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HomeMy WebLinkAboutR-03-0911J-03-686 09/03/03 RESOLUTION NO. 03"6 o i l A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI ("CITY") AND BALLET GAMONET, INC. FOR A PUBLIC BALLET PROJECT IN THE ALFRED I. DUPONT BUILDING LOCATED AT 169 EAST FLAGLER STREET, MIAMI, FLORIDA, TO PROVIDE CITY FUNDING, IN AN AMOUNT NOT TO EXCEED $300,000, FOR THE ACQUISITION OF BALLET PERFORMANCE EQUIPMENT AND CAPITAL IMPROVEMENTS LEASED BY THE CITY AT A NOMINAL RENTAL FEE, FOR PUBLICLY ACCESSIBLE AND CERTAIN FREE OR REDUCED COST BALLET PERFORMANCES, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE HEREIN RESOLUTION AND THE AGREEMENT; ALLOCATING FUNDS FROM DISTRICT 2 (DOWNTOWN) QUALITY OF LIFE CAPITAL IMPROVEMENTS PROJECT NO. 311712, UNDER THE HOMELAND DEFENSE - NEIGHBORHOOD IMPROVEMENT BOND PROGRAM. WHEREAS, the City of Miami ("City") has established a goal to "achieve a livable City center with a variety of urban housing for people of all levels," initially stated in the 1989 Downtown Miami Master Plan, adopted by Resolution No. 89-990; and WHEREAS, under the City Charter, Section 3(mm)(ii), City Ordinance No. 11000 and the City's Downtown Miami Master Plan, the City Commission has determined that cultural enrichment is a component of that Master Plan; and CITY COMMi'S 01% b7EETIN43 OF, y - " n 5 ?003 iletoludon No.i iJ3-r 91 WHEREAS, after many years with little residential development, developers are now building the first downtown residential development projects in more than 30 years to fulfill the City's goal to create market -rate, middle-income residential housing in this area; and WHEREAS, an essential component of enriching life for downtown residents, as well as the many employees in the private and public sector who work in the area, is the existence and availability of cultural programs, performances and events for the public who work and/or live downtown, and the contemplated ballet performance area for Ballet Gamonet ("Gamonet") which will serve as an amenity for the general public, and a wonderful cultural addition to the City; and WHEREAS, the City Commission finds and determines that funding of the equipment, to be owned by the City, and leased to Gamonet at a nominal amount, and the funding of certain other capital improvements projects specified in the Agreement between the City and Gamonet will promote the general health and welfare of the citizens of the City by providing, among other things, ballet performances that are offered to the general public, a portion of which will be for free or at reduced cost to residents of the City; and WHEREAS, the utilization of the historic Alfred I. DuPont Building ("DuPont Building"), located in Downtown Miami, at 169 Page 2 of 6 03- 911 East Flagler Street, Miami, Florida, will culturally enrich Miami and serve a valid public purpose; and WHEREAS, the Gamonet organization is a 501(c)(3) tax exempt organization, and is devoted to the creation and presentation of dance performances for the use and enjoyment of the general public, specifically and expressly to focus on residents of the City, and Gamonet is a current lessee in the architecturally renown historically designated DuPont Building; and WHEREAS, the City Commission finds and determines the acquisition by the City of dance performance equipment and related improvements for Gamonet's use, title to which will remain vested in the City, will primarily benefit the general public as a cultural and recreational activity, performed downtown and accessible to the public; and WHEREAS, the City Commission, by passage of this Resolution, will authorize the allocation of City funds in the amount of $300,000 for the acquisition of certain dance equipment and other specified capital improvements for Gamonet to lease and will further authorize the City Manager to execute an agreement for this purpose; and WHEREAS, the agreement lays forth the duties and responsibilities of the City and Gamonet, and provides for the use, accountability, accessibility, and terms of this undertaking by Gamonet; and Page 3 of 6 pJ 3— 911 WHEREAS, the agreement also provides for Gamonet and its successors to maintain public access to its performances, and that Improvements will be owned by the City for the use and benefit of Gamonet, as long as Gamonet maintains its status as a not-for-profit corporation operating within the City and is in compliance with the agreement approved by this Resolution; and WHEREAS, funds for this purpose are available from District 2 (Downtown) -Quality of Life Capital Improvements Project No. 311712, Improvements, under the Homeland Defense - Neighborhood Improvement Bond Program; and WHEREAS, the City's Bond Oversight Board additionally reviewed and approved of the proposed use of such funds at its meeting of May 27, 2003; and WHEREAS, the acquisition of artistic services, works of art, or entertainment services and related lease of personal property for these services for City sponsored events are excluded from the Purchasing Ordinance; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Page 4 of 6 ^03- 911 Section 2. The City Manager is authorized!' to execute an Agreement, in substantially the attached form, between the City and Gamonet for a public ballet project, located in the Alfred I. Dupont Building at 169 East Flagler Street, Miami, Florida, to provide City funding, in the amount of $300,000, for the acquisition of dance performance equipment and related capital improvements, to be owned by the City, and leased to Gamonet at a nominal rental fee, for publicly accessible and certain free or reduced cost ballet performances, subject to the terms of the herein Resolution and the Agreement, with funds allocated from District 2 (Downtown) Quality of Life Capital Improvements Project No. 341210, Improvements Project under the Homeland Defense - Neighborhood Improvement Bond Program. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.' 1� The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable provisions of the City Charter and Code provisions. z/ If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Page 5 of 6 93- 911 PASSED AND ADOPTED this 5th day of September , 2003. r17111NUEL.AA ATTEST: PRISCILLA A. TH MPSON CITY CLERK APPROV`ED Ai TO XORM AND CORRECTNESS •?,6�/ WRO/VILARELLO ATTORNEY W7428:RSR:db:AS:BSS Page 6 of 6 en— 911 AGREEMENT Between the City of Miami and Ballet Gamonet, Inc. THIS AGREEMENT (the "Agreement") is made and entered into as of this day of , 2003, by and between Ballet Gamonet, Inc., a 501(c)(3) not-for-profit corporation (the "Gamonet"), with its principal office at Suite , The Alfred I. DuPont Building, 169 E. Flagler St., Miami, Florida, 33130 and the CITY OF MIAMI, a municipal corporation of the State of Florida (the "City"), whose address is 444 S.W. 2°a Avenue, Miami, Florida 33130-1910. RECITALS: A. Ballet Gamonet, Inc. is Florida not-for-profit Corporation, whose articles of incorporation and bylaws as of this date are deemed as being incorporated by reference herein as though set forth in full, which is devoted to create, provide for, perform and promote dance ballet performances which are open to and accessible to the public. B. Ballet Gamonet, Inc. will be leasing space at the renown, historic Alfred I. DuPont Building located at 169 E. Flagler St. in Downtown Miami, and will be performing, and rehearsing at this location in Downtown Miami. C. The City, under the applicable provisions of the City of Miami Charter and City Code, City Ordinance No. 11000 and the City's Downtown Miami Master Plan, has determined that cultural enrichment is a component of that Master Plan and that culturally uplifting performances held in the City's Downtown Area are to be generally accessible to the general public. The City is funding, to the extent of Three -hundred thousand dollars ($300,000.00) the purchase of certain dance performance/rehearsal and related equipment (the "Equipment") and related capital improvements, the title to which is to be solely vested in the City, for use by Gamonet for the purpose of presenting ballet rehearsals and performances in Downtown Miami (the "Project"). The Project is to be funded solely from the City's Homeland Defense/Neighborhood Capital Improvement Project Bond Proceeds (the "Bonds"). These are City issued limited Ad Valorem Tax Bonds, issued pursuant to Ordinance No. 12167 enacted on October 11, 2001 and Resolution No. 02-797 (hereinafter collectively the "Bond Ordinance"). The Bond Ordinance authorized expenditures for neighborhood improvements and capital projects, including the purchase of recreational and other equipment by the City. The Project is solely subjected to funding from funds existing by virtue of the Bond Ordinance. No other City funds, moneys, assets or reserves may be expended for the Project. A listing of the Equipment and Capital Improvements (hereinafter collectively the "Improvements") to be acquired by Gamonet or the City for the Project is set forth on the attached Exhibit A, Equipment/Capital Improvements List. It is further agreed that the Improvements are deemed to be, and shall always remain personal property. Irrespective of whether the purchase of the Equipment is undertaken by Gamonet and/or the City it is understood and agreed that title to the Equipment be vested, at all times, in the City. Gamonet will fully co-operate by executing, immediately upon request, a bill of sale absolute in a form conveying title to the City and such other documents as the City Manger may request, to be in a form acceptable to the City Attorney. Gamonet will physically convey all such Improvements to the City when this Agreement and/or the Lease, as - 1- 93- 911 �Sk - 1J applicable, is cancelled or expires. The City may label, identify or mark the Improvements as City -owned property. D. As part of the Project, Gamonet will make or cause to be made the Improvements at their leased space in the DuPont Building headquarters already defined herein, and listed on Exhibit A as shown on the attached Exhibit B, the Capital Improvements Plan (as hereinafter defined), which is subject to the City holding title to all such Improvements. The parties agree that these Improvements will be removable personal property, and shall not be deemed fixtures, and Gamonet will convey and tender possession to all such Improvements to the City at the time this Agreement is cancelled or expires. Gamonet will furnish to the City, on or before execution of this Agreement, written confirmation that the Improvements can be removed from the DuPont Building without violating any lease rule or regulation applicable to the DuPont Building. E. Because Gamonet will be headquartered in Downtown Miami, their presence and performances at this locale will culturally enrich and benefit the citizens of the City and promote the revitalization of Downtown. The ballet performances to be performed by Gamonet utilizing the Equipment and Improvements will be open and generally accessible to the general public as an amenity for Miami residents and downtown licensees, invitees or visitors. Gamonet requests that the City assist in funding the purchase of the Improvements. Gamonet, its successors and assigns, including, without limitation, any ballet company they merge with, affirm and acknowledge, by virtue of this Agreement, and in any other related documents pertaining thereto, that because said Improvements will perpetually remain City -owned property, certain performances and rehearsals which utilize the Improvements shall be generally accessible to the general public, who will enjoy certain ingress and egress to the location of such performances in the Dupont Building. Certain of the Gamonet performances and rehearsals will be gratuitously enjoyed by certain members of the general public, in accordance with the same privileges and amenities of paid patrons of Gamonet, whom will benefit from the ability to view, in the same manner as a paid patron, ballet rehearsals and performances presented by Gamonet at the DuPont Building, unencumbered and unfettered by any commercial requirements, such as admission fees or any similar fee, charge or assessment, as more particularly described in Section 10 of this Agreement. F. In response to this request, the City adopted Resolution No. 03- (hereinafter the "Resolution"), a copy of which is attached hereto as Exhibit C, which funds the acquisition of the Equipment and Improvements in an amount not -to -exceed Three Hundred Thousand Dollars ($300,000.00) (hereinafter the "Funding Amount") from the Capital Improvements Project No. 311712, Distrtict 2 (Downtown) Quality of Life under the Homeland Defense - Neighborhood Improvement Bond Program, City's Bonds -Series 2002, provided that Gamonet agrees to be responsible for: (i) the installation, preservation, care and maintenance of the Improvements, (ii) any cost over -runs that occur in the completion of such Improvements; (iii) the maintenance of such Improvements free and clear of any liens, encumbrances, charges or assessments; (iv) the preservation of the Improvements for the purposes set forth herein; (v) the execution of any documents requested by the City, from time to time, to confirm or acknowledge that the City holds title to the Improvements; and (vi) the tender and transfer of possession of the Improvements to the City upon cancellation or expiration of this Agreement or the cancellation or expiration of the Personal Property Lease (hereinafter the "Lease"), as applicable. The - 2- d)3— 911 maximum amount of the City liability to assist in the funding of these Improvements, pursuant to the terms of the Resolution and this Agreement, shall not exceed the Funding Amount set forth herein. Availability of funds for the Project is contingent on availability of funds and continued authorization of the Project, and is subject to termination due to lack of funds or authorization, reduction in funds and/or change in regulations. G. The City has determined that the funding of the Improvements will promote the health and welfare of the citizens of the City by providing, among other things, culturally enriching and artistically rewarding ballet performances, which will be open to the general public, and serves a valid public purpose. H. The City has determined that the Improvements to be located within Downtown will culturally enrich and benefit the area and will primarily benefit the general public due to the presence of Gamonet and that such ballet performances are generally open and accessible to the general public. NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Gamonet and the City hereby agree that the foregoing recitals are true and correct and further agree as follows: (1) Incorporation by Reference. The recitals set forth in the preamble to this Agreement are incorporated by reference as though set forth in full herein and made a part hereof. The exhibits referenced herein are incorporated by reference as though set forth in full herein and made a part hereof. (2) Condition Precedent of Bond Oversight Committee Approval. It is a condition precedent to the City's ability to lawfully enter into this Agreement that the City receives a favorable recommendation from its Bond Oversight Committee stating that the City may apply a portion of the proceeds of the Bonds to fund the Project as defined herein. There has been compliance with this condition precedent. The Bond Oversight Committee favorably reviewed, recommended, and approved this funding on May 27, 2003. (3) Ownership of Improvements. The parties agree that the City is and shall be the owner of the Improvements. This will be confirmed after the completion of work by Gamonet and upon acceptance of the Improvements by the City, through the Director of the Capital Improvements Department, or the agency, person, or entity who has jurisdiction to approve the location, installation and appearance of the Improvements. At the conclusion of the purchase and installation of the Improvements, Gamonet shall promptly tender a bill of sale absolute conveying title of the Improvements herein funded, including all of the interest of Gamonet, to the City, free and clear of liens and encumbrances. Gamonet shall subsequently maintain said Improvements on behalf of the City, in the manner prescribed herein. The Improvements must remain within the City. Accordingly, if Gamonet's DuPont Building lease expires Gamonet shall use its best efforts to relocate within the City of Miami. - 3- wJ3- 911 (4) Lease of Improvements. Gamonet and the City have previously agreed to the lease of the Improvements substantially in accordance with that certain Lease Agreement, a copy of which is attached hereto as Exhibit D (hereinafter the "Lease"). The Lease of this personal property is not a lease of real property and, by virtue of that fact, it is in furtherance of a project of a governmental agency or instrumentality the Agreement and the Lease are not subject to the provisions of 29 (B) of the City Charter or 18-176, et. seq. of the City Code. The Lease provides that the Lessee comply with all laws, rules and regulations applicable to the Project. In summation, the Lease provides for Gamonet to lease the Improvements from the City at the rate of one ($1.00) dollar per year, for a term of twenty (20) years, as long as Gamonet is in compliance with the Project, this Agreement, and the Lease. Upon cancellation or expiration of the Lease, Gamonet shall promptly transfer, deliver and convey to the City physical possession of the Improvements, free and clear of any liens or encumbrances to the City. (5) Use of the Funding Amount. The City shall provide the Funding Amount, as herein defined, exclusively for the financing of the Improvements in accordance with the Resolution and this Agreement, provided the City shall have no obligation to fund any amounts in excess of the Funding Amount. In return, Gamonet hereby agrees that it shall be responsible for all other costs of completing acquisition and installation of the Improvements that exceed the Funding Amount. Further, if the cost of completion of the Improvements is less than the Funding Amount, one hundred percent of the savings shall accrue to the City. For purposes of this Agreement, costs relating to the construction of the Improvements shall include labor, materials, supplies, permit fees, or required insurance and bonding as set forth in this Agreement. For purposes of this Agreement, costs relating to the Improvements shall not include fees for consultants, administrative, managerial or supervisory personnel or employees, lobbyists, legal or tax, environmental or regulatory counsel, auditors, accountants, brokers and salespersons or consultants (except as expressly allowed for funding in this section). There shall be no mark up on the costs of the Improvements, that is, only the actual, direct cost incurred by Gamonet may be billed to the City pursuant to this Agreement. Notwithstanding anything to the contrary contained herein, purchase and construction of the Improvements are undertaken on behalf of the City and the City shall, upon completion and acceptance, be the owner of the Improvements constructed with the Funding Amount. The use of the Funding Amount shall be solely for the acquisition and installation of the Improvements as herein defined. Gamonet shall be responsible for the acquisition and installation of the Improvements substantially in accordance with this Agreement. Gamonet shall be solely responsible to secure all permits, approvals from its Landlord, or any governmental agency having jurisdiction thereof relative to installation, placement and location of the improvements in the DuPont Building. All expenditures of the Funding Amount shall be in accordance with this Agreement. The Funding Amount shall not be co -mingled with any other funds of Gamonet and a separate bank account and accounting record will be maintained by Gamonet of the Funding Amount until the Funding Amount is fully disbursed. (6) Disbursement of Funding Amount. The City will make the entire Funding Amount available, on a reimbursement basis for allowable Project costs, following the execution - 4- 03- 911 of this Agreement and its exhibits. The City must receive an executed copy of the DuPont Building lease on or before execution of this Agreement. Gamonet shall submit on a monthly basis a sufficiently detailed statement so as to comply with the Florida Act, et. seq., §218.70, Fla. Stat. (2002) to the City for all allowable costs incurred for the Project during the preceding month, along with reasonable substantiating bills, invoices or similar documentation as requested by the City. Provided that work on the Improvements have been delivered and installed, the City shall make payment within forty-five (45) days after the date the City receives such detailed invoice(s). (7) Maintenance of the Improvements. The Improvements shall be maintained by Gamonet in a good, clean condition, ordinary wear and tear excepted. The Improvements will be maintained for the term of this Agreement and/or Lease, whichever is longer, within the City of Miami. The City may label, brand or identify the Improvements as City -owned property. For purposes of this Agreement, Gamonet shall be deemed to be the tenant, from time to time, of the Improvements until such time as the City cancels this Agreement, if applicable. Such cancellation will automatically effectuate the immediate cancellation of the Lease, without the necessity of further action by either party. A default by Gamonet of the provisions of the Lease with the City and/or of this Agreement with the City will cause an automatic default of both without the necessity of further action to declare a default of the other instrument. Once this Agreement lapses through passage of time the Lease will continue, absent a cancellation, through its term. The City shall be promptly notified in writing of any change in Gamonet's not-for-profit, corporate status, composition and/or identity. (8) Insurance Indemnity and Hold Harmless. (a) Insurance: Prior to commencing the construction of the Improvements, Gamonet shall provide the City's Risk Management Administrator with evidence, consisting of certificates or policies of insurance and bonds issued by Florida insurers and/or sureties rated B: V or better per A.M. Best's Key Rating Guide, latest edition, of: (a) general liability insurance in such form and amounts as may be reasonably required by the City's Risk Management Administrator. The amount of insurance coverage required will not be less than the amounts set forth in Exhibit E, "Insurance Requirements", attached hereto. Said insurance policies shall name the City as an additional insured. The foregoing insurance coverage shall be maintained in effect by Gamonet until final completion and acceptance of the Improvements by City. Gamonet shall furnish to the City's Risk Management Administrator, certificates of insurance and/or insurance policies for the coverage required hereunder for City review, comment and approval at least thirty (30) days prior to commencement of purchase of Improvements funded by the City. Insurance will be maintained continuously in effect through the entire term of this Agreement, and for the entire term of the Lease. The City's Risk Management Administrator shall be given at least 30 days prior written notice of any cancellation, lapse, or material modification of said insurance coverage. - 5- ;J3- 911 Reimbursement requests for insurance required under this Agreement shall be paid, within forty-five (45) days of when the City receives a substantiating invoice. The City will not be liable for the cost of required insurance once the Funding Amount is disbursed. (b) Hold Harmless and Indemnity. Gamonet, its successors and assigns hereby covenant not to sue, hold harmless, indemnify, and defend the City, and its respective officers and employees in any and all actions, claims, demands, costs, expenses, liabilities or damages arising or accruing by virtue of acts or omissions of Gamonet, its agents, servants, representatives, successors and assigns. This hold harmless, indemnity and covenant not to sue includes, without limitation, any and all claims for personal injury, wrongful death, damage to or loss of property, violation of applicable laws, codes, rules, construction, architectural, or design decisions, actions or omissions, but shall not, under any circumstance include the right to indemnification or defense for any causes or claims resulting from the negligence or willful misconduct of City. The duty to defend may be complied with, at the option of the City Attorney, by either paying reasonable attorney's fees for the cost incurred by the City in its defense, or by selecting defense counsel, the cost of which shall be borne by Gamonet. The obligations under this section shall survive the expiration or cancellation of this Agreement and of the Lease Agreement. (9) Compliance With Laws. Gamonet shall at all times comply with all applicable municipal, county, state and federal laws, ordinances, codes, statutes, rules and regulations, approved development orders, and City of Miami Guidelines governing the granting of Funds for their uses and their performance of this Agreement or the Lease. (10) Public Performances. (a) During the term of this Agreement and the Lease Gamonet shall allow members of the general public to gratuitously view, in a non -obtrusive manner, certain rehearsals and performances at the DuPont Building. (b) During each term of this Agreement, and the Lease, Gamonet shall offer and make available for free to the general public at least twenty-five (25%) percent of its tickets annually to performances held at the DuPont Building. Gamonet will use its best efforts to comply with the twenty-five (25%) percent minimum issuance of free tickets annually for performances held at any facility within the City. (c) Gamonet will use its best efforts to invite bona fide participants of governmental programs and required supervisory personnel (including programs of the City of Miami), and educational, civic, and cultural groups to attend its performances and/or rehearsals held at the DuPont Building and to distribute the free tickets referenced in 10(b) to such groups. 6— �J3- 911 (d) Subject to its availability, during the term of this Agreement or the Lease, the City may itself utilize the Improvements, and performance area in the DuPont Building, up to ten (10) times a year for appropriate dance performance events sponsored or presented by the City. The City Manager shall afford Gamonet thirty (30) days prior, written notice of each such request and Gamonet shall have ten (10) days to respond, in writing, to each request made under this subsection. (e) Gamonet shall provide a report to the City Manager detailing the activities and efforts it has undertaken to comply with the provisions of this Section, on an annual basis, commencing from the date of the acceptance of Improvements. Said report shall be in a form acceptable to the City Manager and shall include, without limitation, the date(s) and time(s) of Gamonet's performances, the total number of seats available for each performance, the groups and programs contacted and offered complimentary admissions, the distribution system for free tickets or complimentary admissions, and the number of complimentary seats and/or tickets utilized by such groups and the general public for each performance. Free tickets and complimentary admissions are synonymous terms under this Agreement. (f) Gamonet, when practicable, will hold performances at City -owned facilities, such as the Gusman Center, the James L. Knight Center, or the Artime Center. (11) Miscellaneous. (a) Term. Unless earlier cancelled by the City, the term of this Agreement shall commence on the date it and the Lease Agreement are fully executed by the parties and shall terminate upon the full disbursement of the Funding Amount for allowable expenses, provided however, that the term of the Lease shall be for twenty (20) years, unless it is terminated earlier by the City. (b) Enforcement. The provisions of this Agreement may be enforced by all appropriate actions in law and in equity by any party to this Agreement, or owners of the Improvements. In order to expedite the conclusion of the actions brought pursuant to this Agreement, the parties, their successors and assigns will not demand jury trial nor file frivolous counterclaims outside the bounds of this Agreement in such actions. (c) Counterparts. This Agreement may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which when taken together shall be deemed to be one and the same instrument. (d) City Officials. The "City" is a municipal corporation, and the City Manager as its Chief Administrative Officer, is empowered to make all decisions with regard to this Agreement on behalf of the City, unless otherwise provided by law or by resolution of the City Commission. The City Manager may delegate certain administrative decisions to the Director of the Capital Improvements Department, or other duly authorized designee. - 7— ij3- 911 (e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon Gamonet and its successors and assigns. (f) Construction. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation hereof. All of the parties to this Agreement have participated fully in the negotiation of this Agreement, and accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and reference to any particular gender shall be held to include every other and all genders. (g) Notices. Any and all notices required or desired to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand (including recognized overnight courier services, such as Federal Express) or three (3) business days after deposit in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, and addressed to the recipient at the address for such party set forth in the introductory paragraph to this Agreement (or to such other address as any party hereunder shall hereafter specify to the other in writing). City of Miami: Jorge Cano, Director Capital Improvement Programs 444 S.W. 2nd Avenue, 8th Floor Miami, FL 33130 Ballet Gamonet, Inc.: 600 N.E. 97 Street Miami Shores, FL 33138 With a copy to: Alejandro Vilarello, City Attorney 444 S.W. 2nd Ave, Suite 945 Miami, FL 33130 City Manager City of Miami 444 SW 2nd Avenue, 10th Floor Miami, FL 33130 With a copy to: Neisen O. Kasdin, Esq. GunsterYoakley One Biscayne Tower 2 South Biscayne Blvd., Suite 3400 Miami, FL 33131 (h) Severability. In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed in full force and effect. - 8- 03- 911 (i) Exhibits. All of the Exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. (j) Amendments, Termination. This Agreement may not be amended, modified or terminated except by termination or cancellation by the City, or expiration of its stated term, as applicable. Further, no modification or amendment, excepting a termination by the City, shall be effective unless in writing and executed by the parties, employing the same formalities as were used in the execution of this Agreement. (k) No Discrimination. Gamonet represents and warrants that there shall be no unlawful discrimination as provided by federal, state or local law, in connection with the performance of this Agreement or the Lease. (12) Default. (a) Termination for Cause. In the event of a default, which is not cured within ninety (90) days following the date of a written notice mailed as provided in Section 11 herein, the parties shall have the rights and remedies provided by law or equity, as limited by the terms of this Agreement. The City Manager shall grant one extension of not more than ninety (90) additional days in total if such failure to cure is due to Force Majeure, as that term is defined and interpreted under Florida law. (b) If the City shall fail to make any reimbursement or other payment of the Funding Amount within 45 days following Gamonet's submission of the documentation required under Section 6 of this Agreement, and such amounts remain unpaid upon the expiration of 30 days following Gamonet's delivery of notice to City concerning such nonpayment, Gamonet shall have the right to terminate this Agreement, pursue all rights and remedies under the Florida law for amounts due for invoices purchased prior to the effective date of termination (not including any interest on past due amounts ), seek alternative funding for the Improvements, but shall have no further recourse or remedy against the City. The City shall not be obliged to continue funding or make payments for the Improvements which may be purchased after the effective termination date of this Agreement. Gamonet shall have the option, in its sole discretion, to, upon receipt of any past due payment from the City, notify the City of the reinstatement of this Agreement. (c) This Agreement and/or the City's funding obligations under the Agreement may be terminated, for cause, at the option of and by the City Manager, if any default is not cured by Gamonet or Gamonet does not comply with any material terms, covenants or conditions provided herein or in any Exhibit, within ninety (90) days from the date of written notice from the City Manager; or when, in the opinion of the City Manager or City Commission, termination is necessary to protect the interests of public health, safety or general welfare. This subsection shall not apply during any period of Force Majeure extension pursuant to § 12(a). - 9- ij3- 911 (d) Gamonet fails to obtain or maintain the insurance herein required (e) A mechanic's, laborer's or similar lien is placed upon the Improvement or other City -owned property due to actions of Gamonet, and it is not contested, bonded, or discharged by Gamonet within thirty (30) days of its recordation. (f) Gamonet fails to comply, in a substantial or material sense, with any of its duties under this Agreement or any Agreement it has with the City arising by virtue of this Agreement, including, and/or its Lease Agreement, and said failure continues beyond ninety (90) days from the date of written notice from the City Manager regarding such failure. (g) Gamonet shall have no recourse from a termination made by the City in accordance with this Section except to retain the funds already disbursed in full and final settlement of any claim, action, demand, cost, charge or entitlement it may have, or will, have against the City, its officials or employees. (13) Binding on Successors and Assigns. Gamonet and their artistic value and downtown presence make their relationship with the City unique in nature. Accordingly, this Agreement and the Improvements cannot be assigned, sold, transferred or conveyed to any other performance or artistic group without the prior written consent of the Miami City Commission, which may be reasonably withheld, conditioned or refused. Nevertheless, it is intended that the terms, conditions, covenants, rights, obligations and burdens set forth in this Agreement, and the Lease, shall bind Gamonet, and any duly authorized successor in interest or assign in the same manner and with the same force as if they were covenants running with the land. (14) Entire Agreement. This Agreement, and its exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and supercedes all prior agreements, understandings and arrangements, both oral and written, between the parties with respect thereto. (15) Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Florida. Venue for all actions under this Agreement shall be in Miami -Dade County, Florida. In order to expedite litigation the parties voluntarily and knowingly waive their rights to demand a jury trial or to bring frivolous claims in any civil action between them that arises out of this Agreement or the Lease. Each party will bear its own attorney fees. (16) No Joint Venture Or Third -Party Beneficiaries Gamonet is an independent contractor and is not an agent, joint venture, partner or affiliate of the City, nor can the City be bound to honor any obligation, debt, default or duty of Gamonet, except as expressly provided herein. - 10- iJ3- 911 Neither the City nor Gamonet intends to directly or substantially benefit a third -party by this Agreement. Therefore, the parties agree there are no third party beneficiaries to this Agreement and that no third -party shall be entitled to assert a claim against either of them based upon this Agreement. (17) No Discrimination. Gamonet represents and warrants that there shall be no unlawful discrimination as provided by federal, state or local law, in connection with its performance under this Agreement. (18) Authority of Gamonet Signatories. The undersigned officers executing this Agreement on behalf of Gamonet have authority pursuant to corporate resolutions on file with the City, and all applicable laws of the State of Florida to act on behalf of and bind Gamonet to every condition, covenant and duty set forth herein. (19) Audit Rights. The City shall have all audit rights as are provided by 18-102 of the City Code, which is deemed as being incorporated by reference herein, Gamonet agrees to keep all financial records pertaining to or related to this Agreement at its offices in Miami -Dade County for the term of this Agreement and for three (3) years thereafter. At the City's request Gamonet shall deliver to the City such written statements related to its use of the Funding Amount as the City may reasonably require. The City shall have the right to conduct audits of Gamonet's records pertaining to the Funding Amount, in order to conduct any monitoring or evaluation activity it deems prudent. Gamonet will cooperate with the City in the performance of these activities. Gamonet's failure to comply with these requirements or the receipt by the City of any inconsistent, incomplete or inadequate information shall be grounds for immediate termination of this Agreement by the City. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. WITNESSES: Name: Name: ATTEST: BALLET GAMONET, INC. By: Print Name: Arthur Curtis Title: Vice President Date: Corporate Secretary (Affix Corporate Seal) STATE OF FLORIDA) ) SS: COUNTY OF MIAMI-DADE) The foregoing instrument was acknowledged before me this day of , 2003 by as profit corporation. He/she personally produced [NOTARIAL SEAL] of Ballet Gamonet, Inc., a 501(c)(3) not -for - appeared before me, is personally known to me or as identification. Notary: Print Name: Notary Public, State of Florida My commission expires: - 12- #J3- 911 ATTEST: Priscilla Thompson, City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: CITY OF MIAMI, a municipal corporation of the State of Florida Bv: Name: Joe Arriola Title: City Manager APPROVED AS TO FORM AND CORRECTNESS: Diane Ericson, Risk Management Alejandro Vilarello, City Attorney Administrator (#A-0300695) Rsuarez\Draft#4-AgmtA-03695-8.25.03 - 13- 911 �J 3 r Exhibit "A" EQUIPMENT/CAPITAL IMPROVEMENTS LIST QUANTITY DESCRIPTION 2 Studio Dance floors, 60x30', with floating sub -floor, sprung for Dance, with Roscoe floor surface. 2 Aluminum Truss Support Systems, 60x 30"x15' to ring dance floors and provide support for lighting curtains. 5 Curtain systems, movable, cotton velour with backing, and track systems (2) 3-x15', (2) 12x15', and (1) 12x12' 1 Lighting for dance floors to include custom fluorescent fixtures and Selecon fresnels, with accessories, clamps, and lamps. Distribution to power lighting. 1 Gragix Eye dimming and control system for new lighting. 1 Installation of floors, truss, curtains, lighting and dimming. Additional fixtures as required. - 14- 03-- 911 Exhibit "B" CAPITAL IMPROVEMENTS PLAN (Provided by ABC Management Services) Ballet Gamonet' at The Alfred I. Dupont Building Here is the original proposed listing of equipment provided by a company which specializes in stage and theatre construction: QUANTITY DESCRIPTION 2 Studio Dance floors, 6000', with floating sub -floor, sprung for Dance, with Roscoe floor surface. 2 Aluminum Truss Support Systems, 60x 30"x15' to ring dance floors and provide support for lighting curtains. 5 Curtain systems, movable, cotton velour with backing, and track systems 1 Lighting for dance floors to include custom fluorescent fixtures and Selecon fresnels, with accessories, clamps, and lamps. Distribution to power lighting. 1 Grafix Eye dimming and control system for new lighting. 1 Installation of floors, truss, curtains, lighting and dimming. Additional fixtures include 4 - 6 custom cabinet units to provide separation on 2" a floor of space between dance floor and additional offices with mirrored surface on dance floor side. - 15- *j3- 911 Exhibit "C" RESOLUTION NO. - 16- iJ3- 911 Exhibit "D" LEASE OF PERSONAL PROPERTY LTHIS LEASE AGREEMENT of Personal Property ("Lease") is made and entered into this day of , 2003, by and between BALLET GAMONET, INC., a not-for- profit corporation (hereinafter "Gamonet" or "Lessee"), 600 N.E. 97`h Street, Miami Shores, FL 33138 and the City of Miami, a Florida municipal corporation (hereinafter "City" or "Lessor"). WITNESSETH: IN CONSIDERATION of one ($1.00) dollar per year, and other good and valuable consideration, the City leases to the Lessee the following described personal property: 1. Lease of Personal Property. Lessee leases the dance performance and rehearsal equipment and related Capital Improvements (hereinafter the "Improvements") described and defined in that certain Agreement between the City and Gamonet dated , 2003, (hereinafter the "Agreement") and the Exhibits to that Agreement, all of which are deemed as being expressly incorporated by reference herein as though set forth in full. In confirmation of City ownership Gamonet shall furnish to the City a Bill of Sale absolute for the Improvements. The Bill of Sale will be in a form acceptable to the City. The Lessee's obligations as to the Improvements will survive the expiration of the agreement and continue for the term of the Lease. 2. Unless earlier cancelled or terminated, the term of this Lease shall be for twenty (20) years, beginning on the date of execution of this Lease and ending on the twentieth year thereafter. 3. The use of the Improvements shall be limited to performance and rehearsals of dances staged at the Alfred I. DuPont Building, 169 East Flagler Street, Miami, Florida 33130, or such other location(s) within the City as the Lessor may, in writing, allow. 4. As rent for the Personal Property, which is the Improvements, Lessee shall pay the City the sum of one ($1.00) dollar per year payable on or before the end of each year during the term. 5. If the Improvements are destroyed by fire, the elements, or other Acts of God, or should be injured to such an extent as to render the Improvements not usable for the purposes intended this Lease shall automatically end and terminate without the need of any further action. - 17- ;J3- 911 6. If the Lessee at any time fails to perform any of the covenants stipulated herein or in the above referenced Agreement with the City, at the option of the City, the term herein created shall automatically cease, end and be discharged automatically without the necessity of further action by either party, as fully as if by lapse of time. 7. At the expiration or cancellation of this Lease, Lessee shall promptly convey, at its sole cost and expense, physical possession all of the Improvements to the City, free and clear of any liens, charges or encumbrances. 8. This Lease and the above referenced agreement shall not be recorded. IN WITNESS WHEREOF, the parties have executed this Lease of Personal Property (the "Improvements") the day and year first above written. WITNESSES: BALLET GAMONET, INC. Name: By: Vice President Name: Print Name: Arthur Curtis Title: Vice President Date: ATTEST: Corporate Secretary (Affix Corporate Seal) - 18- 03- 911 STATE OF FLORIDA) ) SS: COUNTY OF MIAMI-DADE) The foregoing instrument was acknowledged before me this day of , 2003 by , as of Ballot Gamonet, Inc., a 501 (c)(3) not-for- profit corporation. He/she personally appeared before me, is personally known to me or produced as identification. [NOTARIAL SEAL] ATTEST: Priscilla Thompson, City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: Diane Ericson, Risk Management Administrator Notary: Print Name: Notary Public, State of Florida My commission expires: CITY OF MIAMI, a municipal corporation of the State of Florida By: Name: Joe Arriola Title: City Manager APPROVED AS TO FORM AND CORRECTNESS: Alejandro Vilarello, City Attorney (#A-0300695) - 19- P�3- 911 Exhibit "E" INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE - 20- 03- 911 EXHIBIT E INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations Aggregate Limit per project $ 2,000,000 Personal and Advertising Injury $1,000,000 Fire Damage( Any One Fire) $300,000 B. Endorsements Required City of Miami included as an Additional Insured Products/Completed Operations -Coverage should be kept in force for a period of not less than three years from the date of which the work was performed Employees included as insured Independent Contractors Coverage Contractual Liability Waiver of Subrogation Premises/Operations Care, Custody and Control Exclusion Removed Explosion, Collapse and Underground Hazard Incidental Medical Malpractice 03- 911 II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an Additional Insured Employees included as insured Waiver of Subrogation III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit 03- 911 V VI Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Each Occurrence Aggregate Products/Completed Operations Aggregate Limit B. Excess Coverage over the policies as follows: 1. Commercial General Liability 2. Business Automobile Liability 3. Employers' Liability Personal Property Insurance $ 1,000,000 $ 1,000,000 $1,000,000 $ 2,000,000 Ballet Gamonet is to provide the City of Miami with a certificate of insurance affording coverage on all improvements, betterments, and/or fixtures in connection to this lease. The policy must be issued on an "ALL RISK" basis, protecting all lease improvements against the perils of Fire, Extended Coverage, Vandalism and Malicious Mischief, and Theft. 03- 911 1 CITY OF MIAMI CITY ATTORNEY'S OFFICE MEMORANDUM TO: Mayor and Members of the City Commission FROM: Alejandro Vilarello, City Attorney DATE: September 3, 2003 RE: Resolution - Ballet Gamonet - September 5, 2003 (J-03-686) The City Commission, at its July 24`t' meeting, directed that the attached Resolution regarding Ballet Gamonet be placed on the agenda for consideration. Attachment W928:AS c: Joe Arriola, City Manager Priscilla A. Thompson, City Clerk Elvi G. Alonso, Agenda Coordinator 03 91l'