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HomeMy WebLinkAboutCRA-R-16-0039 ExhibitCOMMUNITY BENEFITS AGREEMENT THIS AGREEMENT is entered into as of the day of , 2016 by and between the Omni Redevelopment District Community Redevelopment Agency ("CRA") and the Jorge M. Perez Art Museum of Miami -Dade County, Inc. ("PAMM"). RECITALS A. WHEREAS, PAMM is seeking from the CRA a contribution of $1,000,000.00 to improve community benefits throughout the CRA Redevelopment Area; and B. WHEREAS, the CRA has determined that it will contribute funding in the amount of $1,000,000.00 for those purposes ("Award"); and C. WHEREAS, PAMM and the CRA wish to enter into this Agreement to set forth the terms and conditions relating to the use of the Award as defined below. NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, the parties agree to as follows: TERMS 1. RECITALS. The recitals and all statements contained therein are true and correct and are hereby incorporated into this Agreement. 2. AWARD. Subject to the terms and conditions set forth herein and PAMM's compliance with all of its obligations hereunder, the CRA hereby agrees to make available to PAMM an Award to be used for the purpose and disbursed in the manner hereinafter provided. 3. USE OF AWARD. The Award shall be used for community benefits as further described in Exhibit "A" ("Project Description"). 4. COMPLIANCE WITH POLICIES AND PROCEDURES. PAMM understands that the use of the Award is subject to specific reporting, record keeping, administrative and contracting guidelines and other requirements affecting the activities funded by the Award. PAMM covenants and agrees to comply, and represents and warrants to the CRA that the Award shall be used in accordance with all of the requirements, terms and conditions contained herein as the same may be amended during the term hereof. Without limiting the generality of the foregoing, PAMM represents and warrants that it will comply and the Award will be used in accordance with all applicable federal, state and local codes, laws, rules and regulations. 5. RECORDS AND REPORTS / AUDITS AND EVALUATION. (a) PAMM understands and acknowledges that the CRA must meet certain record keeping and reporting requirements with regard to the Award. In order to enable the CRA to comply with its record keeping and reporting requirements, PAMM agrees to maintain all records as required by the CRA. 1 of 11 (b) All records shall be kept for a minimum period of five (5) years from the expiration/termination of this Agreement and shall be subject to Chapter 119, Florida Statutes, pertaining to public records. If the CRA or PAMM has given or received any notice of any kind indicating any threatened or pending litigation, claim or audit arising out of activities pursuant to the Project, the retention period shall be extended until such time as the threatened or pending litigation, claim or audit is, in the sole discretion of the CRA, fully, completely and finally resolved. (c) At the CRA's request, and no later than thirty (30) days thereafter, PAMM shall deliver to the CRA such written statements and/or records relating to the use of the Award as the CRA may require. (d) The CRA has the right to retain the services of an independent auditor whenever the CRA reasonably deems it appropriate to do so to audit the use of the Award for purposes of this Agreement under standard auditing practices. Any such inspection must take place at PAMM and must take place Monday to Friday (on non -State and Federal Holidays) from 9:00 am to 5:00 pm., at a date and time agreeable to PAMM. Upon reasonable written notice from the CRA, PAMM shall make available, to the independent auditor retained by the CRA, all reasonably requested records and documentation limited to those needed to audit the use of the Award under standard auditing practices, for inspection and copying. The CRA shall choose the independent auditor after consultation and input from PAMM, and PAMM shall be responsible for payment of the reasonably incurred and reasonably priced independent auditor's services, with the rates for the independent auditor which are contracted for by the CRA taking into consideration that PAMM is a non-profit organization. The Award may not be utilized for purposes of payment of the independent auditor's services. Nothing contained in this provision shall impair any independent right of the CRA to also conduct, audit, or investigate the operations, activities, and performance of PAMM in connection with this Agreement, to the extent such right exists under law or contract. (e) PAMM's failure to comply with these requirements or the receipt or discovery by the CRA of any inconsistent, incomplete or inadequate information shall be grounds for the immediate termination of this Agreement by the CRA and immediate repayment of the Award to the CRA. 6. REVERSION OF ASSETS. Upon the expiration of the term of this Agreement, PAMM shall transfer to the CRA any unused Award funds on hand at the time of such expiration. 7. REPRESENTATIONS AND WARRANTIES. PAMM represents and warrants the following: (a) Funds disbursed under the award shall be used solely for the Project and as further described in Exhibit "A". (b) All funds that are expended by PAMM pursuant to this Agreement shall first be utilized to benefit residents of the CRA Redevelopment Area. Any remaining funds may be expended for the benefits of visitors to the CRA Redevelopment Area. 2 of 11 (c) PAMM shall prominently display signage onsite acknowledging the CRA's contribution to the Project. The CRA shall also be acknowledged in all promotional and marketing materials including but not limited to websites, news and press releases, public service announcements, broadcast media, event programs, and publications. The CRA shall have the right to approve the form and placement of all acknowledgments including the use of the CRA's logo. (d) PAMM shall link its website to the CRA's website to ensure cross -promotion is maximized. 8. DISBURSEMENT OF AWARD. Subject to the terms and conditions contained in this Agreement, the CRA shall make available to PAMM up to $1,000,000.00. Payments shall be made on a reimbursement basis, or directly to vendors, upon presentation of invoices and satisfactory documentation. The CRA shall have thirty (30) days from the date the invoice or satisfactory documentation is submitted to the CRA to make payment. If additional documentation is needed, the CRA shall have an additional thirty (30) days from which the additional documentation is submitted to make payment. No payments shall be made before October 1, 2015. In no event shall payments to PAMM under this Agreement exceed $1,000,000.00 without a written amendment to this Agreement and approval by the Board of Commissioners of the CRA after a public hearing. 9. TERM. The term of this Agreement shall commence on the date first above written and shall terminate upon the earlier of: (a) full disbursement of the $1,000,000.00 or (b) earlier termination as provided for herein; provided, however, that all rights of the CRA to audit or inspect; to require reversion of assets; to enforce representations, warranties and certifications; to default remedies; to limit liability and indemnification; and to recovery of fees and costs shall survive the expiration or earlier termination of this Agreement. No automatic renewal of this Agreement shall occur or be assumed. Any further grant award will require a new Agreement and specific authorization and approval by the Board of Commissioners of the CRA at a public hearing. 10. REMEDIES FOR NON-COMPLIANCE. If PAMM fails to perform any of its obligations or covenants hereunder, or materially breaches any of the terms contained herein, then the CRA shall have the right to take one or more of the following actions: (a) Withhold any further payments, pending correction of the deficiency by PAMM; (b) Recover any and all payments previously made to PAMM; (c) Disallow (that is, deny the use of the Award for) all or part of the cost for the activity or action not in compliance; (d) Withhold further awards for the Project; or (e) Take such other remedies that may be legally permitted. 11. CONTINGENCY CLAUSE. Funding for this Agreement is contingent on the availability of funds and continued authorization for Project activities, and is subject to 3 of 11 amendment or termination due to lack of funds or authorization, reduction of funds, and/or change in regulations. 12. CERTIFICATIONS RELATING TO THE AWARD. PAMM certifies that: (a) All expenditures of the Award will be made in accordance with the provisions of this Agreement. (b) The expenditures of the Award will be properly documented and such documentation will be maintained on file. (c) No expenditure of Award funds shall be used for political activities. (d) PAMM will be liable to the CRA for the amount of the Award expended in a manner inconsistent with this Agreement. 13. DEFAULT. If PAMM fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then PAMM shall be in default. Upon the occurrence of a default hereunder, the CRA, in addition to all remedies available to it by law, may immediately, upon written notice to PAMM, terminate this Agreement whereupon all payments, advances, or other compensation paid by the CRA to PAMM while PAMM was in default shall be immediately returned to the CRA. PAMM understands and agrees that termination of this Agreement under this Section shall not release PAMM from any obligation accruing prior to the effective date of termination. 14. LIABILITY OF THE CRA. No officer, employee, agent, or principal, whether disclosed or undisclosed, of the CRA shall have any personal liability with respect to any of the provisions of this Agreement. Any liability of the CRA under this Agreement shall be subject to the limitations imposed by Section 768.28, Florida Statutes. 15. NON -RECOURSE. This Agreement is non -recourse to the CRA. In the event of breach of this Agreement by the CRA, PAMM may only seek specific performance of this Agreement and any recovery shall be limited to the Award for the Project. 16. INDEMNIFICATION OF THE CRA. PAMM shall protect, defend, indemnify and hold harmless the CRA and its agents from and against any and all claims, actions, damages, liability and expense (including fees of attorneys, investigators and experts) in connection with loss of life, personal injury or damage to property or arising out of this Agreement, to the extent caused by the actions of PAMM. 17. DISPUTES. In the event of a dispute between the Executive Director of the CRA and PAMM as to the terms and conditions of this Agreement, the Executive Director of the CRA and PAMM shall proceed in good faith to resolve the dispute. If the parties are not able to resolve the dispute within thirty (30) days of written notice to the other, the dispute shall be submitted to the Board of Commissioners of the CRA for resolution within ninety (90) days of the expiration of such thirty (30) day period or such longer period as may be agreed to by the parties to this Agreement. The Board of Commissioners' decision shall be deemed final and binding on the parties. 4 of 11 18. INTERPRETATION. (a) Captions. The captions in this Agreement are for convenience only and are not a part of this Agreement and do not in any way define, limit, describe or amplify the terms and provisions of this Agreement or the scope or intent thereof. (b) Entire Agreement. This instrument constitutes the sole and only agreement of the parties hereto relating to the Award, and correctly set forth the rights, duties, and obligations of the parties and replaces any previous agreements or understandings the parties may have had with respect to this Award. There are no collateral or oral agreements or understandings between the CRA and PAMM relating to the Agreement. Any promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. This Agreement shall not be modified in any manner except by an instrument in writing executed by the parties and as further specified in this Agreement. The masculine (or neuter) pronoun and the singular number shall include the masculine, feminine and neuter genders and the singular and plural number. The word "including" followed by any specific item(s) is deemed to refer to examples rather than to be words of limitation. (c) Construction. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. (d) Covenants. Each covenant, agreement, obligation, term, condition or other provision herein contained shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or making the same, not dependent on any other provision of this Agreement unless otherwise expressly provided. All of the terms and conditions set forth in this Agreement shall apply throughout the term of this Agreement unless otherwise expressly set forth herein. (e) Conflicting Terms. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall govern. (f) Waiver. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. (g) Severability. Should any provision contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida, then such provision shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to conform with such laws, that same 5 of 11 shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. (h) No Third -Party Beneficiary Rights. No provision of this Agreement shall, in any way, inure to the benefit of any third parties so as to constitute any such third party a beneficiary of this Agreement, or of any one or more of the terms hereof, or otherwise give rise to any cause of action in any party not a party hereto. 19. AMENDMENTS AND MODIFICATIONS. No amendment or modification to this Agreement shall be binding on either party, unless in writing and signed by both parties. The Executive Director of the CRA shall have the authority to amend or modify this Agreement only after approval of the Board of Commissioners of the CRA at a public hearing. 20. AWARD OF AGREEMENT. PAMM warrants that it has not employed or retained any person employed by the CRA to solicit or secure this Agreement, and that it has not offered to pay, paid, or agreed to pay any person employed by the CRA any fee, commission percentage, brokerage fee, or gift of any kind contingent upon or resulting from the Award. 21. NON-DELEGABILITY. The obligations of PAMM under this Agreement shall not be delegated or assigned to any other party without the CRA's prior written consent which may be withheld by the CRA, in its sole discretion. 22. CONSTRUCTION OF AGREEMENT AND GOVERNING LAW. This Agreement shall be construed and enforced in accordance with Florida law with venue in Miami - Dade County, Florida. Each party shall be responsible for its own attorneys' fees and costs for any judicial action or determination. 23. TERMINATION OF AGREEMENT. The CRA retains the right to terminate this Agreement at any time without penalty to the CRA, after providing written notice to PAMM of any deficiency which would be cause for termination, and PAMM shall have thirty (30) calendar days to cure such deficiency. 24. NOTICE. All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail, addressed to the party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served, or, if by mail, on the fifth day after being posted, or the date of actual receipt, whichever is earlier. To CRA: Jason Walker Executive Director Omni Redevelopment District Community Redevelopment Agency 1401 North Miami Avenue 2nd Floor Miami, FL 33136 With a copy to: Barnaby L. Min Deputy General Counsel 6 of 11 To PAMM: City of Miami 444 SW 2nd Avenue Suite 945 Miami, FL 33130 Franklin Sirmans Director Perez Art Museum Miami 1103 Biscayne Boulevard Miami, FL 33132 25. INDEPENDENT CONTRACTOR. PAMM, its contractors, subcontractors, employees and agents shall be deemed to be independent contractors, and not agents or employees of the CRA, and shall not attain any rights or benefits under the pension programs of the CRA, or any rights generally afforded its employees. Further, PAMM, its contractors, subcontractors, employees and agents shall not be deemed entitled to Florida Workers' Compensation benefits as employees of the CRA. 26. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. 27. AUTHORITY. PAMM certifies that PAMM possesses the legal authority to enter into this Agreement. A resolution, motion or similar action has been duly adopted as an official act of PAMM's governing body, authorizing the execution of this Agreement, and identifying the official representative of PAMM to act in connection herewith and to provide such additional information as may be required by the CRA. IN WITNESS WHEREOF, in consideration of the mutual entry into this Agreement, for other good and valuable consideration, and intending to be legally bound, the CRA and PAMM have executed this Agreement. [SIGNATURES ON THE FOLLOWING PAGE] 7 of 11 JASON WALKER EXECUTIVE DIRECTOR OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY CITY OF MIAMI, FLORIDA Date: FRANKLIN SIRMANS DIRECTOR PEREZ ART MUSEUM MIAMI CITY OF MIAMI, FLORIDA Date: Approved as to form and correctness: VICTORIA MENDEZ GENERAL COUNSEL CITY OF MIAMI, FLORIDA Date: Attest: TODD B. HANNON CLERK OF THE BOARD CITY OF MIAMI, FLORIDA 8 of 11 EXHIBIT A PROJECT DESCRIPTION Note: PAMM will work in partnership with the CRAs to promote the programs outlined below specifically to residents of and visitors to the Omni CRA. Omni CRA Art InstallationBeautification PAMM will work with Omni CRA to revitalize certain currently blighted lots specifically identified by the CRA, and agreed to by PAMM, as in need of beautification and greater accessibility to the public. Working with a specially commissioned local artist(s), PAMM will design and build a temporary art installation in this area, in partnership with community members and local community organizations. The art work will be activated with outreach programs to engage residents of the surrounding neighborhood. PAMM in the Neighborhood PAMM in the Neighborhood is a free program that will take art activities and supplies to summer camps and community centers throughout the County and City in predominantly low-income areas, including the CRAs. PAMM Teaching Artists conduct creative activities and provide follow-up activities for counselors. All materials are provided by PAMM including a free art kit for each child to continue creating throughout the summer and into the school year. Participating children also come to PAMM for admission -free tours. Free Admission Days - "Free Second Saturdays" and "Free First Thursdays" A monthly program for drop -in visitors, Free Second Saturdays features hands-on activities for children and adults as well as guided tours and occasional guest artist visits. One of PAMM's most popular education programs, it emphasizes families making art together. The program is particularly attuned to the diverse populations of Miami and the CRAs; it is offered in three languages. Also, admission is free every First Thursday, from loam- 9pm. On certain holidays, PAMM provides free admission to visitors using Metromover. These free popular programs are easily accessible to all, including residents of the CRAs, via Metromover, Metrobus and the Miami Trolley. PAMM Third Thursdays Every third Thursday evening, PAMM brings together an eclectic range of internationally - acclaimed artists for a live outdoor music series by the bay which is open to the general public, including the nearby residents of the CRAs. 9 of 11 Free Daily Drop -in Tours PAMM offers free guided tours, with museum admission, led by trained museum docents, Tuesday -Sunday during regular museum hours. Tours last approximately 45 minutes, are available year-round and are offered in English and Spanish. These popular tours are available to all PAMM visitors, including residents of the CRAs. Performance, Film and Video Programs, Talks and Lectures PAMM will present a wide variety of public programs including film/video, music, and dance performances, as well as talks, lectures and symposia. Available to all PAMM visitors, including residents of the CRAs, these programs extend the dialogues explored in the galleries and offer new perspectives on themes explored through PAMM's dynamic curatorial program. PAMM will partner with other institutions and organizations to commission new works and develop programming to mirror the unique diversity of its service population and the City's CRAs. PAMM will use its best efforts to lodge contracted artists within the City and CRAs. Overtown Afterschool at PAMM PAMM will offer an after -school program for middle school students from nearby communities, including the CRAs, Little Haiti and Little Havana. Students will receive free bus transportation to PAMM, where PAMM Teaching Artists will guide them in art projects in a variety of artistic media including painting, drawing, sculpture using found objects and clay, textiles, and photography. While these activities focus on visual arts, they will also incorporate many common core skills including speaking, listening, and close observation. Brick x Brick Brick x Brick is an intensive, off -site, after -school partnership program for underserved high school students. Brick x Brick uses the Museum's architecture and exhibitions to inspire integrated problem -solving and new skills in the fields of architecture, computer graphics, geography, sociology and specific art interventions. Activities are facilitated by artist -mentors specializing in teen workshops. Through the program students gain technology skills, becoming proficient in video production and editing as well as professional software programs such as Sketch -Up. PAMM is partnering with nearby community organizations throughout the City, including the CRAs, to expand the reach of the program and provide students with a diverse set of opportunities and environments in which to learn. 10 of 11 PAMM Teen Arts Council Brick x Brick's companion program, the PAMM Teen Arts Council, comprises a group of high school students who meet weekly to create original, digital content in PAMM's Media Lab. These digitally literate Miami teens exchange ideas and present bold new programming to their peers. This program is easily accessible to all teens, particularly teens from the nearby CRAs, via Metromover, Metrobus and the Miami Trolley. Sponsor Recognition Benefits PAMM will include a CRA credit line in all promotional and marketing materials related to this agreement including web sites, news and press releases, public service announcements, broadcast media, event programs, and publications recognizing the CRA. PAMM will also use the CRA's logo in all promotional marketing and publicity materials related to this agreement. PAMM's professional in-house marketing staff implements a comprehensive plan including PR, marketing, social media and advertising to garner media coverage and to grow audiences for programs. In addition to advertising placement, promotional efforts that will include the CRA acknowledgment include: Paid advertising in local, regional and national media outlets, including print, digital and radio; • Email marketing through announcements and the weekly Now@PAMM newsletter sent to over 35,000 individuals; • Press releases sent to grassroots and major media outlets; media alerts; • Social media postings seen by over 100,000 individuals on Facebook, Twitter and lnstagram; • Editorial coverage pitched to varied media outlets; and • Cross -promotional efforts specifically with the CRAs and other key community partners. PAMM's extensive website (www.pamm.org) is an integral part of the Museum's marketing efforts and is seen by a global audience with over 140,000 monthly visits. The website will be linked to the CRAs' sites to ensure that cross -promotion is maximized. The recognition benefits outlined above are commensurate with those provided to all contributors and sponsors at comparable dollar levels. 11 of 11