9.7 Senior Center Proposed Capital Improvements and Renovation/Fundine: and
Responsibilities.
9.7.1 The Senior Center will commence operations pursuant to this Agreement upon
completion ofthe proposed capital improvements and renovation of the Premises, as hereinafter set
forth. The intended scope ofthe improvements and renovations will be to repair and renovate the
existing structure and to expand it by adding substantial additional square footage (the Proposed
Improvements). It is understood that the Premises will house public restrooms in addition to the
Senior Center.
9.7.2 This Agreement is made with the understanding and agreement that UNlDAD will
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design and construct the Proposed Improvements, which shall be valued at no less than $ 1 Million.
UNIDAD will agree to assign or contribute a minimum of $500,000 toward the Proposed
Improvements. The City agrees to fund a minimum of$500,000, in addition to previously allocated
Community Development Block Grant Funds. The Proposed Improvements will be approved by the
City Commission prior to commencement ofthe project (as hereinafter set forth in subsection 9.7.4).
Other than the City's funding contribution, as set forth herein (or such other additional contributions
expressly and separately approved and authorized by the City), the Proposed Improvements shall be
the sole cost and expense ofthe UNIDAD.
9.7.3.1 UNIDAD shall be solely responsible for the design ofthe Proposed Improvements,
and shall obtain all approvals from City and other applicable regulatory agencies therefore, including
approvals by City acting in both its proprietary regulatory capacity under the City Code, and other
applicable laws.
9.7.3.2 Concept Plan Desie:n ApprovallPlannine: Board Review.
UNIDAD shall submit for review and approval by the Mayor and City Commission at a
regularly scheduled meeting, a Concept Plan Design detailing the Proposed Improvements in
sufficient detail; the layout and siting, including without limitation, preliminary elevations,
including, but not limited to, size of building footprint, number of stories, heights; and other
improvements and appurtenances proposed upon the Premises. The Concept Plan Design review
process shall commence with UNlDAD's submission to the City, through the City Manager, no later
than October 6, 2006. The City Manager shall have 14 days to review the Concept Plan Design.
Upon conclusion of his review and approval, and prior to consideration ofthe Concept Plan Design
by the Mayor and City Commission, UNIDAD shall submit the Concept Plan Design to the Planning
Board, for its review and recommendation, which recommendation shall be no later than November
28,2006. Notwithstanding the preceding sentences, final approval ofthe Concept Plan Design will
rest with the City Commission. In the event that UNIDAD fails to make its submissions timely, the
City Manager may, at his sole option and discretion (i) grant UNIDAD a good faith extension for
said submittal, or (ii) declare the Agreement in default pursuant to Section 27 herein. Additionally,
should the City Commission fail to approve the Concept Plan Design by the date which is two (2)
months from the Planning Board's recommendation( s) regarding said Plan, or January 31 st, 2006,
whichever is later, then this Agreement shall automatically terminate and be of no further force or
effect, unless the City Commission deems to grant an extension, at its sole discretion. In the event of
automatic termination ofthis Agreement pursuant to this subsection, each party shall bear its own
costs and expenses incurred in connection with this Agreement, and neither party shall have any
further liability to the other.
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9.7.4 Preliminary Plans and Specifications.
Upon the City Commission's approval ofthe Concept Plan Design, UNIDAD shall submit to
City (acting in its proprietary capacity through the City Manager) Preliminary Plans and
Specifications for the Proposed Improvements, which shall be in accordance with the approved
Concept Plan Design and shall include, but not be limited to, a detailed site plan, elevation drawings
of each facade, a detailed floor plan for each of the floors of the Proposed Improvements, a
calculation ofthe floor areas for each floor, and a calculation ofthe total floor area dedicated to each
use within the Proposed Improvements (the "Preliminary Plans and Specifications").
UNIDAD shall submit its Preliminary Plans and Specifications to the City Manager
for approval within 120 days of the approval ofthe Concept Plan Design by the City Commission
(hereinafter, for purposes of this subsection 9.7, such date shall be referred to as the
"Commenc~ment Date"). The City Manager shall have thirty (30) days to review the Preliminary
Plans and Specifications. If the City Manager disapproves the Preliminary Plans and
Specifications, then UNIDAD and the City shall, confer in good faith to develop and submit revised
Preliminary Plans and Specifications which shall be submitted and reviewed as provided above.
Failure ofUNIDAD to obtain the City's final approval ofthe Preliminary Plans and Specifications
within 120 days from the date of City's disapproval, shall constitute a default under this Agreement.
UNIDAD shall, within sixty (60) days of City Manager's approval ofthe Preliminary Plans
and Specifications, submit an application for approval ofthe design for the Proposed Improvements
to the applicable City boards, including, without limitation, the applicable City land use boards
(collectively, any and all such City boards shall be hereinafter referred to as the "applicable City
boards"). Failure ofUNIDAD to submit its application(s) to the applicable City boards, by the date
which is sixty (60) days from the receipt ofCity's final approval, as provided above, shall constitute
a default under this Agreement. UNIDAD shall pursue approval of its applications to the applicable
City boards, diligently and in good faith.
Notwithstanding any other provision ofthis Agreement, this deadline shall be automatically
extended by the parties should the City elect to seek historic designation of the Premises.
9.7.5 Plans and Specifications.
Upon receipt of the City's, and the applicable City boards', approval of the Proposed
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Improvements, UNIDAD shall prepare, construction Plans and Specifications for construction of
the Proposed Improvements, consistent with the Preliminary Plans and Specifications (as approved
by the City and the applicable City boards)
9.7.6 Construction CommencementJUNIDAD's Ril!ht to Terminate.
9.7.6.1 As conditions precedent to UNIDAD's commencement of construction of the
Proposed Improvements, UNIDAD shall obtain a final Building Permit for the Proposed
Improvements by not more than one (1) year from the Commencement Date, and failure to do so
shall constitute a default under this Agreement. UNIDAD shall not commence construction ofthe
Proposed Improvements unless and until (a) UNIDAD shall have obtained and delivered to City
copies of all final permits and approvals required to commence construction; (b) UNIDAD shall
have delivered to City original certificates of the policies of insurance required to be carried by
UNIDAD's contractor(s) pursuant to Exhibit "B" to this Agreement, attached hereto and
incorporated; and (c) UNIDAD shall have obtained and furnished to City a payment and performance
bond from UNIDAD' s general contractor (the Payment and Performance Bond), in a form reasonably
acceptable to City, issued by a surety listed in the most recent U.S. Dept. of Treasury listing of
approved sureties, guaranteeing the performance by the general contractor for construction of the
Proposed Improvements. The City of Miami Beach, Florida, shall be named as a dual obligee under
the Payment and Performance Bond.
The City (solely in its proprietary and not in its regulatory capacity) shall reasonably
cooperate with UNIDAD in obtaining the permits and approvals required to construct the Proposed
Improvements; shall sign any application reasonably made by UNIDAD that is required in order to
obtain such permits and approvals; and shall provide UNIDAD with any information and/or
documentation not otherwise reasonably available to UNIDAD (if available to City) that is necessary
to procure such permits and approvals. Any such accommodation by City shall be without prejudice
to, and shall not constitute a waiver of City's rights to exercise its discretion in connection with its
regulatory functions.
9.7.6.2 UNIDAD shall, at its expense, (a) commence construction of the Proposed
Improvements on or before sixty (60) days after all permits and approvals necessary for the
commencement of construction are issued, but no later than eighteen (18) months from the
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Commencement Date (the "Construction Commencement Date"), and (b) thereafter continue to
prosecute construction of the Proposed Improvements with diligence and continuity to completion.
"Commence Construction" or "Commencement of Construction" means the commencement of
major work (such as pilings or foundations) for construction of the Proposed Improvements.
Promptly after commencement of construction, UNIDAD shall notify City in writing of the actual
date of such commencement. Any and all preliminary site work (including, without limitation, any
environmental remediation and ancillary demolition) shall not be deemed to be commencement of
construction. If, after UNIDAD has commenced construction, UNIDAD fails to diligently prosecute
construction of the Proposed Improvements (subject to unavoidable delays), and such failure
continues (subject to unavoidable delays) for thirty (30) consecutive days after UNIDAD's receipt of
notice of such failure, City shall, in addition to all of its other remedies under this Agreement, have
the right to seek such equitable relief( either mandatory or injunctive in nature) as may be necessary
to cause diligent and continuous prosecution of construction ofthe Proposed Improvements (subject
to unavoidable delays) by UNIDAD, it being understood that construction of the Proposed
Improvements is a material inducement for to City to enter into this Management and Operation
Agreement, and monetary damages shall be inadequate to compensate City for harm resulting from
such failure. Notwithstanding anything to the contrary contained herein, if UNIDAD fails to
substantially complete construction of the Proposed Improvements by the date provided for in this
Agreement, then the same shall constitute a default under this Agreement.
9.7.6.3 "Unavoidable delays" shall mean delays due to strikes, slowdowns, lockouts, acts of
God, inability to obtain labor or materials, war, enemy action, civil commotion, fire, casualty,
eminent domain, catastrophic weather conditions, a court order that actually causes a delay (unless
resulting from disputes between or among the party alleging an unavoidable delay, present or former
employees, officers, members, partners or shareholders of such alleging party or of affiliates of such
alleging party), in the application of any requirement. The party alleging unavoidable delay shall
notify the other within twenty days of such occurrence, however, failure to do so shall not waive any
rights caused by such delay. The times for performance related to the Proposed Improvements set
forth in this Agreement shall be extended to the extent performance is delayed by unavoidable
delays.
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9.7.6.4 UNIDAD'S RIGHT TO TERMINATE.
Notwithstanding anything to the contrary contained herein, UNIDAD shall have the right to
be released from its liability and to terminate this Agreement prior to the obtaining a final (Full)
Building Permit for construction of the Proposed Improvements because (a) changes to the
Preliminary Plans and Specifications required by any or all of the applicable City boards, or any
other governmental authority (including the City), render the project economically unfeasible in the
reasonable business judgment ofUNIDAD, (b) UNIDAD, after good faith efforts, has been unable
to obtain .a Building Permit for the Proposed Improvements pursuant to the Plans and Specifications
submitted by UNIDAD,_or (c) UNIDAD, after diligent, good faith efforts, has been unable to raise its
respective funding contribution required for the Proposed Improvements. In the event oftermination
of this Agreement pursuant to this subsection, each party shall bear its own costs and expenses
incurred in connection with this Agreement and neither party shall have any further liability to the
other.
9.7.7 Substantial Completion/Completion of Construction.
Substantial completion of the Proposed Improvements shall be accomplished in a diligent
manner and, in any event, no later than eighteen (18) months from the issuance of a Full Building
Permit. "Substantial completion", as used herein shall require the issuance of a temporary or final
certificate of occupancy by the City's Building Department. Such date may be extended for good
cause shown upon request in writing to the City Manager, which extension by the City Manager shall
not be unreasonably withheld. Final completion ofthe construction ofthe Proposed Improvements,
shall be accomplished in a diligent manner, in each case in a good and workmanlike manner, in
substantial accordance with the Plans and Specifications (with no material deviations except as
expressly permitted herein), at UNIDAD's sole cost and expense. Upon Substantial Completion of
Construction ofthe Proposed Improvements, UNIDAD shall furnish City with the following:
(a) a certification from UNIDAD's architect (certified to City on the standard AlA
certification form) that it has examined the Plans and Specifications and that, in its
professional judgment, after diligent inquiry, construction ofthe Proposed Improvements
has been Substantially Completed in accordance with the Plans and Specifications
applicable thereto and, as constructed, the Proposed Improvements comply with all
16
applicable codes and laws;
(b) a copy or copies of the temporary and final certificates of occupancy for the Proposed
Improvements issued by the City of Miami Beach Building Department;
(c) lien waivers in form and substance reasonably satisfactory to City from each contractor,
subcontractor, supplier or materialman retained by or on behalf of UNIDAD in
connection with the construction of the Proposed Improvements, evidencing that such
persons have been paid in full for all work performed or materials supplied in connection
with the construction of the Proposed Improvements;
(d) a complete set of "as built" plans and a survey showing the improvement(s) (excluding
personality) for which the construction of the Proposed Improvements has been
completed. City shall have an unrestricted license to use such "as built" plans and survey
for any purpose related to the Premises without paying any additional cost or
compensation therefore, The foregoing requirement with respect to "as built" plans shall
be satisfied by UNIDAD furnishing to City or, at UNIDAD's expense, a complete set of
Plans and Specifications, with all addenda thereto and change orders in respect thereof,
marked to show all changes, additions, deletions and selections made during the course
of the construction ofthe Proposed Improvements; and
(e) a Contractor's Final Affidavit in form and substance reasonably satisfactory to City
executed by the General Contractor (i) evidencing that all contractors, subcontractors,
suppliers and materialmen retained by or on behalf ofUNIDAD in connection with the
construction ofthe Proposed Improvements have been paid in full for all work performed
or materials supplied in connection with the construction ofthe Proposed Improvements
and (ii) otherwise complying with all ofthe requirements under the Florida Construction
Lien Law, Chapter 713, Florida Statutes, as amended.
Construction of the Proposed Improvements shall be carried out pursuant to Plans and
Specifications prepared by licensed architects and engineers, with controlled inspections conducted
by a licensed architect or professional engineer as required by applicable requirements.
Upon Substantial Completion ofthe Proposed Improvements, UNIDAD shall certify to City
that it has, in fact, expended not less than the required minimum amount(s) for total construction
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costs.
Any and all construction, once commenced, must be carried through continuously to
completion, but any interruption or delay in the doing and completion ofthe work which shall have
been caused by act of God, or the public enemy, or strike, or natural casualty, or other circumstances
not occasioned by or attributable to the fault, default or neglect ofUNIDAD shall not be deemed to
cause UNIDAD to be in default under this Agreement, so long as UNIDAD exercises due diligence
to cause the work of construction to be carried through to completion as promptly and expeditiously
after the commencement thereof as possible.
9.7.8 Extensions for Performance.
The times for performance related to the design and construction of the Proposed
Improvements, as set forth in this subsection 9.7, may be extended for good cause shown, upon
request in writing to the City Manager, which extension by the City Manager shall not be
unreasonably withheld.
SECTION 10. ANNUAL REPORTS FOR USE OF PREMISES/CITY USE OF
PREMISES FOR SPECIAL EVENTS/ RECEPTIONS/
COMMUNITY MEETINGS, AND GENERALLY.
10.1 UNIDAD shall provide an annual written report ofthe activities and events scheduled
in and pertaining to the Senior Center and, with each such report, shall report on the activities which
actually occurred and the number of persons participating in those activities during the previous
month. Any revenue-generating activity(ies) conducted upon or from the Senior Center must be in
accordance with those provided in Section 6 of this Agreement (or, otherwise approved by the City
in accordance therein). All revenues received by UNIDAD in connection with uses conducted upon
or from the Senior Center shall be dedicated exclusively to help fund UNIDAD's management,
operation, and maintenance of the Senior Center. In the event that revenue(s) pertaining to the
Senior Center exceed expenses during an annual accounting period, the City and UNIDAD agree that
such excess, if any, shall first be applied to offset any of the City's capital improvements and/or
infrastructure maintenance costs (as set forth in subsection 9.1) and may then be applied by
UNIDAD to support the programming ofUNIDAD. For purposes herein, "revenues" shall also be
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deemed to include public/private grant funding, and unrestricted donations and contributions
received by UNIDAD specifically ear-marked toward the operation, management and programming
ofthe Senior Center. No portion ofthe net earnings resulting from the activities ofUNIDAD at the
Senior Center shall inure to the benefit of any private individual.
Notwithstanding the foregoing, the City Manager or his designee, shall have the absolute and
final authority in overseeing UNIDAD's activities with regard to this Agreement and its operation
and management of the Senior Center, such that the City is assured that the Senior Center is being
operated and utilized in accordance with the terms of this Agreement.
10.2 Use by the City. UNIDAD and the City have agreed that the Proposed
Improvements will provide a multi-purpose facility that can be used for community programming,
and serve as an adjunct to the adjacent park and bandshell facility. Consistent with this, the City
shall have the right to use the Senior Center, or any part thereof, subject to availability, for the
benefit of the community for such purposes including, but not limited to, recreational programs
sponsored by the City, public meetings, training classes, City sponsored special events, receptions,
and other public purposes as deemed necessary by the City, without the payment of any rental or use
fee, except that direct out-of-pocket expenses incurred in connection with such uses (including
reasonable expenses incurred by UNIDAD in order to open and make the Premises available in
connection with a City use thereof) shall be paid by the City. UNIDAD and the City agree to
develop mutually acceptable guidelines and regulations to permit City and community use of the
Senior Center, as set forth in subsection 5.1 (h) of the Agreement .
SECTION 11. UNIDAD'S CONTRIBUTION.
11.1 This Agreement is made with the express consideration, understanding and agreement
that UNIDAD will contribute $ 500,000, toward the Proposed Improvements, as more specifically
described in subsection 9.7 of this Agreement.
11.2 In addition to the required contribution in subsection 11.1 above, throughout the term
ofthis Agreement, and as further consideration for this Agreement, UNIDAD shall also use its best
efforts to continue to obtain public/private grant funding and individuaVcorporate contributions, not
only for such other capital renovations and improvements as may be mutually agreed to by the
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parties hereto but, more importantly, for the continued operation and support of the Senior Center
(and to sustain the approved uses contemplated in this Agreement). UNIDAD hereby warrants and
represents that such approved uses shall, throughout the term of this Agreement, be funded and
operated, at UNIDAD's sole cost and expense. It is the intent of the City and UNIDAD that
UNIDAD will use reasonable efforts to increase its funding for the maintenance, operation and
programming of the Senior Center, and toward sustaining and increasing the approved uses, on a
continuing basis.
Similarly, the City and UNIDAD herein agree that a vital component ofUNIDAD's mission
statement, with respect to this Agreement, is to use its best efforts; specifically, to obtain
public/private funding contributions to augment the parties' respective contributions for the
Proposed Improvement, and to continue to operate and manage the Senior Center in accordance with
the highest levels of service. Accordingly, UNIDAD herein represents that it shall use its best efforts
with respect to undertaking a coherent and consistent grants writing and submittal effort, not only to
fund its portions of the Proposed Improvements, but to fund the continued management and
operation of the Senior Center.
UNIDAD further acknowledges and understands that the City shall in no way be obligated to
supplement and/or otherwise contribute any funds for UNIDAD's day-to-day operation and
maintenance of the Senior Center, except as may be otherwise set forth in this Agreement.
SECTION 12.
ASSIGNMENT.
UNIDAD may not assign this Agreement, or any part thereof, without the prior written
approval of the City, which approval shall be given, if at all, at the sole discretion of the City. This
Agreement is made with the understanding that UNIDAD shall at all times, throughout the term of
this Agreement, remain a not-for-profit corporation. In the event that UNIDAD ceases to be a not-
for-profit corporation, or the City, through the City Manager, in his sole discretion and judgment,
determines that the Senior Center is not being used for the stated purposes in Section 4, this
Agreement shall be subject to termination upon thirty (30) days written notice by the City to
UNIDAD.
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SECTION 13.
USE OF THE SENIOR CENTER IS PRIMARY.
The Senior Center is for the use ofthe public, for the approved uses consistent with Section
4, and the public's right to such use shall not be infringed upon by any act ofUNIDAD.
SECTION 14. PERMITS; LICENSES.
UNIDAD agrees to obtain and pay for all permits and licenses necessary for the conduct of its
operation and activities on the Premises and agrees to comply with all laws governing the
responsibility of an employer with respect to persons employed by UNIDAD. UNIDAD shall also be
solely responsible for payment of any and all taxes levied on the Premises and its operations. In
addition, UNIDAD shall comply with all rules, regulations and laws of the City; Miami-Dade
County; the State of Florida; and the U.S. Government, now in force or hereafter to be adopted.
SECTION 15.
LICENSES/PERMITS, UTILITIES, TAXES, AND
ASSESSMENTS.
15.1 Licenses. Permits. Utilities.
UNIDAD shall pay any fees imposed by law for licenses or permits for any uses or
activities of UNIDAD upon the Senior Center or under this Agreement and shall pay to the City,
before delinquency any and all charges for utilities at or on the Senior Center (including, but not
limited to, water, electricity, gas, heating, cooling, sewer and telephone, trash collection, etc.).
15.2 Procedure If Taxes Assessed.
UNIDAD agrees to and shall pay before delinquency all taxes and assessments of any
kind assessed or levied upon UNIDAD or the Senior Center by reason ofthis Agreement or by reason
of the business or other activities of UNIDAD upon or in connection with the Senior Center. The
parties agree that the operation and uses of the Senior Center and those operations and uses
convenient and necessary therefore, are for public purposes and, therefore, no ad valorem taxes should
be assessed by the Dade County Tax Appraiser. If, however, said taxes are assessed by said Property
Tax Appraiser, UNIDAD shall be responsible for payment of same.
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SECTION 16.
SIGNAGE.
UNIDAD shall provide, at its sole cost and expense, required signs at all public approaches
to the Premises, as determined by UNIDAD in its reasonable discretion, said signage containing
substantially the following language:
NORTH BEACH SENIOR CENTER
OPERATED BY UNIDAD OF MIAMI BEACH, INC.
All advertising, signage and po stings shall be approved by the City and shall be subject to
all applicable planning and zoning requirements of the City.
SECTION 17. FORCE MAJEURE.
17.1 The performance of any act by UNIDAD or the City hereunder may be delayed or
suspended at any time while, but only so long as, either party is hindered in or prevented from
performance by acts of God ( including without limitation hurricanes), the elements of war,
rebellion, strikes, lockouts, fire, explosion or any other casualty or occurrence not due to UNIDAD' s
negligence and beyond the reasonable control of the parties.
17.2 Premises Unusable.
In the event a Force Majeure renders the Premises untenantable, in whole or in part,
as determined by City, the City may, at its sole option and discretion: (i) elect, as soon as practicable,
to utilize the insurance proceeds to repair the damaged property, and the term ofthe Agreement shall
be abated until such time as UNIDAD may reopen the Senior Center after restoration or repair ofthe
damaged property; or (ii) elect not to repair or restore the damaged property and, in such event (and
provided further that UNIDAD does not elect, and/or does not comply with the procedures for
UNIDAD's repair ofthe Premises using its own funds), this Agreement shall be terminated as ofthe
date of said occurrence of damage or casualty. Notwithstanding the preceding sentence, in the event
the (a) City elects not to restore or repair the damage; (b) UNIDAD gives written notice to the City
within sixty (60) days of the casualty that UNIDAD is willing to undertake the repair the damage
with its own or other available funds; ( c) within twelve (12) months following such notice, UNIDAD
proves, to the City's sole satisfaction and discretion, that it has adequate funds immediately available
22
to undertake the repair; and (d) the City and UNIDAD, each acting in its reasonable discretion, agree
within a reasonable time (but not to exceed six (6) months unless otherwise extended in writing by
City Manager) after the City deems that UNIDAD has demonstrated that it has adequate funds to
undertake the repair, to the conditions, timing, plans, procedures, contractors, subcontractors,
disbursement mechanisms and other matters with respect to the repair, then and in that event,
UNIDAD shall be entitled to effect the repair with its own funds; provided that UNIDAD must
complete any and all repairs and/or restoration no later than eighteen (18) months from the date of
the City's approval ofUNIDAD's funding capability.
SECTION 18.
INSPECTION.
UNIDAD agrees that the Premises may be inspected at any time upon reasonable notice by
authorized representatives of the City, or by any other State, County, Federal and/or municipal
officer or agency having responsibilities for inspections of such operations and/or Premises.
UNIDAD agrees to undertake immediately the correction of any deficiency cited by such inspectors
on the Premises, which is properly the responsibility ofUNIDAD pursuant to this Agreement.
The City or its agents shall have the right to enter upon the Premises at all reasonable times to
examine the condition and use thereof; (including, without limitation, for the purpose of assessing
the condition of the facility, as also referenced in subsection 7.1 (e), provided, only, that such right
shall be exercised in such manner so as not to interfere with UNIDAD in the conduct ofUNIDAD's
activities on the Premises; and ifthe Premises are damaged by fire, windstorm or by other casualty
that causes the Premises to be exposed to the elements, then the City may enter upon the Premises to
make emergency repairs; but if the City exercises its option to make emergency repairs, such act or
acts shall not be deemed to excuse UNIDAD from his obligation to keep the Premises in repair. If
City makes any emergency repairs pursuant to the terms hereof, UNIDAD shall reimburse the City
for all such repairs upon receipt by UNIDAD of City's notice of repairs made and statement and
proof of costs incurred.
SECTION 19.
WAIVER OF INTERFERENCE.
UNID AD hereby waives all claims for compensation for loss or damage sustained by reasons
23
of any interference with its operation and management of the Premises by any public agency or
official as a result of their enforcement of any laws or ordinances or of any of the rights reserved to
the City herein. Any such interference shall not relieve UNIDAD from any obligation hereunder.
SECTION 20.
INSURANCE REQUIREMENTS.
UNIDAD shall maintain, at UNIDAD's sole cost and expense, the following types of
insurance coverage at all times throughout the term of this Agreement:
a. General liability insurance with not less than the following
limits:
General aggregate
$2,000,000
Personal and advertising (injury)
(Per occurrence)
$1,000,000
$1,000,000
Fire damage
$ 100,000
Medical Expense
$
5,000
.Liquor Liability (aggregate)
(Per occurrence)
(for special events, if required)
$2,000,000
$1,000,000
b. Workers Compensation Insurance shall be required under the Laws of the
State of Florida.
c. Automobile Insurance shall be provided covering all owned, leased, and hired
vehicles and non-ownership liability for not less than the following limits
(only ifUNIDAD provides transportation services):
Bodily Injury $1,000,000 per person
Bodily Injury
$1,000,000 per accident
Property Damage
$ 500,000 per accident
e. Fire Insurance shall be the responsibility ofthe City.
The policies of insurance referred to above shall not be subject to cancellation or changing
24
coverage except upon at least thirty (30) days written notice to City and then subject to the prior
written approval of City. UNIDAD shall provide City with a Certificate of Insurance for each such
policy, which shall name the City as an additional named insured. All such policies shall be obtained
from companies authorized to do business in the State of Florida with an A.M. Best's Insurance
Guide (latest edition) rating acceptable to the City's Risk Manager, and any replacement or substitute
company shall also be subject to the approval ofthe City's Risk Manager. Should UNIDAD fail to
obtain, maintain or renew the policies of insurance referred to above, in the required amounts, the
City may, at its sole discretion, obtain such insurance, and any sums expended by City in obtaining
said insurance, shall be repaid by UNIDAD to City, plus ten percent (10%) of the amount of
premiums paid to compensate City for its administrative costs. IfUNIDAD does not repay City's
expenditures within fifteen (15) days of demand, the total sum owed shall accrue interest at the rate
of twelve percent (12%) until paid, and such failure shall be deemed an event of default hereunder.
SECTION 21. INDEMNIFICATION.
21.1 UNIDAD shall indemnify, hold harmless and defend the City, its agents, servants and
employees from and against any claim, demand or cause of action of whatsoever kind or nature
arising out of error, omission, or negligent act ofUNIDAD, its agents, servants or employees in the
performance of services under this Agreement.
21.2 In addition, UNIDAD shall indemnify, hold harmless and defend the City, its agents,
servants and employees from and against any claim, demand or cause of action of whatever kind or
nature arising out of any misconduct ofUNIDAD not included in the paragraph in the subsection
above and for which the City, its agents, servants or employees are alleged to be liable. This
subsection shall not apply, however, to any such liability as may be the result of the willful
misconduct of the City, its agents, servants or employees.
21.3 Subroe:ation. The terms of insurance policies referred to in Section 21 shall preclude
subrogation claims against UNIDAD, the City and their respective officers, employees and agents.
21.4 The provisions ofthis Section 21 shall survive the termination and/or expiration of
this Agreement.
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SECTION 22.
NO LIENS.
UNIDAD agrees that it will not suffer, or through its actions or anyone under its control or
supervision, cause to be filed upon the Premises any lien or encumbrance of any kind. In the event
any lien is filed, UNIDAD agrees to cause such lien to be discharged within ten (10) days therefrom,
and in accordance with the applicable law and policy. If this is not accomplished, the City may
automatically terminate this Agreement, without further notice to UNIDAD.
SECTION 23.
UNIDAD EMPLOYEES AND MANAGERS.
23.1 The City and UNIDAD recognize that in the performance ofthis Agreement, it shall
be necessary for UNIDAD to retain qualified individuals to effectuate and optimize UNIDAD's
management and operation ofthe Senior Center. Any such individuals, whether employees, agents,
independent contractors, volunteers, and/or other, retained by UNIDAD for such purpose(s) shall
not be deemed to be agents, employees, partners, joint venturers or associates ofthe City, and shall
not obtain any rights or benefits under the civil service or pension ordinances of the City or any
rights generally afforded classified or unclassified employees of the City; further they shall not be
deemed entitled to the Florida Worker's Compensation benefits as employees of the City.
Additionally, UNIDAD, and/or any employees, agents, independent contractors, volunteers, and/or
others, acting under the authority and/or with the permission ofUNIDAD for the purpose set forth
herein, shall never have been convicted of any offense involving moral turpitude or felony. Failure
to comply with this provision shall constitute cause for the termination ofthis Agreement. UNIDAD
shall have an experienced manager or managers overseeing the Premises at all times. Any criminal
activity on the Premises caused by or knowingly permitted by UNIDAD shall result in automatic
termination of this Agreement.
23.2 Contract Administration.
a. The City's contract administrator shall be the City Manager and/or his
designee. UNIDAD shall name a specific individual to serve as its contract
administrator.
b. The City's contract administrator shall have the authority to give all
approvals for the City while administering this Agreement, with the
26
exception of items which would require City Commission approval. The
City's contract administrator:
(i) Shall be the liaison between the City and UNIDAD on all matters
relating to this Agreement.
(ii) Shall be responsible for ensuring that any information supplied by
UNIDAD is property distributed to the appropriate City departments.
(iii) Shall be responsible for contract compliance by UNIDAD (including,
without limitation, UNIDAD's activities, programming, operations,
management, and maintenance of the Senior Center).
c. UNIDAD shall name an individual who shall serve as the general manager of
the Senior Center and who:
(i) Shall be the liaison between the City and UNIDAD on all matters
relating to this Agreement.
(ii) Shall be responsible for the day-to-day management and supervision
ofthe Senior Center.
(iii) Shall be responsible for providing supervision and direction to the
Senior Center's employees, agents, contractors, and/or volunteers.
SECTION 24. NO IMPROPER USE.
UNIDAD will not use, nor suffer or permit any person to use in any manner whatsoever, the
Premises for any improper, immoral or offensive purpose, or for any purpose in violation of any
Federal, State, County, or municipal ordinance, rule, order or regulation, or of any governmental rule
or regulation now in effect or hereafter enacted or adopted. UNIDAD shall not use the Premises for
any unlawful purpose and shall comply with all laws, permitting, and licensing requirements now in
force or hereafter adopted, applicable to the Premises or the uses and activities conducted on the
Premises. UNIDAD agrees not to use the Premises for, or to permit operation of any offensive or
dangerous activity, nuisance or anything against public policy. Except as may result from acts of
force majeure, UNIDAD agrees that it will not allow the Premises to become unoccupied or vacant.
UNIDAD shall take appropriate precautions to prevent fire on the Premises, maintaining existing fire
27
detection devices and extinguishing equipment at all times.
SECTION 25.
NO DANGEROUS MATERIALS.
UNIDAD agrees not to use or permit in the Premises the storage of illuminating oils, oil
lamps, turpentine, gasoline, benzine, naphtha, or other similar substances, or explosives or any kind,
or any substance or thing prohibited in the standard policies of fire insurance companies in the State
of Florida.
SECTION 26. NO CLAIM AGAINST CITY OFFICERS, EMPLOYEES,
INDIVIDUALS.
It is expressly understood and agreed by and between the parties hereto that all individuals,
employees, officers, and agents of the City are acting in a representative capacity and not for their
own benefit; and that neither UNIDAD, nor any of its employees, agents, contractors, volunteers
and/or others, shall have any claim against them or any of them as individuals in any event
whatsoever in conjunction with any acts or duties which are reasonably related to the performance of
their duties.
SECTION 27.
DEFAULT AND TERMINATION.
If either party fails to perform in accordance with any of the terms and conditions of this
Agreement, and such default is not cured within thirty (30) days after written notice is given, the
aggrieved party shall have the right to terminate this Agreement and, as the case may be, either
vacate or re-enter the Premises, without further notice or demand. At its option, either party may
also pursue any and all legal remedies available to seek redress for such default. The default and
termination rights afforded the parties in this Section 27, shall in no way limit or otherwise preclude
the City from exercising such other rights to terminate this Agreement, as may be expressly provided
in other sections hereto.
SECTION 28.
PROCEDURE UPON EXPIRATION AND/OR TERMINATION
BY CITY
28.1 UNIDAD shall, on or before the last day ofthe term herein, or the sooner termination
28
thereof, peaceably and quietly leave, surrender and yield unto the City, the Premises, together with
any and all fixtures located at or on the Premises and used by UNIDAD in the maintenance,
management or operation ofthe Premises, excluding any equipment, furnishings, appliances or other
personal property which can be removed without material injury to the Premises, free of all liens,
claims and encumbrances and rights of others, and broom-clean, together with all structural changes,
alterations, additions, and improvements which may have been made upon the Premises, in good
order, condition and repair, reasonable wear and tear excepted, subject, however, to the subsequent
provisions of this subsection. Any property which pursuant to the provisions of this subsection is
removable by UNIDAD on or at the Premises upon the termination ofthis Agreement and is not so
removed may, at the option of the City, be deemed abandoned by UNIDAD, and either may be
retained by the City as its property, or may be removed and disposed of by City, at the sole cost of
the UNIDAD, in such manner as the City may see fit. Ifthe Premises are not surrendered at the end
ofthe term as provided in this subsection, UNIDAD shall make good to the City all damages which
the City shall suffer by reason thereof, and shall indemnify, the City against all claims made by a
succeeding occupant (if any), so far as such delay is occasioned by the failure of UNIDAD to
surrender the Premises as and when herein required.
28.2 UNIDAD covenants and agrees that it will not enter into agreements (whether
express or implied) relating to the Premises for a period oftime beyond the stated expiration date of
this Agreement.
SECTION 29.
TERMINATION FOR LACK OF FUNDS.
In the event that UNIDAD loses its funding, such that it can no longer manage and operate
the Senior Center in accordance with the goals and priorities and uses herein, then the City
may, at its discretion: (i) supplement any lack or loss of funds in order to allow UNIDAD to
continue to manage and operate the Center; or (ii) terminate this Agreement pursuant to
Section 27 above.
SECTION 30.
NOTICES.
All notices from the City to UNIDAD shall be deemed duly served if mailed by registered or
29
certified mail to UNIDAD at the following address:
UNIDAD of Miami Beach, Inc.
Attention: Margarita Cepedo,Executive Director
1701 Normandy Drive
Miami Beach, Florida 33141
All notices from UNIDAD to the City shall be deemed duly served ifmailed to:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
City of Miami Beach
Attention: Asset Manager
1700 Convention Center Drive, 3rd Floor
Miami Beach, Florida 33139
UNIDAD and the City may change the above mailing addressed at any time upon giving the other
with copies to:
party written notification. All notice under this Agreement must be in writing.
SECTION 31.
NO DISCRIMINATION.
UNIDAD agrees that there shall be no discrimination as to race, sex, color, creed, national
origin, physical handicap, or sexual orientation in the operations referred to by this Agreement; and
further, there shall be no discrimination regarding any use, service, maintenance or operation ofthe
Premises. All facilities located on the Premises shall be made available to the public; subject to the
right ofUNIDAD to establish and enforce reasonable rules and regulations to provide for the safety,
orderly operation and security of the facilities.
SECTION 32.
VENUEIW AIVER OF JURY TRIALIDISPUTE MEDIATION.
32.1 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 oflaws.
The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County,
Florida, ifin state court, and the U.S. District Court, Southern District of Florida, ifin federal court.
BY ENTERING INTO THIS AGREEMENT, CITY AND UNIDAD EXPRESSLY WAIVE ANY
30
RIGHTS EITHER P ARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
32.2 If a dispute arises out of, or related to, this Agreement, or the breach thereof, and if
the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle
the dispute by mediation administered by the American Arbitration Association, or other similar
alternative dispute resolution organization, person or source agreeable to the parties, before resorting
to litigation or other dispute resolution procedure.
SECTION 33.
LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only if in so doing the City can place a limit on
its liability for any cause of action for money damages due to an alleged breach by the City ofthis
Agreement, so that its liability for any such breach never exceeds the sum of $10,000. Contractor
hereby expresses his willingness to enter into this Agreement with Contractor's recovery from the
City for any damage action for breach of contract to be limited to a maximum amount of$lO,OOO,
less the amount of all funds actually paid by the City to Contractor pursuant to this Agreement.
Accordingly, and notwithstanding any other term or condition ofthis Agreement, Contractor
hereby agrees that the City shall not be liable to the Contractor for damages in an amount in excess
of $10,000, which amount shall be reduced by the amount actually paid by the City to Contractor
pursuant to this Agreement, for any action or claim for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this Agreement.
Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability as set forth in Section 768.28, Florida
Statutes.
SECTION 34. MISCELLANEOUS PROVISIONS.
34.1 City's Governmental Capacity.
Nothing in this Agreement or in the parties' acts or omissions in connection herewith shall be
deemed in any manner to waive, impair, limit or otherwise affect the authority of the City in the
discharge of its police or governmental power.C
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34.2 Entire Ae:reement.
( a) Entire Agreement. This Agreement, together with the attachments hereto, contains all
of the promises, agreements, conditions, inducements and understandings between City and
UNIDAD concerning the operation and management of the Premises (except for funding
commitments by the City, CDBG, and/or FEMA which may be expressly committed for the Premises
under separate grant agreements), and there are no promises, agreements, conditions, understandings,
inducements, warranties or representations, oral or written, express or implied, between them other
than as expressly set forth herein and in such attachments thereto or as may be expressly contained in
any enforceable written agreements or instruments executed simultaneously herewith by the parties
hereto.
(b) Waiver. Modification. etc. No covenant, agreement, term or condition of this
Agreement shall be changed, modified, altered, or waived except by a written instrument of change,
modification, alteration, or waiver executed by City and UNIDAD. No waiver of any default shall
affect or alter this Agreement, but each and every covenant, agreement, term and condition of this
Agreement shall continue in full force and effect with respect to any other then existing or
subsequent default thereof.
34.3 Remedies Cumulative.
Each right and remedy of either party provided for in this Agreement shall be cumulative and
shall be in addition to every other right or remedy provided for in this Agreement, or now or
hereafter existing at law or in equity or by statute or otherwise (except as otherwise expressly limited
by the terms ofthis Agreement), and the exercise or beginning ofthe exercise by a party of anyone
or more ofthe rights or remedies provided for in this Agreement, or now or hereafter existing at law
or in equity or by statute or otherwise (except as otherwise expressly limited by the terms of this
Agreement), shall not preclude the simultaneous or later exercise by such party of any or all other
rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity or
by statute or otherwise (except as otherwise expressly limited by the terms of this Agreement).
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34.4 Performance at Each Party's Sole Cost and Expense.
Unless otherwise expressly provided in this Agreement, when either party exercises any of its
rights, or renders or performs any of its obligations hereunder, such party shall do so at its sole cost
and expense.
34.5 Time is of the Essence.
Time is ofthe essence with respect to all matters in, and requirements of, this Agreement as
to both City and UNIDAD including, but not limited to, the times within which UNIDAD must
commence and complete construction of the Proposed Improvements.
34.6 No Representations.
City and UNIDAD have made no representations herein as to the condition ofthe Premises.
34.7 Partnership Disclaimer.
UNIDAD acknowledges, represents and confirms that it is an independent contractor in the
performance of all activities, functions, duties and obligations pll;rsuant to this Agreement.
The parties hereby acknowledge that it is not their intention to create between themselves a
partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or agency relationship
for the purpose of this Agreement, or for any other purpose whatsoever. Accordingly,
notwithstanding any expressions or provisions contained herein, nothing in this Agreement, shall be
construed or deemed to create, or to express an intent to create, a partnership, joint venture, tenancy-
in-common, joint tenancy, co-ownership, or agency relationship of any kind or nature whatsoever
between the parties hereto. The provisions of this Section 34.7 shall survive termination and/or
expiration of this Agreement.
34.8 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, structure, equipment or
space is leased to UNIDAD; that this Agreement is a management agreement and not a lease; and
that UNIDAD's right to operate, manage, and coordinate the Senior Center shall continue only so
long as UNIDAD complies with the undertakings, provisions, agreements, stipulations and
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conditions of this Agreement.
34.9 No Third Party Rie:hts.
Nothing in this Agreement, express or implied, shall confer upon any person, other than the
parties hereto and their respective successors and assigns, any rights or remedies under or by reason
of this Agreement.
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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.
~6~~
City Clerk
Robert Parcher
CITY OF MIAMI BEACH
~ LfI~-
1 T""lo. (n ~ ____ H ...
Vice-Mayor Jerry Libbin
Attest:
UNIDAD OF MIAMI BEACH, INC.
~
President
c&o~111~~~
. Secretary
F:\atto\AGUR\AGREEMNT\Unidad CMS - Management Agreement (Finall 0-4-06).DOC
STATE OF FLORIDA
)
)
)
SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this ft,tIJ day of tJ ~ ,
2006, by Vic~-Mayor Jerry Libbinmd Robert Parcher, City Clerk, or their designees respectively, on
behalf of the CITY OF MIAMI BEACH, known to me to be the persons described in and who
executed the foregoing instrument, and acknowledged to and before me that they executed said
instrument for the purposes therein expressed.
WITNESS my hand and official seal, this
,2006.
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APPROVED AS TO
FORM & LANGUAGE
& FOR CUnON
~~
STATE OF FLORIDA
)
)
)
SS:
COUNTY OF MIAMI-DADE
The fo egoing instrument was acknowledged before me this ~day of _~ +0 be ( ,
2006, by '. <Ii . , on behalf ofthe UNIDAD of Miami Beach, Inc., known to
me to be the persons described in and who executed the foregoing instrument, and acknowledged to
and before me that they executed said instrument for the purposes therein expressed.
WITNESS my hand and official seal, this ~ay of ( , 2006.
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EXHIBIT A
[SKETCH OF PREMISES]
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EXHIBIT B
[INSURANCE REQUIRED OF UNIDAD'S CONTRACTORS]
1. Worker's compensation insurance covering all employees of the Contractor as
required by the laws of the State of Florida and employer's liability insurance of not less than One
Million Dollars ($ 1,000,000) per occurrence.
2. Comprehensive general liability insurance in an amount of not less than One Million
Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) annual aggregate
covering personal injury and property damage. Such coverage shall include, but not be limited to,
the following:
1. Blanket contractual liability insurance covering all indemnity or hold
harmless agreements.
11. Protective liability insurance for the operation ofthe Independent Contractors.
111. XCU coverage (explosion, collapse or damage to underground property).
IV. Products and completed operations (for two year extension beyond
completion ofproject).
3. Excess umbrella liability insurance with a limit of not less than rTBDl
Dollars ($ ) per occurrence and in the aggregate in excess of the above
mentioned insurance; which shall be required only in any "wrap up" policy.
a) UNIDAD may cause the insurance listed in this subsection to be provided
through an overall "wrap up" policy, in lieu of individual policies provided by
Contractors.
b) Comprehensive automobile insurance in an amount of not less than Two
Million Dollars ($2,000,000) combined single limit for bodily injury and
property damage covering all owned, non-owned or hired vehicles, trailers or
semi-trailers, including any machinery or apparatus attached thereto.
4. Builder's Risk Insurance (standard "All Risk" or equivalent coverage) in an amount
not less than the cost of construction, written on a completed value basis or a reporting basis, for
property damage protecting UNIDAD, City, and UNIDAD's general contractor, with a deductible of
not more than Fifty Thousand Dollars ($50,000), subject to adjustment for inflation (except as to
flood and windstorm, with regard to which the deductible shall be a commercially reasonable
amount).
5. Comprehensive automobile insurance in an amount of not less than Two Million Dollars
($2,000,000) combined single limit for bodily injury and property damage covering all owned,
non-owned or hired vehicles, trailers or semi-trailers, including any machinery or apparatus attached
thereto.
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