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HomeMy WebLinkAboutExhibit(.k)5r PROJECT CO-OPERATION AGREEMENT GRANTEE: Ballet Gamonet PROJECT: Project Location: Grantee Project Manager: Construction - Ballet Gamonet 77 NE 241h Street, Miami, FL 33137 co isi 2 (Winton) 'game Juan Escalante Marcia Monserrat Na7ie Juan Escalante, 9220 SW 158th same Phone 786-301-5575 786-301-5575 / above CITY Miami Miami �_ 305 Paz same 259 3160 as above Notifications Regarding this Document Address to .:one Executive Director same as Mailing Address Lane, Miami, FL Stcte FL Zip 33157 Street Address FL 33157 CITY FUNDING AMOUNT: $300,000 Resolution 06- Funding Source District 311712 2 QOL CIP Project 3/9/2006 No. Enabling Legislation: i Adoption Date CIP Job B-79900 Total Estimated Project Cost: 300,000 Niimher: (if applicabl) Project Description: Construction of capital improvements to be located at 77 NE 24th Street, Miami, FL 33137, hereinafter referred to as "PROJECT". THIS AGREEMENT (hereinafter referred to as the "AGREEMENT") is made and entered into as of , 2006, with the specified effective date, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as "CITY"), with offices at 444 S.W. 211' Avenue, Miami, Florida 33130-1910 and BALLET GAMONET, the GRANTEE named above, with offices located at the Grantee Street Address given above. RECITALS: The intent of this Agreement is to outline the respective expectations and obligations of the parties regarding the specified cooperative capital improvement project (the "PROJECT") named above and further defined in this document. The GRANTEE has initiated and/or is responsible for the completion of the PROJECT, for which it has requested financial assistance from the CITY for payment of certain allowable costs and expenses. The CITY has adopted Enabling Legislation, referenced above and incorporated by reference as though set forth in full, to allow the C1TY'S participation in the PROJECT, and authorizes the CITY MANAGER to execute the necessary documents for this purpose. WHEREAS, GRANTEE is to be the operator of the PROJECT which will be a public ballet facility located at 77 NE 24th Street in the CITY of Miami (the "Site") for not less than twenty (20) years from the date its doors open to the public; and _1_ Project Cooperative Agreement WHEREAS, the PROJECT will further enhance the cultural enrichment to the community and improving the quality of life for residents; and WHEREAS, the PROJECT will be a significant community asset, and the grant funds appropriately employed by the GRANTEE in accordance with this Agreement serve an important public purpose, and accordingly the CITY has agreed to make the Grant to the GRANTEE under the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the foregoing, the GRANTEE and the CITY intend as follows: 1 Definitions: 1.1 CAPITAL IMPROVEMENTS: shall mean the construction of repairs and alterations to the budding located at the Site that adapts it to use for ballet rehearsals and public ballet performances. The term shall not be construed to apply to ballet equipment or movable ballet and or dance items. 1.2 CITY FUNDING AMOUNT: shall mean the dollar amount specified in the table on page 1 of this Agreement offered in support of the PROJECT. 1.3 DELIVERABLES: Items identified on Exhibit A to be submitted to the CITY for approval prior to proceeding to a subsequent task or activity of the WORK and required as a condition for reimbursement. 1.4 DIRECTOR: shall mean the CITY's Director of the Department of Capital Improvements, or his authorized Designee. 1.5 ELIGIBLE EXPENSES: For purposes of this Agreement, Project -related costs that may be funded from the CITY FUNDING AMOUNT shall be defined to mean and include fees for general contractors and other bona fide construction, design or planning professionals and related capital improvements only. There shall be no mark up on such cost passed to the CITY. All persons and/or firms engaged shall be duly licensed and certified as required by the laws of the State of Florida. These costs are identified in Exhibit A as approved Project -related expenses, and as such, shall be eligible for reimbursement from the CITY FUNDING AMOUNT. 1.6 GRANTEE: A Florida not -for -profit corporation existing under the laws of the State of Florida. 1.7 GRANTEE Project Manager: Person designated by Grantee to manage and supervise all activities relating to the PROJECT. 1.8 INELIGIBLE EXPENSES: For purposes of this Agreement, eligible expenses may not be used for payment to employees, employee benefits, day-to-day expenses, payroll, lobbyists, legal counsel, or other obligations, debts, liabilities or costs or GRANTEE. In addition, expenses shall not include the costs of land or rights of way, and fees for lobbyists, legal or tax, environmental or regulatory counsel, auditors, accountants, brokers and salespersons or any other costs not expressly allowable by Section 1.4. There shall be no mark up by GRANTEE on any costs, that is, only the actual, direct cost incurred by GRANTEE may be billed to the CITY for reimbursement. 1.9 PROJECT: Shall mean ail activities and items, including but not limited to the WORK, required to provide a functional and/or useable facility or program for the use and enjoyment of the public as described above and as approved by the CITY Commission as appropriate for CITY participation. 1.10 WORK: Shall mean the activities and items approved by CITY (or Director) to be paid by the CITY FUNDING AMOUNT, as identified in Exhibit A or revisions thereto. 1.11 TERM: Shall mean the period this agreement is in effect, which shall commence on the effective date the Agreement is fully executed by both parties and shall terminate no later than three (3) years from the effective date. The CITY shall provide the option to renew for additional one (1) year periods upon the CITY's approval for satisfactory performance and progress. 2 CITY Representative: Except as otherwise stipulated herein, the DIRECTOR shall be responsible to render direction, assistance and decisions to GRANTEE regarding this Agreement. The DIRECTOR shall assign a Representative to handle the day-to-day, ministerial and other matters relating to this Agreement. 3 Assistance From CITY: The CITY agrees to provide the following: 3.1 Financial assistance in an amount not to exceed $300,000, the CITY FUNDING AMOUNT, from the designated FUNDING SOURCE for the WORK approved by the Enabling Legislation and as further specified in the attached Exhibit A. CITY shall have no obligation under this Agreement to fund any -2— Project Cooperative Agreement amounts in excess of the CITY FUNDING AMOUNT. Said funds will be paid on a reimbursement basis to GRANTEE as set forth in Section 10 herein. 3.2 Other Assistance — not applicable 4 Grantee Responsibilities: 4.1 The GRANTEE shall ensure the timely and satisfactory completion of the WORK relating directly to the PROJECT within the Total Estimated Project Cost and within the Time for Performance as specified in Exhibit A to this Agreement. 4.2 GRANTEE shall provide all additional funds above the CITY FUNDING AMOUNT to complete the PROJECT up to the Total Estimated Project Cost, including without limitation any Cost Overruns and/or change orders for the WORK. 4.3 The GRANTEE shall manage and supervise all aspects of the WORK including without limitation, designing, engineering, scheduling, permitting, materials, labor, means and methods of construction, and the hiring of contractors, consultants, and suppliers the like. 4.4 The GRANTEE shall fund the cost of all WORK from its own resources and seek reimbursement from the CITY in the manner set forth in this Agreement. 4.5 Any advance payment of the CITY FUNDING AMOUNT and funds of the GRANTEE shall be maintained in separate and independent bank accounts to be used solely and exclusively for the PROJECT. Any interest accruing from any advance of City funds shall be regularly reported and repaid to the City. 4.6 Unless otherwise approved by the CITY Commission, GRANTEE shall not be entitled to any unspent funds from the CITY FUNDING AMOUNT should the WORK be completed at a cost less than the CITY FUNDING AMOUNT. 4.7 If the cost of completion of the Project is less than the FUNDING AMOUNT, one hundred percent of the savings shall accrue to the CITY. 5 Ownership: The parties agree that the CITY shall be the owner of the documents, plans, specifications and permits created by virtue of the CITY FUNDING AMOUNT, which shall be made freely available to GRANTEE for its use in connection with the PROJECT, provided however, that the City of -3— Miami retains ultimate ownership. GRANTEE shall convey title to such documents and/or property to CITY. The City Manager shall have the authority to accept ownership and title to such documents and /or property and may convey, license and assign same to GRANTEE for its use for a set term, as the CITY will reserve fee title to such items. The City may label, identify or mark the improvements as City -owned property. 6 Homeland Defense Bonds, Condition Precedent Where the CITY FUNDING SOURCE for the FUNDING AMOUNT, or any portion thereof, has been identified as the Limited Ad Valorem Tax Bonds, Series 2002, "Homeland Defense / Neighborhood Improvement Bonds" (the "Bonds"), it is a condition precedent to the CITY'S ability to lawfully enter into this Agreement that the CITY receive a favorable recommendation from its Bond Oversight Board stating that the CITY may apply a portion of the proceeds of the Bonds to fund the specified PROJECT pursuant to the terms, covenants and conditions of this Agreement. This condition has been fully performed as the Bond Oversight Board approved the CITY FUNDING AMOUNT for these stated purposes at its meeting of May;27, 2003.. Land and facilities acquired, developed, improved or rehabilitated using Bond proceeds shall be dedicated and maintained in perpetuity for the benefit of the general public. All sites and/or facilities receiving the benefit of Bond proceeds shall be open and/or accessible to the public at reasonable times and shall be managed in a safe and attractive manner appropriate for public use. Equipment acquired using Bond proceeds shall be used for a bona fide public purpose and there shall be no resulting, or only incidental, private benefit. 7 Progress Reports: In addition to those items listed on Exhibit A as Deliverables, the DIRECTOR or his duly authorized designee, may require for his review and approval all specifications and/or preparatory or design documents and cost estimates at progress phases deemed appropriate by the DIRECTOR. GRANTEE shall duly consider and implement comments and revisions suggested by the DIRECTOR from such periodic reviews. Throughout the preparatory process, GRANTEE shall use its best effort to ensure that the WORK and the PROJECT can be completed within the CITY FUNDING AMOUNT and Total Estimated Project Cost, respectively. Such Documents shall be forwarded to the DIRECTOR for his review and approval as to consistency with the PROJECT as presented by GRANTEE to CITY, and said approval by DIRECTOR shall not be unreasonably withheld, conditioned or delayed. In the event the DIRECTOR fails to comment in writing on such documents in writing within thirty (30) days of their transmittal to him, the Project Cooperative Agreement documents will be deemed approved without the necessity of further action. GRANTEE shall keep DIRECTOR informed as to the progress of the PROJECT by submitting progress reports quarterly within 30 days of the month following the end of each quarter ending December 31, March 31, June 30 and September 30. The report should provide information regarding project status, activities, funding raised and expended. Any periods of inactivity must be justified and approved by the CITY. 8 Changes to Scope of WORK: In order to assure that the WORK and the PROJECT can be completed within the CITY FUNDING AMOUNT and Total Estimated Project Cost, respectively, the GRANTEE may request adjustments to the scope of WORK identified in Exhibit A. Such adjustments and any revisions to Exhibit A shall be at the sole discretion of the DIRECTOR. There shall be no modification in scope that, solely in the opinion of the DIRECTOR, negatively impacts or reduces the standards of quality or aesthetics incorporated into the PROJECT as originally presented to the CITY. 9 Eligible Expenses: The parties agree that all expenses the GRANTEE incurs that are directly related to the Project, including both hard and soft costs, are eligible for reimbursement, provided adequate documentation accompanies the reimbursement request in the form of approved invoices, verified payment requests, and/or check vouchers. For purposes of this Agreement, Project - related hard costs that may be reimbursed shall be defined to mean and include fees for labor, materials, supplies,,, supervisory personnel, required insurance and bonding, and/or the provision or installation of, fixtures. Project -related soft costs that may be reimbursed shall be defined to mean and include fees for professional engineers, architects, landscape architects, surveyors, mapping, other bona fide design professionals, permitting and associated costs, and geotechnical testing. Rent Condition Reimbursements :shall be=;contingent rsrr tle GRANTEE reaching an agreement with, tlejrr fapitlty landtord that rant witl riot corrimenc>r until;s cE time:that GRANTEE has VoVect into their facifity" 10 Match Required: The use of Matching Funds is not required. 11 Reimbursement Requests: 11.1 The Reimbursement request will be payable no earlier than forty five (45) days following the execution of this Agreement. 11.2 GRANTEE shall submit a detailed invoice or reimbursement request, as required by Section 3.1, which complies with Florida's Prompt Payment Act, §218.70, Fla. Stat. (2004) to the CITY for all Eligible Expenses relating to the WORK performed during the preceding period, along with reasonable substantiating documentation as requested by the DIRECTOR, including, without limitation, copies of invoices and cancelled checks. Provided the WORK has been performed, the CITY shall make payment within forty-five (45) days after the date the CITY receives a completed reimbursement request including a sufficiently detailed invoice. 11.3 DIRECTOR, in his/her sole discretion, may approve advance payments to GRANTEE of not more than 10% of the available balance of the CITY FUNDING AMOUNT upon receipt of written request justifying, in DIRECTOR'S sole opinion, the need for such advance payment. A •percentage of all advance payments shall be deducted from all subsequent reimbursement requests until such time that the advance payment is covered 100%. Verification and substantiation as to the use of all advance payments shall be as stated above. The DIRECTOR has the right to retain a portion of the CITY FUNDING AMOUNT equal to all advance payments until such time as the advance payments are properly documented. 11.4 Pre -Agreement Expense: GRANTEE expenses paid prior to the execution of this Agreement shall not be considered by CITY for reimbursement. 12 Timeliness and Completion: Unjustified periods of inactivity, failure to adhere to approved time schedule and to complete project may result in reimbursements, permits, and/or certificates of occupancy being withheld and funds reverting back to the CITY with the responsibility for PROJECT completion remaining with the GRANTEE. 13 No damages for Delay: In the event of any delays to the PROJECT and/or WORK, GRANTEE's sole remedy shall be to seek an extension of time from the DIRECTOR. GRANTEE is not entitled to delay damages under this Agreement or under any related agreement with the CITY. The CITY will not be liable for any delay damages or damages in any way attributable to performing work out of sequence, acceleration claims, Eichlea formula claims, or other similar type claims, work slow downs, inefficiencies, sequencing issues, strikes, lockouts, reduced productivity, or even Acts of God. 14 Insurance and Bonding: 14.1 Insurance: The CITY's Risk Management Administrator reserves the right to require GRANTEE, prior to commencing the WORK, - 4 — Project Cooperative Agreement to provide the CITY's Risk Management Administrator with evidence, consisting of certificates or policies of insurance documenting: (a) builder's risk insurance (applicable for construction projects only); and (b) general liability insurance, (c) professional liability insurance. The CITY of Miami shall be a named insured on ail liability policies relating to the WORK except professional liability policies. See Exhibit C. 14.2 Payment and Performance Bond: Where WORK includes the construction of improvements, prior to commencing the WORK, GRANTEE shall provide to the CITY's Risk Management Administrator a copy of the Payment and Performance Bond from the general contractor in substantially the form prescribed for a public construction bond by Section 255.05, Fla. Stat. (2004). The CITY shall be a named obligee on the Payment And Performance Bond required by this section which shall be in an amount not less than the CITY FUNDING AMOUNT allocated for those improvements. As allowed under the provisions of §255.05(7), Florida Statutes (2004) the CITY'S Risk Management Administrator may, in writing, decide to accept an alternative form of security in lieu of the Payment and Performance Bond, in such form and amounts as may be reasonably required by the CITY's Risk Management Administrator. 14.3 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 and/or bond. 15 Indemnity: The GRANTEE shall indemnify, defend and hold harmless at its own cost expense, the CITY and its officers, employees, agents and instrumentalities from any and all liability, losses or damages, including attorneys' fees and costs of defense, which the CITY or its officers, employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting from the performance of this agreement by the GRANTEE or its employees, agents, servants, partners, principals or subcontractors. The GRANTEE shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits or actions of any kind or nature in the name of the CITY, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorneys' fees which may issue thereon. 16 Audit Rights: Pursuant to the applicable provisions of §18-100 to §18-102 of the Code of the CITY of Miami, as amended from time to time which are deemed as being incorporated by reference herein, the CITY may audit GRANTEE's records relating to this Agreement, during regular business hours, at a location within the CITY of Miami during the term of this Agreement and for three (3) years thereafter. 17 Compliance With Laws: GRANTEE and the CITY shall at all times comply with all applicable municipal, county, state and federal laws, ordinances, codes, statutes, rules and regulations, approved development orders, and written CITY of Miami Guidelines governing the design and construction of the Improvements and the granting of funds for use thereof. 18 Miscellaneous: 18.1 Enforcement. The provisions of this Agreement may be enforced in Miami Dade County by all appropriate actions in law and in equity by any party to this Agreement. 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 permissive counterclaims outside the bounds of this Agreement in such actions. Each party shall bear their own respective attorney's fees. A court of competent jurisdiction may award court costs to a prevailing party. 18.2 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. 18.3 CITY Officials. The "CITY" is a municipal corporation, and the CITY Manager as its Chief Administrative Officer, or the DIRECTOR as the CITY Manager's designee, 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. 18.4 Successors and Assigns. This Agreement may not be assigned, sold, pledged, hypothecated or encumbered, in whole or in part, to any third party or business entity, contract vendee. successor , assign or to an institutional lender providing funding for the PROJECT, without the prior approval of the Miami CITY Commission. The CITY is relying on the commitment, skill and reputation of GRANTEE in performing this work and may withhold or cancel funding in the event there is any assignment, pledge, sale or other disposition by GRANTEE without having first -5— Project Cooperative Agreement secured the approval of the CITY Manager or his designee, which may be unreasonably withheld or delayed. 18.5 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 CITY Manager and/or Director of Capital Improvements Program ("CIP") for the CITY; and President/CEO of the GRANTEE as applicable 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). 18.6 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. 18.7 Exhibits. All of the Exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 18.8 Amendments; Termination. This Agreement may not be amended, modified or terminated except by written agreement of the parties hereto. Further, no modification or amendment, excepting a termination for cause by the CITY under Section 19 herein, shall be effective unless in writing and executed by the parties, employing the same formalities as were used in the execution of this Agreement. 18.9 OSHA. The GRANTEE warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances. The CITY reserves the right to refuse GRANTEE access to CITY property, including project jobsites, if GRANTEE employees are not properly equipped with safety gear in accordance with OSHA regulations or if a continuing pattern of non-compliance with safety regulations is exhibited by GRANTEE. 18.10 ADA. In the course of providing any work, labor or services funded by the CITY, GRANTEE (or its agents and representatives, as applicable) shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") including Titles 1 & 11 of the ADA regarding non-discrimination on the basis of disability, and related regulations, guidelines and standards as appropriate. Additionally, GRANTEE will take affirmative steps to ensure non-discrimination in employment of disabled persons. 18.11 Public Performances 18.11.1 During the term of this Agreement the GRANTEE shall allow members of the general public to gratuitously view, in a non - obtrusive manner, certain rehearsals and performances. 18.11.2 During each term of this Agreement the, GRANTEE 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 Project Location. GRANTEE will use its best efforts to comply with the twenty-five (25%) percent minimum issuance of tickets annually for performances held at any facility within the City. 18.11.3 GRANTEE 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 Project Location and to distribute the free tickets referenced above. 18.11.4 Subject to its availability, during the term of this Agreement, the City may itself utilize the improvements and performance area up to ten (10) times per year for appropriate dance performance events sponsored or presented by the City. The City Manager shall afford the GRANTEE thirty (3) days prior, written notice of each request and GRANTEE shall have ten (10) days to respond, in writing, to each request made under this subsection. 18.11.5 GRANTEE 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 the improvements. Said report shall be in a form acceptable to the City -6— Project Cooperative Agreement Manager and shall include, without limitation, the date(s) and time(s) of GRANTEE'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, 18.11.6 GRANTEE, when practicable, will hold performances at City -owned facilities. 19 Default, Termination: 19.1 In the event of default, CITY shall suspend or withhold reimbursements from GRANTEE. The GRANTEE agrees to repay the CITY on or before thirty (30) days from the date the City Manager declares default of the Agreement that has not been cured to the satisfaction of the City Manager in accordance with Section 19.3 of this Agreement. In the event of default the FUNDING AMOUNT will be considered a loan from the CITY and the CITY may institute any civil actions available by virtue of Florida law, including without limitation, moneys lent and/or open account, among others, to recover such funds. Any amounts not paid when due shall accrue interest at the highest rate permitted by Florida law. 19.2 Default, and subsequent termination for cause may include, without limitation, any of the following: 19.2.1 GRANTEE fails to obtain the insurance or bonding herein required. 19.2.2 GRANTEE fails to comply, in a substantial or material sense, with any of its duties under this Agreement, any terms or conditions set forth in this Agreement, or any Agreement it has with the CITY , its architect, engineer or contractor arising by virtue of this Agreement, beyond the specified period allowed to cure such default. 19.2.3 GRANTEE fails to complete the Improvements in a timely manner as required by this Agreement. 19.3 Termination for Cause; Force Majeure, 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 18.5, the parties shall have all rights and remedies provided by law or equity, subject to the limitations of this Agreement. The CITY Manager may grant one additional 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 interpreted under Florida law. 19.4 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 GRANTEE or GRANTEE does not comply with any material terms, covenants or condition provided herein within ninety (90) days from the date of a written notice from the CITY Manager; or when, in the opinion of the 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 Section 19.3. 19.5 The laws of the State of Florida shall govern this Agreement. Venue in any civil actions between the parties shall be in Miami -Dade County, Florida. In order to expedite the conclusion of any civil actions instituted by virtue of this Agreement the parties voluntarily and mutually waive their respective rights to demand a jury trial or to file permissive counterclaims in civil actions between them. Each party shall bear their own attorney's fees. 20 No Third -Party Beneficiaries: Neither the CITY nor GRANTEE 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. 21 Authority of GRANTEE Signatories: The undersigned executing this Agreement on behalf of GRANTEE has authority of record pursuant to the attached Corporate Resolution, and all applicable laws of the State of Florida to act on behalf of and bind GRANTEE to every condition, covenant and duty set forth herein. 22 Contingency Clause: Funding for this Agreement is contingent on the availability of funds and of continued authorization for program activities and is subject to termination due to lack of funds or authorization, reduction of funds, and/ or change in laws or legal requirements. 23 Joint Preparation: Preparation of this Agreement has been a joint effort of the CITY and GRANTEE and the resulting document shall not, solely as a matter of judicial construction, be Project Cooperative Agreement construed more severely against one of the parties than the other. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written, which shall have an effective date of WITNESS GRANTEE, Ballet Gamonet, a Florida Not -For -Profit Corporation Signature Signature Print Name, Titre Zammy Migdal, President of the Board of Directors ATTEST: Anne Chamberlin, Grantee Corporate Secretary (Affix Corporate Seal) ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida Priscilla Thompson, City Clerk Joe Arriola, City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: LeeAnn Brehm, Acting Director Risk Management Department Jorge L. Fernandez, City Attorney APPROVED AS TO CAPITAL IMPROVEMENT PROGRAM: By Mary H. Conway, CIP Director -8— Project Cooperative Agreement EXHIBIT A EXHIBIT A: Capital Improvements Plan DETAILED PROJECT INFORMATION ITEMIZED SCOPE OF WORK, PROJECT BUDGET, TIME OF COMPLETION Submitted by: Ballet Gamonet Date: February 22, 2006 Demolition of existing partition walls Installation so studio dance flooring, flooring and general lighting and distribution to power lights Air conditioning system Partition walls including fire proofing Construction of bathrooms including installation of faucets and all plumbing fixtures as required Security system throughout space Custom cabinets Sound system / phone systems TOTAL ESTIMATED COST 300,000 $ $ Fixture(s) listed in co Fixture(s) listed in column A Fixture(s) listed in column A Fixture(s) listed in column A Fixture(s) listed in co Fixture(s) listed in co The Project Elements/Tasks listed above with an amount listed in Column B, CITY FUNDING AMOUNT, shall constitute the WORK; all items listed in Column A shall constitute the PROJECT. Time of Performance: WORK BEGINS -9— Project Cooperative Agreement EXHIBIT B ENABLING LEGISLATION -1€3- Proect Cooperative Agreement EXHIBIT C INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE - (Ballet Gamonet) Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Each Occurrence General Aggregate Limit Products/Completed Operations Aggregate Limit per project Personal and Advertising Injury B. Endorsements Required $1,000,000 $2,000,000 $2, 000,000 $1,000,000 City of Miami included as an Additional Insured 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 Loading and Unloading Mobile Equipment (Contractors Equipment) whether owned, leased, Borrowed, or rented by the contractor or employees of the contractor 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 -11— Project Cooperative Agreement III, Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability 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 V, Umbrella Policy Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit $1,000,000 Each Occurrence $1,000,000 Aggregate $1,000,000 Products/Completed Operations Aggregate Limit $2,000,000 VI. Owners Contractors Protective (applicable for Construction projects only) Limits of Liability Each Claim $1,000,000 Aggregate $1,000,000 VII. Professional Liability/Error's & Omissions Coverage Combined Single Limit Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Deductible -Not to Exceed 10% VIII. Builders' Risk (applicable for Construction projects only) Limits of Liability- to be determined according the terms of the Construction contract. Endorsements Required "All Risk Form Non -Reporting Form -Completed Value Specific Coverage (Project Location and Description) • Loss or Damage to building material, and property of every kind and description, including insured's property 12— Project Cooperative Agreement to be used in, or incidental to construction • Business Interruption • Boiler and Machinery • Transit • Foundation Coverage • Scaffolding and Forms Coverage • Plans, Blueprints, and Specifications coverage • Collapse • Flood, including inundation, rain, seepage, and water damage • Earthquake • Subsidence • Windstorm including hurricane • Freezing and Temperature Extremes or changes coverage • Ordinance or buildings laws • Theft or Burglary • Coverage for Toss arising out of Faulty Work or Faulty Materials • Coverage for loss arising out of Design Error or Omission • Testing • Debris Removal • Soft (Additional Financing) Costs Coverage • Replacement Cost Valuation • Coinsurance Requirements Waived • Maintenance of Insurance Coverage through warranty period All insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications: The company must be rated no Tess than "A" as to Management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the City's Risk Management Division. -13— Project Cooperative Agreement March 28, 2006 Mr. Juan J. Escalante Ballet Gamonet Maximum Dance 9220 SW 158th Lane Miami, FL 33157 Re: Moratorium on rent payments for Ballet Gamonet Dear Mr. Escalante: I am writing this fetter to you concerning rental payments. We entered into a lease agreement with your company, Ballet Gamonet, on December 2nd, 2005, and are aware that the purpose for which you leased this property was to conduct ballet rehearsals and public performances. We also know that in order for you to do so, you must implement your plans to make repairs and construct alterations for your space to be adapted to your organization's stated purpose, We have, therefore, decided to give Ballet Gamonet a 60-day moratorium on your April and May rent payments with the understanding that this will give you ample time to complete construction and move in. Your regular rent will be due for the month of June on June 14, 2006 with no further exceptions. Sincerely, Ruben Matz PROJECT CO-OPERATION AGREEMENT GRANTEE: \ i Ballet Gamonet PROJECT: Project Location: Grantee Project Manager : '\, Construction - Ballet Gamonet y \77 NE 24`h Street, Miami, FL 33137 Drier°" 2 (Winton) ETW7 Phone Fax Juan Escalante 786.301-55751 Marcia Monserrat 786-301-5575 305 25t3 318t1 Notifications Rearding this Docuument Address co Vase Phone kuan Escalante, Executive Director same as above Fa„ same as above "attxne Address \ \ 922aaSW 158'h Lane, Miami, FL cirr Miami scare FL Zip 33157 Addzeie same \Miami FL 33157 ` I District 2 QOL CIP Project No. CITY FUNDING AMOUNT: $300,000 Funding Source 311712 y Enabling Legislation: Resolution 06- \ Adoption Date 319/2006 CIP Job a-799©0 Total Eatireated Project Cost: 300,000 ; Number: lit 4pplieebto Project Description: Construction of capital improvements to be located at 77 NE 241h Street, Miami, FL 33137, hereinafter referred to as 'PROJECT". \; THIS AGREEMENT (hereinafter referred to as \ he "AGREEMENT") is made and entered into as of 2006, with the specifiedeffective date, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as "CITY"), with offices at 444 S.W. 2hd Avenue, Miami, FIo da 33130-1910 and BALLET GAMONET, the GRANTEE named above, with offices located at the Grantee Street Address given above. Eg'=i.161A: The intent of this Agreement is to outline the respective expectations and obligations of the parties regarding the specified cooperative capital improvement project (the "PROJECT') named above and further defined in this document, The GRANTEE has initiated andror is responsible for the completion of the PROJECT, for which it has requested financial assistance from the CITY for payment of certain allowable costs and expenses. Project Coaperatve Agreement f(2- o&-.As The CITY has opted Enabling Legislation, referenced above and corporated try reference as though set forth in I, to allow the CITY'S participation in the PROJECT, and authorizes the CITY MANAGER to ecute the necessary documents for this purpose. 40 WHEREAS, GRANTEE is to'be the operator of the PROJECT which will be a p tic ballet facility located at 77 NE 24th Street in 14. CITY of Miami (the 'Site") for not less than twenty (:) years from the date its doors open to the public; and\ WHEREAS, the PROJECT will further enhance thee',. cultural enrichment to the community and improving the quality of life for residents; and W1-EREAS, the PROJECT will be a significant community asset, and the grant funds appropriately employed by the GRANTEE in accordance with this Agreement Serve an important public purpose, and accordingly the;CITY has agreed to make the Grant to the GRANTEE Under the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the foregoing, the GRANTEE and the CITY intend as follows: 1 Definitions:�,� 1.1 CAPITAL IMPROVEMENTS: shall mean the construction of repairs id alterations to the building located at the ite that adapts it to use for ballet rehears s and public ballet performances. The ter shall not be construed to apply to ballet eraipment or movable ballet and or dance items. 1.2 CITY FUNDING AMOUNT: shall nieaf�the dollar amount specified in the table on pa 1 of this Agreement offered in support of PROJECT. 1.3 DELIVERABLES: items identified on Exhibit A to be submitted to the CITY for approval prior to proceeding to a subsequent task or activity of the WORK and required as a condition for reimbursement, 1.4 DIRECT R: shall mean the CITY's Director of the Department of Capital Improvements, or his authorized Designee. 1,5 ELIGIBLE EXPENSES: For purposes of this Agreement, Project -related costs that may be funded from the CITY FUNDING AMOUNT shalt be defined 10 mean and include capital improvements as herein defined and as shown on Exhibit A, and related materials. There shall be no mark up on such cost passed to the CITY. All persons and/or firms engaged shall be duly licensed and certified as required by the laws of the State of Florida. These costa are identified in Exhibit A as approved Project -related expenses, and as such, shall be eligible for reimbursement from the CITY FUNDING AMOUNT, 1.6 GRANTEE: A Florida not -for -profit corporation existing under the laws of the State of Florida. -2- 1.7 GRANTEE Proiect Manager: Person designated by Grantee to manage and supervise all activities relating to the PROJECT. 1,8 1N LIGIBLE EXPENSES: For purposes of this Agreement, eligible expenses may not be used for payment to employees, employee benefits, day-to-day expenses, payroll, lobbyists, legal counsel, or other obligations, debts, liabilities or costs or GRANTEE. In addition, expenses shall not include the costs of land or rights of way, and fees for lobbyists, legal or tax, environmental or regulatory counsel, auditors, accountants, brokers and salespersons or any other costs not expressly allowable by Section 1.4. There shall be no mark up by GRANTEE on any costs, that is, only the actual, direct cost incurred by GRANTEE may be billed to the CITY for reimbursement, 1,9 PROJECT: Shall mean all activities and items, including but not limited to the WORK, required to provide a functional and/or useable facility or program for the use and enjoyment of the public as described above and as approved by the CITY Commission as appropriate for CITY participation. 1,10 WORK: Shall mean the activities and items approved by CITY (or Director) to be paid by the CiTY FUNDING AMOUNT, as identified in Exhibit A or revisions thereto. 1.11 TERM Shall mean the period this agreement is in effect, which shall commence on the effective date the Agreement is fully executed by both parties and shall terminate no later than three (3) years from the effective date. \The CITY shall provide the option to renew for additional one (1) year periods upon the Cfres approval for satisfactory performance and'progress. 2 cITY Representative: Except as otherwise stipulated herein;\the DIRECTOR shall be responsible to render direction, assistance and decisions to GRANTEE regard'ng this Agreement. The DIRECTOR shall ass`in a Representative to handle the day-to-day, ministe I and other matters relating to this Agreement. 3 Assistance From CITY:, The CITY agrees to provide the following: 3,1 Financial assistance in ari\ amount not to exceed $300,000, the c'Y FUNDING AMOUNT, from the designated FUNDING SOURCE for the WORK approved by the Enabling Legislation and as further specified in the attached Exhibit A. CITY shall 'have no obligation under this Agreement to fund any Project Cooperative Agreement amounts in excess of the CITY FUNDING AMOUNT. Said funds will be paid on a reimbursement basis to GRANTEE as set forth in Section 10 herein. 3.2 Qther Assistance - not applicable 4 Grantee Responsibilities: 4.1 The GRANTEE shall ensure the timely and satisfactory completion of the WORK relating directly tat the PROJECT within the Total Estimated Project Cost and within the Time for Perlormance\as specified in Exhibit A to this Agreement. 4.2 GRANTEE shall 'provide all additional funds above the CITY ',FUNDING AMOUNT to complete the PROJECT up to the Total Estimated Project Cbst, including without limitation any Cos! Overruns and/or change orders for the WORK. ; 4.3 The 'GRANTEE shall managand supervise all aspects of the WORK ind1 iding without limitation, designing, engineering\',scheduling, permitting, materials, labor, moans and methods of consIruction, and the 'tiring of contractors, consultants, and suppliers fl a like, 4.4 The GRANTEE shalt fund the cost of II WORK from its own resources and see reimbursement from the CITY in the manner , set forth in this Agreement. 4.5 Any advance payment of the CITY FUNDING AMOUNT and funds of the GRANTEE shall be maintained in separate and independent bank accounts to be used solely and exclusively for the PROJECT. Any interest accruing from any advance of City funds shall be regularly reported and repaid to the City. 4.6 Unless otherwise approved by the CITY Commission, GRANTEE shall not be entitled to any unspent tunas from the CITY FUNDING AMOUNT should the WORK be completed at a cost less than the CITY FUNDING AMOUNT. 4.7 If the cast of completion of the Project is less than the FUNDING AMOUNT, one hundred percent of the savings shalt accrue to the CITY. 5 Ownership: The parties agree that the CITY shall be the owner of the documents. plans, specifications and permits created by virtue of the CITY FUNDING AMOUNT, which shall be made freely available to GRANTEE for its use in connection with the PROJECT, provided however, that the City of Ptc ei Cooperative Agreement Miami retains ultimate ownership. GRANTEE shall - convey title to such documents and/or property to CITY. The City Manager shall have the authority to accept ownership and titre to such documents and /or property and may convey license and assign same to GRANTEE for its use for a set term, as the CITY will reserve fee title to such items. The City may label, identify or mark the improvements as City -owned property. 6 Homeland Defense_ Bonds, Condition Precedent: Where the CITY FUNDING SOURCE for the FUNDING AMOUNT, or any portion thereof, has been identified as the Limited Ad Valorem Tax Bonds, Series 2002, "Homeland Defense / Neighborhood Improvement Bonds' {the "Bonds'}, it is a condition precedent to the CITY'S ability to lawfully enter into this Agreement that the CITY receive a favorable recommendation from its Bond Oversight Board stating that the CITY may apply a portion of the proceeds of the Bonds to fund the specified PROJECT pursuant to the terms, covenants and conditions of this Agreement This condition has been fully performed as the Bond Oversight Board approved the CITY FUNDING AMOUNT for these stated purposes at its meeting of May 27, 2003. Land and facilities acquired, developed, improved or rehabilitated using Bond proceeds shall be dedicated and maintained in perpetuity for the benefit of the general publtc. All sites and/or facilities receiving the benefit of Bond proceeds shall be open and/or accessible to the public at reasonable times and shall be managed in a safe and attractive manner appropriate for public use. Equipment acquired using \ Bond proceeds shall be used for a bona fide public 'purpose and there shall be no resulting, or only incidental, private benefit. 7 'frooress Reports: In addition to those items Listed er Exhibit A as Deliverables, the DIRECTOR or his duty\authorized designee, may require for his review eV approval all specifications and/or preparatory`ir design documents and cost estimates at progress phases deemed appropriate by the DIRECTOR. 'GRANTEE shall duly consider and implement comrrients and revisions suggested by the DIRECTOR from Such periodic. reviews. Throughout the preparatory process. GRANTEE shall use its best effort to ensure that the WORK and the PROJECT can be completed vrithin the CITY FUNDING AMOUNT and Total ' Estimated Project Cost, 3- respectively. Such Documents shalt list forwarded to the DIRECTOR for his review 'and approval as to consistency with the PROJECT es presented by GRANTEE to CITY, and said approval by DIRECTOR shall not be unreasonably withheld~ conditioned or delayed. In the event the O1RE,TOR fails to comment in writing on such documents in writing within thirty (30) days of their transmlttal'o him, the documents will be deemed approved without the necessity of further action. GRANTEE shall keep DIRECTOR informed as to the progress of the PROJECT by submitting progress >>reports quarterly within 30 days of the month following the end of each quarter ending December 31, March 31;elune 30 and September 30 The report should provide information regarding project status, activities, fundin,raised and expended- Any periods of inactivity Must be justified and approved by the CITY. e 8 Cha to Sco a of WORK: In order to assure that th WORK and the PROJECT can be completed within he CITY FUNDING AMOUNT and Total Estimated roject Cost, respectively, the GRANTEE may req st adjustments to the scope of WORK identified in Ex'Nbit A. Such adjustments and any revisions to Exhiti}t, A shall be at the sole discretion of the DIRECTOR. There shall be no modification in scope that, s`tely in the opinion of the DIRECTOR, negatively imp s or reduces the standards of quality ar aesthet s incorporated into the PROJECT as originally presen d to the CITY. 9 Eligible Expenses: The part es ttgree that at expenses the GRANTEE incurs thet\are directly related to the Project, including both had end soft costs, are eligible for reimbursement, -..pprovided adequate documentation accompanie3e the reimbursement request in the form of approved invoices, verified payment requests, and/or check vouchers. For purposes of This Agreement, Projetit- related hard costs that may be reimbursed shall defined to mean and include fees for tabor, materials, supplies,,, supervisory personnel, required insurance and bonding, and/or the provision or installation of, fixtures. Project•retated soft costs that may be reimbursed shall be defined to mean and include fees for professional engineers, architects, landscape architects, surveyors, mapping, other bona fide design professionals, permitting and associated costs, and geatechrical testing. 10 Match Required: The use of Matching Funds is not required. 11 Reimbursement Reouests: 11.1 The Reimbursement request will be payable no earlier than forty five (45) days following the execution of this Agreement. 11.2 GRANTEE shall submit a detailed invoice or reimbursement request, as required by Section 3.1, which compiles with Florida's Prompt Payment Act, §218.70, Fla. Stet. (2004) to the CITY for ail Eligible Expenses relating to the WORK performed during the preceding period, along with reasonable substantiating documentation as requested by the Project Cooperative Agreement DIRECTOR, including, without limitation, copies of invoices and cancelled checks Provided the WORK has been performed, the CITY shall make payment within forty-five (45) days after the date the CITY receives a completed reimbursement request including a sufficiently detailed invoice. 11,3 DIRECTOR, in his/her sole discretion, may approve advance payments to GRANTEE of not more than 10% of the available balance of the CITY FUNDING AMOUNT upon receipt of written request justifying, in DIRECTOR'S sole opinion, the need for such advance payment. A percentage of all advance payments shall be deducted from all subsequent reimbursement requests until such lime that the advance payment is covered 100%. Verification and substantiation as to the use of all advance payments shall be as stated above. The DIRECTOR has the right to retain a portion of the CITY FUNDING AMOUNT equal to all advance payments until such time as the advance payments are properly documented. 11.4 Pre -Agreement Expense: GRANTEE expenses paid poor to the execution of this Agreement shall not be considered by CITY for reimbursement. 12 Timeliness and Completion: Unjustified periods of inactivity, failure to adhere to approved time schedule and to complete project may result in reimbursements, permits, and/or certificates of occupancy being withheld and funds reverting back to the CITY with the responsibility for PROJECT \�comptetion remaining with the GRANTEE. - 4 — NO damages for Delay: In the event of any del to the PROJECT andtor WORK, GRANTEE'S sole remedy shall be to seek an extension of time from the DIRECTOR. GRANTEE is not entitled to delay dareages under this Agreement or under any related agrbament with the CITY, The CITY will not be liable for anjlelay damages or damages in any way attributable to\pertorming work out of sequence, acceleration dais. Eichlea formula claims, or other similar type claimer. work slow downs, inefficiencies, sequencing issue;\ strikes, lockouts, reduced productivity, or even Acts of God. 14 insurance and Boning: 14.1 lnsurence: The ClEY's Risk Management Administrator reserves ethe right to require GRANTEE, prior to com encing the WORK, to provide the CITY's sk Management Administrator with evidence consisting of certificates or policies 'at insurance documenting: (a) builder's risk insurance (applicable for construction projecthsonly); arid (b) general liability insurance, (c) prot,essionat liability insurance. The CITY of Miami shall be a named insured on all liability policies relating to the WORK except professional liability `-policies. See ExhibitC. 14.2 Pav' eat and Performance Bond: Where WOR)< includes the construction of Improvements, prior to commencing the WORK, GRANTEE shall provide to the CWTY's Risk Management Administrator a copy of the Payment and, Performance Send from the general contrai4or in substantially the form prescribed for a "- public construction bond by Section 255.05, tom. Stat. 12004). The CITY shah be a named obligee on the Payment And Performance Bond required by this section which shall be in en arnount not fess than the CITY FUNDING AMOUN'[ allocated for those improvements. As allowed under the provisions of §255.05(7), °Florida Statutes (2004) the CITY'S Risk\ Management Administrator may, in writing, de'gide to accept an alternative form of security in, lieu of the Payment and Performance Bond, irnsuch form and amounts as may be reasonablOequired by the CITY's Risk Management Administrator. 14.3 The CLTY's Risk Management Administ for shalt be given at least 30 days prior writ; notice of any cancellation, lapse, or material\ modification of said insurance coverage and/or \ bond. 18 Indemnity: The GRANTEE shall indemnify, defend and hots harmless at its own cost expense, the CITY and its officers, employees, agents and instrumentalities from any and all !lability, !oases or damages, including attorneys' fees and costs of detense, which the CITY or its officers, employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting from the performance of this agreement by the GRANTEE or its employees, agents, servants, partners, principals or subcontractors. The GRANTEE shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits or actions of any kind or nature in the name of the CITY, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorneys' fees which may issue thereon. 16 Audit Rights Pursuant to the applicable provisions of §18-100 to §18-102 of the Code of the CITY of Miami, as amended from time to time which are deemed as being incorporated by reference herein, the CITY may audit GRANTEE'S records relating to this Agreement, during regular business hours, at a location within the CITY of Miami during the term of this Agreement and for three (3) years thereafter. -5- Project Cooperative Agreement 17 compliance With Laws: GRANTEE and the CITY shall at all times comply with all applicable municipal, county, state and federal Jaws, ordinances, codes, statutes, rules and regulations, approved development orders, and written CITY of Miami Guidelines governing the design and construction of the Improvements and the granting of funds for use thereof. 18 MIecettpneoust 18.1 Enforcement. The provisions of this Agreement may be enforced in Miami Dade County by all appropriate actions in law and in equity by any party to this Agreement. 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 permissive counterclaims outside the bounds of this Agreement in such actions. Each party shall bear their own respective attorney's fees. A court of competent jurisdiction may award court costs to a prevailing party 18.2 Counteroarte. 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. \ 18.3 frITY Officiate, The "CITY" is a municipal corporation, and the CITY Manager as its Chief Administrative Officer, or the DIRECTOR es the CITY Manager's designee, is empowered to make all decisions with regard \to this Agreement on behalf of the CITY, 'unless otherwise provided by law or by reeolution of the CITY Commission. 18.4 Suciiassors and Assigns. This Agreement may 'dot be assigned, sold, pledged, hypothecated or encumbered, in whole or in part, to at y third party or business entity, contract vermdee, successor , assign or to • an institutional i`eeder providing funding for the PROJECT, wiffieut the prior approval of the Miami CITY Cori/mission. The CITY is relying on the commitmt. skilt and reputation of GRANTEE in performing this work and may withheld or cancel fumng in the event there is any assignment, pledge, sale or other disposition by GRANTEE. without having first secured the approve/ of theeC1TY Manager or his designee, which may `'be unreasonably withheld or delayed. 18.5 Notices, Any and all notices 'required or desired to be given hereunder shall be in writing and shall be deemed to have bean duly given when delivered by hand (including recognized overnight courier services, such as Federal Express) or three (3) business days atter deposit in the United Stales mail, by registered or certified mail, return receipt requested, postage prepaid, and addressed to \the CITY Manager and/or Director of Capital 'improvements Program ('C1P") for the CITY; and President/CEO of the GRANTEE as applicable 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 in4vriting). 18.6 Constructs. The section headings contained in this Agreement are for reference purposes only and sha(I not affect the meaning or interpretation hereof. Ali 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 include the plural, the plural shalt be held to in rude the singular, and reference to any particula ender shall be held to include every other and genders. 18.7 Exhibits. Ali of the Exhibits attach d to this Agreement are incorporated in, and ade a part of, this Agreement. 18.8 Amendments: Terminaticr). This Agreement, may not be amended, modified or terminated;._ except by written agreement of the parties hereto. Further. no modification or amendment, excepting a termination for cause by the CITY under Section 19 herein, shall be effective unless in writing and executed by the parties, employing the same formalities as were used in the execution of this Agreement. 18.9 OSHA. The GRANTEE warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances. The CITY reserves the right to refuse GRANTEE access to CITY property, including project jobsites, if GRANTEE employees are not properly equipped with safety gear in accordance with OSHA regulations or if a continuing pattern of non-compliance with safety regulations is exhibited by GRANTEE. 18.10 ADA. In the course of providing any work, tabor or services funded by the CITY, GRANTEE (or its agents and representatives, as applicable) shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") including Titles 18 It of -6— Project Cooperative Agreement the ADA regarding non-discrimination on the basis of disability, and related regulations, guidelines and standards as appropriate. Additionally, GRANTEE will take affirmative steps to ensure non-discrimination in employment of disabled persons. 18.11 Public Performances 18.11.1 During the term of this Agreement the GRANTEE shalt allow members of the general public to gratuitously view, in a non - obtrusive manner, certain rehearsals and performances, 18.11.2 During each term of this Agreement the GRANTEE 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 Project Location. GRANTEE will use its best efforts to comply with the twenty-five (25%) percent minimum issuance of tickets annually for performances held at any facility within the City. 18.11.3 GRANTEE wilt 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 Project Location and to distribute the free tickets referenced above. 18.11.4 Subject to its availability, during the term of this Agreement, the City may itself utilize the improvements and performance area up to ten (10) times per year for appropriate dance performance events \sponsored or presented by the Clty. The City Manager shall afford the GRANTEE thirty (3) deys prior, written notice of each request and GRANTEE shall have ten (10) days to respond, in writing, to each request made under this subsection. 18.11.5 GR ANTEE shall provide a report to the City Manager detailing the activities and efforts it has undertaken 10 comply with the provisions of thlis,, Section, on an annual basis, commencing~ from the date of the acceptance of the improvements. Said report shall be in a form acceptable 10 the City Manager and shall incluee, without limitation, the dates) and time(s)\of GRANTEE'~ performances, the total number of seats available for each performance, the groups and programs contacted aed offered complimentary admissions, the 4stribution system for free tickets or complimentary admissions, and the number of complimentary seals and/or tickets utilized by such groups and the general public for each performance. Free tickets and comphmentary admissions are synonymous 'terms under this Agreement, 18,11.9 GRANTEE, when practicable, wilt hold ierformances at City -owned facilities, 18 Default, Terr%iinatfon: 19.1 In the event* default, CITY shalt suspend or withhold reirnOursements from GRANTEE. The GRANTEE`agrees to repay the CITY on or before thirty (30j days from the date the City Manager declares 'default of the Agreement that has not been cared to the satisfadian of the City Manager in acLcordartce with Section 19.3 of this Agreement. `in the event of default the FUNDING AMOUNT ° ill be considered a loan from the CITY and the`tTY may institute any civil actions available *virtue of Florida taw, including without iimitatige, moneys lent and/or open account, among others, to recover such funds, Any amounts not pai,d when due shalt accrue interest at the hr�jhest rate permitted by Florida taw. 19.2 Default, and subsequent termination for'.ause may include, without limitation, any of, the following: 19.2.1 GRANTEE fails to obtain the insurance" or bonding herein required. 19.2.2 GRANTEE faits to comply, in a substantial or material sense, with any of its duties under this Agreement, any terms or conditions set forth in this Agreement, or any Agreement it has with the CITY , its architect, engineer or contractor arising by virtue of this Agreement, beyond Me specified period allowed to cure such default. 19.2.3 GRANTEE fails to complete the Improvements in a timely manner as required try this Agreement. 19.3 Termination for Cause: Force Maieure. In the event of a default, which is not cured within ninety (90) days foftowing the dale of a written notice mailed as provided in Section 18 5, the parties shall have all rights and remedies provided by law or equity, subject to the limitations of this Agreement. The CITY Manager may grant one additional extension of not more than ninety (90) additional days in _7-- Project Cooperative Agreement ent total if such failure to cure is due to Force Majeure as that term is interpreted under Florida law. 19.4 This Agreement and/or the CITY'& funding obligations under the Agreement may be terminated, for cause, et the option of and by the CITY Manager, if any default is not cured by GRANTEE or GRANTEE does not comply with any material terms, covenants or condition provided herein within ninety (90) days from the date of a written notice from the CITY Manager; cr when, in the opinion of the WY 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 Section 19.3. 19.5 The laws of the State of Florida shall govern this Agreement. Venue in any civil actions "—between the parties shall be in Miami -Dade County, Florida. In order to expedite the conclusion of any civil actions instituted by virtue of this Agreement the parties voluntarily and mutually waive their respective rights to demand a jury trial or to file permissive counterclaims in civil actions between them. Each party shall bear their own ettorney's fees. 20 No Third -Party Beneficiaries: Neither the CITY nor GRANTEE 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 shalt be entitled to assert a claim against either of them based upon this Agreement. \ 21 Authority of GRANTEE Slanatortesi The ` ndersigned executing this Agreement on behalf of ANTEE has authority of record pursuant to the attaehed Corporate Resolution, and all applicable lewr not the State of Florida to act on behalf of and bind G,RANTEE to every condition, covenant and duty setlorth herein. 22 Cont oencv Clause: Funding for this Agreement r . contingent on the availability of funds and of continued authorization for program activities and is subject lo, termination due to lack of funds or authorization, reduction of funds, and/ or change in laws or legal requiregtents. 23 Joint Preparation: Preparation of this Agreement has been a joint effort of the CITY and GRANTEE and the resulting document shall not, solely as a matter of fteliciat construction, be construed rnore severety agai(tst one of the parties than the other. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written, which shall have an effective date of WITNESS GRANTEE, Ballet Gamonet, a Florida Not -For -Profit Corporation Signature Signature Print Name, Title Zammv Miodal, President of the board Pr Directors ATTEST: Anne Chamberlin, Grantee Co (Affix.Corparate Seal) ATTEST: rate Secretary Priscilla Thompson, City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: Dania Carrillo, Administrator Risk Management Department APPROVED AS TO CAPITAL IMPROVEMENT PROGRAM: By Mary H. Conway, CIP Director Protect COoperetive Agreement CITY OF MIAMI, a municipal corporation of the State of Florida Joe Arrioia, City Manager ti APPOVED AS TO LEGAL FORM AND COR GTNESS: Jorge L. Fernandez, City Attomey -8— EXHIBIT A EXHIBIT A: Capital Improvements Plan DETAILED PRO3ECl' INFORMATION ITEMIZED SCOPE OF WORK, PROJECT BUDGET, TIME OF COMPLETION 5ubmitt7d 0.v: Ballet Gamonet Date: February 22, 2006 .. m Y..,x .: y.,_ 16 ivt u. '%dx '<" -may. r�'; '. S. r �- ..: .j `,.,.�, 2K. .Lt,;4� �' �, '� - Y: r 'er-_' 7"`Z. �A"� itii Studio dance floor, 60x30 with floating sub -floor sprung for dance ...�y Fixture(s) listed intolumn with Roscoe floor surface. Aluminum Truss Support Systems, Fixture ed in column A 60x30x15 to ring dance floors and provide support for lighting curtains Curtain systems, movable, cotton velour with backing, and track Fixture(s) listed in column A systems (2) 3x15', (2) 12x15', and (1) 12x12' Lighting for dance floors to include Fixtures) listed in column A custom fluorescent fixtures and Selecon ftesnels, with accessories, damps and lamps. Distribution to power lighting Gragig Eye dimming and control systems for new lighting Fixture(s) listed in column A Installation of floors, truss, curtains, lighting and dimming_ Fixture(s) listed in column A Custom cabinets Fixtures) listed in column A Additional fixtures as required TOTAL ESTIMATED COST `'' $ $ The Project Elements/Tasks„liSted above with an amount listed in Column B, CIV( Fi1NOIIG AMOUNT, shall constitute tl?e` WORK; all items listed in Coluri-irfA shall constitute the PROJECT., r ' Time of Performance: WQRk BEGINS -g— Project Cooperative Agreement EXHIBIT B ENABLING LEGISLATION - 10— Project Cooperative Agreement EXHIBIT C INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE - (Ballet Gamonet) Commercial General Liability A. Limits oLiability Bodily In ry and Property Damage Liabslity Combine 'dingle Limit Each Occur'rance $1,000,000 General Aggregate Limit $2,000,000 Products/Complete(t Operations Aggregate Limit peroject $2,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami included as an Additional Insured 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 Loading and Unloading Mobile Equipment (Contractors Equipment)'whether owned, leased, Borrowed, or rented by the contractor or employees of the contractor 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 -4t— Pro ect Cooperative Agreement III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiverof subrogation IV. Employer's Liability Limits of Liability $1,000,000 forbodity 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 V. Umbrella Policy Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit, $1,000,000 Each Occurrence $1,000,000 Aggregate $1,000,000 Products/Completed Operations Aggregate Limit $2,000,000 VI. Owners Contractors Protective (applicable for Construction projects only) Limits of Liability Each Claim Aggregate $1,000,000 $1,000,000 VWl. Professional Liability/Error's & Omissions Coverage Combined Single Limit Each Occurrence General Aggregate Limit Deductible -Not to Exceed 10% $1,000,000 $2,000,000 VIII. Builders' Risk (applicable for Construction project only) Limits of Liability- to be determined according the terms of the a Construction contract, Endorsements Required "All Risk Form Non -Reporting Farm -Completed Value Specific Coverage (Project Location and Description) • Loss or Damage to building material, and property of every kind and description, including insured's property .q2_ Project Cooper:Wye Agreement r, r to be used in, or incidental to construction • Business Interruption • Boiler and Machinery • Transit • Foundation Coverage • Scaffolding and Forms Coverage Plans, Blueprints, and Specifications coverage Collapse • „Flood, including inundation, rain, seepage, and water damage • Earthquake • Subsidence • Windstorm including hurricane • Freeztng and Temperature Extremes or changes coverage • Ordinance or buildings laws • Theft or Burglary • Coverage t r loss arising out of Faulty Work or Faulty Materials • Coverage fo'r loss arising out of Design Error or Omission • Testing • Debris Removaik • Soft (Additional Financing) Costs Coverage • Replacement Cost\Valuation • Coinsurance Requirements Waived • Maintenance of Insur ce Coverage through warranty period All insurance policies required above shell be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications: The company must be rated no less than LA" as to Management, and no lens than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, 01 ick, New Jersey, or its equivalent, subject to the approval of the City's Risk Mane tent Division. Project Cooperative Agreement *13_