HomeMy WebLinkAboutExhibit 1 (01/10/13)MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI
AND
OLYMPIA CENTER, INC.,
A FLORIDA 501(c)(3)NOT-FOR-PROFIT CORPORATION
FOR THE RESIDENTIAL AND COMMERCIAL RETAIL COMPONENT OF THE
PROPERTY LOCATED
AT 174 EAST FLAGLER STREET, MIAMI, FLORIDA
ALSO KNOWN AS THE "OLYMPIA BUILDING"
TABLE OF CONTENTS
ARTICLE I DESCRIPTION AND TERM
1.1 Description of Property 3
1.2 Term of Use 4
1.3 Option to Extend 4
ARTICLE II PURPOSE
2.1 Purpose 5
2.2 Financial Obligations of the City and the Provider 6
2.3 Special Events 7
2.4 Operations 7
2.5 Continuous Duty to Operate 7
2.6 Parking 7
ARTICLE III CONSIDERATION
3.1 Fee 8
3.2 Additional Payments 8
3.3 Late Payments 8
3.4 Returned Check Fee 8
3.5 Promotion of the City 9
ARTICLE IV PROVIDER'S COVENANTS
4.1 Personnel 9
4.2 Annual Plan 9
4.3 Funding of Capital Improvements 10
4.4 Performance Review 10
4.5 Continuance Compliance Covenants 11
ARTICLE V RECORDS AND AUDITING
5.1 Records 12
5.2 Audit 12
ARTICLE VI LICENSES; COMPLIANCE WITH LAWS
6.1 Licenses and Permits
6.2 Compliance with Laws
13
13
ARTICLE VII HAZARDOUS MATERIALS
7.1 Hazardous Materials 13
ARTICLE VIII ALTERATIONS AND IMPROVEMENTS
8.1 Alterations 14
8.2 Construction Liens 15
8.3 Personal Property 15
8.4 Changes and Additions to Property 16
8.5 Liens 16
ARTICLE IX CITY'S RIGHT OF ENTRY
9.1 City's Right of Entry 17
ARTICLE X UTILITY CHARGES
10.1 Utilities
10.2 City Not Liable for Failure of Utilities
17
18
ARTICLE XI NO REPRESENTATION BY CITY
11.1 Condition of Property 18
ARTICLE XII MAINTENANCE AND REPAIR OF PROPERTY
12.1 Provider's Maintenance and Repair of Property 18
12.2 Provider's Services 18
12.3 Service/Maintenance Agreements 19
12.4 City Services 20
ARTICLE XIII INDEMNIFICATION AND INSURANCE
13.1 Indemnification 20
13.2 Insurance 21
13.3 Damage or Loss to the Property 23
ARTICLE XIV DESTRUCTION OF PROPERTY
14.1 Destruction of Property 23
14.2 Option to Terminate Due to Casualty 24
ARTICLE XV ASSIGNMENT
15.1 Assigmnent 24
15.2 Event of Bankruptcy 25
ARTICLE XVI OWNERSHIP OF IMPROVEMENTS
16.1 Ownership of Improvements
16.2 Equipment
25
26
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ARTICLE XVII SIGNAGE
17.1 Signs
ARTICLE XVIII SPECIAL ASSESSMENTS AND TAXES
18.1 Special Assessments and Taxes
ARTICLE XIX NOTICE
19.1 Notice
26
27
27
ARTICLE XX DEFAULT
20.1 Events of Default - Provider 28
20.2 City's Remedies in Event of Default 29
20.3 Repeated Defaults -Provider 30
20.4 Events of Default -City 30
20.5 Provider's Remedies in Event of Default 31
20.6 Repeated Defaults -City 31
ARTICLE XXI AFFIRMATIVE ACTION
21.1 Nondiscrimination 31
ARTICLE XXII MISCELLANEOUS PROVISIONS
22.1 Ingress And Egress 32
22.2 Use Rights 32
22.3 City Approval 32
22.4 Successors and Assigns 32
22.5 Termination of Operations at the Property 33
22.6 Amendments 33
22.7 Construction of Agreement 33
22.8 Waiver of Jury Trial 33
22.9 Severability 33
22.10 Waiver 34
22.11 Captions 34
22.12 Radon 34
22.13 Cancellation by Request of Either of the Parties Without Cause 34
22.14 Joint Preparation 35
22.15 Counterparts 35
22.16 Binding Effect 35
22.17 Entire Agreement 35
iii
EXHIBIT A THE PROPERTY
EXHIBIT B DECLARATION OF RESTRICTIVE COVENANTS
EXHIBIT C HISTORIC DESIGNATION
EXHIBIT D MEMORANDUM OF UNDERSTANDING BETWEEN THE PARTIES
(Structural Status of the Property and Approximate Costs of Capital
Improvements)
EXHIBIT E EXTENDED LOW-INCOME HOUSING AGREEMENT, AS AMENDED
EXHIBIT F MANAGEMENT AGREEMENT — GUSMAN THEATER
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MANAGEMENT AGREEMENT
This Management Agreement (hereinafter the "Agreement"), is made and entered into
this day of September, 2012 (the "Agreement Date"), by and between the CITY OF
MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA (hereinafter the
"City") and OLYMPIA CENTER, INC., A FLORIDA 501(c)(3) NOT -FOR -PROFIT
CORPORATION (hereinafter the "Provider"), (hereinafter collectively referred to as the
"Parties").
WITNESSETH
WHEREAS, pursuant to the Special Warranty Deed dated July 24, 1975 recorded in
Official Records Book 9053, Page 723, in Miami -Dade County, Florida, the City is the owner of
certain real property located at 174 East Flagler Street, Miami, Florida, a/k/a the Olympia
Building, which consists of the Gusman Theater for Performing Arts, an affordable housing
residential rental tower and related amenities including retail spaces (collectively the "Olympia
Building"); and
WHEREAS, pursuant to that certain restriction in the Special Warranty Deed dated July
24, 1975 and Ordinance No. 8435, adopted July 31, 1975, the City Commission authorized the
Off -Street Parking Board of the City of Miami d/b/a the Miami Parking Authority (hereinafter
"MPA") to administer the Olympia Building; and
WHEREAS, the MPA named the City its successor in the administration and operation of
the Olympia Building pursuant to MPA Resolutionl0-08; and
WHEREAS, on March 24, 2011, pursuant to Resolution 11-0113 of the City of Miami,
the City named the Provider its successor in the administration and operation of the Gusman
Theater for the Performing Arts of the Olympia Building (hereinafter the "Gusman Theater") to
promote, among other things, cultural arts and other cultural program activities (Management
Agreement — Gusman Theater for the Performing Arts attached hereto as Exhibit "F"); and
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WHEREAS, the Provider has been successful in its administration and operation of the
Gusman Theater, maintaining the Gusman Theater a viable facility that promotes cultural arts
and other cultural program activities for the citizens of the City of Miami; and
WHEREAS, the City, having settled all outstanding litigation related to the residential
rental tower and related amenities including retail spaces of the Olympia Building, desires to
transfer the administration and operation of the residential rental tower and related amenities
including retail- spaces of the Olympia Building (hereinafter the "Property") to the Provider to
among other things, continue to provide affordable housing and to promote the use of the related
amenities including retail spaces for the benefit of the Olympia Building pursuant to Section 29-
B(a) of the City of Miami Code of Ordinances; and
WHEREAS, the Parties are aware that from time to time, renovations, restorations and
improvements have been performed on the Property with the use of proceeds derived from City
issued bonds and other governmental bond loan programs; and
WHEREAS, the Internal Revenue Service provides for certain operating guidelines and
requirements for third -party private entity contracts to manage, lease or otherwise use bond -
financed facilities; and
WHEREAS, funding from the City's Homeland Defense/Neighborhood Improvements
Iinproveinent Bond program and from City loans obtained from the Sunshine State Loan Pool
program have previously been used and are anticipated to be used in the future for certain repairs
and improvements to the Property; and
WHEREAS, any agreements between the City and the Provider shall comply with all
Internal Revenue Service operating guidelines and requirements; and
WHEREAS, (i) in accordance with the Internal Revenue Code guidelines applicable to
agreements involving governmental units and uses of bond -financed facilities by a not -for -profit
organization with tax-exempt status under Internal Revenue Code Section 501(c)(3), and (ii) in
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consideration of the ongoing Homeland Defense/Neighborhood Capital Improvements Bond
Program and potential future City needs, the City has determined to retain the Property and to
enter into a Management Agreement for the Property with the Provider; and
WHEREAS, the Provider, Olympia Center Inc., is a Florida 501(c)(3) not -for -profit
organization established on September 17, 2010 for the purposes ofpromoting and preserving
the Olympia Building; and
WHEREAS, the Parties agree that the Provider will continue to operate the Property as
an affordable housing residential rental tower and related amenities including retail spaces during
the affordability period, as defined herein and during the term of this Management Agreement;
and
WHEREAS, the Provider has agreed to operate, manage, and maintain the Property
solely out of the revenues derived from the Property, its permissible uses and from the Provider's
trustees' monetary contributions and in -kind services; and
WHEREAS, the City has negotiated this Management Agreement with Provider;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the
Parties agree as follows:
ARTICLE I
DESCRIPTION AND TERM
1.1 Description of Property
The City is the owner of the real property located at 174 East Flagler Street, Miami,
Florida, which is depicted in Exhibit "A" attached hereto and made a part hereof. The Provider
is hereby permitted to use the Property, including the improvements thereon, for the specific
purposes hereinafter described and subject to all of the terms and conditions contained herein.
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1.2 Term of Use
The term of this Agreement shall be for a fifteen (15) year period (the "Initial Term")
expiring on April 1, 2026, unless sooner terminated as provided in Sections 4.5(v) and 22.13 of
this Agreement. However, for purposes of this Agreement the Initial Term shall commence upon
the effective date of this document, which shall be upon the attestation of the City Manager's
signature by the City Clerk, (the "Effective Date").
1.3 Option to Extend
This Agreement may be extended for three (3) additional fifteen (15) year periods
(hereinafter the "Additional Tenn"), upon the same terms and conditions contained in this
Agreement (as same may be amended from time to time) provided that the Provider complies
with the following conditions:
(a) The Provider has delivered written notice of its request to extend the Agreement
to the City Manager six (6) months in advance of the expiration of the Initial
Term, but not earlier than nine (9) months prior to the expiration of the Initial
Tenn (the "Option Request").
(b) No event of default, as defined in Article XX of this Agreement entitled
"Default," exists at the time of receipt of the Option Request.
(c) The Service Audit, as hereinafter defined, has shown that the Provider's services
have been found to be satisfactory.
(d) Provider receives the written approval of the City Manager.
Upon receipt of the Option Request, the Director of Public Facilities (the "Director")
shall conduct an audit of the Provider's compliance with the provisions of this Agreement (the
"Service Audit"), which may include, but will not be limited to, a review of the following:
(i) The Provider's adherence to and performance of all covenants, agreements and
other obligations on its part hereunder.
(ii) The Provider's audited financial records covering the operation of the Property
for the previous years of operation to ensure the Provider can continue to perform
all covenants, agreements and other obligations as contained in this Agreement in
a fiscally sound manner. Within sixty (60) days after the date of this Agreement,
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the Parties shall mutually agree upon the type of audited financial records
required and the time frames for submission of the audited financial records.
(iii) The Provider's substantial accomplishment of its goals and objectives as outlined
in its Annual Plan approved by the City in accordance with Section 4.2 herein.
Such Service Audit shall be completed within ninety (90) days of receiptof the
Provider's Option Request. Based upon the findings of the Service Audit and the Provider's
compliance with all of the aforementioned conditions, the Director shall make a recommendation
to the City Manager to approve or deny the Option Request, along with suggested modifications
to the terms and conditions of this Agreement, if any, as may be agreed to by the Parties. In the
event the Provider has complied with all of the aforementioned conditions, the Option Request
shall be granted and written approval shall be submitted to the Provider from the City Manager.
The Initial Tenn and any Additional Term, if exercised, shall be collectively referred to
as the "Term".
ARTICLE II
PURPOSE
2.1 Purpose
The purpose of this Agreement is to give the Provider use of the Property for the
purposes of promoting and preserving the Olympia Building by administering, managing,
marketing, and operating the affordable housing component, consisting of (eighty) 80 residential
rental units comprised of (eight) 8 one bedroom units and seventy-two (72) studio units leased to
Low -Income and Very -Low Income individuals, as defined in the Code of Federal Regulations,
and related amenities including retail commercial spaces. The Provider shall ensure that the
Property and all the Provider's activities thereon, or activities resulting from or relating to the
Provider's use of the Property, will be available to all segments of the corrununity and comply
with all applicable laws and regulations and any terms contained in this Agreement or other
applicable documents.
The Provider shall operate, manage, supervise and administer the Property, as an
independent contractor and not as an employee of the City.
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This Agreement and all rights of the Provider hereunder shall, at the option of the City,
cease and tenninate, in accordance with the provisions and requirements of Article XX, in the
event that the Provider ceases to use and operate the Property for the purposes provided herein.
2.2 Financial Obligations of City and the Provider.
The Provider shall undertake all reasonable efforts to apply for grants, loans or other
funds which may be available from public agencies, third parties or private entities for purposes
of funding the renovation, development, management and operation of the Property. The Parties
acknowledge that the Provider may solicit State; County, City, third party or private entities for
funds, to be utilized to fund the cost of the renovation, development, management and operation
of the Property. The Provider shall be responsible for compliance with all conditions pertaining
to any procurement processes and funding requirements, including reports and payments of
interest or principle, when due, if applicable. The Provider shall establish an account in which all
funds generated from the Property, all contributions to Olympia Center, Inc. and all funds
received from grants, loans or other sources in relation to the Property shall be deposited. The
Provider shall comply at all times with any conditions prescribed in the funding agreements. As
between the State or other third parties, the Provider, when authorized by law, shall be the
contractual party to the contract(s) as shall be entered into for the accomplishment of the
renovation, development, management or operation of the Property. The Provider will provide
or will retain adequate, capable and qualified personnel to supervise such renovation,
development, management or operation of the Property. The Provider covenants that it shall
cooperate with the City to complete all the renovation, development, management or operation
of the Property. The Parties agree and acknowledge that none of the duties of the Provider shall
be construed to impose financial obligations or liabilities of any kind upon the Provider, except
to the extent of funds actually received that were derived as a result of any work, management or
operation of the Property.
The Provider further understands that the operations, management and maintenance of
the Property shall be with funds derived solely out of revenues of the Property, the Provider's
trustees' contributions and in -kind services and any or all fundraising efforts of the Provider.
Nothing in this Agreement is to be construed as the City committing to allocate any monies to
the Property on an annual basis.
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2.3 Special Events
Provider acknowledges that in the event it elects to hold an event that will encompass or
significantly impact the use of areas outside the Property (a "Special Event"), Provider shall
coordinate such event with the City's Special Event Coordinator in the Parks and Recreation
Department and agrees to comply with the conditions unposed by the Special Events Committee.
The Provider shall be required to pay, or cause to be paid any and all permit fees and expenses
associated with a Special Event.
2.4 Operations
Operations of the Property shall be in accordance with the applicable affordable housing
requirements set forth in that certain Declaration of Restrictive Covenants recorded in Official
Records Book 16780 and Page 0712 of the Miami -Dade County Records (attached hereto as
Exhibit "B") and the certain Extended Low -Income Housing Agreement, as amended, recorded
in Official Records Book 17471 and Page 3426 of the Miami -Dade County Records and Official
Records Book 17790 and Page 1826 of the Miami -Dade County Records (attached hereto as
Exhibit "C") and in accordance with any applicable local, state or federal laws. Operations of the
related amenities including retail spaces shall be conducted in a manner so as to maximize its
revenue.
2.5 Continuous Duty To Operate
Except where the Property is rendered unusable by reason of fire, act of God, material
building repair or maintenance requirements or other similar events or casualty, the Provider
shall at all times during the Term hereof (i) occupy the Property; (ii) regularly conduct
operations as defined in Section 2.4 within the Property in accordance with the terms of this
Agreement; and (iii) at all tunes keep the Property fully stocked with materials, necessary to
operate the Property.
2.6 Parking
The Property has been designated by the Miami City Commission as a historic site in
accordance with Section 23.1-3 of the Code of the City of Miami (attached hereto as Exhibit
"D"). Accordingly, the Property is exempt from any parking requirements that may be
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applicable. The Provider agrees that it is responsible for securing any and all parking it must
provide for the tenants of the Property in accordance with the applicable affordable housing
covenants listed in Section 2.4 herein and other applicable documents.
ARTICLE III
CONSIDERATION
3.1 Fee
The City agrees that Provider shall not pay an annual administrative fee for the use of this
Property to the City for any Agreement Year during the Term of this Agreement, nor shall the
City pay an annual administrative fee for the administration and operation of the Property to
Provider. For purposes of this Agreement, the term "Agreement Year" shall mean any period of
time consisting of twelve (12) consecutive calendar months commencing on the Effective Date
and each anniversary thereafter.
3.2 Additional Payments
Intentionally Deleted.
3.3 Late Payments
Intentionally Deleted.
3.4 Returned Check Fee
In the event any check is returned to the City as uncollectible, the Provider shall pay to
the City the returned check fee (the "Returned Check Fee") imposed by the City's banking
facility.
The Returned Check Fee shall constitute additional payments due and payable to the City
by the Provider. Acceptance of Returned Check Fee by the City shall not constitute a waiver of
the Provider's violation(s) with respect to such overdue amount, nor prevent the City from the
pursuit of any remedy to which the City may otherwise be entitled.
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3.5 Promotion of the City
The Provider acknowledges the benefits afforded to it by virtue of the City allowing
Provider to use the Property, and shall provide recognition to the City of Miami, in a manner
mutually agreeable to the Parties, in all its marketing, advertising and promotional materials.
ARTICLE IV
PROVIDER'S COVENANTS
4.1 Personnel
The Provider shall provide such personnel as it deems sufficient to operate the Property
in accordance with the terms of this Agreement.
The Provider shall employ, train, pay, supervise and discharge all personnel necessary for
the operation of the Property. All such persons who are employed by the Provider shall be the
employees of the Provider and every person performing services in connection with this
Agreement, including subcontractors, volunteers or employees of Provider, or any agent or
employee of the Provider hired by the Provider, shall be acting solely on behalf of the Provider.
The City shall not be liable for their compensation or for the consequences of any act or
omission on the=part of any of them unless due to the actions of the City or its employees, agents
and representatives.
The Provider further acknowledges and represents that no officer, director, board member
or trustee of Olympia Center, Inc and/or an affiliated company of Olympia Center, Inc. shall
receive a salary or monetary compensation of any kind in connection with the use, management
and operation of the Olympia Building during the teen of this Agreement.
4.2 Annual Plan
On or before November 30, 2012, the Provider shall complete a plan outlining Provider's
estimated projections for the use of the Property for the period commencing upon execution and
approval of this agreement through September 2013, in a form acceptable to the Director. On
September 1, 2013, Provider shall complete a plan outlining Provider's estimated projections for
the use of the Property for the period of October 1, 2013 through September 30, 2014 (the
"Annual Plan"). Thereafter, on each September 1sY of each subsequent Term, the Provider shall
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prepare and present, an Annual Plan to the Director, for the review and approval of the Director.
The Annual Plan shall include:
(i) A description of activities and objectives and any related policies, rules
and procedures.
(ii) A description of personnel directly involved with the operation of the Property.
(iii) Projected Operating Budget the Property.
(iv) Description of general marketing strategies.
4.3 Funding of Capital Improvements
Provider and City shall work jointly to prioritize capital improvement projects to be
undertaken at the Property and as more specifically provided for in the Memorandum of
Understanding between the Parties attached hereto as Exhibit "E". Provider will provide best
efforts to identify grants to cover the costs associated with any repairs, renewals, revisions,
rebuilding, replacements, substitutions and/or improvements to the Property. Provider shall
prepare and complete any grant applications, to be submitted and executed by the City if
applicable, for potential funding designated for capital improvements on the Property. Neither
Party shall have any right whatsoever to obligate the other Party on any grant or similar
application. The Provider shall be responsible for meeting the requirements of any grant
obligations associated with grants for capital improvements.
4.4 Perfoumance Review
The Provider shall transmit to the Director, in writing, in a format acceptable to the
Director, annual reports regarding current activities, progress of the Provider's activities,
accomplishment of objectives, and budget summary including revenues, and disbursements. The
annual report shall also include maintenance and operating expenses. The Provider shall submit
these annual reports to the Director on or before the dates set forth below:
Operating Period
Report Due Date
Oct 1— Sept 31
Nov 15
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The Provider shall submit to the Director such reasonable additional reports as may be
requested by the Director. The Provider shall prepare, in writing, in a form acceptable to the
Director, any other reports or documentation that may be required of the City by federal, state or
local laws. The Provider shall use its best efforts to respond to any concerns of the City
regarding Provider's programs and operations.
The City may carry out monitoring and evaluation activities, including visits and
observations by City staff and/or community surveys. The City agrees that it shall not interrupt
or disrupt any of Provider's activities during this process. The Provider shall ensure the
cooperation of its employees and officers in such efforts. The City shall notify the Provider of
any inconsistent, incomplete or inadequate information received by the City in the Provider's
annual report or obtained by the City from its monitoring and evaluation activities. The Provider
shall provide an explanation or response to the City within thirty (30) days after Provider's
receipt of the City's notice. The Provider and the City shall work together to mutually resolve
any problems.
4.5 Continuing Compliance Covenants
The development, management, and use of the Property by Provider will be subject to the
following continuing compliance covenants, among others, necessary to comply with the
Homeland Defense/Neighborhood Capital Improvements Bond Program, (i) the Property must
be developed, managed for residential, commercial, and/or retail uses accessible to the public;
(ii) Provider must retain its State of Florida 501(c)(3) not -for -profit status throughout the Initial
Term of the Agreement and any renewals thereof; (iii) the Initial Term shall be for fifteen (15)
years, with up to three (3) options to renew for fifteen (15) years each teini; (iv) any and all
revenues and other compensation for the development and management use of the Property must
conform to the requirements of the Internal Revenue Code for bond financed facilities; and (v)
Provider's rights to develop, manage and use the Property will terminate and rights shall revert to
the City if the Property ceases to be developed, managed or used for its intended purpose as
defined in Section 2.1 of this Agreement. In addition, the Provider shall be subject to the
compliance requirements of the applicable affordable housing requirements set forth in that
certain Declaration of Restrictive Covenants recorded in O.R. Book 16780 and Page 0712 of the
Miami -Dade County Records and that certain Extended Low -Income Housing Agreement, as
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amended, recorded in Official Records Book 17471 and Page 3426 of the Miami -Dade County
Records and Official Records Book 17790 and Page 1826 of the Miami -Dade County Records
and of any other local, state or federal affordable housing requirements applicable to the
Property.
ARTICLE V
RECORDS AND AUDITING
5.1 Records
During the Tenn of this Agreement, the Provider shall maintain and keep, or cause to be
maintained and kept at the Property, a full, complete and accurate daily record and account of all
revenues and expenses arising or accruing by virtue of its operations conducted at or related to
the Property, including, but not limited to, lease payments, grants, donations, contributions at
fundraising events, foundation support, Special Events income and/or other contributions to the
Provider.
All applicable records and accounts shall be available for inspection and/or audit by the
City and its duly authorized agents or representatives during the hours of 9:00 AM to 6:00 PM,
Monday through Friday. The Provider shall keep and preserve, or cause to be kept and
preserved, said records for not less than sixty (60) months after the expiration of this Agreement.
The Provider will cooperate with the City's internal auditors (or such other auditors designated
by the City) in order to facilitate the City's examination of records and accounts. The Provider
agrees that all documents, records and reports maintained and generated pursuant to this
Agreement shall be subject to the provisions of the Public Records Law, Chapter 119, Florida
Statutes.
5.2 Audit
Provider shall deliver or cause to be delivered to the Director within ninety (90) days
after the end of each Fiscal Year, an audited financial report which report must be prepared in
accordance with Generally Accepted Accounting Principles ("GAAP") in the United States, be
complete and include all notes to the statements and any auditor's reports associated with the
audited financial statements; and include, if associated with the audited financial statement, an
auditor's opinion covering the operation the Property for the prior Fiscal Year. The Fiscal Year
shall mean each twelve-month interval commencing on October 1st and expiring September 30th.
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The City may also, at its option and upon reasonable prior notice, may cause, at its sole
cost and expense, a complete audit to be made of the Provider's business affairs, records, files,
and sales slips in connection with the Provider's operations on, from or related to the Property
for the period covered by any audited financial statement, report or record furnished by the
Provider to the City. The Provider shall allow the City or the auditors of the City, upon
reasonable prior notice, to inspect all or any part of the compilation procedures for the aforesaid
reports. Records shall be available at the Property, or such other location in Miami approved by
the Provider, Monday through Friday, between the hours of 9:00 AM and 6:00 PM. The Provider
shall ensure that third parties using the facility follow the City's required procedures.
ARTICLE VI
LICENSES; COMPLIANCE WITH LAWS
6.1 Licenses And Pen -nits
The Provider shall, at the Provider's sole cost and expense, obtain any and all licenses
and permits necessary and in connection with the Provider's use and occupancy of the Property.
6.2 Compliance with Laws
Each party to this agreement shall comply with all applicable laws, ordinances, and
codes of federal, state, and local governments, now or hereinafter enacted.
ARTICLE VII
HAZARDOUS MATERIALS
7.1 Hazardous Materials
The Provider shall, at its sole cost and expense, at all times and in all respects comply
with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies,
orders and administrative actions and orders regarding hazardous materials under the control of
Provider or its agents ("Hazardous Materials Laws"), including, without limitation, any
Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use,
storage, disposal or transportation of any flammable explosives, toxic substances or other
hazardous, contaminated or polluting materials, substances or wastes, including, without
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limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic
Substances", under any such laws, ordinances or regulations (collectively "Hazardous
Materials"). The Provider shall, at its sole cost and expense, procure, maintain in effect and
comply with all conditions of any and all permits, licenses and other governmental and
regulatory approvals relating to the presence of Hazardous Materials within, on, under or about
the Property required for the Provider's use of any Hazardous Materials in or about the Property
in conformity with all applicable Hazardous Materials Laws and prudent industry practices
regarding management of such Hazardous Materials. The City recognizes and agrees that the
Provider may use such materials in quantities appropriate for its use of the Property, for the
purposes stated herein and that such use by the Provider shall not be deemed a violation of this
section so long as the levels of use of such materials are not in violation of any Hazardous
Materials Laws. Upon termination or expiration of this Agreement, the Provider shall, at its sole
cost and expense, cause all Hazardous Materials, including their storage devices, placed in or
about the Property by the Provider or at the Provider's direction, to be removed from the
Property and transported for use, storage or disposal in accordance and compliance with all
applicable Hazardous Materials Laws. The City acknowledges that it is not the intent of this
Article VII to prohibit the Provider from operating the Property for the uses described in Section
2.1 of this Agreement entitled "Purpose". The Provider may operate according to the custom of
the industry so long as the use or presence of Hazardous Materials is strictly and properly
monitored according to, and in compliance with, all applicable governmental requirements. The
requirements of this section shall survive the expiration or termination of this Agreement.
The City represents that:
(i) To the best of its knowledge there are no environmental violations, whether under
federal, state, or local laws, existing on the Property;
(ii) To the best of its knowledge there are no Hazardous Materials presently existing
on the Property.
ARTICLE VIII
ALTERATIONS AND IMPROVEMENTS
8.1 Alterations
Provider shall not make any improvements, construction, or alterations to the Property
without prior written consent from the City Manager. Provider acknowledges that the Property
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has been designated by the Miami City Commission as a historic site in accordance with Section
23.1-3 of the Code of the City of Miami. Accordingly, Provider agrees that at all tithes during
the Tenn, Provider shall ensure that no changes or alterations are made, or damage done to the
interior or exterior of the Property, except for those which may be approved by the City under
the terns of this Agreement.
8.2 Construction Liens
The Provider shall have no responsibility for construction liens filed against the Property
as a result of work, labor, services, or materials contracted for by the City or contracted for by
anyone other than Provider, its agents, representatives, or third parties using the Property
pursuant to Provider's agreements with third parties, if applicable.
Provider shall promptly remove any construction liens filed against the Property as a
result of work, labor, services, or materials contracted for by the Provider, its agents, or third
parties who Provider allows to use the property. If Provider fails to remove any construction
liens filed against the Property as a result of work, labor, services, or materials contracted for by
Provider within thirty (30) days after receiving notice of its filing, the City may, but shall not be
obligated to, bond or pay the lien and such all amounts paid by the City shall constitute
additional payments due and payable under the Agreement and shall be repaid to the City by the
Provider immediately upon the rendering of an invoice or bill by the City.
8.3 Personal Property
The Provider shall have the right to remove any personal property that it places in or on
the Property. The Provider may provide additional equipment and personal property necessary
for its operation at the Property. All equipment and personal property provided or used by the
Provider at the Property shall be of good quality and suitable for its purpose. Any such
equipment and/or personal property valued over five hundred dollars ($500.00) will be tagged
and inventoried. Any equipment of Provider shall be donated to the City immediately upon
purchase and must contain a decal and/or property control number and added to the list of
inventory. The Provider's failure to repair any damage caused to the Property within sixty (60)
days after receipt of written notice from the City directing the required repairs, shall constitute an
Event of Default. The City may, however, elect to cause the Property to be repaired at the sole
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cost and expense of the Provider. The Provider shall pay the City the full cost of such repairs
within fifteen (15) days after receipt of an invoice indicating the cost of such required repairs.
The requirements of this section shall survive the expiration or termination of this Agreement.
8.4 Chances and Additions to the Property.
The City reserves the right at any time to reasonably: (i) make or permit changes or
revisions in its plan for the Property, including additions to, subtractions from, rearrangements
of, alterations of, modifications of or supplements to the building areas, walkways, parking areas,
or driveways, and (ii) construct improvements on the Property and to make alterations thereof or
additions thereto, subject to the condition that the City will endeavor to minimize any
interruption to the Provider's use and operation of the Property under the Agreement and City
shall provide 180 days advance notice of any alterations or modifications that will substantially
impact the Provider's use of the property.
8.5 Liens.
The Provider shall not suffer or permit any liens of any kind to be filed against the title to
the Property by any reason whatsoever as a result of an agreement with the Provider or Internal
Revenue Service or tax liens. Nothing in this Agreement shall be construed as constituting the
consent or request of the City, expressed or implied, by inference or otherwise, for the
performance of any labor or the furnishing of any materials, for any specific work on the
Property, nor as giving the Provider the right, power or authority to contract for or permit the
rendering of any services or the furnishing of any materials that would give rise to the filing of
any liens against the City's interest in the Property. If any liens shall at any time be filed against
the Property, the Provider shall cause it to be discharged of record within thirty (30) days after
the date the Provider has knowledge of its filing. If the Provider shall fail to discharge a lien
within that period, then in addition to any other right or remedy, the City may, but shall not be
obligated to, discharge the lien either by paying the amount claimed to be due or by procuring
the discharge of the lien by deposit in court or bonding. The City shall be entitled, if it so elects,
to compel the prosecution of any action for the foreclosure of the lien by the lienor and to pay the
amount of the judgment, if any, in favor of the lienor with interest, costs and allowances with the
understanding that all amounts paid by the City shall be repaid to the City by the Provider
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immediately upon rendition of any invoice or bill. The Provider shall not be required to pay or
discharge any lien so long as the Provider shall in good faith proceed to contest the lien by
appropriate proceedings and if the Provider shall have given notice in writing to the City of its
intention to contest the validity of the lien and shall furnish reasonably satisfactory evidence that
funds are or will be available to pay the amount of the contested lien claim with all interest on it
and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it.
The City shall not be entitled to pay the lien or compel the prosecution of any action with respect
thereto during any time that the Provider is contesting such lien.
ARTICLE IX
CITY'S RIGHT OF ENTRY
9.1 City's Right Of Entry
The City reserves the right to enter upon the Property at all reasonable times, for any
purpose the City deems necessary to, incident to, or connected with the performance of the
City's duties and obligations hereunder or in the exercise of its proprietary and municipal
functions.
ARTICLE X
UTILITY CHARGES
10.1 Utilities
The Provider shall be solely responsible for payment of all costs of consumption, and for
the cost of installing any necessary lines and equipment for increased usage, of the following
utilities:
a) Electricity;
b) Telephone;
c) Water,
d) Gas;
e) Sewage disposal;
f) Storm water fees;
g) Trash and garbage removal.
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10.2 City Not Liable For Failure Of Utilities
The City shall not be liable for any loss of performance income to Provider due to any
failure of water supply, sewer, gas or electric current.
ARTICLE XI
NO REPRESENTATION BY CITY
11.1 Condition of Property
The Provider has had the opportunity to inspect the Property and agrees to undertake its
obligations at the Property in its present "as is" condition and state of repair and without any
representation by or on behalf of the City. At the expiration or earlier termination of this
Agreement, the Provider shall leave the Property in the same condition or better as existed on the
Effective Date, ordinary wear and tear excepted.
ARTICLE XII
MAINTENANCE AND REPAIR OF PROPERTY
12.1 Provider's Maintenance and Repair of the Property
The Provider shall, at its sole cost and expense, at all times during the Term hereof,
provide routine maintenance as stipulated in paragraphs 12.2 and 12.3. The Provider shall not
commit, or suffer to be committed, any waste in or upon the Property or do anything in or on the
Property, which, detracts from the appearance of the Property.
12.2 Provider's Services
The Provider shall, at its sole cost and expense, use its best efforts to maintain and repair
the Property. Specifically, the Provider shall use its best efforts to maintain and repair the
structural portions of the building, including the interior and exterior walls, under flooring and
roof and shall make all repairs and replacements, unless such maintenance and/or repair becomes
necessary due to the misuse, act, neglect, fault or omission of the City or its employees, in or
about the Property. The City shall not be liable under any circumstances for a loss of, or damage
to, property, loss of profits, or for damage to or interference with Provider's business arising
from or in connection with the making of or Provider's failure to make any repairs, maintenance,
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alterations or improvements in or to any portion of the Property or in or to fixtures,
appurtenances and equipment therein. The following maintenance and services are required for
use of the Property:
a) Cleaning and janitorial services for the Property;
b) Employ, train, pay, supervise, discharge and determine the compensation of all
employees necessary for the operation of the Property;
c) Purchase supplies required for the operation of the Property, as determined by the
Provider in its discretion, including but not limited to, office supplies, cleaning
supplies, light bulbs;
d) All marketing and advertising required for its operations;
e) Waste disposal;
f) Grounds services for the Property and periodic removal of any rubbish or
obstructions from the Property;
g) Cleaning of the interior and exterior glass doors on the Property to be performed as
needed, but no less than once every month;
h) Interior lighting;
i) Painting touch-up of the interior of the building;
j) Security as is required for similar facilities;
k) Any and all services required for Special Events;
1) Carpet cleaning and pressure cleaning sidewalk and perimeter areas.
12.3 Service/Maintenance Agreements
The Provider shall procure, at its sole cost, service maintenance agreements for the
following items at a level in accordance with good industry practice, but in no event less than
that previously provided by the City:
a) Ventilation and air conditioning as required for the comfortable use and
occupation of the Property;
b) Elevator service;
c) Burglar and fire alarm monitoring and maintenance services;
d) Waste Services;
e) Fire extinguishers inspections;
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f) Pest Control;
g) Any other Service Contracts needed for the enjoyment of the Property.
In addition to the above, the Provider shall undertake minor repairs deemed appropriate
by the Provider of the plumbing fixtures, as necessary.
The Provider shall, promptly advise the City upon obtaining knowledge of any condition
of the Property which may present a risk of injury to persons or property beyond those currently
existing at the execution of this Agreement. City shall provide Provider with an up-to-date Risk
Report, as defined herein, prior to execution of this Agreement.
The Provider shall submit the service agreements to the City Manager for its approval.
The Provider shall be responsible for any maintenance and repair service costs for each of the
above items to the extent they are not covered by the service or maintenance agreements
procured by Provider.
12.4 City Services
Intentionally Deleted.
ARTICLE XIII
INDEMNIFICATION AND INSURANCE
13.1 Indemnification
Provider shall indemnify and save the City, its officers, employees, and agents harmless
from any and all claims, liability, and causes of action which may arise out of the willful,
negligent, or unlawful acts or omissions of Provider, its district board of trustees, employees,
agents, or subcontractors in its operations, activities, or obligations under this Agreement and
shall pay all claims and losses of any nature whatsoever in connection therewith, including all
costs, judgments, and attorneys fees, which may issue thereon; provided, however, that nothing
herein shall be construed to require Provider to indemnify the City against liability resulting from
the willful, negligent, or unlawful acts or omissions of the City. This provision shall survive the
termination of this Agreement.
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13.2 Insurance
Notwithstanding the above, Provider shall furnish the City evidence of the following
insurance coverage:
A. Commercial General Liability coverage form, including
contractual and contingent liability, products and completed operations, personal
injury and products and operations covering against all claims, demands or
actions, bodily injury, personal injury, death or property damage occurring in the
Property with such limits as may be reasonably requested by the City from time to
time but not less than $1,000,000 per occurrence, $2,000,000 policy aggregate for
bodily injury and property damage. The policy should include primary insurance
clause and should further include coverage for employee benefits and Error's &
Omissions with limits of $1,000,000.The City shall be listed as additional insured
on this coverage.
B. Automobile liability insurance covering all owned, non -owned and
hired vehicles used in conjunction with operations covered by this Agreement.
The policy or policies of insurance shall contain such limits as may be reasonably
requested by the City from time to time but not less than $1,000,000 for bodily
injury and property damage. Hired Auto Physical Damage coverage with a $500
Deductible should be included, if applicable. The requirements of this provision
may be waived upon submission of a written statement that no automobiles are
used to conduct business. The City shall appear listed as an additional insured on
this coverage.
C. Worker's Compensation in the form and amounts required by
Florida law, with employer liability limits of $1,000,000.
D. Liquor Liability with limits of $1,000,000.
E. Umbrella Liability Excess Follow Form with limits of $10,000,000
including the City of Miami as an additional insured. The Umbrella Liability
policy should be excess over primary Commercial General Liability, Automobile,
Employer's Liability and Liquor Liability limits.
F. Property- Provider shall procure Real and Personal Property
coverage with special form causes of loss excluding windstorm written on a
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historic real and property coverage form and all applicable locations subject to
historic replacement cost with guarantee cash settlement option, and including
historic property business income and extra expense to include crisis management
coverage extension endorsement, if available, with an extended period of
indemnity of 365 days. The certificate or policy shall also provide for historic
property equipment breakdown coverage endorsement.
Provider shall require its users or third parties to furnish certificate of insurance, if
applicable, with coverage limits acceptable to the City. The City reserves the right to amend the
insurance requirements for both the Provider and third parties in accordance with reasonable
industry practice by the issuance of notice in writing to the Provider. Should Provider be unable
or refuse to comply with the City's amended insurance requirements this Agreement shall
terminate thirty (30) days after the changed requirements were to take effect.
The policy or policies of insurance required shall be so written that the policy or policies
may not be canceled or materially changed without thirty (30) days advance written notice to
City. Said notice should be delivered to the City of Miami, Department of Risk Management,
444 SW 2nd Avenue, 9tb Floor, Miami, FL 33130 with copy to City of Miami, Department of
Public Facilities, 444 SW 2nd Avenue, 31-d Floor, Miami, FL 33130.
A current Evidence of Insurance and Policy of Insurance evidencing the aforesaid
required insurance coverage shall be supplied to the Department of Public Facilities of the City
at least fifteen (15) days prior to the commencement of the third party's usage of the Property.
The City shall be deemed to have approved the third party insurance if it fails to request any
changes within ten (10) days after the evidence of insurance has been received by the City's
Department of Public Facilities. Insurance policies required herein shall be issued by companies
authorized to do business under the laws of the State of Florida, with the following qualifications
as to management and financial strength: the company should be rated "A-" as to management,
and no less than class "V" as to financial strength, in accordance with the latest edition of Best's
Key Rating Guide, or the company holds a valid Florida Certificate of Authority and is a
member of the Florida Guarantee Fund. Receipt of any documentation of insurance by the City
or by any of its representatives, which indicates less coverage than required, does not constitute a
waiver of the Provider's obligation to require the insurance requirements herein.
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Failure to require third parties to procure the insurance required by this section shall
constitute a default of this Agreement as provided in Article XX of this Agreement entitled
"Default." The Provider's failure to require third parties to procure insurance shall in no way
release the Provider from its obligations and responsibilities as provided herein.
13.3 Damage Or Loss To The Property
Neither party shall be liable for injury or damage which may be sustained by the Property
or sustained by goods, wares, merchandise or other property of the Provider, or the Provider's
employees, agents, contractors, invitees, and guests or of any other person in or about the
Property caused by or resulting from any peril whatsoever which may affect the Property,
including, without limitation, fire, steam, electricity, gas, water, or rain which may leak or flow
from or into any part of the Property, or from the breakage, leakage, obstruction or other defects
of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the
Property, or from hurricane or any act of God or any act of negligence of any user of the
facilities or occupants of the Property unless caused by the negligence of the City or the
Provider, their officers, employees, agents or representatives.
ARTICLE XIV
DESTRUCTION OF PROPERTY
14.1 Destruction of Property
Except as provided in Section 14.2, if the Property shall be damaged by fire, the
elements, accident or other casualty (any of such causes being referred to herein as a
"Casualty"), but the Property shall not be rendered wholly or partially unusable, the City shall
promptly cause such damage to be repaired, subject to collection of sufficient insurance
proceeds.
If, as a result of Casualty, the Property shall be rendered partially unusable, then, subject
to the provisions of Section 14.2 of this Agreement, the City shall cause such damage to be
repaired. In such event, such repairs shall be made at the expense of the City, subject to the
Provider's responsibilities set forth herein. The City shall not be liable for interruption to the
Provider's business or for damage to or replacement or repair of Provider's personal property
(including,without limitation, inventory, trade fixtures, floor coverings, furniture and other
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property removable by the Provider under the provisions of this Agreement) or for damage to or
replacement or repair of any improvements installed by Provider at the Property. The City shall
not be obligated to spend more for the cost of repair than net insurance proceeds recovered with
respect to such loss. In this regard, to the extent funds are not available to fully restore the
Property to its pre -Casualty condition, the City's repair of the Property may not result in the
Property being restored to its condition prior to any such Casualty. In the event the cost to repair
the Property is less than the net insurance proceeds received by the City, all excess insurance
proceeds shall inure to the benefit of the City.
14.2 Option to Terminate Due to Casualty
If the Property is (a) rendered wholly unusable, or (b) damaged as a result of any cause
which is not covered by the insurance, or (c) insurance proceeds are insufficient to restore the
Property to a condition reasonably necessary to carry out the purposes described in this
Agreement, or (d) damaged or destroyed in whole or in part during the last three years of the
Term, or (e) if the Property is damaged to the extent that it cannot be used for Provider's
intended purpose for a period of ninety (90) or more consecutive days, then, either the City or the
Provider may elect to terminate this Agreement by giving to the other party notice of such
election within ninety (90) days after the occurrence of such event. If such notice is given, the
rights and obligations of the Parties shall cease as of the date specified in such notice.
Upon termination of this Agreement pursuant to this section, the Provider and the City
shall be released from any further obligations hereunder, except that such release shall not apply
to any sums then accrued or due, or to the Provider's obligations under Section 22.5 of this
Agreement entitled "Termination of Operations at the Property" or to any obligation otherwise
surviving the termination of this Agreement.
ARTICLE XV
ASSIGNMENT
1.5.1 Assignment
Provider shall not, at any time during the term of this Agreement, assign, mortgage,
pledge or otherwise encumber this Agreement, or any interest hereunder. The City may assign
this agreement upon one hundred eighty (180) days notice to Provider.
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15.2 Event Of Bankruptcy
Subject to applicable laws, if this Agreement is assigned to any person or entity pursuant
to a provision of the United States Bankruptcy Code, as the same may be amended from time to
time (hereinafter the "Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or delivered to the
City, shall be and remain the exclusive property of the City, and shall not constitute the property
of the Provider or the estate of the Provider within the meaning of the Bankruptcy Code. Any
and all monies or other considerations constituting the City's property under this section not paid
or delivered to the City shall be held in trust for the benefit of the City and shall be promptly paid
or delivered to the City. Any person or entity to which this Agreement is assigned pursuant to
the provisions of the Bankruptcy Code shall be deemed without further act or deed to have
assumed all of the obligations arising under this Agreement on and after the date of such
assignment.
ARTICLE XVI
OWNERSHIP OF IMPROVEMENTS
16.1 Ownership of Improvements
As of the Effective Date and throughout the Tenn, title to the Property, and all buildings,
and improvements thereon are and shall continue to be vested in the City. Furthermore, title to
all improvements, and alterations made or purchased in or to the Property during the Tenn of this
Agreement, whether or not by or at the expense of the Provider, shall, unless otherwise provided
by written agreement, immediately upon their completion become the property of the City and
shall remain and be surrendered with the Property.
City shall provide Provider with accurate inventory of any furniture, furnishing,
equipment or other articles of personal property owned by the City and located on the Property at
the time of execution of this Agreement. Any furniture, furnishing, equipment or other articles of
personal property owned by the City and located on the Property, shall be and shall remain the
property of the City and may not be removed by it at any time during the Term. If any of the
City's property is removed and such removal causes damage to the Property, the Provider shall
repair such damage at its sole cost and expense in accordance with the provisions of Section 8.3
hereof.
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Any personal property belonging to the Provider and not removed by the Provider at the
expiration or earlier termination of the Agreement shall be deemed to have been abandoned by
the Provider, and the City may keep or dispose of such property at the Provider's sole cost and
expense. The Provider will reimburse the City for any reasonable costs associated with such
abandoned property within fifteen (15) days of after receipt of written notice. At the expiration
of the Term the Provider shall deliver to the City the keys and combination to all safes, cabinets,
vaults, doors and other locks left by the Provider on the Property.
16.2 Equipment
The Provider will be permitted to use the City's Equipment located at the Property, at no
cost, however, any additional equipment needed by the Provider for the management and
operations of the Property must be provided at the Provider's sole cost and expense. The
Provider shall provide a knowledgeable technician to test and operate the City's Equipment. The
Provider shall replace or repair, at its sole cost and expense, any of the City's Equipment,
fixtures or furnishings lost, stolen, damaged or destroyed due to acts, omissions or negligence of
the Provider or its agents or employees.
Provider agrees to take all steps necessary to protect its equipment including obtaining
insurance thereon and providing appropriate security for the Property. Provider shall protect and
prevent loss or damage to the City's Equipment.
ARTICLE XVII
SIGNAGE
17.1 Sims
The Provider shall be permitted to place signs or posters, exclusively as related to the
Provider's retail component operations on the areas designated on the exterior and interior of the
Property. The Provider shall not permit any signs, advertising materials or other objects to be
placed or hung on any portion of the Property or allow any change or modification to the exterior
or interior of the Property, except as provided for in the City of Miami Code. The Provider must
also obtain approval from all governmental authorities having jurisdiction, and must comply with
all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the
expiration or earlier termination of this Agreement, for any reason, the Provider shall, at its sole
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cost and expense, remove and dispose of all signs, advertising materials or other objects of
Provider located on the areas designated on the exterior and interior of the Property.
ARTICLE XVIII
SPECIAL. ASSESSMENTS AND TAXES
18.1 Special Assessments And Taxes
In the event the Property is subject to taxation, charges or assessments and the Provider
does not pay same, within thirty (30) days the City shall have the right to terminate this
Agreement upon providing fifteen (15) days written notice to the Provider and the Provider shall
be liable for the taxes.
ARTICLE XIX
NOTICE
19.1 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 certified mail
addressed to the Parties at their respective addresses indicated below or as the same may be
changed in writing from time to time. Such notice shall be deemed given on the day on which
personally served, or if by certified mail, on the fifth day after being posted or the date of actual
receipt, whichever is earlier.
NOTICE TO CITY: NOTICE TO PROVIDER:
City of Miami Olympia Center, Inc.
Office of the City Manager Heenan Echevarria
City Manager President
444 SW 2nd Avenue, 10th Floor 848 Brickell Avenue, 4th Floor
Miami, Florida 33130 Miami, Florida 33131
WITH COPY TO:
City of Miami
Department of Public Facilities
Director of Public Facilities
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
AND
WITH COPY TO:
Olympia Center, Inc.
Ralph G. Patino, Esq.
550 Biltmore Way, Suite 740
Coral Gables, Florida 33134
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WITH COPY TO:
:
City of Miami
Office of the City Attorney
City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
ARTICLE XX
DEFAULT
20.1 Events of Default - Provider.
Each of the following events is defined as an Event of Default:
(a) The failure of the Provider to perform any of the covenants, conditions and
agreements of this Agreement on the part of the Provider to be performed and the continuance of
the failure for a period of fifteen (15) days after written notice (which notice shall specify the
nature of the default) from the City to the Provider, unless with respect to any default which
cannot be cured within fifteen (15) days, the Provider, in good faith, promptly after receipt of
written notice, shall have commenced and continued diligently to reasonably prosecute all action
necessary to cure the default and shall have so notified the City in writing;
(b) The filing of an application by the Provider: (i) for a consent to the appointment
of a receiver, trustee or liquidator of itself or all its assets; (ii) of a voluntary petition in
bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to
pay its debts as they come due; (iii) of a general assignment for the benefit of creditors; (iv) of an
answer admitting the material allegations of, or its consenting to, or defaulting in answering, a
petition filed against it in any bankruptcy proceeding;
(c) The entry of an order, judgment or decree by any court of competent jurisdiction,
adjudicating the Provider as bankrupt, or appointing a receiver, trustee or liquidator of it or of its
assets, and this order, judgment or decree continuing unstayed and in effect for any period of
sixty (60) consecutive days, or if this Agreement is taken under a writ of execution; or
(d) The failure of Provider to remit any information, to the City's satisfaction,
requested in the Article IV of this Agreement entitled "Provider's Covenants".
(e) Failure to require third parties to procure the insurance required by Section 13.2
of this Agreement.
(f)
Agreement.
Failure of the Provider to continuously operate as described in Section 2.5 of this
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In the event this Agreement is assumed by or assigned to a trustee pursuant to the
provisions of the US Bankruptcy Code, as the same may be amended from time to time, the
trustee shall cure any default under this Agreement and shall provide the City with adequate
assurance of future performance of all of the terms and conditions of this Agreement. If the
trustee does not cure such default and provide such adequate assurances within the applicable
time periods provided by the US Bankruptcy Code, then this Agreement shall be deemed
rejected automatically and the City shall have the right to immediate possession of the Property
and shall be entitled to all remedies provided by the US Bankruptcy Code for damages for breach
or termination of this Agreement.
20.2 City's Remedies in Event of Default
The City may treat any one or more of the Event(s) of Default as a breach of this
Agreement, and thereupon at its option, the City shall have, in addition to every other right or
remedy existing at law or in equity, the right to do any one or more of the following:
(a) Elect to cancel and terminate this Agreement and dispossess the Provider by
giving a ten (10) day notice of such election to the Provider, and reenter the Property. In the
event of such termination, the City shall have the right to seek any damages sustained by it by
reason of the Provider's actions or inactions and the resulting termination of this Agreement.
Upon termination of this Agreement, the Provider shall immediately cease all operations at the
Property and surrender the Property in accordance with the provisions contained herein.
(b)
Perform, on behalf of and at the expense of the Provider, any obligation of the
Provider under this Agreement which the Provider has failed to perform, the cost of which
perfonmance by the City, together with interest thereon at the rate of ten percent (10%) from the
date of such expenditure, shall be deemed additional payments and shall be payable by the
Provider to the City upon demand.
(c) Exercise any other legal or equitable right or remedy, which it may have under
this Agreement, at law or in equity.
Notwithstanding the provisions of clause (b) above and regardless of whether an Event of
Default shall have occurred, the City may exercise the remedy described in clause (b) without
any notice to the Provider if the City, in the exercise of its good faith judgment, believes it would
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be injured by failure to take rapid action or if the unperformed obligation of the Provider
constitutes an emergency.
All of the remedies of the City shall be cumulative, and enforcing one or more of the
remedies herein provided upon an Event of Default and shall not be deemed or construed to
constitute a waiver of such default, or an election of remedies.
20.3 Repeated Defaults - Provider
If more than twice during any twelve (12) month period the Provider fails to satisfy or
comply with the same or substantially the same material requirements or provisions of this
Agreement (except where such repeated default arises from acts of God or results from causes or
conditions not attributable, directly or indirectly, to the Provider, its guests, employees, agents or
others within the Provider's control), then at the City's election, the Provider shall not have any
right to cure such repeated default. In the event of the City's election not to allow the cure of a
repeated failure to satisfy or comply, the City shall have all of the rights and remedies provided
in this Agreement relative to an Event of Default immediately upon the occurrence of such
repeated failure to satisfy or comply.
20.4 Events of Default - City.
Each of the following events is defined as an Event of Default:
(a) The failure of the City to perform any of the material covenants, conditions and
terns of this Agreement on the part of the City to be performed and the continuance of the
failure for a period of fifteen (15) days after written notice (which notice shall specify the nature
of the default) from the Provider to the City, unless with respect to any default which cannot be
cured within fifteen (15) days, the City, in good faith, promptly after receipt of written notice,
shall have commenced and continued diligently to reasonably prosecute all action necessary to
cure the default and shall have so notified the Provider in writing;
(b) The filing of a bankruptcy petition pursuant to Chapter 9, Title 11 of the United
States Bankruptcy Code Chapter (11 USC CHAPTER 9 — ADJUSTMENT OF DEBTS OF A
MUNICIPALITY).
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20.5 Provider's Remedies in Event of Default
The Provider may treat any one or more of the Event(s) of Default as a breach of this
Agreement, and thereupon at its option, the Provider shall have, in addition to every other right
or remedy existing at law or in equity, the right to do any one or more of the following:
(a) Elect to cancel and terminate this Agreement by giving a ten (10) day notice of
such election to the City. In the event of such termination, the Provider shall have the right to
seek any damages sustained by it by reason of the City's actions or inactions and the resulting
termination of this Agreement. Upon termination of this Agreement, the Provider shall
immediately cease all operations at the Property and surrender the Property in accordance with
the provisions contained herein.
(b)
Exercise any other legal or equitable right or remedy, which it may have under
this Agreement, at law or in equity.
All of the remedies df the Provider shall be cumulative, and enforcing one or more of the
remedies herein provided upon an Event of Default and shall not be deemed or construed to
constitute a waiver of such default, or an election of remedies.
20.6 Repeated Defaults - City
If more than twice during any twelve (12) month period the City fails to satisfy or comply
with the same or substantially the same material requirements or provisions of this Agreement
(except where such repeated default arises from acts of God or results from causes or conditions
not attributable, directly or indirectly, to the City, its guests, employees, agents or others within
the City's control), then at the Provider's election, the City shall not have any right to cure such
repeated default. In the event of the Provider's election not to allow the cure of a repeated
failure to satisfy or comply, the Provider shall have all of the rights and remedies provided in this
Agreement relative to an Event of Default immediately upon the occurrence of such repeated
failure to satisfy or comply.
ARTICLE XXI
AFFIRMATIVE ACTION
21.1 Nondiscrimination
The Provider agrees that it will not discriminate against any person based upon race, sex,
national origin, or handicap in its performance under this Agreement. It is expressly understood
Page 31 of 41
NAR; Document No.: 335609
that upon a determination by a court of competent jurisdiction that Provider has engaged in such
discrimination, the City shall have the right to immediately terminate this Agreement without
penalty to the City.
ARTICLE XXII
MISCELLANEOUS PROVISIONS
22.1 Ingress And Egress
The Provider shall have the right of complete ingress/egress to the Property.
22.2 Use Rights
Provider acknowledges that the Provider has been retained as a contract manager only,
and as such, the Provider shall have no interest in the Property as owner, lessee or otherwise.
The City hereby reserves all mineral rights and all land ownership rights. It is expressly
understood and agreed that no real or personal property is leased to the Provider, that this is a
management agreement and not a lease, that the Provider's right to use the Property shall
continue only so long as the Provider shall timely comply with each and all of the undertakings,
provisions, covenants, agreements, stipulations and conditions contained herein. The Provider
agrees not to represent itself as an agent or associate of the City or any unit thereof. Provider
agrees to provide workers' compensation insurance for any employee of Provider rendering
services pursuant to this Agreement and to ensure that the employees of its contractors and
agents rendering services on the Property provide worker's compensation insurance for their
employees.
22.3 City Approval
Whenever prior approvals must be given hereunder by the City Manager or the Director,
as applicable, the City Manager or the Director, respectively, shall approve or disapprove any
such item in its reasonable discretion unless a different standard is expressly provided in this
Agreement with respect to such item.
22.4 Successors And Assigns
This Agreement shall be binding upon the Parties hereto, their heirs, executors, legal
representatives, successors and assigns.
Page 32 of 41
NAR; Document No.: 335609
22.5 Termination Of Operations At Property
Upon the expiration or earlier termination of this Agreement by lapse of time or
otherwise, the Provider shall promptly and peacefully terminate its operations at the Property
with the City in accordance with the covenants herein contained.
22.6 Amendments
No amendment or modification of this agreement shall be effective unless in writing and
signed by the Parties hereto. The City Manager is authorized to amend or modify this agreement
on behalf of the City without further approval of the City Commission.
22.7 Construction Of Agreement
This Agreement shall be construed and enforced according to the laws of the State of
Florida and venue for any litigation shall be in Miami -Dade County, Florida
22.8 Waiver Of Jury Trial
The Parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right
either may have to a trial by jury in respect of any action, proceeding, claim or counterclaim
based on this Agreement, or arising out of, under or in connection with this Agreement or any
amendment or modification of this Agreement, or any other agreement executed by and between
the Parties in connection with this Agreement, or any course of conduct, course of dealing,
statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial
provision is a material inducement for the City and the Provider entering into the subject
transaction.
22.9 Severability
If any provision of the Agreement, or the application thereof, is held invalid, the .
remainder of the Agreement shall be construed as if such invalid part were never included herein
and the Agreement shall be and remain valid and enforceable to the fullest extent permitted by
law.
Page 33 of 41
NAR; Document No.: 335609
22.10 Waiver
No waiver of any provision of this Agreement shall be deemed to have been made unless
such waiver is in writing and signed by the Parties to this Agreement. The acceptance of
additional payments by the City, with knowledge of any breach of this Agreement by the
Provider or of any default on the part of the Provider in the observance or performance of any of
the conditions, agreements or covenants of this Agreement, shall not deemed to be a waiver of
any provision of this Agreement. The failure of either party to insist upon the strict performance
of any of the provisions or conditions of this Agreement shall not be construed as waiving or
relinquishing in the future any such covenants or conditions but the same shall continue and
remain in full force and effect.
22.11 Captions
The captions contained in this Agreement are inserted only as a matter of convenience
and for reference and do not define, limit or prescribe the scope of this Agreement or the intent
of any provisions thereof.
22.12 Radon
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to it over time.
Levels of Radon that exceed Federal and State guidelines have been found in buildings in
Florida. Additional information regarding Radon and Radon testing may be obtained from your
county public health unit.
22.13 Cancellation by Request of Either of the Parties Without Cause.
Either party may cancel this Agreement at any time, without cause or reason, by giving
one hundred eighty (180) days written notice to the non -canceling party prior to the effective
date of the cancellation. Upon the effective date of such cancellation, the Parties shall be
relieved from any further obligations under this Agreement except for those specifically stated to
survive the expiration or termination of this Agreement.
Page 34 of 41
NAR; Document No.: 335609
22.14 Joint Preparation
This Agreement is the result of negotiations between the Parties and has been
typed/printed by one party for the convenience of both Parties. Should the provisions of this
Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body
interpreting or construing 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.
22.15 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute one and the same
agreement.
22.16 Binding Effect
This Agreement shall not be binding on the Provider until such time as the City
Commission approves this Agreement.
22.17 Entire Agreement
This instrument and its attachments constitute the sole and only agreement of the Parties
relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of
each to the other as of its date. Any prior agreements, promises, negotiations, or representations
not expressly set forth in this Agreement are of no force or effect.
[SIGNATURE PAGE FOLLOWS]
Page 35 of 41
NAR; Document No.: 335609
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed by
their respective, duly authorized, officials, the day and year above written.
ATTEST:
By:
Dwight S. Danie, MSL
City Clerk
THE CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Johnny Martinez
City Manager
APPROVED AS TO FORM APPROVED AS TO INSURANCE
AND CORRECTNESS REQUIREMENTS
By: By:
Julie O. Bru Calvin Ellis, Director
City Attorney Risk Management
OLYMPIA CENTER, INC.,
a Florida not -for -profit corporation
ATTEST:
By: By:
Carlos Trueba, Treasurer Herman Echevarria, President
By:
Ralph G. Patino, Vice President
Page 36 of 41
NAR; Document No.: 335609
Trzsb rxrn
Lthb
1) Ti
Olympia Lob!;.y
5
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OLYMPIA EITZDLN,G ADAPTIVE REUSE REHABE4TATION
URBANIZA_, INC FOR THE CORNERSTONE GROUP MA.F.. 1)S4
PROPOSED
GROUND FLOOR
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed by
their respective, duly authorized, officials, the day and year above written.
ATTEST:
By.
THE CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Priscilla A. Thompson Johnny Martinez., P.E.
City Clerk City Manager
APPROVED AS TO FORM APPROVED AS TO INSURANCE
AND CORRECTNESS REQUIREMENTS
By: By
Julie O. Bru Calvin Ellis, Director
City Attomey Risk Management
OLYMPIA CENTER, INC.,
A Florida Not -for -Profit Corporation
ATTEST:
By. By:
Carlos Trueba, Treasurer Herman Echevarria, President
By:
Ralph G. Patin, Vice President
Page 40 of 45
PfS.16[L0r F12
Record and Return To:
Judith A. Burke, Esq.
&butts & Bowen
201 South Biscayne Boulevard
Suite 1500 .
Miami, Florida 33131
95R 1$b882 1995 11AY 11 15:38
DECLARATION OF RESTRICTIVE COVENANTS
This Declaration of Restrictive Covenants (this "Declaration")
5 made this ." day of �'n cLu , 1995, by Olympia Residential
Building Partners, Ltd' a Florida .limited partnership,
(hereinafter referred to as "Developer"), whose address is 2121
?once de Leon Boulevard, Suite 650, Coral Gables, Florida 33134, in .
favor of the City of Miami, Florida, a municipality located within
the State of Florida (hereinafter referred to as the "City").
W I TNES S ETR:
WHEREAS, the Developer has a subleasehold interest in certain
property in the City of Miami, State of Florida (the "City"), as
legally described on Exhibit "A" (the "Property");'and
WHEREAS, pursuant to Title II of National Affordable Housing
Act of 1990, as amended, City is authorized to'assist in the
financing of construction and rehabilitation of housing for low and
moderate income families by lending HOME funds; and
' WHEREAS, pursuant to the Act, the housing constructed 'or
rehabilitated with .HOME funds .must remain.. affordable 'to a
reasonable range of low and moderate income. families for a -
prescribed period of time; 'and
•
WHEREAS, the Developer has received a'loan from the City in
the amount of $1,500,000.00 ("City Loan") which the Developer is
required to use forthe construction of an .affordable rental
• housing project located on the•Property (the "Project"); and
WHEREAS, the. Developer is desirous of making a binding
commitment to assure that the Property shall be developed and
utilized .in accordance with the provisions of the Act 'and this
Declaration;
•
NOW, THEREFORE, the Developer voluntarily covenants and agrees
that the Property shall be subject to the following restrictions
that are .intended and shall be deemed to be covenants running with
_t
�•.LS•L¢-: om..
U167E0r0713
the land and binding upon the Developer, and its heirs, successors
- end assigns as follows: •
•
Section 1. Recitals. The recitals and findings set forth in
the preamble to this Declaration are hereby adopted by reference
hereto and are incorporated herein as if fully set forth in this
Section. .
Section 2. .The Developer understands and agrees that the
Project will remain affordable. for not less than twenty (20) yeas
beginning after Project completion, without regard to the term of
any mortgage or• the transfer of ownership, 'except that, upon
foreclosure by a lender or othertransfer in lieu of foreclosure,
the affordability period ehall be terminated if the foreclosure or
ether transfer recognizes ahy contractual or legal rights of public
agencies, non-profit sponsors, or others to take actions that would
avoid the termination of low income affordability. Eowever, the
Developer further understands and agrees, the affordability
restrictions shall be revived according to the original terms if,
during the original affordability period, after the foreclosure or
other transfer, the Developer or any entity with whom the Developer
has or had family or business ties, obtains an ownership interest
in •the Project or Property the a ffordebility.period: sha11 be
revived according to .its original terms.
Section 3..Amendment and Modification. This instrument may be
modified; amended and released as to any portion of the.Property by
a written instrument executed by the parties hereto, provided that
same has been approved by the City of Miami Commission after a
public hearing.
•
•
•
Section 4. Term of Covenant. This Declaration -shall remain
in full force and effect and shall be binding upon the Developer,
it successors and assigns .for a period of twenty (.20) years after
Project completion, unless otherwise terminated as set forth in
Section 2 hereinabove,- •
Section 5. Inspection and Enforcement. It is understood and
agreed that any official. inspector of the City of Miami may have
the. right, 'any time duringnormal working hours, of entering and
investigating the use of the Property to determine whether the
conditions of this Declaration are being complied with. An.
-enforcement action may be brought :by the 'City in addition to any
other remedies available under the Act or any other law.
Section 6. Severebility. Invalidation of any one of these
.-covenants by judgment of Court shall not affect any of the other
provisions of the Declaration, which shall -remain in full force and
effect.
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n1678014714
Section 7. Recording. This Declaration shall be filed of
record among the Public Records of Dade County, Florida at the cost
of the Developer.
• IN WITNESS WHEREOF, the undersigned. have set their hands and
seals this .5 day of 7r: a ay , 1995.
WITNESSES:
•
1rrttint Name:
Print/ Afte _F i •rA
Print- me: `-rofni,
Print fie: `7 .r
OLYMPIA RESIDENTIAL BUILDING PARTNERS,
LTD., a Florida limited partnership
By: Cornerstone Olympia,•Ltd., a Florida
limited partnership, as managing
general partner of Olympia
Residential Building Partners, Ltd.
By: • Cornerstone Affor• ble Housing,
Inc., for a _orporation,
gene -1 p= •er • Cornerstone .
O1 pia, t• .
Smart I. Me ars, President
•
Address: 2121 Ponce de Leon
Coral Gables, FL 33134
By: DEEDCO Olympia, Inc., a Florida
corporation, general partner of
Cornerstone Olympia, Ltd.
-3-
Bernice.But er,
Executive Director
Address: 141 N.E. 3rd Avenue
Miami, FL 33132
STATE OF FLORIDA
COUNTY OF DADE
)
nrr.i670.0715
srf 1:.
The foregoing instrument was acknowledged before me this
.- day of • , 1995 by Stuart I. Meyers, as
President of Cornetone Affordable Housing, Inc.,, a Florida
corporation, general partner -of Cornerstone Olympia, Ltd., a
Florida limited partnership, managing general partner of Olympia
Residential Building Partners, Ltd., a Florida limited partnership,
on behalf of the partnership. He is .oersonal,jy known to me or has
produced as identification and who did (did
not) take an oath,, - •
j •.1 I'LMI .1._ STATE OF YUW..i; ,\
C,1\(1:i.}Ii?a NO CC424617
EXF 1-F.11.2/.199A I
STATE OF FLORIDA
COUNTY OF DADE
D0TFin PUBLIC
"OR eliglSriAr.J
Typed -or Printed Name of Notary
My commission expires:
Serial No., if any.
The regoing instrument was acknowledged before me this
5 day .of i _ , 1995 by Bernice Butler, as
Executive Lirector ofEEDCO Olympia, Inc., a Florida corporation,
*general- partner .of Cornerstone Olympia, Ltd., a Florida limited
partnership, managing general-: partner of Olympia Residential
Building Partners, Ltd., a Florida limited partnership, on behalf
of the partnership. She is personally known to me or has produced
as identification and who did -(did not) take
an oath.
MUM 35J11D.1 , 1.1M
4i)
NoTA.Y PUBLIC .
//,JDA
Typed or Printed Name.of Notary
My commission expires:
Serial No., if any.
C FILIAL NOTARY SEAL
-IJNDA C1{12STIA_N
f.':TTAkt rUBUC STATE OF FLORIDA
CUZUSSlDN NO. CC4216.17
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Pg:1673Y071.6
EXHIBIT "A"
!hose portions of tra building known as The Olympia Building (the
'Building"), as more particularly described below, located upon the
'fallowing described real property: .
Lot 1, Lot 2 (less the West 2 inches of the Korth 65 feet); the
gcuth 55 feet of Lot 3 and the North 45 feet of Lots 18, 14'and'2.0,
in Block "121 North,'Map of Miami, according to the Plat thereof, as
recorded in Plat Book "B", at Page 41, of the Public Records of
Dade County, Florida.
The Residential Premises comprise the following portions of the
Building:
(a) Floor 3, which comprises 4,967 square feet as follows:
(i) storage space for the Gusman
Theater,. which apace comprises 568
Square feet;
(14) nine efficiency units; and
•
(iii) corridors and support areas'.
• (b) Floors 4 and 5, each. of which comprises.4,967 square .feet
as follows: • •
•(i) eleven efficiency units; and
•
(ii) corridors and support areas. .
(c) Floor 6, which.comprises-4,967 square.feet as. follows:
(i) storage • space' for the Gusman
Theater, which space comprises 278
square feet;
•
•
(Si) .leasing office space, which space
comprises 212 agc:are feet;
(iii) .one one -bedroom unit.;
(iv) eight efficiency units; and
(v) corridors and•support areas.
DffZ .g b icl�+ r071 v{r
(d) Floors 7 through 10, each of whichcomprises 4,967 square
feet as follows:
(i) two one bedroom units;
(ii) eight efficiency units and
.(iii) corridors and support trews.
(e) Exterior envelope -of the Building as follows:
(i) North and east elevations .along
Fingler Street and Second Avenue,
respectively., which consist of e
terra-cotta band and the wood
windows and brick .cladding; and
(if.) Roof platform, .which consists of a.
one ply rubberized system, a parapet
wall, the' interior stair discharge
to the roof, and an enclosure that
houses the elevator machinery.
Note: Support areas consist of fire stairs, exterior fire
escape' stair, two elevator shafts,. connecting corridors,
laund_*y rooms at floors 4, 6 and 6, electric-roores.at floors
3, 5, 7,.9, and 10,'and a first. floor lobby which will have
access from Second Avenue. In addition, all floors will
contain a trash closet. Anew fiberglass cooling tower and a
natural gas emergency generator will be located at the roof
level.
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Olympia Theater and Office Building [Image]
URL: htdoa/pdfnosLfvcus.nps.gov/dos/NRHP/Textla4 D0E39,pdf
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URL: http:/lpdthost.focus.nps,gov/docs/NRHPRhotosl84000839.pdf
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Publisher: National PadcServlce
Pub I is had: 03/05/1.954
Access: Public access
Restrictions: All Rights Reserved
Fomet/SL-e: Physical document wlth text, photos and map
Language: erg: English
Note: 174 E Ffager St
!tem No,: ' 8400D539 A'R/S National kepisterInformation Systerf)
Subject: EVENT
Subject: ARCHITECTUREIENGIIdEERING
' Subject: ARCHITECTURE
Subject: COMMERCE .
Subject: PERFORMING ARTS
Subject: LATE 19TH AND 2DTH CENTURY REVIVALS
'Subject: BUILDING
Subject: 1825-1849
Keywords: Fuller,George A.,Ce.:Eberson,JDhn;1 P.25
Plees; -FLORIDA - Mlaml-Dade County- Miaml
Free-dom of 1nformetlon Act
Lest updated: 03/14/11
!leotard Nusber. 1es530
Record Qwnec Nallanal Replster a' Batas Pm=
Privecy Policy AccessibilitY
73
EXEIBIT c
MEMORANDUM OF U>tTDERST_4NDING
BE .I.ViTEN
THE C;I'I Y OF MIAMI
AND -
OLYIFIPIA CENTER, INC.
WHLPREAS, the City of Miami, a municipal corporation of the State of Florida ("City") and 0iympia
Center, Inc., a not -for -profit 501(c)(3) exempt Florida corporation ("Provider") (hereinafter collectively
referred to as the `Parties"), have come together to collaborate in the finding ng and completion of the repairs and
improvements listed herein_ of the property located at 174 East Flagler Street, Miami, Florida, 33131 a2c/a
Gusman Center for the Performing Arts Theatre (the `Property").
WHEREAS, this Memorandnrn of Understanding is incorporated as an Exhibit to that certain ,
Management Agreement between the Parties executed of even date herewith; and
WBBREAS, the Parties have been made aware of the structural and financial status of the Property and
have agreed to utilize their best efforts to obtain funning, either individually or collaboratively, for the repairs
and improvements set forth below; and
WHEREAS, the City has committed to using its best efforts to allocate approximately Three Hundred
Ninety Thousand Dollars ($390,000) of the City's Limited Ad Valorem Tax Bonds (Homeland
Defense./Neighborhood Capital Improvement Projects) (hereinafter "Bond Funds") towards the most pressing
repairs needed at the Property; and
WHEREAS, the table below delineates the existing emergency and urgent repairs of the Property, along
with an estimated cost of the repairs and any funding already secured for such repairs; -
GUSMAN THEATRE
EMERGENCY & URGENT
REPAIRS updated 01/25/2011
FUNDING r EST. FUNDING
SECURED NEEDED
GUSMAN FACADE *See Engineering Report
Terra CottaTile Repair/Replacement
Brick Anchorage, Repointing & Crack Repair
Structural Repairs
\Waterproof Coating
TOTAL
GUSMAN WINDOWS
Window Restoration/Replacement
Sealants
3,000,000
TOTAL 1,825,000
WATERPROOFING, WATER INTRUSION REPAIRS AND MISC. STRUCTURAL REPAIRS
**CAP 08/09 North and West Wall Repair & Waterpro.ofing 40,000 40,000
***CAP 10/11 Fire Escape Repair & Structural Repairs 22,931 42,059
NAR Docum.-nt No.: 266791
1
Remaining Water remediation North/West Exterior repairs 250,567
MISC. Roof Repairs, Drainage Improvements etc. 100,000
Drainage Improvements & Repaving of Alley 100,000
Basement Drainage Improvements (New Sump Pit & Pumps) 35,000
Outdoor Duct and Parapet Sealing 25,000
Repair Projection Room Walls Due to Water Intrusion 15,000
Replace Cracked Floor Slab 'at Fire Pump Room 20,000
Seal Attic HVAC Ductwork 25,000
Repair Water Damage to Decorative Plaster Balcony Beams 50,000
SUBTOTAL 702,436
EXISTING
EMERGENCIES
**"*CAP 09/10 Emergency Egress 39,000 51,907
REPLACE DETERIORATED FIRE PUMP VALVES 90,000
*****M)SC REPAIRS URGENT 32,576
SUBTOTAL 174,483
A/E "FEES & EXPENSES ESTIMATED @ 10% 570,192
TOTAL GUSMAN EMERGENCY REPAIRS 101,931.00 6,272,110.90
OLYMPIA FACADE 2,997,250
UPCOMING URGENT GUSMAN NEEDS
Necessary upgrades and improvements to equipment and the building 308,238
Repair Dressing rooms 26000
Carpet Cleaning 10,000
Replace (3) Marquee Message Boards & Add (1) New (dressage Board above Entrance Doors 200,000
Rewire F.O.H.,Eiectrical & Misc. Lighting Replacement 500,000
Box Office Repairs .75,000
Replace Stage Lighting Dimmers 850,000
Remodel Dressing Rooms 700,000
Repair Second Ave Marquee 100,000
Restore Vestibule Tile Floor 750,000
Wiring the building for a T-1 line: Parts labor and services ?BD 27,000
Replace All Deteriorated Exterior Facade Lighting ' 150,000
SUBTOTAL 3,696,238
A/E FEES & EXPENSES ESTIMATED @ 20% 369,624
GRAND TOTAL URGENT NEEDS 4,065,862
GRAND TOTAL EMERGENCY & URGENT GUSMAN NEEDS 101,931.00 10,337,972.70
GRAND TOTAL OLYMPIA AND GUSMAN COMBINED 13,335,222.70
* Weiss Tenney Report on the Gusman Facade
09/08 CAP GRANT (Expires If work is not complete September 30, 2011)
10/11 CAP GRANT
90/10 CAP GRANT
INTERNAL ONGOING REPAIR LIST UPDATED
NAR: Do:aunt& No.: 266791
2
NOW, THEREFORE, it is hereby agreed by and between the Parties as follows:
• There will be clearly stated. the roles and responsibilities each Party will assume to ensure the success of
the proposed project.
• Describe the resources each Party will contribute to the project either through dine, in -kind contribution
or with the use of grant funds, e.g, office space, project staid trsining.
• Identify the representatives of the planning and development team who will be responsible for planning,
developing, and implementing project activities and describe how they will work together and work with
project staff.
• Demonstrate a commitment on the part of all Parties to work together to achieve stated project goals and
to sustain the project once grant funds or any other applicable funds are no longer available.
Al 1tsST:
BSr:
Priscilla A. Thompson
City Clerk
APPROVED AS TO FORM
AND CORRECTNESS
By:
Julie O.
City Attorney
*10-1°1`27.6-
ATTEST:
By:
Carlos T
By:
R p. Patin, Vice 'resident
NAP.: Document No.: 266791
TNT', CITY OF N11AN11,
a municipal corporation of
the State of Florida
By:
TonyE. Crapp, Zr.'
City Manager
APPROVEDJ'SURANCE
REQ.=
• Gary Reshe cy, Director
Rill; Manag ent
OLY1Vff CENTER, INC.,
A Florida
By:
ot-for-Profit Corporation
Herman ch-► 'resident
3
PEC:17471Pw426
96R581834 1996 DEC 24 11:24
EXTENDED LOW-INCOME HOUSING AGREEMENT
THIS EXTENDED LOW-INCOME HOUSING AGREEMENT (this "Agreement")
is made and entered into this 20 day of December, 1996, between the FLORIDA
HOUSING FINANCE AGENCY (the "Agency"). a state agency and instrumentality and a public
body corporate and politic duly existing under the laws of the State of Florida, and OLYMPIA
RESIDENTIAL BUILDING PARTNERS. LTD.. a Florida limited partnership (the "Owner").
PREAMBLE
WHEREAS. the Agency has been created and organized pursuant to and in accordance
with the provisions of the Florida Housing Finance Agency Act. Sections 420.501-420.516,
Florida Statutes. as amended (the "Act"). and pursuant to Section 420.5099 of said Act. the
Agency is the housing credit agency for the State of Florida (the "State") specifically authorized
by statute to allocate low-income housing credit dollar amounts ("Tax Credits") under Section 42
of the Internal Revenue Code of 1986. as amended (the "Code"); and
WHEREAS. the Agency has agreed. under certain conditions, to allocate Tax Credits to
the Owner in connection with the rehabilitation of a multi -family residential rental housing
project (the "Project"), known as The Olympia Building. located within Dade County, Florida
(the "County"). the legal description for which is set forth in Exhibit "A" hereto, to be occupied
partially (at least forty percent (40%) by individuals whose income is sixty percent (60%) or less
of area median gross income within the meaning of Section 42(g) of the Code; and
WHEREAS, The Owner has made a knowing, voluntary and intelligent election to waive
for thirty-five (35) additional years following the last day of the Compliance Period any
prerogative it would have to collect rents on the Low -Income Units at rates determined by the
rental market except as provided herein in accordance with the requirements pursuant to the
Code in return for 1994 Tax Credits and as attested and sworn to in the Carryover Allocation
Certificate dated December 22, 1994; and
THIS INSTRUMENT PREPARED BY:
Susan J. Leigh
FLORIDA HOUSING FINANCE AGENCY
2'_7 North Bronough Street, Suite 5000
Tallahassee. Florida 32301-1329
"per.j 1471m342'7
WHEREAS, Section 42 of the Code provides that no Tax Credits shall be allowed with
respect to any building unless an extended low-income housing commitment is in effect for such
building at the end of such taxable year; and
WHEREAS, in order to assure Owner compliance with the provisions of, and to
evidence the Owner's extended low-income housing commitment as required by, Section 42 of
the Code, the Agency and the Owner have determined to enter into this Agreement in which they
set forth certain terms and conditions relating to the Owner's operation of the Project;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Agency and the Owner do hereby contract and agree as follows:
AGREEMENT
Section 1. Definitions and Interpretation.
(a) Unless otherwise expressly provided herein or unless the context clearly requires
otherwise, the following terns shall have the respective meanings set forth below for all
purposes of this Agreement.
"Ail" shall mean the Florida Housing Finance Agency Act, Florida Statutes, Section
420.501-.516, as amended.
"Agency" shall mean the FLORIDA HOUSING FINANCE AGENCY, a state agency
and instrumentality and a public body corporate and politic duly existing under the laws of the
State of Florida, and any agency or other entity of the State of Florida that shall hereafter succeed
to the powers, duties and functions of the Agency.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and arty successor
statute as it applies to the Tax Credits described herein, together with all applicable final,
temporary or proposed Treasury Regulations and Revenue Rulings thereunder. Reference in this
Agreement to any specific provision of the Code shall be deemed to include any applicable
successorprovision of such provision of the Code that may apply to the Tax Credits described
herein.
"Compliance Period" shall mean, with respect to any building that is included in the
Project, a period of fifteen (15) years beginning on the first day of the first taxable year of the
Credit Period with respect thereto.
"County" shall mean Dade County, Florida.
2
Kt��1 •`4iat
r:1.7471P(3428
"Credit Period" shall mean, with respect to any huilding that is included in the Project.
the period of tcn (10) years beginning with (x) the taxable year in which thc huilding
is placed in service, or (y) at the election of the Owner, the succeeding taxahlc year.
"Extended Low -Income Housine Agreement" or "Agreement" shall mean this
Extended Low-income !lousing Agreement. as amended or supplemented from time to time.
"Extended Use Period" shall mean. with respect to any building that is included in the
Project, the period that begins on the first day of the Compliance Period in which such huilding
is part of the Project and ends on thc later of: (i) thirty (30) years after the issuance of the final
tax credit allocation with respect to such building (which date is the date specified by the Agency
as provided in Section 42(h)(6)(D)(ii)(I) of the Code). or (ii) that number of years after the last
day of the Compliance Period for which the Owner shall have sct aside a specified numhcr of
units in the Project for Low -Income tenants. Notwithstanding anything to thc contrary
elsewhere in this Agreement. if the Owner has sct aside one or more units in thc Project for
Low -Income Tenants in perpetuity. i.c.. fifty (50) years. the Extended I.isc Period shall continue•
in perpetuity. i.e., fifty (50) wars.
• "Gross Rent" shall mean any amount paid by a tenant in connection with the occupancy
of a Residential Rental linit, plus the cost of any services that arc required to he paid by a tenant
as a condition for occupancy, plus the cost of any utilities, other than telephone, for such unit. if
any utilities (other than telephone) arc paid directly by thc tenant, "gross rent," also includes a
utility allowance determined as set forth in this paragraph. "Gross Rent" does not include any
payment under Section 8 of the l lnited States Housing Act of 1937 or any comparable rental
assistance program with respect to such Residential Rental knit or to the occupants thereof. or
any fcc for supportive service that is paid to the owner of thc unit on the basis of the low income
status of the tenant of such Rcsidcntial Rental Unit by any governmental program of assistance
or by any tax-exempt organization if such program or organization provides assistance for rent
and thc amount of assistance provided for rent is not separable from the amount of assistance
provided for supportive services within thc meaning of Section 42(g)(2)([3) of the Code. For
purposes of the foregoing, the allowable utility allowance is: (i) the United States Department of
i lousing and Urban Development ("HUD") utility allowances (except as provided in clause (iv)
hereof) in the case of a huilding whose rents and utility allowances arc reviewed by !IUD on an
annual basis; (ii) the applicable Public 'lousing Authority ("PHA") utility allowances established
for the Section 8 Existing Housing Program (except as provided in clause (iv) hereof) in the
case of a huilding occupied by one or more tenants receiving HIID rental assistance payments
("HUD 1D Tenant Assistance"); (iii) in the case of a huilding for which there is neither !IUD Tenant
Assistance, nor an applicable 'IUD or RECD utility allowance, the applicable PI IA utility
allowance: however, utility allowances based on estimates from local utility providers certifying
thc estimated costs of all covered utilities for units of comparable size and construction in the
county where the huilding is located, determined in accordance with Internal Revenue Service
Notice 89-6, may he obtained. in which case those estimates shall apply to all units of similar
size and construction in the huilding; or (iv) the applicable RECD utility allowance in the case of
any Rent -Restricted Unit in a huilding where either thc huilding receives RECD housing
assistance (including a huilding that is 111iD-regulated) or any tenant receives RECD housing
2 :17471?t3429
assistance (including any Low-income Tenant rccciving HUD Tenant Assistance who resides in
a building where the building or any othcr tenant receives RECD housing assistance)..
"Low -Income Tenants" shall mean individuals whose income is fifty percent (50%) or
less of arca median gross incomc (adjusted for family size) for twenty percent (20%) of the total
units and sixty percent (60%) or icss of arca median gross income (adjusted for family size) for
an additional sixty percenet (60%) of the total units within the meaning of Section 42(g)( I) of the
Code, as the same may he amended from time to time (but only to the extent such amendments
apply to the Project). In no event, however. shall occupants of a unit be considered to be of low
income if all the occupants arc students (as defined in Section 151(c)(4) of the Code. but
excluding from such definition the following: (x) single parents who are students with all
children also being students and the household receives AFDC payments, (y) if the students arc
enrolled in certain federal. state or local job training programs and arc considered lower income.
or (z) for projects receiving credit allocations after June 30. 1992. a housing unit occupied
exclusively by full-time students may qualify as lower income if the students arc a single parent
and his/her minor children and none of the tenants arc a dependent of a third party.
"Low -Income Urtit" shall mean any unit in a building if: (i) thc unit is a Rent -Restricted
Unit satisfying the requirements of Section 2 hereof. and (ii) the individuals occupying the unit
arc Low -Income Tenants (or thc unit is held available for rental to Low -Income Tenants if
previously rented to and occupied by Low-income Tenants) as set forth in Section 3(a) hereof.
"Monitoring Aunt" shall mean any monitoring agen( appointed by the Agency.
"Owner" shall mean OI.YMPIA RESiDENTIAL BUILDING PARTNERS. LTD.. a
Florida limited partnership and its successors and assigns as permitted under Section 4 of this
Agreement.
"Rehabilitation Expenditures" shall mean those amounts chargeable to the capital
account and incurred with respect to depreciable property or improvements in connection with
the rehabilitation of a building. but shall exclude thc cost of acquisition of such building (or any
interest therein) and such othcr amounts as arc excluded pursuant to Section 42(e) of the Code.
"Related Person" to a person shall mean a relationship such that the "related person"
bears a relationship to such person specified in Section 267(b) or Section 707(b)(1) of the Code.
or the related person and such person arc engaged in trades or businesses under common control
within the meaning of Section 52(a)-(b) of the Code. except that for purposes hereof, thc phrase
"10 percent" shall he substituted for the phrase "50 percent" in applying Section 267(b) and
Section 707(b)(1).
"Rent -Restricted Unit" shall mean a Residential Rental Unit where the Gross Rent with
respect to such unit does not exceed thirty percent (30%) of the imputed incomc limitation
applicable to such unit (or such higher limitation as provided by Section 42(g)(2)(E) of the
Code). For purposes of thc foregoing, the imputed incomc limitation applicable to a Residential
Rental Unit is the incomc limitation set forth for Low -Income or Very Low-income Tenants
occupying the unit if the number of individuals occupying the unit are (x) one (1) individual, in
the case of a unit that does not have a separate bedroom, and (y) one and one-half (1.5)
individuals for each separate bedroom. in the case of a unit that has one or more separate
bedrooms.
"ResidcntialRental Units" shall mean dwelling units made available for rental. and not
ownership, by Low-income Tenants and members of the general public, each of which units shall
contain complete living facilities that are to be used other than on a transient basis together with
facilities that arc functionally related or subordinate to the living facilities. The units shall at all
times be constructed and maintained in substantial accordance with thc applicable building code
standards of the County. For purposes of the foregoing, a unit that contains sleeping
accommodations and kitchen and bathroom facilities and that is located in a building used
exclusively to facilitate the transition of homeless individuals to independent living and in which
a governmental entity or qualified nonprofit organization provides such individuals with
temporary housing and supportive services designed to assist such individuals in locating and
retaining permanent housing shall not he deemed to be a unit occupied on a transient basis within
thc meaning hereof.
"Very Low -Income Tenants" shall mcan, with respect to the Owner's satisfying its
commitments set forth in its Low-income Housing Tax Credit Application to the Agency,
individuals whose income is forty percent (40%) or Less of arca median gross income (adjusted
for family size) as determined in a manner consistent with Section 42(g)(1) of the Codc. as the
same may he amended from time to time (but only to the extent such amendments apply to the
Project). In no event, however. shall occupants of a unit be considered to be of low income if all
thc occupants arc students (as defined in Section 151(c)(4) of the Code, hut excluding from such
definition thc following: (x) single parents who arc students with all children also being students
and the household receives AFDC payments, (y) if the students arc enrolled in certain federal,
state or local job training programs and are considered lower income, or (z) for projects receiving
credit allocations after June 30. 1992. a housing unit occupied exclusively by full-time students
may qualify as lower income if the students are a single parent and his/her minor children and
none of the tenants arc a dependent of a third party.
(h) All capitalized words and terms herein which arc not otherwise defined herein shall
have the same meanings ascribed to them in Section 42 of the Code or in Treasury Regulations
thereunder.
(c) The terms and phrases used in the Recitals of this Agreement have been included for
convenience of reference only. in the meaning, construction and interpretation of all such terms
and phrases shall be determined by reference to this Section 1. The titles and headings in this
Agreement have been inserted for convenience of reference only and shall he deemed to modify
and restrict any other provisions of this Agreement.
(d) Unless the context clearly requires otherwise, words of masculine, feminine or neuter
gender, as the case may be, shall be construed as including thc other genders, and words of the
singular number shall be construed to include the plural number, and vice versa. This Agreement
f `.17471P 2'1
P.t,�.
and all of thc terms and provisions hereof shall be construed to effectuate the purposes set forth
in this Agreement and to sustain the validity hereof.
Section 2. 9ualified Low-lncomc Housing_Project. The Agency and the Owner hereby
declare their understanding and intent that, during the Extended Use Period, the Project is to he
owned, managed, and operated as a qualified low-income housing project as such phrase is
defined in Section 42(g) of the Code. To that end, the Owner hereby represents, covenants and
agrees as follows:
(a) That thc Project is being rehabilitated for purposes of providing a qualified
low-income housing project, and the Owncr shall own, manage and operate the Project as a
qualified low-income housing project all in accordance with Section 42 of the Code; and
(b) That all of the Residential Rental Units in the Project shall be similarly constructed
and each such unit shall contain complete facilities for living, sleeping, eating, cooking and
sanitation for at least a single individual or a family; provided, however, that a unit that contains
Sleeping accommodations and kitchen and bathroom facilities and that is located in a building
used exclusively to facilitate the transition of homeless individuals to independent living and in
which a governmental entity or a qualified nonprofit organization provides such individuals with
temporary housing and supportive services designed to assist such individuals in locating and
retaining permanent housing shall not be deemed to he a unit occupied on a transient basis within
the meaning of this Section 2(h); and
(c) That, during the Extended Usc Period, nonc of the Residential Rental Units in thc
Project shall at any time be utilized on a transient basis; except as provided in this Section 2(c),
none of the Residential Rental Units in the Project shall ever be leased or rented for an initial
period of less than one hundred eighty (180) days; and neither the Project nor any portion thereof`
shall ever he used as a hotel, motel, dormitory, fraternity house, sorority house, rooming house,
hospital, sanitarium, nursing home, rest home, trailer court or trailer park, or health club or
recreational facility (other than recreational facilities that arc available only to tenants and their
guests without charge for their use and that are customarily found in multi -family rental housing
projects); provided, however, that a single -room occupancy unit shall not be treated as used on a
transient basis merely because it is rented on a month -to -month basis: and provided, further. that
a unit that contains sleeping accommodations and kitchen and bathroom facilities and that is
located in a building used exclusively to facilitate the transition of homeless individuals to
independent living and in which a governmental cntity or a qualified nonprofit organization
provides such individuals with temporary housing and supportive services designed to assist such
individuals in locating and retaining permanent housing shall not he deemed to he a unit
occupied on a transient basis within the meaning of this Section 2(c); and
(d) That, during the Extended Usc Period, the Residential Rental Units in the Project shall
he leased and rented, or made available for rental on a continuous basis, to members of the
general public; and the Owner shall not give preference in renting Residential Rental Units in the
Project to any particular class or group of persons, other than Low -Income Tenants or Very
Low -Income Tenants as provided in this Agreement; and
(e) That the Project shall consist of one (I) or more discrete edifices or other man-made
construction, each consisting of an independent foundation, outcr walls and roof, and containing
four (4) or more Residential Rental Units and functionally -related facilities, all of which shall be:
(x) owned by the same person for federal tax purposes; (y) located on a common tract of land or
two (2) or more contiguous tracts of land; provided, however, that separate tracts of land that are
separated only by a road, street, stream or similar property shall for purposes hereof be deemed
to be contiguous; and (z) financed pursuant to a common plan of financing, and which shall
consist entirely of:
(1) One (1) residential building comprised of seventy-nine (79) residential
units, consisting of seventy-two (72) efficiency units comprising 440
square feet each and seven (7) one -bedroom, one -bath units comprising
540 square feet each; and
(2) Residential Rental Units which are similar in quality and type of
construction and which will include the following amenities: stove tops,
refrigerators, carpet, vinyl, window coverings, energy features, microwave
ovens, garbage disposals and air conditioning; and
(3) Facilities functionally related and subordinate in purpose and size to the
property described in Section 2(e)(2) above, which will include security
features, a recreation facility for older children, a sundeck and a
community room (none of which may be unavailable to any person
because such person is a Low -or Very Low -Income Tenant).and other
facilities that arc reasonably required for the Project.
(f) That, during the Extended Use Period, the Owner shall provide the following tenant
programs: counseling, educational courses, meals and tenant activities, and will offer financial
incentives to tenants wishing to move into home ownership; and
(g) That, during the Extended Use Period, the Project shall not include a unit in a
building where all Residential Rental Units in such building are not also included in the Project;
and
(h) That, during the Compliance Period, the Owner shall not convert the Project to
condominium ownership; and
(i) That, during the Compliance Period, no part of the Project shall at any time be owned
or used by a cooperative housing corporation; and
(j) That, during the Extended Use Period, no unit in the Project shall be occupied by the
Owner or a Related Person to the Owner at any time (x) unless such person resides in a unit in a
building or structure which contains at least five (5) Residential Rental Units, or (y) except as
provided in Section 42(i)(3)(E) of the Code; and
E r:17471r 3433
(k) That, during the Extended Use Period, Owner shall not refuse to lease a unit to a
holder of a voucher or certificate of eligibility under.Section 8 of the United States Housing Act
of 19 37 because of the status of the prospective tenant as such a holder.
(l) That, within a twenty-four (24) month period, the Owner shall incur Rehabilitation
Expenditures allocable to or that substantially benefit Low -Income Units in such building in an
amount that is not Icss than the greater of (x) ten percent (10%) of the adjusted basis of the
building as of the first day of such period, or (y) S3,000 per Low -Income Unit in such building.
(m) That the Owner shall not discriminate on thc basis of age, race. creed, religion, color,
sex, marital status, family status, handicap or national origin in the lease, use or occupancy of the
Project or in connection with the employment or application for employment of persons for the
operation and management of thc Project; provided, however. that nothing herein shall be
deemed to preclude thc Owner from discrimination based on income in renting Residential
Rental Units set aside for Low -Income Tenants or for Vcry Low -Income Tenants in compliance .
with the requirements of the Code; and
(n) That the Owner shall submit the certificate with respect to thc first year of the Credit
Period and such annual reports to the Secretary of the Treasury as required by Sections 42(1)(1)
and (1)(2) of the Codc and deliver a copy thereof to thc Agency and to the Monitoring Agent, and
shall submit such information to the Agency as the Agency may request in ordcr for the Agency
to comply with Section 42(1)(3) of the Codc and for the Agency to monitor thc Owner's
compliance with Section 42 of the Code, the Agency's rules and regulations codified at Florida
Administrative Codc. Chapter 91-33. and the provisions of the Agreement; and
(o) That, during the Extended Use Period. the Owner shall comply with the following
commitments that were the basis of the Agency's competitive scoring and ranking of thc Owner's
application for Tax Credits in satisfaction of the Agency's responsibilities under Section 42(n) of
the Code. and as required by the Agency's rules and regulations implementing such
responsibilities. Florida Administrative Code, Rule 91-33.010(1):
(i) Notwithstanding Section 3(a) below to the contrary, commencing with the
issuance of the first certificate of occupancy for any building included in thc Project, at least one -
hundred percent (100%) of the occupied and completed Residential Rental Units included in the
Project shall be occupied by and rented to Low- and Very Low -Income Tenants or held available
for rental to Low- and Very Low -Income Tenants.
(ii) In addition to the requirements set forth in Section 2(o)(i) above and in
Section 3(a) below. commencing with the issuance of the first certificate of occupancy for any
building included in the Project, at least twenty percent (20%) of_the occupied and completed
Residential Rental Units included in the Project shall be occupied by and rented to persons with
incomes which do not exceed forty percent (40%) of the arca median income (adjusted for family
size), at least twenty percent (20%) of the occupied and completed Residential Rental Units
included in the Project shall he occupied by and rented to persons with incomes which do not
exceed fitly percent (50%) of the area median income (adjusted for family size), and at least sixty
nrr,17471pf3434
Y,1.�..
percent (60%) of the occupied and completed Residential Rental Units included in the Project
shall be occupied by and rented to persons with incomes which do not exceed sixty percent
(60%) of the arca median income (adjusted for family size).
(iii) For purposes of complying with the requirements set forth in Section 2(o)(i)
and (ii) above, if the income of an individual or family resident in a Residential Rental Unit did
not exceed the applicable incomc limit (adjusted for family size) at the commencement of such
resident's occupancy, the income of such individual or family shall be treated as continuing to
not exceed the applicable income limit as long as such Residential Rental Unit remains a
Rent -Restricted Unit. The preceding sentence shall cease to apply to any individual or family
whose income. as of the most recent determination, exceeds one -hundred -forty percent (140%)
of the applicable income limit (adjusted for family size), if after such determination, but before
the next incomc determination, any Residential Rental Unit of comparable or smaller size in the
building is occupied by a new individual or family resident whose income exceeds thc applicable
income limit (adjusted for family size) for Low -Income Tenants or Very Low -Income Tenants,
as the case may he.
(iv) The Owner shall obtain from each Low -Income Tenant and Very
Low -Income Tenant and maintain on file an Income Certification pursuant to the requirements
and procedures found in the Low -Income Rental Housing Tax Credit Compliance Manual
immediately prior to the initial occupancy of a Residential Rental Unit in the Project by such
tcnant. The Owner shall also obtain. at least annually thereafter. and maintain on file an Income
Certification from each Low -Income Tenant and Very Low -Income Tenant (and from each
tenant whose income is treated as continuing not to exceed the applicable income limit as
provided in Section 2(o)(i) and (ii) above) to determine whether the then current income of such
tenants (or such tenants whose income is treated as continuing not to exceed the applicable
income limit as provided in Section 2(o)(i) and (ii) above) residing in the Project exceed the
applicable income limits, adjusted for family size. In addition, the Owner shall require each
Low-income Tenant and Very Low -Income Tenant (or tenant whose income is treated as
continuing not to exceed the applicable income limit as provided in Section 2(o)(i) and (ii)
above) to notify the Owner of any material change of information in his, her or their. as the case
may he, most recent Income Certification. The Income Certification shall he in the form and
contain such information as may be required by the policies of the Agency. as thc same may be,
from time to time, amended by the Agency on the advice of Counsel. For all projects receiving
Tax Credit allocations since January 1, 1987, the Owner shall submit Program Reports. Recap of
Tenant Income Certification information and Annual Owner Compliance Certification annually
throughout thc Compliance Period. The initial reports shall be submitted to the Agency not later
than thirty (30) days after final allocation is madc. Subsequent reports shall be submitted to the
Agency annually on a date assigned by the Agency. In addition, the Owner shall submit the
Program Report, Recap of Tenant Income Certification Information and copies of Tenant income
Certification for at least ten percent (10%) of the lower -income units in the project to the
monitoring agency annually. Additional reports and information shall he submitted to the
Agency at such other times as the Agency may, in its sole discretion, request.
(v) Thc Owner shall maintain complete and accurate records pertaining to the
Residential Rental Units occupied by and rented to (or held available for rental to) Low -Income
Tenants and Very Low -Income Tenants for at least six (6) years following the indicated date of
each such record and shall permit any duly authorized representative of the Agency or the
Monitoring Agent, to inspect the books and records of the Owner pertaining to the lncomc
Certifications and income substantiation materials of Low -Income Tenants and Very
Low -Income Tenants (and such tenants whose income is treated as continuing not to exceed the
applicable income limit as provided in Section 2(o)(i) and (ii) above) residing in the Project upon
reasonable notice and at reasonable times.
(vi) The Owner shall immediately notify the Agency and the Monitoring Agent if
at any time the Residential Rental Units in the Project arc not occupied or available for
occupancy as provided in Section 2(o)(i) and (ii) above.
Section 3. Low- and Very -Low -Income Tenants: Low- and Vea Low -Income f)njLs.
In order to satisfy the requirements of the Code. the Owner hereby represents, covenants and
agrees that. during the Extended Use Period:
(a) Not later than the close of the first (1st) year of the Credit Period for each building
included in the Project, at least forty percent (40%) of the occupied and completed Residential
Rental Units included in the Project shall be both Rent -Restricted Units and rented to and
occupied by Low -Income Tenants, and after the initial rental occupancy of such Residential
Rental Units by Low -Income Tenants. at least forty percent (40%) of the completed Residential
Rental Units in the Project at all times shall he both Rent -Restricted Units and rented to and
occupied by (or held available for rental to, if previously rented to and occupied by a
Low -Income Tenant) Low -Income Tenants as required by Section 42(g)(1) of the Code. At least
one -hundred percent (100%) of the dwelling units must be occupied and rented to Low- and Very
Low -Income persons. Not Tess than twenty percent (20%) of the units in the project shall he
leased, rented or made available on a continuous basis to persons or households whose incomes
are forty percent (40%) or less of the arca median income (adjusted for family size), not less than
twenty percent (20%) of the remaining units in the project shall be leased, rented or made
available on a continuous basis to persons or households whose incomes are fifty percent (50%)
or less of the area median income (adjusted for family size)and the remaining sixty percent
(60%) of the units in the project shall be leased, rented or made available on a continuous basis
to persons or households whose incomes arc sixty percent (60%) or Tess of the area median
income (adjusted for family size), as determined by HUD. The gross monthly rents for all units
shall not exceed thirty percent (30%) of the imputed income limitation applicable to such unit as
defined in Section 1(a).
For purposes of complying with the foregoing requirements. if (x) the income of an
individual or family resident in a Rent -Restricted Unit did not exceed the applicable income limit
(adjusted for family size) at the commencement of such resident's occupancy and (y) such unit
continues to be a Rent -Restricted Unit, the income of such individual or family shall be treated as
continuing to not exceed the applicable income limit. The preceding sentence shall cease to
apply to any individual or family whose income, as of the most recent determination. exceeds
Nt�_,i:17471n3436
one hundred forty percent (140%) of the applicable income limit (adjusted for family size) if.
after such determination. but before the next income determination, any Residential Rental Unit
of comparable or smaller size in the building is occupied by a new individual or family resident
whose income exceeds thc applicable incomc limit (adjusted for family size).
(h) During each taxable year in thc Extended Use Period. the applicable fraction (as such
term is defined in Section 42(c)(B) and is used in Scction 42(h)(6) of Code) shall not he Tess than
the smaller of: (i) the unit fraction or (ii) thc floor space fraction (as such terms arc defined in
Sections 42(c) of thc Codc).
(c) The Owner shall not evict or terminate the tenancy of any tenant (including any
tenant whose incomc is treated as continuing not to exceed the applicable income limit as
provided in Section 3(a) above) of any Low -Income Unit in thc Project, other than for good
cause. or increase thc Gross Rent with respect to such Low-income Units in excess of the amount
allowable as Rent -Restricted Units.
(d) The Owner shall obtain from each Low -Income Tenant and Very Low -Income
Tenant and maintain on file an lncomc Certification pursuant to the requirements and procedures
found in thc Low-lncomc Rental Housing Tax Credit Compliance Manual immediately prior to
the initial occupancy of a dwelling unit in the Project by such Low -Income Tenant and Very
Low -Income Tenant. The Owner shall also obtain, at least annually thereafter, and maintain on
file an Income Certification from each Low -Income Tenant and Very Low -Income Tenant (and
. from each tenant whose income is treated as continuing not to exceed the applicable income limit
as provided in Section 3(a) above) to determine whether the then current income of such
Low -Income Tenants or Very Low -Income Tenants (or such tenants whose incomes are treated
as continuing not to exceed the applicable income limit as provided in Section 3(a) above)
residing in the Project exceed the applicable income limits, adjusted for family size. In addition.
the Owner shall require each Low -Income Tenant and Very Low -Income Tenant (or tenant
whose income is treated as continuing not to exceed the applicable income limit as provided in
Section 3(a) above) to notify thc Owner of any material change of information in his. her or their,
as the case may be. most recent Income Certification. The Income Certification shall he in the
form and contain such information as may he required by the Code and the policies of the
Agency, as the same may he from time to time amended by thc Agency on thc advice of Counsel.
or in such other form and manner as may he required by applicable rules, rulings, procedures.
official statements. regulations or policies now or hereafter promulgated or proposed by the
Department of the Treasury or the Internal Revenue Service with respect to Tax Credits. For all
projects receiving Tax Credit allocations since January I, 1987, the Owner shall submit Program
Reports. Recap of Tenant Income Certification Information and Annual Owner Compliance
Certification annually throughout the Compliance Period. The initial reports shall be submitted
to the Agency not later than thirty (30) days after final allocation is made. Subsequent reports
shall be submitted to the Agency annually on a date assigned by the Agency. In addition. the
Owner shall submit the Program Report, Recap of Tenant lncomc Certification Information and
copies of 'tenant lncomc Certification for at least ten percent (.I0%) of the lower -income units in
the project to the monitoring agency annually. Additional reports and information shall he
submitted to the Agency at such other times as the Agency may. in its sole discretion, request.
FE`.1747irrt3437
u,
(c) The Owner shall maintain complete and accurate records pertaining to the
Low -Income Units and Vcry Low-income Units for at least six (6) years following the indicated
date of each such record and shall permit any duly authorized representative of the Agency. the
Monitoring Agent, the Department of the Treasury or the Internal Revenue Service to inspect the
hooks and records of the Owner pertaining to the Income Certifications and income
substantiation materials of Low -Income Tenants (and such tenants whose income is treated as
continuing not to exceed thc applicable income limit as provided in Section 3(a) above) residing
in thc Project upon reasonable notice and at reasonable times.
(f) The Owner shall immediately notify the Agency and the Monitoring Agent if at any
time the Residential Rental Units in the Project arc not occupied or available for occupancy as
provided in Section 3(a) above.
(g) Notwithstanding anything elsewhere in the Agreement, the Owner undertakes, agrees
and covenants that the Extended Use Period shall continue for perpetuity, i.e., fifty (50) years, so
that its obligation to sct aside thc one -hundred percent (100%) of the Rent Restricted Units for
Low -Income Tenants or Vcry Low -Income Tenants shall likewise continue for perpetuity, i.e.,
fifty (50) years.
Section 4. Sale. Lease or Transfer of the Project or anv Buildinn.
(a) The Owner shall not cntcr into a sale, lease, exchange, assignment, conveyance.
transfer or other disposition (collectively. a "Disposition") of the Project or any building in the
Project: (i) unless such Disposition is of all of a building in the Project. and (ii) without prior
written notice to the Secretary of the Treasury and to the Agency, and the compliance with all
rules and regulations of the Department of the Treasury and the Agency applicable to such
Disposition. The Owner shall notify the Agency in writing of the name and address of the person
to whom any Disposition has been made within fourteen (14) days after thc date thereof. It is
hereby expressly stipulated and agreed that any Disposition of the Project or of any building in
the Project by the Owner in violation of this Section 4 shall he null, void and without effect, shall
cause a reversion of title to the transferor Owner. and shall be ineffective to relieve the Owner of
its obligations under this Agreement. Thc Owner shall include, verbatim or by incorporation by
reference, all requirements and restrictions contained in this Agreement in any deed or other
documents transferring any interest in the Project or in any building in the Project to any other
person or entity to the end that such transferee has notice of and is bound by such restrictions,
and shall obtain the express written assumption of this Agreement by any such transferee.
(b) The restrictions contained in Section 4(a) shall not he applicable to any of the
following: (1) any transfer pursuant to or in licu of a foreclosure or any exercise of remedies
(including, without limitation, foreclosure) under any mortgage on thc Project; provided,
however, that neither the Owner nor any Related Person to the Owner shall acquire any interest
in the Project during the remainder of the Extended Use Period; (2) any sale, transfer,
assignment, encumbrance or addition of limited partnership interests in the Owner; (3) grants of
utility -related easements and governmental casements, shown on thc title policy approved by the
Agency and any other casement and use agreements which may he consented to by thc Agency
SFnrr,
r,17471F 3438
and service -related leases or casements. such as laundry service leases or television cable
easements, over portions of the Project; provided, however, the same are granted in the ordinary
course of business in connection with the operation of the Project as contemplated by this
Agreement; (4) leases of apartment units to tenants. including Very Low -Income Tenants, in
accordance with this Agreement; (5) any sale or conveyance to a condemning governmental
authority as a direct result of a condemnation or a governmental taking or a threat thereof; (6) the
placing of a subordinate mortgage lien, assignment of leases and rents or security interests on or
pertaining to the Project if made expressly subject and subordinate to this Agreement; or (7) any
change in allocations or preferred return of capital, depreciation or losses or any final adjustment
in capital accounts (all of which may, be freely transferred or adjusted by Owner pursuant to
Owner's partnership agreement).
Section 5. Project Within Agency's Jurisdiction. The Owner hereby represents and
warrants that each building in the Project shall be located entirely within the limits of the County.
(a) This Agreement shall become effective upon its execution and delivery, and shall
remain in full force and effect until the expiration of the Extended Use Period or except as
otherwise provided in this Section 6. Upon the termination of this Agreement, upon request of
any party hereto, the Agency and the Owner or any successor party hereto shall execute a
recordable document prepared by the Agency or its Counsel further evidencing such termination.
(b) The restrictions contained in Section 2 and Section 3 of this Agreement regarding thc
use and operation of the Project and of each building in the Project shall automatically terminate
in the event of involuntary noncompliance caused by fire. seizure. requisition, foreclosure or
transfer of title by deed in lieu of foreclosure to an entity other than the Owner or a Related
Person of thc Owner (except as may otherwise be determined by the Secretary of the Treasury).
change in a federal law or an action of a federal authority after the date hereof which prevents
compliance with the covenants expressed herein, or condemnation or similar event (as
determined by the Agency upon the advice of Counsel). In such event, upon the request and at
the expense of the Owner, the parties hereto shall execute an appropriate document in recordable
form prepared by the Agency or its Counsel to evidence such automatic termination. This
Section 6(b) shall not apply (and thc restrictions contained in Sections 2 and 3 shall thereafter
apply) to the Project in the event that, subsequent to any involuntary noncompliance as described
in this Section 6(b) but prior to the expiration of the Extended Use Period, (x) a Related Person
to the Owner obtains an ownership interest in the Project for lax purposes, or (y) the Secretary of
the Treasury determines that such foreclosure or transfer of title by deed in lieu of foreclosure is
part of an arrangement to terminate this Agreement.
(c) The restrictions contained in Section 2 and Section 3 of this Agreement regarding the
use and operation of the Project and of each building in the Project shall remain in perpetuity,
i.e., fifty (50) years.
eEr.1 f 471Pfv4N
(d) Notwithstanding the termination of the restrictions contained in Section 2 and Section
3 prior to the expiration of the Extended Use Period, the Owner (including any successor or
assignee of the Owner) shall not, prior to the end of the three (3) year period following such
termination: (i) evict or terminate the tenancy of any existing tenant (including any tenant
whose income is treated as continuing not to exceed thc applicable income limit as provided in
Section 3(a) above) of any Low -Income Unit or Very Low -Income Unit, other than for good
cause, or (ii) increase the Gross Rent with respect to such Low -Income Units or Very
Low -Income Units in excess of the amounts allowable as Rent -Restricted Units.
(c) Notwithstanding any other provisions of this Agreement, this entire Agreement, or
any of the provisions or sections hereof, may be terminated upon agreement by the Agency and
the Owner if there shall have been received an opinion of Counsel to the Agency that such
termination is permitted under Section 42 of the Codc.
Section 7. Indemnification. The Ownerhercby covenants and agrees to indemnify and
hold the State, the Agency and the Monitoring Agent, and their respective members, directors,
officers, employees, attorneys, agents and representatives (any or all of the foregoing collectively
referred to as the "Indemnified Persons") harmless from and against any and all losses, damages,
judgments (including specifically punitive damage awards), arbitration awards, amounts paid in
settlements. costs and expenses and liabilities of whatsoever nature or kind (including. but not
limited to, reasonable attorneys' fees, whether or not suit is brought and whether incurred in
connection with settlement negotiations, investigations of claims, at trial. on appeal, in
bankruptcy or other creditors' proceedings or otherwise, expert witness fees and expenses and
court costs) directly or indirectly resulting from, arising out of or in connection with any act or
omission to act by the Owner or any of its partners, directors, officers, employees, attorneys or
agents or other persons under direct contract to the Owner or acting on its behalf, resulting from,
arising out of or relating to: (i) the granting of (or failure to grant) any low-income housing tax
credits. (ii) the interpretation or enforcement of any provision of this Agreement (including but
not limited to any action by any tenant to enforce the provisions hereof), (iii) any written
statements or representations made or given by the Owner or by any partner, director. officer,
employee, attorney or agent of the Owner or by any person under direct contract to the Owner or
acting on the Owner's behalf to any person to whom the Owner sells or offers to sell any interest
in low-income housing tax credits, or (iv) the design, construction, installation, operation. use,
occupancy, maintenance or ownership of the Project.
Each Indemnified Person will promptly, and after notice to -such Indemnified Person
(notice to the Indemnified Persons being serviced with respect to the filing of an illegal action,
receipt of any claim in writing or similar form of actual notice) of any claim as to which he
asserts a right to indemnification, notify the Owner of such claim. Each Indemnified Person will
provide notice to the Owner promptly, but in no event later than seven (7) days following his
receipts of a filing relating to a legal action or thirty (30) days following his receipt of
any such other claim.
If any claim for indemnification by one or more indemnified Persons arises out of a claim
for monetary damages by a person other than thc Indemnified Persons, the Owner shall undertake
qFrl)FF .1 4?1Q
to conduct any proceedings or negotiations in connection therewith which arc necessary to
defend thc Indemnified Persons and shall take all such steps or proceedings as the Owner in good
faith deems necessary to settle or defeat any such claims, and to employ counsel to contest any
such claims: provided, however. that thc Owner shall reasonably consider the advice of the
indemnified Persons as to the defense of such claims, and the Indemnified Persons shall have the
right to participate, at their own expense, in such defense, but control of such litigation and
settlement shall remain with the Owner. The Indemnified Persons shall provide all reasonable
cooperation in connection with any such defense by the Owner. Counsel (except as provided
above) and auditor fees, filing fees and court fees of all proceedings. contests or lawsuits with
respect to any such claim or asserted liability shall be borne by the Owner. if any such claim is
made hereunder and the Owner does not undertake the defense thereof, the Indemnified Persons
shall be entitled to control such litigation and settlement and shall be entitled to indemnity for all
costs and expenses incurred in connection therewith pursuant to the terms of this Section 7. To
the extent that the Owner undertakes the defense of such claim, the indemnified Persons shall be
entitled to indcmnity hereunder only to the extent that such defense is unsuccessful as determined
by a final judgment of a court of competent jurisdiction. or by written acknowledgment of the
parties. The Owner reserves the right to appeal any judgment rendered.
Section 8. Reliance. The Agency and the Owner hereby recognize and agree that the
representations and covenants set forth herein may be relied upon by all persons interested in the
legality and validity of the Owner's use of the Tax Credits. In performing their duties and
obligations hereunder, the Agency may rely upon statements and certificates of the Owner and
Low-income Tenants believed in good faith to he genuine and to have been executed by the
proper person or persons. and upon audits of the books and records of the Owner pertaining to
occupancy of the Project. No interlincation or manual alteration to the typed version of this
Agreement shall be permitted unless initialed by all parties to the Agreement. in addition, thc
Agency may consult with counsel. and thc opinion of such counsel shall be full and complete
authorization and protection with respect to any action taken or suffered by the Agency
hereunder in good faith and in conformity with the opinion of such counsel. The Owner shall
reimburse the Agency for reasonable attorneys' fees and expenses incurred in obtaining the
opinion of such counsel. in performing its duties and obligations hereunder, the Owner may rely
upon certificates of Low-income Tenants reasonably believed to he genuine and to have been
executed by the proper person or persons. The Owner may rely on the rules, regulations,
guidelines and policies of the Agency, the Department of the Treasury, and upon reasonable
interpretations of the same.
Section 9. Enforcement by the Agency and by Tenants. If the Owner defaults in the
performance of its obligations under this Agreement or breaches any covenant, agreement or
warranty of the Owner set forth in this Agreement, and if such default or breach remains uncured
for a period of sixty (60) days (or ninety (90) days for any default not caused by a violation of
Section 2 or 3 hereof) after written notice thereof shall have been given by the Agency to the
Owner (or for an extended period approved in writing by Agency Counsel (x) if such default or
breach stated in such notice can be corrected, hut not within such sixty (60) day (or ninety (90)
day) period, and (y) if the Owner commences such correction within such sixty (60) day (or
ninety (90) day) period and thereafter diligently pursues the same to completion within such
extended period), then the Agency shall give notice of such default or breach to thc Internal
Revenue Service and may terminate all rights of the Owner under this Agreement, and the
Agency may take whatever other action at law or in equity or otherwise, whether for specific
performance of any covenant in this Agreement or such other remedy as may be deemed most
effectual by the Agency to enforce the obligations of the Owner under this Agreement.
Notwithstanding any of the foregoing, the Agency shall have the right to seek specific
performance of any of the covenants, agreements and requirements of this Agreement concerning
the construction and operation of the Project and any person who satisfies the income limitations
applicable to Low -Income Tenants hereunder (whether prospective, present or former occupants
of any Residential Rental Unit in any building included in the Project, including any tenant
whose income is treated as continuing not to exceed the applicable income limit as provided in
Section 3(a) above) shall separately have the right to seek specific performance and otherwise
enforce the requirements of Section 3(b) and Section 3(c) with respect to such building that is
part of the Project.
The owner must obtain thc Agency's approval of the management company selected to
manage the project. The Agency must be advised of any change in the owner's selection of a
management company, and the company must be approved by the Agency prior to the firm
assuming responsibility for the project.
The Agency shall have the right to require the Owner to remove any Manager or
Managing Agent who does not require compliance with this Agreement upon such Manager's or
Managing Agent's being given thirty (30) days' written notice of a violation, and such right shall
be expressly acknowledged in any contract between the Owner and any Manager or Managing
Agent.
The Agency shall have the right to enforce this Agreement and require curing of defaults
in shorter periods than specified above if Agency Counsel makes a reasonable determination that
such shorter periods are necessary to comply with Section 42 of the Code.
Section 10. Recording and Filing: Covenants to Runiyith the Land.
(a) Upon execution and delivery by the parties hereto, the Owner shall cause this
Agreement and all amendments and supplements hereto to be recorded and filed in the official
public records of the County in such manner and in such other places as the Agency may
reasonably request and shall pay all fees and charges incurred in connection therewith.
(b) This Agreement and the covenants herein shall run with the land and shall bind, and
the benefits shall inure to, respectively, the Owner and the Agency and their respective
successors and assigns during the term of this Agreement.
(c) Upon reasonable notice, if there has been no event of default under this Agreement,
the Agency shall furnish to the Owner a statement in writing certifying that thc Agreement is not
in default.
EE�FfC..17471 3442
Owner and the Agency shall execute, deliver and, if applicable, the of record any and all
documents and instruments necessary in the reasonable opinion of Counsel to the Agency to be
in compliance with the provisions of Section 42 and all other provisions of the Code and Florida
law relating to Tax Credits.
Section 12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
Section 13. JVotice. Any notice required to be given hereunder shall be given by
personal delivery, by registered or certified U.S. Mail or by expedited delivery service at the
address as specified below or at such other addresses as may be specified by notice to the other
parties hereto, and any such notice shall be deemed received on the date of delivery, if by
personal delivery or expedited delivery service, or upon actual receipt if sent by registered or
certified U.S. Mail:
Agency:
Owner:
FLORIDA HOUSING FINANCE AGENCY
227 North Bronough Street, Suite 5000
Tallahassee, Florida 32301-3129
Attn: Susan J. Leigh
Executive Director
OLYMPIA RESIDENTIAL BUILDING PARTNERS, LTD.
2121 Ponce de Leon Boulevard, Suite 650
Coral Gables, Florida 33134
Attn: Stuart I. Meyers
Section 14. Severability. If any provision of this Agreement shall be held by any court
of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be deemed
omitted from this Agreement and the validity, legality and enforceability of the remaining
portions of this Agreement shall remain in full force and effect, but such holding shall not affect
the validity, legality or enforceability of such provision under other, dissimilar facts or
circumstances.
Section 15. Multiple Counterpart4.. This Agreement may be simultaneously executed
in multiple counterparts, all of which shall constitute one and the same instrument and each of
which shall be deemed to be an original.
Section 16. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of each of the parties and their successors and assigns. but this provision shall not be
construed to permit assignment by the Owner without the written consent of the Agency.
(THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
2[r:.1'74713[3443
Section 16. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of each of the parties and their successors and assigns, but this provision shall not be
construed to permit assignment by the Owner without the written consent of the Agency.
(THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
18
SIGNATURE PAGE FOR
EXTENDED LOW-INCOME HOUSING AGREEMENT
IN WITNESS WHEREOF. the Agency and the Owner have executed this Agreement as
of the date first written above.
FLORIDA HOUSING FINANCE AGENCY. a
state agency and instrumentality
and a public body corporate and
politic duly existing under the
laws of the State of Florida
The foregoing instrument was executed and acknowledged before me this J(-4) day of
, 19 96,, by Susan J. Leigh as Executive Director and Secretary of the
FLO MOUSING FINANCE AGENCY, a state agency and instrumentality and a public
body corporate and politic duly existing under the laws of the State of Florida, on behalf of said
Agency. She is personally known to me and did not take an oath or affirmation.
Notary ublic
Printed Name: ,$E44] A. EIr-od
My Commission Expires: 3-/- /1
SIGNATURE PAGE FOR
EXTENDED LOW-INCOME HOUSING AGREEMENT
IN WITNESS WHEREOF, the Agency and the Owner have executed this Agreement as
of the date first written above.
01A40, ¢ denriai 6cvli.
Ae6i,r4 L'• . a
f=Larkia limited partnership.
By: F! a- cJ t 5/ -r rs �, one
of �iEx? general partners of
�L�Pt•u ��s-n��-i'f��A�-p
The foregoing instrument was executed and acknowledged before me this au day of
�CC�► r , 19 by Torte individually as one of
general partners of r - 'S j�{{ p1C; L+cf a
limited partnership. on behalfbf said partnership. He is personally known to
me or produced ay identification and did/did not take
an oath or affirmation. /
Notary Public
Printed Name: 6 /mac: Ile /4.l�C'ii-4
My Commission Expires:
(JI HCIA1. NOTARY SEAL
GISE1.LE M VIERA
NOTARY PUBLIC STATE OF FLORIDA
COMMISSION NO. CCa0Ei214
MY COMMISSION F.XP. SEPT 19,1998
STATE OF P.-ICY' OCA
COUNTY OF I�bi7�
The foregoing instrumen
ervI 19
general partners of
OrnP
limited partnership,
' me or produced
an oath or affirmation.
°Ec:1'7471rr` 446
xecuted and arc�knowledged before me this of
of
j^V indivi ually as one of
�!► j?ipLQ — ,a
on behalf of -aid partnership. He is personally known to
identification and did/did not take
17otary Public
Printed Name: GIs -cm 1, .kle r�
My Commission Expires:
21
OFFICIAL, NOTAKY SEAL.
GI5FL1 E Nt VIERA
1'.(^i\i'Y f'L'i'•:.'C GrATh OF FI.ORIDAi
. (.,. N11. `,l! : - NO. CC4O'211
51: i 19.E"•)F ;
2982-001-10439.01 (rev. 3-1-91)
"r-17171 r 3 '1
EC.
EXI-IIBIT "A"
LEGAL DESCRIPTION
22
1
PFF.i747:p�� 3
pEr„ �.i
EXHIBIT "A"
SUBLEASEHOLD ESTATE
Parcel 1:
Subleasehold estate pursuant to Sublease dated December
7, 1994, as amended on May 15, 1995, between Olympia
Building Partners, Ltd., a Florida limited partnership,
as Sublessor, and Olympia Residential Building Partners,
Ltd., a Florida limited partnership, as Sublessee,
subleasing the following described for a term of years
described therein:
Those portions (the "Residential Premises"), of the
building known as The Olympia Building (the "Building"),
as more particularly described below, located upon the
following described real property:
Lot 1, Lot 2 (less the West 2 inches of
the North 65 feet), the South 55 feet of
Lot 3 and the North 45 feet of Lots 18,
19 and 20, in Block 121 North, Map of
Miami, according to the Plat thereof, as
recorded in Plat Book "B", Page 41, of
the Public Records of Dade County,
Florida.
The Residential Premises comprise the following portions
of the Building:
(a)
Floor 3, which comprises 4,967 square feet as
follows:
(i) storage space for the Gusman Theater
which space comprises 568 square feet;
(ii) nine efficiency units; and
(,iii) corridors and support areas.
(b) Floors 4 and 5, each of which comprises 4,967
square feet as follows:
(i) eleven efficiency units; and
(ii) corridors and support areas.
(c) Floor 6, which comprises 4,967 square feet as
follows:
- t ., ,;. ,� L, ; r -•ur . �, ,! e i t +. i� }i�.qr• .''T-1,yyaa- t7:� �� r t
�'�S.`-.:�:%./i1ti��:L t�:1C: �¢� n.,_..�T.Y...._ Jl �. i... F...a%... LJJ. _N:: ,�.aC ��15.-�+�../.f.•�.L'!w s�! �! . V�J1�f.. 'YD4a.ca.' f. ��P �� .. .. .� ._ ,. ,:
storage space for the Gusman Theater,
space comprises 278 square feet;
leasing office space, which spas
comprises 212 square feet;
(d) Floors 7 through 10, each of which
square feet as follows:
Exterior envelope of the Building as follows:
i) North and east elevations along Flagler Street
and Second Avenue, respectively, which consist
of a terra-cotta band and the wood windows and
brick cladding; and
i) Roof platform, which consists of a one ply
rubberized system, a parapet wall, the
interior stair discharge to the roof, and an
enclosure that houses the elevator machinery.
NOTE: Support areas consist of fire stairs, exterior fire escape
stair, two elevator shafts, connecting corridors, laundry rooms at
floors 4, 6 and 8, electric rooms at floors 3, 5, 7, 9, and 10, and
a first floor lobby which will have access from Second Avenue. In
addition, all floors will contain a trash closet. A new fiberglass
cooling tower and a natural gas emergency generator will be located
at the roof level.
meCORDeD: QFFLCULRECORDSBCC*
OF CADE COUNTY. FLORTDA.
RECORD VERif LED
FiARVEY RUVIN
:a ORCIAT cou7r
FIRST AMENDMENT TO
EXTENDED LOW-INCOME HOUSINC►.AGREEMENT
This AMENDMENT is made and entered into this 1 tj day of .�%m rY , 19 9?
between FLORIDA HOUSING FINANCE AGENCY, a state agency and instrumentality and a
puhlic body corporate and politic duly existing under the law of the State of Florida (the
"Agency"), and OLYMPIA RESIDENTIAL, BUILDING PARTNERS, [: TD., a Florida limited
partnership (the "Developer").
WI'1NESSETEE:
WHEREAS, on December 20, 1996, that certain Extended [.ow -Income 1 Sousing
Agreement (the "Agreement") was executed between the Agency and Developer: and
WHEREAS, the Agreement was recorded in Official Records Book 17471, page 3426 of
the public records of Dade County, Florida; and
WHEREAS, the Agency has requested and Developer has agreed to amend the
Agreement as more particularly set forth hereinhelow.
NOW,'fEEEREFORE, for a good and valuable consideration, the receipt and sufficiency
of'which is hereby acknowledged, Agency and Developer agree as follows:
The foregoing recitations are true and correct and are hereby incorporated by
reference.
The Agreement is hereby modified to read as follows:
nits instrument prepared b5
Susan J. I,cagh
FLORIDA HOUSINCi FINAN(:1; AGENCY
227 North Ftronough Street. Suite 5000
Ful luhussee, Floridu 32301.13 29
1•7/90P I Bag
Section 1. Definitions and Interpretation
"j,ow-Income Tenants" shall mean individuals whose income is sixty percent
(60%) or Tess of urea median gross income (adjusted fix family sire) within the
meaning of Section 42(g)(1) of the Code, as the same may be amended from time
to time (but only to the extent such amendments apply to the Project). In no
event, however, shall occupants of a unit he considered to he of low income ifall
the occupants are students (as defined in Section 151(c)(4) of the (ode), but
excluding from such definition the following: (x) single parents who are students
with all children also being students and the household received AFCD payments,
(y) if the students are enrolled in certain federal, state or local job training
programs and are considered lower income, or f z) for projects receiving credit
allocations after June 30, 1992, a housing unit occupied exclusively by full-time
students may qualify as lower income if the students are a single parent and
his/her minor children and none ofthe tenants are a dependent of a third party.
Section 2(o)(ii):
In addition to the requirements set forth in Section 2(o)(i) above and in Section
3(a) below, commencing with the issuance of the first certificate of occupancy for
any building included in the Project, at least twenty percent (20%) of the occupied
and completed Residential Rental (!nits included in the Project shall he occupied
by and rented to persons with incomes which do not exceed luny percent (40%)
of the area median income (adjusted for family size), and at least eighty percent
(80%) of the remaining occupied and completed Residential Rental Units
included in the Project shall he occupied by and rented to persons with incomes
which do not exceed sixty percent (60%) ofthe area median income (adjusted for
fancily size).
Section 3(a):
Not later than the close of the first (1st) year of the Credit Period for each building
included in the Project, at least forty percent (40°%o) o1• the occupied and completed
Residential Rental tlnits included in the Project shall he both Rent -Restricted
Units and rented to and occupied -by Low -Income Tenants, and after the initial
rental occupancy. of such Residential Rental Units by Low -Income 'tenants, at
(east forty percent (40%) of the completed Residential Rental Units in the Project
at all times shall he both Rent -Restricted Units and rented to and occupied by (or
held available for rental to, if previously rented to and occupied by a Low -Income
Tenant) Low -Income Tenants as required by Section 42(g)(I) of the Code. At
least one -hundred percent (100%) of the dwelling units must be occupied and
rented to Low- and Very Low -Income persons. Not Tess than twenty percent
(20%) of the units in the project shall he leased, rented or made available on a
2.ai% tilA�::i.-0ii'k:�4ri4w•.
continuous basis to persons or households whose incomes are forty percent (40%)
or less of the area median income (adjusted for family size), and not less than
eighty percent (80%) of the remaining units in the project shall be leased, rented
or made available on a continuous basis to persons or households whose incomes
are sixty percent (60%) or less of the area median income (adjusted for family
size), as determined by HUD. The gross monthly rents for all units shall not
exceed thirty percent (30%) of the imputed income limitation applicable to such
unit as defined in Section 1(a).
For purposes of complying with the foregoing requirements, if (x) the income of
an individual or family resident in a Rent -Restricted Unit did not exceed the
applicable income limit (adjusted for family size) at the commencement of such
resident's occupancy and (y) such unit continues to be a Rent -Restricted Unit, the
income of such individual or family shall be treated as continuing to not exceed
the applicable income limit. The preceding sentence shall cease to apply to any
individual or family whose income, as of the most recent determination, exceeds
one hundred forty percent (140%) of the applicable income limit (adjusted for
family size) if, after such determination, but before the next income
determination, any Residential Rental Unit of comparable or smaller size in the
building is occupied by a new individual or family resident whose income
exceeds the applicable income limit (adjusted for family size).
3. Except as herein modified, the Agreement shall remain in full force and effect and
fully enforceable in accordance with its terms.
(THE REMAINDER OF TIIIS PAGE INTENTIONALLY LEFT BLANK)
h[E 1.7790iTi 18 9
IN WITNESS WHEREOF, the Agency and Developer have executed this Amendment as
of the date first above written.
WITNESSES:
S'1 ATE of, FLORIDA
COUNTY OF LEAN
FLORIDA HOUSING FINANCE AGENCY, a
state agency and instrumentality and a public body
corporate and politic duly existing under the laws of
the State of Florida
Sudan J. Leigh
Executive ylirec
d Secretary
The foregoing instrument was executed and acknowledged before me this 44it_ day of
, 1997 by Susan J. Leigh as Executive Director and Secretary of
FLORIDA HOUSING FINANCE AGENCY, a state agency and instrumentality and a public
body corporate and politic duly existing under the laws of the State of Florida, on behalf of said
Agency. She is personally known to me and did not take an oath or affirmation.
Notary 'ublic
Printed Name: Beth A. Elrod
My Commission Expires: Mai -eh 1, 1999
Z„.475.,
r limited partnership.
Cor., r
By: 0 if...ref/ e--
one of e2 general partners of
The foregoing instrument was executed d cknowledged before me thi zi*" day of
,the 0 ALL-11...,1"
ir-h14 , l 9 i by 24
limited
partnership, on behalf of aid partnership. is
.,______
persorn wn to me or has produced _ ... .._. as
identification and did/did not take an oath or affirmation.
otary Public
Printed Name:
My Commission Ex
OA r ',okay
0.1ECCYCJI.O.ri
HARVEY RUM
CLERIC CritCul r couR I
IT
MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI
AND
OLYMPIA CENTER, INC.,
A FLORIDA NOT -FOR -PROFIT CORPORATION
FOR THE USE OF THE PROPERTY LOCATED
AT 174 EAST FLAGLER STREET, MIAMI, FLORIDA
ALSO KNOWN AS THE "GUSMAN THEATER"
TABLE OF CONTENTS
ARTICLE I DESCRIPTION AND TERM
1.1 Description of Property 2
1.2 Tenn of Use 2
1.3 Option to Extend 2
ARTICLE II PURPOSE
2.1 Purpose , 4
2.2 Financial Obligations of the City and the Provider 5
2.3 Commercial Activities within the Property 6
2.4 Special Events 6
2.5 Operations 6
2.6 Charges for Services 7
2.7 Ticket Surcharge 7
2.8 Continuous Duty to Operate 7
2.9 Parking 8
ARTICLE III CONSIDERATION
3.1 Fee 8
3.2 Additional Payments 8
3.3 Late Payments 8
3.4 Returned Check Fee 8
3.5 Performance Deposit 9
3.6 . Promotion of City 10
3.7 Property Maintenance Fund 10
ARTICLE IV COMMUNITY SERVICES
4.1 Community Services 10
4.2 City Use of Property 11
ARTICLE V PROVIDER'S COVENANTS
5.1 Personnel - 11
5.2 Annual Plan 12
5.3 Schedule of Events 13
5.4 Funding of Capital Improvements 13
5.5 Performance Review 13
ARTICLE VI RECORDS AND AUDITING
6.1 Records of Sales 14
6.2 Audit 15
ARTICLE VII
7.1
7.2
LICENSES; COMPLIANCE WITH LAWS
Licenses and Permits
Compliance with Laws
15
15
ARTICLE VIII HAZARDOUS MATERIALS
8.1 Hazardous Materials 16
ARTICLE IX ALTERATIONS AND IMPROVEMENTS
9.1 Alterations 17
9.2 Mechanics' Liens 17
9.3 Personal Property 18
9.4 Changes and Additions to Property 18
9.5 Liens 19
ARTICLE X
10.1
10.2
CITY'S INSPECTION AND RIGHT OF ENTRY
Inspection by the City
City's Right of Entry
ARTICLE XI UTILITY CHARGES
11.1 Utilities
11.2 City Not Liable for Failure of Utilities
20
20
20
21
ARTICLE XII NO REPRESENTATION BY CITY
12.1 Condition of Property 21
ARTICLE XIII MAINTENANCE AND REPAIR
13.1 Maintenance and Repair of Property 21
13.2 Provider's Services 21
13.3 Service/Maintenance Agreements 23
13.4 City Services 23
ARTICLE XIV INDEMNIFICATION AND INSURANCE
14.1 Indemnification 24
14.2 Insurance 24
14.3 Damage or Loss to Provider's Property 26
ii
ARTICLE XV
15.1
15.2
DESTRUCTION OF PROPERTY
Destruction of Property
Option to Terminate Due to Casualty
ARTICLE XVI ASSIGNMENT
16.1 Assignment
16.2 Event of Bankruptcy
ARTICLE XVII OWNERSHIP OF IMPROVEMENTS
17.1 Ownership of Improvements
17.2 • Equipment
ARTICLE XVIII SIGNAGE
18.1 Signs
27
27
28
28
29
29
30
ARTICLE XIX SPECIAL ASSESSMENTS AND TAXES
19.1 Special Assessments and Taxes 31
ARTICLE XX NOTICES
20.1 Notice
31
ARTICLE XXI DEFAULT
21.1 Events of Default - Provider 32
21.2 City's Remedies in Event of Default 33
21.3 Repeated Defaults 34
21.4 Events of Default -City 34
21.5 Provider's Remedies in Event of Default 35
21.6 Repeated Defaults 35
ARTICLE XXII HOLDING OVER
22.1 Holding Over 36
22.2 Per Diem Fee 36
ARTICLE XXIII AFFIRMATIVE ACTION
23.1 Nondiscrimination
ARTICLE XXIV MINORITY PROCUREMENT
24.1 Minority/Women Business Utilization
ARTICLE XXVI MISCELLANEOUS PROVISIONS
37
37
iii
25.1 ingress and Egress 38
25.2 Use Rights 38
25.3 City Approval 38
25.4 Certification 38
25.5 Successors and Assigns 39
25.6 Surrender of Property 39
25.7 Amendments 39
25.8 Construction of Agreement 39
25.9 Waiver of Jury Trial 39
25.10 Severability 40
25.11 Waiver 40
25.12 Captions 40
25.13 Radon 40
25.14 No Recordation 4.1
25.15 Cancellation by Request of Either of the Parties Without Cause 41
25.16 Joint Preparation 41
25.17 Counterparts 41
25.18 Binding Effect 41
25.19 Entire Agreement 42
EXHIBIT A
EXHIBIT B
EXHIBIT C •
EXHIBIT D
THE PROPERTY
THE INVENTORY
MEMORANDUM OF UNDERSTANDING BETWEEN THE PARTIES
(Structural and Financial Status of the Property)
HISTORIC DESIGNATION
iv
MANAGEMENT AGREEMENT
This Management Agreement (hereinafter the "Agreement"), is made and entered into
this day of , 2011 (the "Agreement Date"), by and between the CITY OF
MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA (hereinafter the
"City") and OLYMPIA CENTER, INC., A FLORIDA NOT -FOR -PROFIT CORPORATION
(hereinafter the "Provider"), (hereinafter collectively referred to as the "Parties").
WITNESSETH
WHEREAS, pursuant to the Special Warranty Deed dated July 24, 1975 recorded in
Official Records Book 9053, Page 723, in Miami Dade County, Florida, the City is the owner of
certain real property located at 174 East Flagler Street, Miami, Florida, .a/k/a Gusman Center for
the Performing Arts Theatre (the "Property");1 and
WHEREAS, pursuant to that certain restriction in the Special Warranty Deed dated July
24, 1975 and Ordinance No. 8435, adopted July 31, 1975, the City Commission authorized the
Off -Street Parking Board of the City of Miami doing business as the Miami Parking Authority
(hereinafter "MPA") to administer the Property; and
WHEREAS, the MPA has named the City its successor in the administration and
operation of the Gusman Theater pursuant to MPA Resolution 11-01; and
WHEREAS, the City desires to transfer the administration and operation of the Gusrnan
Theater to the Provider and it has been determined that the use of the Property shall be for public
purpose; and
WHEREAS, the Parties agree that the Provider should operate the Property tb promote,
among other things, cultural arts and other cultural program activities; and
As herein defined, the Property refers to the actual theatre itself. The Parties are aware that attached to the theatre
is a residential and commercial component. The Parties further agree that this agreement is for the management of
the theatre itself and that the residential and commercial components will be addressed at a later date in a separate
agreement between the Parties.
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WHEREAS, the Provider has agreed to operate, manage, and maintain the Gusman
Theatre solely out of the revenues derived from the Property and from the Provider's trustees;
and
WHEREAS, the City has negotiated this Management Agreement with Provider;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the
Parties agree as follows:
ARTICLE I
DESCRIPTION AND TERM
1.1 Description of Property
The City is the owner of real property located at 174 East Flagler Street, Miami, Florida,
which is depicted in Exhibit "A" attached hereto and made a part hereof. The Provider is hereby
permitted to use the Property, including the improvements thereon, for the specific purposes
hereinafter described and, subject to all of the terms and conditions contained herein.
1.2 Tenn of Use
The term of this Agreement shall be for a fifteen (15) year period (the "Initial Term")
conunencing on April 1, 2011 (the "Effective Date") and expiring on April 1, 2026, unless
sooner terminated as provided herein.
1.3 Option to Extend
This Agreement may be extended for three (3) additional fifteen (15) year periods
(hereinafter the "Additional Tenn"), upon the same terns and conditions contained in this
Agreement (as same may be amended from time to tune) provided that the Provider complies
with the following conditions:
(a) The Provider has delivered written notice of its request to extend the Agreement
to the City Manager six (6) months in advance of the expiration of the Initial
Tenn, but not earlier than nine (9) months prior to the expiration of the Initial
Tenn (the "Option Request").
Page 2 of 48
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(b) No event of default, as defined in Article XXI of this Agreement entitled
"Default," exists at the time of receipt of the Option Request.
(c) The • Service Audit, as hereinafter defused, has shown that the Provider's services
have been found to be satisfactory.
(d) Provider receives the written approval of the City Manager, subject to City
Commission approval.
Upon receipt of the Option Request, the Director of Public Facilities or his/her designee
(the "Director") shall conduct an audit of the Provider's compliance with the provisions of this
Agreement (the "Service Audit"), which may include, but will not be limited to, a review of the
following:
(i) The Provider's adherence to and performance of all covenants, agreements and
other obligations on its part hereunder.
(ii) The Provider's audited financial records covering the operation of the Gusman
Theatre for the previous years of operation to ensure the Provider can continue to
perform all covenants, agreements and other obligations as contained in this
Agreement in a fiscally sound manner. Within 30 days after the date of this
Agreement, the parties shall mutually agree upon the type of audited financial
records required and the time frames for submission of the audited financial
records.
(iii) The Provider's substantial accomplishment of its goals and objectives as outlined
in its Annual Plan approved by the City in accordance with Section 5.2 herein.
Such Service Audit shall be completed within ninety (90) days of receipt of the
Provider's Option Request. Based upon the findings of the Service Audit and the Provider's
compliance with all of the aforementioned conditions, the Director shall make a recornrnendation
to the City Manager to approve or deny the Option Request, along with suggested modifications
to the terms and conditions of this Agreement, if any, as may be agreed to by the Parties. In the
event the Provider has complied with all of the aforementioned conditions, the Option Request
shall be granted and written approval shall be submitted to the Provider from the City Manager,
subject to City Commission approval.
Page 3 of 48
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In the event any option to extend the Initial Term of this Agreement is exercised and
approved, the City will retain the Deposit provided for in Section 3.5 hereof, for the same
purposes as described therein. The Initial Term and any. Additional Term, if exercised, shall be
collectively referred to as the "Tenn".
ARTICLE II
• PURPOSE
2.1 Purpose
The purpose of this Agreement is to give the Provider use of the Property for the purpose
of managing, marketing, and operating the theater as a public assernbly venue for performing
arts, entertainment, education, and community, convention, corporate, and civic activities,
including presentation and/or production of public, private, invitational, and ticketed events.
Such events may be produced through the execution of "use" agreements with the Provider to
individuals, organizations, or corporations or through Provider's in-house production. The
Provider will utilize the Property to promote the cultural arts, regardless of form, within the
context of South Florida's multi -cultural, multi -ethnic and international community. The
Provider will host activities such as: (a) film series, (b) plays, (c) performances, (d) educational
seminars or courses, (e) lecture series, (f) art exhibitions, (g) theatrical or musical events and (h)
any such activities of the like, including the selling of food and beverage items ancillary to the
above listed activities (a) through (h). The Provider shall ensure that the Property and all the
Provider's activities thereon, or activities resulting from or relating to the Provider's use of the
Property, will be available to all segments of the community except that Provider's fundraising
events may be by invitation only.
The Provider shall operate, manage, supervise and administer the Property, as an
independent contractor and not as an employee of the City, and will respond to the needs of the
community by featuring both academic and community -based activities.
This Agreement and all rights of the Provider hereunder shall, at the option of the City,
cease and terminate, in accordance with the provisions and requirements of Article XXI, in the
event that the Provider ceases to use and operate the Property for the purposes provided herein.
Page 4 of 48
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The sale, distribution and/or consumption of alcoholic beverages at the Property is
allowed in connection with those activities defined in Section 2.1(a) through (li) or a Special
Event, provided that Provider complies with all laws and assumes all liability related to service
of sale, distribution and/or consumption of alcoholic beverages at the Property.
2.2. Financial Obligations of City and the Provider.
The Provider shall undertake all reasonable efforts to apply for grants, loans or other
funds which may be available from Public Agencies, third parties or private entities for purposes
of funding the renovation, development, management and operation of the Property. The parties
acknowledge that the Provider may solicit State, County, third party or private entities for funds,
to be utilized to fund the cost of the renovation, development, management and operation of the
Property. The Provider shall be responsible for compliance with all conditions pertaining to any
procurement processes and funding requirements, including reports and payments of interest or
principle, when due. The Provider shall establish an account in which all funds pertaining to the
Property shall be deposited. The Provider shall comply at all times with any conditions
prescribed in the funding agreements. As between the State or other third parties, the Provider
shall be the contractual party to the contract(s) as shall be entered into for the accomplishment of
the project. The Provider will provide or will retain adequate, capable and qualified personnel to
supervise the project. The Provider covenants that it shall cooperate with the City to complete all
management and operation of the project. The parties agree and acknowledge that none of the
duties of the Provider shall be construed to impose financial obligations or liabilities of any kind
upon the Provider, except to the extent of funds actually received that were derived as a result of
any work, management or operation of the Property.
The Provider further understands that the operations, management and maintenance of
the Property shall be with funds derived solely out of revenues of the Property, the Provider's
trustees and any or all fundraising efforts of the Provider. Nothing in this Agreement is to be
construed as the City committing to allocate any monies to the Property on an annual basis.
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2.3 Commercial Activities Within the Property
The Provider shall be required to receive the City Manager's prior written approval for
commercial activities that are ancillary to the Provider's use of the Property. Such approval may
be conditioned or withheld for any reason, or no reason whatsoever, including a condition to pay
consideration to the City. For purposes of this paragraph, the term "commercial activities" is
defined to mean the sale of goods and services to the general public that are unrelated to
Provider's use and operation of the Property. For example, the Provider may not agree to
authorize a hardware store to sell hardware goods to the public at large without receiving the
prior written consent of the City. Commercial activities are not defined to include sales of goods
and services related to the Provider's operation and use of the Property. For example, the term
"commercial activities" would not be defined to include a sale of books from a publisher or
bookstore at Provider's Author Presentation Events. Also, the term "commercial activities" is
not defined to include Provider's entering into Agreements for Temporary Use of the Property
for periods of less than (15) fifteen days to community organizations for community/educational
events and activities. All third party users shall sign Provider's Temporary Use Agreement.
2.4 Special Events
Provider acknowledges that in the event it elects to hold an event that will encompass or
significantly impact the use of areas outside the Property (a "Special Event"), Provider shall
coordinate such event with the City's Special Event Coordinator in the Parks and Recreation
Department and agrees to comply with the conditions imposed by the Special Events Cornunittee.
The Provider shall be required to pay, or cause to be paid any and all permit fees and expenses
associated with a Special Event.
2.5 Operations
The Provider shall conduct its operations in an orderly manner. The Provider agrees that,
at no time during the Term, shall it permit any obscene performances or other obscene material
to be exhibited or performed in the Property. For the purposes hereof, the term "obscene" shall
be defined in the same manner as such term is defined under applicable law, with the further
proviso that "X", "XX" or "XXX" rated or similarly rated movies or other performances shall,
Page 6 of 48
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for the purposes hereof, be deemed obscene. The terra "obscene" shall not be defined to include
educational artistic forms of expression.
2.6 Charges For Services
For those events that are not free of charge, the City authorizes the Provider to collect
fees for services, plus the City ticket surcharge as defined in Section 2.7 below, plus Sale and
Use Taxes applicable to each ticket.
Provider is authorized to allow other organizations to use the Property for periods of less
than fifteen (15) days for the same purposes authorized herein at a charge deemed sufficient by
Provider to cover its operating expenses. Provider shall retain all monies paid by these
organizations, except applicable surcharges, to offset costs to Provider for operating the
Property.
2.7 Ticket Surcharge
The Provider agrees to pay, or cause to be paid by any authorized user of the Property, all
applicable ticket surcharges as stated in Section 53-1 of the Code of the City of Miami and
Ordinance 10509 of the City of Miami, as amended. The surcharge will be held in a separate
account to be used for the capital repair and renovation of the Property. The Provider shall
collect the following amounts per ticket sold:
Ticket Price Amount of Surcharge
$1.00 to $14.99 $0.75
$15.00 to $29.99 - $1.00
$30.00 and up $M.00
The Provider shall pay all surcharges, as detailed above, within thirty (30) days after the
end of each calendar month.
2.8 Continuous Duty To Operate
Except where the Property is rendered unusable by reason of fire, act of God, material
building repair or maintenance requirements or other similar events or casualty, the Provider
shall at all times during the Tenn hereof (i) occupy the Property; (ii) regularly conduct
Page 7 of 48
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operations and regular performances as defined in Section 2.1 (a) through (g) within the Property
in accordance with the terns of this Agreement; (iii) at all times keep the Property fully stocked
with materials, necessary to operate the Property (e.g. light bulbs and janitorial supplies) and (iv)
keep the Property open for operation and regular performances as defined in Section 2.1 (a)
through (g) during scheduled events and activities.
2.9 Parking
The Property has been designated by the Miami City Conunission as a historic site in
accordance with Section 23.1-3 of the Code of the City of Miami (attached hereto as Exhibit
"D"). Accordingly, the Property is exempt from any parking requirements that may be
applicable. The Provider agrees that it is responsible for securing any and all parking it may or
may not provide for the patrons of the Property.
ARTICLE III
CONSIDERATION
3.1 Fee
The City agrees that .Provider shall not pay an annual administrative fee for the use of this
Property to the City for any Agreement Year during the Tern of this Agreement except for
Commercial Activities as provided in Section 2.3 of this Agreement. For purposes of this
Agreement, the term "Agreement Year" shall mean any period of time consisting of twelve (12)
consecutive calendar months commencing on the Effective Date and each anniversary thereafter.
3.2 Additional Payments
Intentionally Deleted.
3.3 Late Payments
Intentionally Deleted.
3.4 Returned Check Fee
In the event any check is returned to the City as uncollectible, the Provider shall pay to
the City the returned check fee (the "Returned Check Fee") unposed by the City's banking
facility.
Page 8 of 48
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The Returned Check Fee shall constitute additional payments due and payable to the City
by the Provider. Acceptance of Returned Check Fee by the City shall not constitute a waiver of
the Provider's violation(s) with respect to such overdue amount nor prevent the City from the
pursuit of any remedy to which the City may otherwise be entitled.
3.5 Performance Deposit
The Parties acknowledge that Provider has a deposit with the City in the sum of Five
Hundred Dollars ($500.00) (the "Deposit") in guarantee of the full and faithful performance by
the Provider of all obligations of the Provider under this Agreement or in connection with this
Agreement. Said Deposit shall remain with the City until the expiration or termination of this
Agreement, whichever occurs first. If the Provider has caused an Event of Default to occur, as
defined in the Article XXI of this Agreement entitled "Default", the City may use, apply or retain
all or any part of the Deposit for the payment of (i) any sum of money which is due from the
Provider hereunder, (ii) any sum expended by the City on the Provider's behalf in accordance
with the provisions of this Agreement, or (iii) any sump which the City may expend or be required
to expend as a result of the Provider's default. The use, application or retention of the Deposit or
any portion thereof by the City shall not prevent the City from exercising any other right or
remedy provided for under this Agreement or at law or in equity, and shall not limit any recovery
to which the City may be otherwise entitled. At any time or times when the City has used or
applied all or any part of the Deposit, Provider shall replenish the Deposit by paying to the City
within thirty (30) days of written notice by the City, the sum or sums equal to the amounts so
applied.
Provided Provider is not inviolation of this Agreement, the Deposit or balance thereof, as
the case may be, shall be returned to Provider upon the termination of this Agreement or upon
any later date after which Provider has vacated the Property in the same condition or better as
existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Deposit
(or balance thereof) to the Provider, City shall be completely relieved of all liability to the
Provider with respect to the deposit. Provider shall not be entitled to receive any interest on the
Deposit.
Page 9 of 48
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3.6 Promotion of the City
The Provider acknowledges the benefits afforded to it by virtue of the City allowing!
Provider to use the Property, and shall provide recognition of the City of Miami, in a manner
Mutually agreeable to the parties, in all its marketing, advertising and promotional materials that
exclusively reference Provider's events at the Property.
3.7 Property Maintenance Fund
Commencing the Effective Date of this Agreement, the Provider shall set aside and
deposit on an annual basis, in an account owned and controlled by the Provider and the City, the
Ticket Surcharge provided for in Section 2.7 of this Agreement for purposes of funding and
paying for capital improvements and other capital items to maintain the Property in the condition
required by this Agreement, hereinafter the Property Maintenance Fund Upon the expiration or
sooner termination of this Agreement, the amount in the Property Maintenance Fund shall
remain the property of the City.
ARTICLE IV
COMMUNITY SERVICES
4.1 Community Services
To enhance the public purpose and the benefit to the residents, Provider, either itself or
through Provider sponsored events, shall use its best effort to provide the following types of
community services on a periodic basis:
(i) Tickets may be provided to the City of Miami for distribution to inner
City youths.
(ii) Provider may also work with the City's Park Department, to provide
children and parents with the benefits of cultural programming
presented at the Gusrnan Theater.
(iii) The Gusman Theater may serve as community gathering venue for
organizations, clubs and civic groups as requested by the City.
Page 10 of 48
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The City acknowledges the Provider's active participation in providing services to the
community and considered the same in granting this Agreement. The City encourages the
Provider to provide such services to serve primarily the residents of the City of Miami.
4.2 City Use of Property
The City shall be granted the right to reasonably use the Property for the purpose of
staging City or City -sponsored events. The City acknowledges and agrees that the Provider, as a
Florida not -for -profit corporation of the State of Florida abide by specific laws and regulations,
which limit its operations. For example, the Provider is not authorized to use its resources to
lobby or support a particular political candidate or to lobby or support a particular private
commercial entity. Therefore, the City agrees that it shall not be authorized to conduct City or
City —sponsored events which would cause the Provider to be in violation of its applicable laws
and regulations or the spirit and intent thereof.
• The Parties agree that: (a) City or City -sponsored events will be held on mutually
agreeable dates and tunes, and that the Provider will use reasonable efforts to accommodate the
City's selected dates, (b) the City will give the Provider no less than ten (10) days, prior written
notice of the proposed date and time for the event(s), (c) the City shall be responsible for
operating costs for use of the Property, the Provider agrees, however, to waive the usage charge
for use of the Gusman Theatre(s), and (d) the City shall execute the Provider's "Agreement For
Temporary Use By City" for the use of the Property and shall comply with all terms provided in
same.
ARTICLE V
PROVIDER'S COVENANTS
5,1 Personnel
The Provider shall provide such personnel as it deems sufficient to operate the Property
according to the Agreement terms.
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For- each event, the Provider shall provide identifiable personnel to remain on site and in
charge during scheduled activities.
The Provider shall employ, train, pay, supervise and discharge all personnel necessary for
the operation of the Property. All such persons who are employed by the Provider shall be the
employees of the Provider and every person performing services in connection with this
Agreement, including subcontractors, volunteers or employees of Provider, or any agent or
employee of' the Provider hired by the Provider, shall be acting solely on behalf of the Provider.
The City shall not be liable for their compensation or for the consequences of any act or
omission on the part of any of them unless due to the actions of the City or its employees, agents
and representatives.
5.2 Annual Plan
On or before April 31, 2011, the Provider shall complete a plan outlining Provider's
estimated projections for use of the Property for the period of April 2011 through September
2011 in a form acceptable to the Director. On September 1, 2011 Provider shall complete a plan
outlining Provider's estimated projections for use of the Property for the period of October 1,
2011 through September 30, 2012 (the "Annual Plan"). Thereafter, on each September 1st of
each subsequent Tenn, the Provider shall prepare and present, a mutually agreeable Annual Plan
to the Director, for the review and approval of the Director. The Annual Plan shall include:
(i) A description of programs, activities and objectives and any related policies, rules
and procedures.
(ii) A description of personnel directly involved with the programming and operation
of the Gusman Theatre.
(iii) Description of operating expenses including estimated value of in kind services
conducted at the Property.
(iv) Utilities expenses.
(v) Service agreements.
(vi) Description of general marketing strategies.
(vii) Description of community services.
Page 12 of 48
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5.3 Schedule of Events
Intentionally Deleted.
5.4 Funding of Capital Improvements
Provider and City shall work jointly to prioritize capital improvement projects to be
undertaken at the Property and as more specifically provided for in the Memorandum of
Understanding between the Parties attached hereto as Exhibit "C". Provider will provide best
efforts to identify grants to cover the costs associated with any repairs, renewals, revisions,
rebuilding, replacements, substitutions and/or improvements to the Property. Provider shall
prepare grant applications to be submitted and executed by the City for potential capital
improvement funding for the Property. Neither Party shall have any right whatsoever to obligate
the other Party on any grant or similar application. The Provider shall be responsible for meeting
the requirements of any grant obligations associated with grants for capital improvements. All
Capital Improvements will be considered reimbursements to the City
5.5 Performance Review
The Provider shall transmit to the Director, in writing, in a format acceptable to the
Director, annual reports regarding current activities, progress of the Provider's activities,
accomplishment of objectives, and budget sununary including revenues, and disbursements. The
annual report shall also include maintenance and operating expenses. The Provider shall submit
these annual reports to the Director on or before the dates set forth below:
Operating Period
Report Due Date
Oct 1— Sept 31
Nov 15
The Provider shall submit to the Director such reasonable additional reports as may be
requested by the Director. The Provider shall prepare, in writing, in a form acceptable to the
Director, any other reports or documentation that may be required by Federal, State or local laws.
The Provider shall use its best efforts to respond to any concerns of the City regarding Provider's
programs and ,operations.
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The City may carry out monitoring and evaluation activities, including visits and
observations by City staff and/or community surveys. The City agrees that it shall not interrupt
or disrupt ,any of Provider's activities or events during this process. The Provider shall ensure
the cooperation of its employees and officers in such efforts. The City shall notify the Provider
of any inconsistent, incomplete or inadequate information received by the City in the Provider's
semi-amnual report or obtained by the City from its monitoring and evaluation activities. The
Provider shall provide an explanation or response to the City within thirty (30) days after
Provider's receipt of the City's notice. The Provider and the City shall work together to
mutually resolve any problems.
ARTICLE VI
RECORDS AND AUDITING
6.1 Records Of Sales
During the Terri of this Agreement, the Provider shall maintain and keep, or cause to be
maintained and kept at the Property, a full, complete and accurate daily record and account of all
revenues and expenses arising or accruing by virtue of its operations conducted at or related to
the Property, including, but not limited to; any grants, donations, contributions at fundraising
events, foundation support, Special Events income and/or other contributions to the Provider.
Concession sales at these events shall be reported.
All applicable records and accounts shall be available for inspection and/or audit by the
City and its duly authorized agents or representatives during the hours of 8:00 AM to 5:00 PM,
Monday through Friday. The Provider shall keep and preserve, or cause to be kept and
preserved, said records for not less than sixty (60) months after the expiration of this Agreement.
The Provider will cooperate with the City's internal auditors (or such other auditors designated
by the City) in order to facilitate the City's examination of records and accounts. The Provider
agrees that all documents, records and reports maintained and generated pursuant to this
Agreement shall be subject to the provisions of the Public Records Law, Chapter 119, Florida
Statutes.
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6.2 Audit
Provider shall deliver or cause to be delivered to the Director within sixty (60) days after
the end of each Fiscal Year, an audited financial report which report must be prepared in
accordance with generally accepted accounting principles (GAAP) in the United States, be
complete and include all notes to the statements and any auditor's reports associated with the
audited financial statements; and include, if associated with the audited financial statement, an
auditor's opinion covering the operation the Property for the prior Fiscal Year. The Fiscal Year
shall mean each twelve-month interval commencing on October 1st and expiring September 30t11
.
The City may also, at its option and upon reasonable prior nofice, may cause, at its sole
cost and expense, a complete audit to be made of the Provider's business affairs, records, files,
and sales slips in connection with the Provider's operations on, from or related to the Property
for the period covered by any audited financial statement, report or record furnished by the
Provider to the City. The Provider shall allow the City or the auditors of the City, upon
reasonable prior notice, to inspect all or any part of the compilation procedures for the aforesaid
reports. Records shall be available at the Property, or such other location in Miami approved by
the Provider, Monday through Friday, between the hours of 8:00 a.m. and 5:00 p.m. The
Provider shall ensure that third parties using the facility follow the City's required procedures.
ARTICLE VII
LICENSES; COMPLIANCE WITH LAWS
7.1 Licenses And Permits
The Provider shall, at the Provider's sole cost and expense, obtain any and all licenses
and permits necessary and in connection with the Provider's use and occupancy of the Property.
7.2 Compliance with Laws
Each party to this agreement shall comply with all applicable laws, ordinances, and
codes of federal, state, and local governments, now or hereinafter enacted.
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ARTICLE VIII
HAZARDOUS MATERIALS
8.1 Hazardous Materials
The Provider shall, at its sole cost and expense, at all times and in all respects comply
with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies,
orders and administrative actions and orders regarding hazardousmaterials under the control of
Provider or its agents ("Hazardous Materials Laws"), including, without limitation, any
Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use,
storage, disposal or transportation of any flammable explosives, toxic substances or other
hazardous, contaminated or polluting materials, substances or wastes, including, without
limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic
Substances", under any such laws, ordinances or regulations (collectively "Hazardous
Materials"). The Provider shall, at its sole cost and expense, procure, maintain in effect and
comply with all conditions of any and all permits, licenses and other governmental and
regulatory approvals relating to the presence of Hazardous Materials within, on, under or about
the Property required for the Provider's use of any Hazardous Materialsin or about the Property
in conformity with all applicable Hazardous Materials Laws and prudent industry practices
regarding management of such Hazardous Materials. The City recognizes and agrees that the
Provider may use such materials in quantities appropriate for its use of the Property, for the
'purposes stated herein and that such use by the Provider shall not be deemed a violation of this
section so long as the levels of use of such materials are not in violation of any Hazardous
Materials Laws. Upon termination or expiration of this Agreement, the Provider shall, at its sole
cost and expense, cause all Hazardous Materials, including their storage devices, placed in or
about the Property by the Provider or at the Provider's direction, to be removed from the
Property and transported for use, storage or disposal in accordance and compliance with all
applicable Hazardous Materials Laws. The City acknowledges that it is not the intent of this
Article VIII to prohibit the Provider from operating in the Property for the uses described in
Section 2.1 of this Agreement entitled "Purpose". The Provider may operate according to the
custom of the industry so long as the use or presence of Hazardous Materials is strictly and
properly monitored according to, and in compliance with, all applicable governmental
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requirements. The requirements of this section shall survive the expiration or termination of this
Agreement.
The City represents that:
(i) To the best of its knowledge there are no environmental violations, whether under
federal, state, or local laws, existing on the Property;
(ii) To the best of its knowledge there are no Hazardous Materials presently existing
on the Property.
ARTICLE IX
ALTERATIONS AND IMPROVEMENTS
9.1 Alterations
Provider shall not make any improvements, construction, or alterations to the Property
without prior written consent from the City. Provider acknowledges that the Property has been
designated by the Miami City Commission as a historic site in accordance with Section 23.1.-3 of
the Code of the City of Miami. Accordingly, Provider agrees that at all times during the Term,
Provider shall ensure that no changes or alterations are made, or damage done to the interior or
exterior of the Property, except for those which may be made by the City under the tennis of this
Agreement.
9.2 Construction Liens
The Provider shall have no responsibility for construction liens filed against the Property
as a result of work, labor, services, or materials contracted for by the City or contracted for by
anyone other than Provider, its agents, representatives, or third parties using the Property
pursuant to Provider's Agreement for Temporary Use.
Provider shall promptly remove any construction liens filed against the Property as a
result of work, labor, services, or materials contracted for by the Provider, its agents, or third
parties who Provider allows to use the property. If Provider fails to remove any construction
liens filed against the Property as a result of work, labor, services, or materials contracted for by
Provider within thirty (30) days after receiving notice of its filing, the City may, but shall not be
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obligated to, bond or pay the lien and such all amounts paid by the City shall constitute
additional payments due and payable under the Agreement and shall be repaid to the City by the
Provider immediately upon the rendering of an invoice or bill by the City.
9.3 Personal Property
The Provider shall have the right to remove any personal property that it places in or on
the Property. The Provider may provide additional equipment and personal property necessary
for its operation at the Property. All equipment and personal property provided or used by the
Provider at the Property shall be of good quality and suitable for its purpose. Any equipment of
Provider shall be donated to the City immediately upon purchase and must contain a decal and/or
property control number and added to the list of inventory. The Provider's failure to repair any
damage caused to the Property within sixty (60) days after receipt of written notice from the City
directing the required repairs, shall constitute an Event of Default. The City may, however, elect
to cause the Property to be repaired at the sole cost and expense of the Provider. The Provider
shall pay the City the full cost of such repairs within fifteen (15) days after receipt of an invoice
indicating the cost of such required repairs. The requirements of this section shall survive the
expiration or termination of this Agreement.
9.4 Changes and Additions to the Property.
The City reserves the right at any time to reasonably: (i) make or permit changes or
revisions in its plan for the Property, including additions to, subtractions from, rearrangements
of, alterations of, modifications of or supplements to the building areas, walkways, parking areas,
or driveways, (ii) construct improvements on the Property and to make alterations thereof or
additions thereto, and (iii) change location, size, content and design of any signage for the
Property, subject to the condition that the City will endeavor to minimize any interruption to the
Provider's use and operation of the Property under the Agreement and City shall provide 180
days advance notice of any alterations or modifications that will substantially impact the
Provider's use of the property. City will bear the cost of consumption of utilities used for
construction of the improvements.
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9.5 Liens.
The Provider shall not suffer orperrnit any liens of any kind to be filed against the title to
the Property by any reason whatsoever as a result of an agreement with the Provider or Internal
Revenue Service or tax liens. Nothing in this Agreement shall be construed as constituting the
consent or .request of the City, expressed or. implied, by inference or otherwise, for the
performance of any labor or the furnishing of any materials, for any specific work on the
Property, nor as giving the Provider the right, power or authority to contract for or permit the
rendering of any services or the furnishing of any materials that would give rise to the filing of
any liens against the City's interest in the Property. If any liens shall at any time be filed against
the Property, the Provider shall cause it to be discharged of record within thirty (30) days after
the date the Provider has knowledge of its filing. If the Provider shall fail to discharge a lien
within that period, then in addition to any other right or remedy, the City may, but shall not be
obligated to., discharge the lien either by paying the amount claimed to be due or by procuring
the discharge of the lien by deposit in court or bonding. The City shall be entitled, if it so elects,
to compel the prosecution of any action for the foreclosure of the lien by the lienor and to pay the
amount of the judgement, if any, in favor of the lienor with interest, costs and allowances with the
understanding that all amounts paid by the City shall be repaid to the City by the Provider
immediately upon rendition of any invoice or bill. The Provider shall not be required to pay or
discharge any lien so long as the Provider shall in good faith proceed to contest the lien by
appropriate proceedings and if the Provider shall have given notice in writing to the City of its
intention to contest the validity of the lien and shall furnish reasonably satisfactory evidence that
funds are or will be available to pay the amount of the contested lien claim with all interest on it
and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it.
The City shall not be entitled to pay the lien or compel the prosecution of any action with respect
thereto during any time that the Provider is contesting such lien.
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ARTICLE X
CITY'S INSPECTION AND RIGHT OF ENTRY
10.1 Inspection by the City
The City shall have the authority to make periodic inspections of the Property and
improvements thereof, during normal working hours. The Provider, at its sole cost and expense,
shall be required to make any modifications reasonably required by the City in provision of the
services listed in Section 13.2 subsections (a), (c), (e), (f), (g), (h), (i), and (1) below as long as
the requested modifications do not materially increase Provider's costs.
Prior to the beginning of each Agreement Year, the Parties shall inspect the Property and
the City's equipment described in the inventory attached hereto as Exhibit "B"; if the Parties
agree that replacement of the equipment is desirable or necessary, then the Provider shall, at its
sole cost and expense, provide such replacements with reasonable diligence.
10.2 City's Right Of Entry
The Provider agrees to permit the City, to enter upon the Property at all reasonable times,
for any purpose the City deems necessary to, incident to, or connected with the performance of
the City's duties and obligations hereunder or in the exercise of its municipal functions.
ARTICLE XI
UTILITY CHARGES
11.1 Utilities
The Provider, shall be solely responsible for payment of all costs of consumption, and for
the cost of installing any necessary lines and equipment for increased usage, of the following
utilities:
a) Electricity;
b) Telephone;
c) Water,
d) Gas;
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g)
Sewage disposal;
Storm water fees;
Trash and garbage removal.
11.2 City Not Liable For Failure Of Utilities
The City shall not be liable. for any loss of performance income to Provider due to any
failure of water supply, sewer, gas or electric current.
ARTICLE XII
NO REPRESENTATION BY CITY
12.1 Condition Of Property
The Provider has had the opportunity to inspect the Property and takes the Property in its
present "as is" condition and state of repair and without any representation by or on behalf of the
City. At the expiration or earlier termination of this Agreement, the Provider shall surrender the
Property "broom clean" and in good order and condition, ordinary wear and tear excepted.
ARTICLE XIII
MAINTENANCE AND REPAIR OF PROPERTY
13.1 Provider's Maintenance And Repair Of Property
The Provider shall, at its sole cost and expense, at all times during the Term hereof,
provide routine maintenance as stipulated in paragraphs 13.2 and 13.3. The Provider shall not
commit, or .suffer to be committed, any waste in or upon the Property or do anything in or on the
Property, which, detracts from the appearance of the Property.
13.2 Provider's Services
The Provider shall, at its sole cost and expense, maintain and repair the Property.
Specifically, the Provider shall maintain and repair the structural portions of the building,
including the interior and exterior walls, under flooring and roof and shall make all repairs and
replacements, except those covered under the service agreements referred to in Section 13.3 of
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the elevator, plumbing, heating, air conditioning, electrical and life safety systems installed or
furnished, unless such maintenance and/or repair becomes necessary due to: (i) the misuse, act,
neglect, fault or omission of City, its employees, agents, customers, licensees, or invitees in or
about -the Property; or (ii) any damage occasioned by the failure of Provider to perform or
comply with any terms, conditions, or covenants of this Agreement. The City shall not be liable
under any circumstances for a loss of, or damage to, property, loss of profits, or for damage to or
interference with Provider's business arising from or in connection with the making of or
Provider's failure to make any repairs, maintenance, alterations or improvements in or to any
portion of the Property or in or to fixtures, appurtenances and equipment therein. The following
maintenance and services are required for use of the Property:
a) Cleaning and janitorial services for the Property;
b) Employ, train, pay, supervise, discharge and determine the compensation of all
employees necessary for the operation of the Property;
c) Purchase supplies required for the operation of the Property, as determined by the
Provider in its discretion, including but not limited to, office supplies, cleaning
supplies, light bulbs, food and beverages;
d) All marketing and advertising required for its operations;
e) Waste disposal;
f) Grounds services for the lawn and periodic removal of any rubbish or obstructions
from the Property;
g) Cleaning of the interior and exterior glass doors on the Property to be performed as
needed but no less than once every month;
h) Interior lighting;
i) Painting touch up of the interior of the building;
j) Security as is required for similar facilities;
k) Any and all services required for Special Events;
1) Carpet cleaning and pressure cleaning sidewalk and perimeter areas.
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13.3 Service/Maintenance Agreements
The Provider shall procure, at its sole cost, service maintenance agreements for the
following items at a level in accordance with good industry practice, but in no event less than
that previously provided by the City:
. a) Heating, ventilation and air conditioning as required for the comfortable use and
occupation of the Property;
b) Elevator service;
c) Burglar and fire alarm monitoring and maintenance services;
d) Projection equipment maintenance;
e) Fire extinguishers inspections;
f) Backflow prevention test;
g) Pest and pigeon control services;
h) Existing interior signage (maintenance and repair).
In addition to the above, the Provider, shall undertake minor repairs deemed appropriate
by the Provider of the plumbing fixtures (e.g. leaking faucets, clogged toilets), as necessary.
The Provider shall, promptly advise the City upon obtaining knowledge of any condition
of the Property which may present a risk of injury to persons or property.
The Provider shall submit the service agreements to the City for its approval. The
Provider shall be responsible for any maintenance and repair service costs for each of the above
items to the extent they are not covered by the service or maintenance agreements procured by
Provider.
13.4 City Services
Intentionally Deleted.
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
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14.1 Indemnification
Provider shall indemnify and save the City, its officers, employees, and agents harmless
from any and all claims, liability, and causes of action which may arise out of the willful,
negligent, or unlawful acts or omissions of Provider, its district board of trustees, employees,
agents, or subcontractors in its operations, activities, or obligations under this Agreement and
shall pay all claims and losses of any nature whatsoever in connection therewith, including all
costs, judgments, and attorneys fees, which may issue thereon; provided, however, that nothing
herein shall be construed to require Provider to indemnify the City against liability resulting from
the willful, negligent, or unlawful acts or omissions of the City. This provision shall survive the
termination of this Agreement.
14.2 Insurance
Notwithstanding the above, Provider shall furnish the City evidence of the following
insurance coverage:
A. Commercial General Liability coverage form, including
contractual and contingent. liability, products and completed operations, personal
injury and products and operations covering against all claims, demands or
actions, bodily injury, personal injury, death or property damage occurring in the
Property with such limits as may be reasonably requested by the City from time to
time but not less than $1,000,000 per occurrence, $2,000,000 policy aggregate for
bodily injury and property damage. The policy should include primary insurance
clause and should further include coverage for employee benefits and Error's &
Omissions with limits of $1,000,000.The City shall be listed as Additional Insured
on this coverage.
B. Automobile liability insurance covering all owned, non -owned and
hired vehicles used in conjunction with operations covered by this agreement.
The policy or policies of insurance shall contain such limits as may be reasonably
requested by the City from time to time but not less than $1,000,000 for bodily
injury and property damage. Hired Auto Physical Damage coverage with a $500
Deductible should be included, if applicable. The requirements of this provision
may be waived upon submission of a written statement that no automobiles are
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used to conduct business. The City shall appear listed as an additional insured on
this coverage.
C. Worker's Compensation in the forms and amounts required by
Florida law, with employer liability limits of $1,000,000.
D. Liquor Liability with lirnits of $1,000,000
E. Umbrella Liability Excess Follow Form with limits of $10,000,000
including the City of Miami as an additional insured. The umbrella liability policy
should be excess over primary commercial general liability, automobile,
employer's liability and liquor liability limits.
F. Property- Provider shall procure Real and Personal Property
coverage with special form causes of loss excluding windstorm written on .a
historic real and property coverage foram an all applicable locations subject to
historic replacement cost with guarantee cash settlement option, and including
historic property business income and extra expense to include crisis management
coverage extension endorsement, if available, with an extended period of
indemnity of 365 days. The certificate or policy shall also provide for historic
property equipment breakdown coverage endorsement.
Provider shall require its users or third parties to famish certificate of insurance with
coverage limits acceptable to the City. The City reserves the right to amend the insurance
requirements for both the Provider and third parties in accordance with reasonable industry
practice by the issuance of notice in writing to the Provider. Should Provider be unable or refuse
to comply with the City's amended insurance requirements this Agreement shall terminate thirty
days after the changed requirements were to take effect.
The policy or policies of insurance required shall be so written that the policy, or policies
may not be canceled or materially changed without thirty (30) days advance written notice to
City. Said notice should be delivered.to the City of Miami, Department of Risk Management,
444 SW 2 Avenue, 9tb Floor, Miami, FL 33130 with copy to City of Miami, Department of
Public Facilities, 444 SW 2 Avenue, 31.d Floor, Miami, FL 33130.
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A current Evidence of Insurance and Policy of Insurance evidencing the aforesaid
required insurance coverage shall be supplied to the Department of Public Facilities of the City
at least (15) fifteen days prior to the commencement of the third party's usage of the Property.
The City shall be deemed to have approved the third party insurance if it fails to request any
changes within 10 days after the evidence of insurance has been received by the City's
Department of Public Facilities. • Insurance policies required herein shall be issued by companies
authorized to do business under the laws of the State of Florida, with the following qualifications
as to management and financial strength: the company should be rated "A-" as to management,
and no less than class "V" as to financial strength, in accordance with the latest edition of Best's
Key Rating Guide, or the company holds a valid Florida Certificate of Authority and is a
member of the Florida _Guarantee Fund. Receipt of any documentation of insurance by the City
or by any of its representatives, which indicates less coverage than required, does not constitute a
waiver of the Provider's obligation to require the insurance requirements herein.
Failure to require third parties to procure the insurance required by this section shall
constitute a default of this Agreement as provided in Article XXI of this Agreement entitled
"Default." The Provider's failure to require third parties to procure insurance shall in no way
release the Provider from its obligations and responsibilities as provided herein.
14.3 Damage Or Loss To Provider's Property
Neither party shall be liable for injury or damage which may be sustained by the Property
or sustained by goods, wares, merchandise or other property of the Provider, or the Provider's
employees, agents, contractors, invitees, and guests or of any other person in or about the
Property caused by or resulting from any peril whatsoever which may affect the Property,
including, without limitation, fire, steam, electricity, gas, water, or rain which may leak or flow
from or into any part of the Property, or from the breakage, leakage, obstruction or other defects
of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the
Property, or from hurricane or any act of God or any act. of negligence of any user of the
facilities or occupants of the Property unless caused by the negligence of the City or the
Provider, their officers, employees, agents or representatives.
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ARTICLE XV
DESTRUCTION OF PROPERTY
15,1 Destruction of Property .
Except as provided in Section 15.2, if the Property shall be damaged by fire, the
elements, accident or other casualty (any of such causes being referred to herein as a
"Casualty"), but the Property shall not be rendered wholly or partially unusable, the City shall
promptly cause such damage to be repaired, subject to collection of sufficient insurance
proceeds.
If, as a result of Casualty, the Property shall be rendered partially unusable, then, subject
to the provisions of the Section 15.2 of this Agreement, the City shall cause such damage to be
repaired. In such event, such repairs shall be made at the expense of the City, subject to the
Provider's responsibilities set forth herein. The City shall not be liable for interruption to the
Provider's business or for damage to or replacement or repair of Provider's personal property
(including, without limitation, inventory, trade fixtures, floor coverings, furniture and other
property removable by the Provider under the provisions of this Agreement) or for damage to or
replacement or repair of any improvements installed by Provider at the Property. The City shall
not be obligated to spend more for the cost of repair than net insurance proceeds recovered with
respect to such loss. In this regard, to the extent funds are not available to fully restore the
Property to its pre -Casualty condition, the City's repair of the Property may not result in the
Property being restored to its condition prior to any such Casualty. In the event the cost to repair
the Property is less than the net insurance proceeds received by the City, all excess insurance
proceeds shall inure to the City.
15.2 Option to Terminate Due to Casualty
If the Property is (a) rendered wholly unusable, or (b) damaged as a result of any cause
which is not covered by the insurance, or (c) insurance proceeds are insufficient to restore the
Property to a condition reasonably necessary to carry out the purposes described in this
Agreement, or (d) damaged or destroyed in whole or in part during the last three years of the
Tern, or (e) if the building is damaged to the extent that it cannot be used for Provider's
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intended purpose for a period of ninety (90) or more consecutive days, then, either the City or the
Provider may elect to terminate this Agreement by giving to the other party notice of such
election within ninety (90) days after the occurrence of such event. If such notice is given, the
rights and obligations of the Parties shall cease as of the date specified in such notice.
Upon termination of this Agreement pursuant to this section, the Provider and the City
shall be released from any further obligations hereunder, except that such release shall not apply
to any sums then accrued or due, or to the Provider's obligations under the Section 25.6 of this
Agreement entitled "Surrender of the Property" or to any obligation otherwise surviving the
termination of this Agreement. Upon such termination the remaining balance of the Performance
Deposit, less any sums the City is entitled to deduct, shall be returned to the Provider.
ARTICLE XVI
ASSIGNMENT
16.1 Assignment
Provider shall not, at any time during the term of this Agreement, assign, mortgage,
pledge or otherwise encumber this Agreement, or any interest hereunder. The City may assign
this agreement upon 180 days notice to Provider.
16.2 Event Of Bankruptcy
Subject to applicable laws, if this Agreement is assigned to any person or entity pursuant
to a provision of the United States Bankruptcy Code, as the same may be amended from time to
time (hereinafter the "Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or delivered to the
City, shall be and remain the exclusive property of the City, and shall not constitute the property
of the Provider or the estate of the Provider within the meaning of the Bankruptcy Code. Any
and all monies or other considerations constituting the City's property under this section not paid
or delivered to City shall be held in trust for the benefit of the City and shall be promptly paid or
delivered to the City. Any person or entity to which this Agreement is assigned pursuant to the
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provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed •
all of the obligations arising under this Agreement on and after the date of such assignment.
ARTICLE XVII
OWNERSHIP OF IMPROVEMENTS
17..1 Ownership of Improvements
As of the Commencement Date and throughout the Term, title to the Property, and all
buildings, and improvements thereon shall be vested in the City. Furthermore, title to all
improvements , and alterations made or purchased in or to the Property during the Tenn, whether
or not by or at the expense of the Provider, shall, unless otherwise provided by written
agreement, immediately upon their completion become the property of the City and shall remain
and be surrendered with the Property.
Any furniture, furnishing, equipment or other articles of personal property owned by the
City and located on the Property, shall be and shall remain the property of the City and may not
be removed by it at any time during the Term. If any of the City's property is removed and such
removal causes damage to the Property, the Provider shall repair such damage at its sole cost and
expense in accordance with the provisions of Section 9.3 hereof.
Any personal property belonging to the Provider and not removed by the Provider at the
expiration or earlier termination of the Agreement shall be deemed to have been abandoned by
the Provider, .and the City may keep or dispose of such property at the Provider's sole cost and
expense. The Provider will reimburse the City for any reasonable costs associated with such
abandoned property within fifteen (15) days of after receipt of written notice. At the expiration
of the Tenn the Provider shall deliver to the City the keys and combination to all safes, cabinets,
vaults, doors and other locks left by the Provider on the Property.
17.2 Equipment
The City owns the equipment detailed in Exhibit "B" attached hereto (the "City's
Equipment"). The Provider will be permitted to use the City's Equipment, at no cost, however,
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any additional equipment needed by the Provider for the Permitted Use must be provided at the
Provider's sole cost and expense. The Provider shall provide a knowledgeable technician to test
and operate the City's Equipment. The Provider shall replace or repair, at its sole cost and
expense, any of the City's Equipment, fixtures or furnishings lost, stolen, damaged or destroyed
due to acts, omissions or negligence of the Provider or its agents or employees.
Provider agrees to take all steps necessary to protect its equipment including obtaining
insurance thereon and providing appropriate security for the Property. Provider shall protect and
prevent loss or damage to the City's Equipment.
The production and talent costs for any event held by the Provider are the sole
responsibility of the Provider.
ARTICLE XVIII
SIGNAGE
18.1 Signs
. The Provider shall be pernitted to place sighs or posters related to the Provider's
operation on the areas designated on the exterior and interior of the Property. The Provider shall
not permit any signs, advertising materials or other objects to be placed or hung on any portion
of the Property or allow any change or modification to the exterior or interior of the Property
except with prior written approval of the Director, which may be conditioned or withheld in the
City's sole discretion. The Provider must also obtain approval from all goverunental authorities
having jurisdiction, and must comply with all applicable requirements set forth in the City of
Miami . Code and Zoning Ordinance. Upon the expiration or earlier termination of this
Agreement, for any reason, the Provider shall, at its sole cost and expense, remove and dispose
of all signs, advertising materials or other objects of Provider located on the Property.
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ARTICLE XIX
SPECIAL ASSESSMENTS AND TAXES
19.1 Special. Assessments And Taxes
In the event the Property is subject to taxation, charges or assessments and the Provider
does not pay same, the City shall have the right to terminate this agreement upon providing
fifteen (15) days written notice to the Provider and the Provider shall be liable for the taxes.
ARTICLE XX
NOTICE
20.1 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 certified mail
addressed to the Parties at their respective addresses indicated below or as the same may be
changed in writing from time to time. Such notice shall be deemed given on the day on which
personally served, or if by certified mail, on the fifth day after being posted or the date of actual
receipt, whichever is earlier.
NOTICE TO CITY:
City of Miami
City Manager
444 SW 2nd Avenue, 10thi Floor
Miami, Florida 33130
WITH COPY TO:
City of Miami
Department of Public Facilities
444 SW 2 Avenue, 3rd Floor
Miami, FL 33130
NOTICE TO PROVIDER:
Olympia Center, Inc.
Herman Echevarria
President
_848 Brickell Avenue.
Miami, FL 33131
WITH COPY TO:
Olympia Center, Inc.
Ralph G. Patin, Esq.
225 Alcazar Avenue
Coral Gables, Florida 33134
Page 31 of 48
NAR: Document. No.: 259318
AND
WITH COPY TO:
City of Miami
Office of the City Attorney
444 SW 2nd Avenue, Suite 945
Miami, Florida 33130
ARTICLE XXI
DEFAULT
21.1 Events of Default - Provider.
Each of following events is defined as an Event of Default:
(a) The failure of the Provider to perform any of the covenants, conditions and
agreements of this Agreement on the part of the Provider to be performed and the continuance of
the failure for a period of fifteen (15) days after written notice (which notice shall specify the
nature of the default) from the City to the Provider, unless with respect to any default which
cannot be cured within fifteen (15) days, the Provider, in good faith, promptly after receipt of
written notice, shall have commenced and continued diligently to reasonably prosecute all action
necessary to cure the default and shall have so notified the City in writing;
(b) The filing of an application by the Provider: (i) for a consent to the appointment
of a receiver, trustee cr liquidator of itself or all its assets; (ii) of a voluntary petition in
bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to
pay its debts as they come due; (iii) of a general assignment for the benefit of creditors; (iv) of an
answer admitting the material allegations of, or its consenting to, or defaulting in answering, a
petition filed against it in any bankruptcy proceeding;
(c) The entry of an order, judgment or decree by any court of competent jurisdiction,
adjudicating the Provider as bankrupt, or appointing a receiver, trustee or liquidator of it or of its
assets, and this order, judgment or decree continuing unstayed and in effect for any period of
sixty (60) consecutive days, or if this Agreement is taken under a writ of execution; or
(d) The failure of Provider to remit any information, to the City's satisfaction,
requested in the Article V of this Agreement entitled "Provider's Covenants".
Page 32 of 48
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(e) Failure to require third parties to procure the insurance required by Section 14.2
of this Agreement.
(f) Failure of the Provider to continuously operate as described in Section 2.7 of this
Agreement.
In the event this Agreement is assumed by or assigned to a trustee pursuant to the
provisions of the US Bankruptcy Code, as the same may be amended from time to time, the
trustee shall cure any default under this Agreement and shall provide the City with adequate
assurance of future performance of all of the teams and conditions of this Agreement. If the
trustee does not cure such default and provide such adequate assurances within the applicable
time periods provided by the Bankruptcy Code, then this Agreement shall be deemed rejected
automatically and the City shall have the right to immediate possession of the Property and shall
be entitled to all remedies provided by the Bankruptcy Code for damages for breach or
termination of this Agreement.
21.2 City's Remedies in Event of Default
The City may treat any one or more of the Event(s) of Default as a breach of this
Agreement, and thereupon at its option, the City shall have, in addition to every other right or
remedy existing at law or,in equity, the right to do any one Or more of the following:
(a) Elect to cancel and terminate this Agreement and dispossess the Provider by
• giving a ten (10) day notice of such election to the Provider, and reenter the Property. In the
event of such termination, the City shall have the right to seek any damages sustained by it by
reason of the Provider's actions or inactions and the resulting termination of this Agreement.
Upon termination of this Agreement, the Provider shall immediately cease all operations at the
Property and surrender the Property in accordance with the provisions contained herein.
(b) Perform, on behalf of and at the expense of the Provider, any obligation of the
Provider under this Agreement which the Provider has failed to perform, the cost of which
performance by the City, together with interest thereon at the rate of ten percent (10%) from the
date of such expenditure, shall be deemed Additional payments and shall be payable by the
Provider to the City upon demand.
(c) Exercise any other legal or equitable right or remedy, which it may have under
this Agreement, at law or in equity.
Page 33 of 48
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Notwithstanding the provisions of clause (b) above and regardless of whether an Event of
Default shall have occurred, the City may exercise the remedy described in clause (b) without
any notice to the Provider if the City, in the exercise of its good faith judgment, believes it would
be injured by failure to take rapid action or if the unperforned obligation of the Provider
constitutes an emergency.
• All of the remedies of the City shall be cumulative, and enforcing one or more of the
remedies herein provided upon an Event of Default shall not be deemed or construed to
constitute a waiver of such default, or an election of remedies.
21.3 Repeated Defaults
If more than twice during any twelve (12) month period the Provider fails to satisfy or
comply with the same or substantially the same material requirements or provisions of this
Agreement (except where such repeated default arises from acts of God or results from causes or
conditions not attributable, directly or indirectly, to the Provider, its guests, employees, agents or
others within the Provider's control), then at the City's election, the Provider shall not have any
right to cure such repeated default. In the event of the City's election not to allow the cure of a
repeated failure to satisfy or comply, the City shall have all of the rights and remedies provided
in this Agreement relative to an Event of Default immediately upon the occurrence of such
repeated failure to satisfy or comply.
21.4 Events of Default - City.
Each of following events is defined as an Event of Default:
(a) The failure of the City to perform any of the material covenants,
conditions and agreements of this Agreement on the part of the City to be performed and the
continuance of the failure for a period of fifteen (15) days after written notice (which notice shall
specify the nature of the default) from the Provider to the City, unless with respect to any default
which cannot be cured.within fifteen (15) days, the City, in good faith, promptly after receipt of
written notice, shall have commenced and continued diligently to reasonably prosecute all action
necessary to cure the default and shall have so notified the Provider in writing;
Page 34 of 48
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(b) The filing of a bankruptcy petition pursuant to Chapter 9, Title 11 of the
United States Bankruptcy Code Chapter (11 USC CHAPTER 9 - ADJUSTMENT OF DEBTS OF A
MUNICIPALITY).
21.5 Provider's Remedies in Event of Default
The Provider may treat any one or more of the Event(s) of Default as a breach of this
Agreement, and thereupon at its option, the Provider shall have, in addition to every other right
or remedy existing at law or in equity, the right to do any one or more of the following:
(a) Elect to cancel and terminate this Agreement by giving a ten (10) day notice of
such election to the City. In the event of such termination, the Provider shall have the right to
seek any damages sustained by it by reason of the City's actions or inactions and the resulting
termination of this Agreement. Upon termination of this Agreement; the Provider shall
immediately cease all operations at the Property and surrender the Property in accordance with
the provisions contained herein.
(b)
Exercise any other legal or equitable right or remedy, which it may have under
this Agreement, at law or in equity.
All of the remedies of the Provider shall be cumulative, and enforcing one or more of the
remedies herein provided upon an Event of Default shall not be deemed or construed to
constitute a waiver of such default, or an election of remedies.
21.6 Repeated Defaults
If more than twice during any twelve (12) month period the City fails to satisfy or comply
with the same or substantially the same material requirements or provisions of this Agreement
(except where such repeated default arises from acts of God or results from causes or conditions
not attributable, directly or indirectly, to the City, its guests, employees, agents or others within
the City's control), then at the Provider's election, the City shall not have any right to cure such
repeated default. In the event of the Provider's election not to allow the cure of a repeated
failure to satisfy or comply, the Provider shall have all of the rights and remedies provided in this
Agreement relative to an Event of Default immediately upon the occurrence of such repeated
failure to satisfy or comply.
Page 35 of 48
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ARTICLE XXII
HOLDING OVER
22.1 Holding Over
The Provider shall vacate the Property upon the expiration or earlier termination of this
.Agreement. The Provider shall reimburse the City for all damages proven to be incurred by the
City from any delay by the Provider in vacating the Property. Under no circumstances shall
Provider be entitled to hold over without the express written consent of the City. If the Provider
remains in possession of all or any part of the Property after the expiration o.f the Term, with or
without the express or implied consent of City, such occupancy shall be from month -to -month
only and not a renewal hereof or an extension for any further term, and shall be subject to all
conditions, provisions and obligations of this Agreement in effect on the last day of the Tenn,
except that the month -to -month occupancy will be terminable on fifteen (15) days notice given at
any tirne by either party. The provisions of Section 22.2, Per Diem, shall apply throughout such
period unless waived in writing.
22.2 Per Diem
In the event that the Provider fails to peacefully surrender the Property at the expiration
or earlier termination of this Agreement, then the City shall, in addition to all other remedies,
shall be entitled to collect from the Provider, and the Provider shall pay to the City, a per diem
fee of One Hundred Dollars ($100.00) for each day that the Provider remains in the Property in
violation of this Agreement (the "Per Diem Fee"). Acceptance of the Per Diem Fee by City
shall, in no event, constitute a waiver of the City's rights under this Agreement and shall not
prevent the City from pursuing all other remedies to which is entitled including but not limited to
the right to seek injunctive relief to eject the Provider from the Property.
Page 36 of 48
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ARTICLE XXLII
AFFIRMATIVE ACTION
23.1 Nondiscrimination
The Provider agrees that it will not discriminate against any person based upon race, sex,
national origin, or handicap in its performance under this Agreement. It is expressly understood
that upon a determination by a court of competent jurisdiction that Provider has engaged in such
discrimination, the City shall have the right to immediately terminate this Agreement without
penalty to the City.
ARTICLE XXIV
M/WBE PROGRAM
24.1 Minority And Women Business Affairs And Procurement Program
The City of Miami has established a Minority and Women Business Affairs and
Procurement Program (the "M/WBE Program") designed to increase the volume of procurement
and contracts with Black, Hispanic, and Women -owned businesses. -The M/WBE Program is
found in Ordinance No. 10062, a copy of which has been delivered to Provider, and receipt of
which is hereby acknowledged.• Provider understands and agrees that the City shall have the
right to terminate and cancel this Agreement, without penalty to the City, and to eliminate
Provider from consideration and participation in future contracts if Provider, in the preparation
and/or submission of the Proposal, submitted false or misleading information as to its status as a
Black, Hispanic and/or Women owned business and/or the quality and/or type of minority or
women owned business participation. Provider agrees to provide upon request a sworn statement
of compliance with Chapter 18, Article IV of the Code of the City of Miami and to certify that
Provider shall not discriminate against any business, employee or applicant for employment
because of age, ethnicity, race, creed, color, religion, sex, national origin, handicap or marital
status. In the event of, Provider's noncompliance with the foregoing the City Manager may
suspend, terminate this Agreement, or impose such other sanctions as are appropriate. .
Page 37 of 48
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ARTICLE XXV
MISCELLANEOUS PROVISIONS
25.1 Ingress And Egress
The Provider shall have the right of complete ingress/egress to the Property.
25.2 Use Rights
Provider acknowledges that the Provider has been retained as a contract manager only,
and as such, the Provider shall have no interest in the Property as owner, lessee or otherwise.
The City hereby reserves all mineral rights and all land ownership rights. It is expressly
understood and agreed that no real or personal property is leased to the Provider, that this is a
management agreement and not a lease, that the Provider's right to use the Property shall
continue only so long as the Provider shall timely comply with each and all of the undertakings,
provisions, covenants, agreements, stipulations and conditions contained herein. The Provider
agrees not to represent itself as an agent or associate of the City or any unit thereof. Provider
agrees to provide workers' compensation insurance for any employee of Provider rendering
services pursuant to this Agreement and to ensure that the employees o.f its contractors and
agents rendering services on the Property provide worker's compensation insurance for their
employees.
25.3 City Approval
Whenever prior approvals must be given hereunder by the City Manager or the Director,
as applicable, the City Manager or the Director, respectively, shall approve or disapprove any
such item in its reasonable discretion unless a different standard is expressly provided in this
Agreement with respect to such item.
25.4 Certification
By signing this Agreement Provider certifies that Provider has familiarized itself with
Section 18-102 of the Code of the City of Miami, Florida and that neither Provider nor any of its
principal owners or personnel have been convicted of an offense that would be cause for
Page 38 of 48
NAR: Document. No.: 259318
debarment under Section 18-102 of the Code of the City of Miami, Florida or debarred or
suspended by any federal, state or other governmental entity.
25.5 Successors And Assigns
This Agreement shall be binding upon the Parties hereto, their heirs, executors, legal
representatives, successors and assigns.
25.6 Surrender Of Property
Upon the expiration or earlier termination of this .Agreement by lapse of time or
otherwise, the Provider shall promptly and peacefully surrender and deliver possession of the
Property to the City in accordance with the covenants herein contained.
25.7 Amendments
No amendment or modification of this agreement shall be effective unless in writing and
signed by the parties hereto. The City Manager is authorized to amend or modify this agreement
on behalf of the City subject to approval of the City Commission.
25.8 Construction Of Agreement
This Agreement shall be construed and enforced according to the laws of the State of
Florida and venue for any litigation shall be in Miami -Dade County, Florida
25.9 Waiver ,Of Jury Trial
The Parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right
either may have to a trial by jury in respect of any action, proceeding, claim or counterclaim
based on this Agreement, or arising out of, under or in connection with this Agreement or any
amendment or modification of this Agreement, or any other agreement executed by and between
the Parties in connection with this Agreement, or any course of conduct, course of dealing,
statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial
provision is a material inducement for the City and the Provider entering into the subject
transaction.
Page 39 of 48
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25.10 Severability
If any provision of the Agreement, or the application thereof, is held invalid, the
remainder of the Agreement shall be construed as if such invalid part were never included herein
and the Agreement shall be and remain valid and enforceable to the fullest extent permitted by
law.
25.11 Waiver
No waiver of any provision of this Agreement shall be deemed to have been made unless
such waiver is in writing .and signed by the parties to this Agreement. The acceptance of
additional payments by the City, with knowledge of any breach of this Agreement by the
Provider or of any default on the part of the Provider in the observance or perfoinnance of any of
the conditions, agreements or covenants of this Agreement, shall not deemed to be a waiver of
any provision of this Agreement. The failure of either party to insist upon the strict performance
of any of the provisions or conditions of this Agreement shall not be construed as waiving or
relinquishing in the future any such covenants or conditions but the same shall continue and
remain in full force and effect.
25.12 Captions
The captions contained in this Agreement are inserted only as a matter of convenience
and for reference and do not define, limit or prescribe the scope of this Agreement or the intent
of any provisions thereof.
25.13 Radon
Radon is a naturally occurring. radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to it over time.
Levels of Radon that exceed Federal and State guidelines have been found in buildings in
Florida. Additional information regarding Radon and Radon testing may be obtained from your
county public health unit.
Page 40 of 48
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25.14 No Recordation
The Provider shall not record this. Agreement without the prior written consent of the
City. However, the City Manager may require that this Agreement be recorded or a "Short
Form" memorandum of this Agreement be executed by both Parties and recorded.
25.15 Cancellation by Request of Either of the Parties Without Cause.
Either party may cancel this Agreement at any time, without cause or reason, by giving
one hundred eighty (180) days written notice to the non -canceling party prior to the effective
date of the cancellation. Upon the effective date of such cancellation, the parties shall be
relieved from any further obligations under this Agreement except for those specifically stated to
survive the expiration or termination of this Agreement.
25.16 Joint Preparation
This Agreement is the result of negotiations between the Parties and has been
typed/printed by one party for the convenience of both Parties. Should the provisions of this
Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body
interpreting or construing 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.
25.17 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute one and the same
agreement.
25.18 Binding Effect
This Agreement shall not be binding on the Provider until such time as the City
Commission approves this Agreement.
Page 41 of 48
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25.19 Entire Agreement
This instrument and its attaclunents constitute the sole and only agreement of the parties
relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of
each to the other as of its date. Any prior agreements, promises, negotiations, or representations
not expressly set forth in this Agreement are of no force or effect.
[SIGNATURE PAGE FOLLOWS]
Page 42 of 48
NAR: Document. No.: 259318
IN WITNESS WHEREOF, the Parties hereto have caused this instrument'to be executed by
their respective, duly authorized, officials, the day and year above written.
ATTEST:
By.
Priscilla A. Thompson
City Clerk
APPROVED AS TO FORM
AND CORRECTNESS
By:
Julie O. Bru
City Attorney
IqK
ATTEST:
By:
By:
'14k
Carlos T
Ralf i G. Patino, Vice President
THE CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
ony E. Crapp, Jr.
City Manager
APPROVED AS"TO SURANCE
REQUIREM
Gary Resh
Risk Mana
y, Director
ment
OLYMPIA CENTER, INC.,
A Florida Tot -for -Profit Corporation
By:
Page 43 of 48
Herman' chi'. -esident
NAR: Document. No.: 259318
•
ttr�tu .za.
EXHIBIT
A
) !l
1
II
OLYMPIA BUILDING ADAPTIVE REUSE REHABILITATION
URBANIZA, INC. FOR THE CORNERSTONE GROUP LY94
PROPOSED
GROUND FLOOR
Location
Asset
GL Org Minor Number
Gusman Center
PF-Director's Office
Appliance Equipment
Audiovisual Equipment
EXHIBIT
Description
-
. tS2 SE6, S::--
ate%
4 TA
=a;
_
_—ems IGR,AkA
Business Machines
Communication Equipment
51612
GRAY COMMUNICATIONS
51642
GRAY COMMUNICATIONS
51794
CAMERON SOUND INTERCOM S
51795.
INTERCOM SYS "AIRPHONE"
Computer Equipment
51629
INTERNATIONAL COMPUTER
51630
INTERNATIONAL COMPUTER
51656 GLOBAL COMPUTER SUPPLIES
51758
Printer for Gusman
51759
Computer and Sofware Grant
51760
Laptop for Gusman Director
51761
51860
51862
51863
51864
Computer EQUIPMENT
IBM PRINTER
Dell P III '866 GX200
Dell P III 866 GX200
Dell PIII 866.GX200
51868
3Computers through countyGra
Fixtures & Accessories
51618
51619
51620
51B21
51622
51623
51624
- 51625
5162fi
• 51627
51628.
...51631,
51632
�6 3
59
51634
51617
51616
51615
51611
5161
51614
51610
.51609
51608
51607
51584
51586
51587
51588
51589
51598
HANLON PLUMBING •
KENNY DRAPERY
PIONEER METALS
MAINTENANCE
MIAMI STAGECRAFT
JULSON-AUDIO MAINT,
51599.
51600
51602
51603
MYRIAD
STEIN PAINT
PAINTING
PIONEER METALS
51604
51605
MAINTENANCE
R.V. MARTIN
51606
R,V. MARTIN
R.V. MARTIN
SANCHEZ-ROIG
JULSON
HANLON PLUMBING
DALTON
3. ILLINGER
PIONEER METALS
MAINTENANCE
R.V. MARTIN
ATLANTIC COLOR CENTER
R.V. MARTIN
HANLON PLUMBING
HANLON PL-UMBING
WENGER.CORP
HANLON PLUMBING
ADM. SVC.-G&O
MAINTENANCE
HESCO SALES INC.
MIAMI STAGECRAFT
NEW WORLD CENTER
IATSE
HANLON PLUMBING
}4ANLON PLUMBING
HANLON PLUMBING
HANLON PLUMBING
51635 HANLON PLUMBING
r
51636
ATLAS ELECTRIC -LAMPS
51637
MIAMI STAGECRAFT
51638
MAINTENANCE
51644
MARK QUINLIVAN
51645
DOSP-ADM. SVC, CHARGE
51646
HANLON PLUBING
51647
HANLON PLUMBING
51648 DELCONTE
51649 S. ALLEN
51650 IATSE
51651 MAINTENANCE
51657
DOSP-ADM (APRIL-JUNE)
51658
JEFF CERWINSKE
51659
GUZOWSKI & STEPPE
51660
.I NACOM P
51661
IATSE
51662
IATSE
51663
RAPCO CABLE & LIGHTING
..51664
ATLAS ELECTRIC
51665
FLORIDA WIRE
51666
IATSE
51667.
JULSON
51668
J. HARRY
51669
R.V. :MARTIN
51670
IATSE
51671
JULSON
51672
HARRY
51673
IATSE •
51674
STEIN PAINT CO.
51675
A&B PIPE & SUPPLY
51676
WALDER ELECTRONIC
51677
GRAYBAR ELECTRIC
51678
HARRY RICH
51679
ATLAS ELECTRIC
51680
STAGE EQUIP & LIGHT
51681
IATSE
51682 IATSE
51683
JULSON
51684 JULSON
51685 JULSON
51686
HARRY
51687 HARRY
51686 HARRY
51689 GRAYBAR
51690 JULSON
51691 HARRY
.51692 IATSE
51693
MIAMI STAGECRAFT
51694
RV MARTIN
51695
RV MARTIN
51696
JULSON
51697
IAT.SE
51698
HARRY
51699
FEDERAL EXPRESS
51700
ATLAS AMERICAN
51701
ATLAS AMERICAN
51702
MIAMI STAGECRAFT
51703
T. O'NEILL
51704
K. ILLINGER
51705
K. ILLINGER
51706
D. MCDOUGALL
51707
T. FURMAN
51708
S. EDINGER
51709
S. EDINGER
51710
IATSE
51711
IATSE
51712
C. JULSON
51713
C. JULSON
51714
J. HARRY
51715
J. HARRY
51716
ACE MUSIC
51717
VAN DYKE SIGN CO.
51718
IATSE LOCAL 545
51719
HARRIS MODEL 6130 COPIER
51720
LINEAR & DIGITAL SYSTEMS
51721
CHRIS JULSON
.51742
ATLAS
51743
ATLAS
51744
WENGER CORP
51745
LIGHT FIXTURES & BULBS
51746
ALTMAN ELLIPSOIDAL LAMP
51747
ALTMAN SKYCYC LAMP/FRAME
51748
COMMANDO CURTAINS 47:28'
51749
PRAGER-DEMERITT/RUGS
51750
STODDARD OFFICE SUPPLY
51751
OLD DOMINION FREIGHT INC
51752 ACOLITE
SIGN CO
51753
WIRELESS MICROPHONES INC.
51754 100watt
pa amplifier
51755 Grant
Mechanical
51756 Grant
Mechanical
51757 Grant
for Gusman Office Soft
51.762 CARPET
(HARRY RICH)
51763 7
PANELS
Heat, VentIn & A/C Equip
5176
4
INSTALLATION OF CARPERT
HARRYRICH-RUG NEW OFFICE
A. PUENTES-RM FOR PIANO
BEAU S.IEGEL - ARTS
KENNEY DRAPERY --CURTAIN
DENNIS ALLEN
LONG'S OFFICE SUPPLY
VENETIAN BLINDS
EXECUTIVE .DESK/WALNUT
CREDENZA - WALNUT
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE CHAIR/BRN/CH
CONFERENCE TABLE
HI BACK SWIVEL CHAIR
COLD SPOT AIR CONDITION
COLD SPOT AIR CONDITION
51765
51766
51767
51768
51769
51770
51773
51774
51775
51776
51777
51778
51779
.51780
51781
51782
51783
51784
51785
51786
51787
51788
51789
51790
51791.
51792
51793
51839
LIGHTING DIMMER BOARD
51841
MIAMI STAGECRAFT INC
CONTROL BOARD
FILES FIXED .FRONT LEGAL
INST. EMERGENCY LIGHTS
IATSE LOCAL 545-REBECCA
SIMS BALDWIN - PIANO
REBECCA SANCHEZ-INST.
MIAMI STAGECRAFT
STAGE EQUIP
10IAMI STAGECRAFT, INC,
FOSTER ELECTRIC CO. INC.
MIAMI STAGECRAFT-
MIAMI STAGECRAFT
GUZOWSKI&STEPPE
GRID -HUMIDIFIER
51590 ATLAS ELECTRIC
51842
51846
51849
51850
51851
51852
51853
51854
51856
51857
51858
51859
51861
51585
c_
51591
51592
51593
51594
51595
GRAYBAR ELECTRIC
ADM. SVCS,
GRAYBAR
ATLAS ELECT, SUPPLIES
MYRIAD
51596
WALDEN ELECT.
5159
7
51601
51652
51653
51654
51655
51771
51772
51802
51803
51804
51805
51806
51807
51808
51809
5.1810
._
51811
51812
51813
51814
51815
51818
51819
51823
51824
51825
51827
51831
51832
51833
51834
51838
51840
AIR CONDITIONER
DEHUMIDIFIER
THERMOSTAT
Machinery & Toois
5180T
51816
51821
51822.
51828
5182,9
FIRE PUMP & STARTERS
TILT TRUCK,RUBBER WHEELS
NEW FIRE PUMP
ADDTL COSTS -NEW FIRE
DRY VAC CLEANER
WET/DRY VAC' CLEANER
.M000 NESS-ELECT.
ATLAS ELECT. SUPPLY
BISCAYNE AIR COND.
BISCAYNE A•IR COND.
BISCAYNE AIR COND.
BISCAYNE AIR COND.
SEAR -NC WINDOW UNITS
SEARS -A/C WINDOW UNITS
COLDSPOT AIR CONDITIONER
COLDSPOT AIR CONDITIONER
COLDSPOT.AIR CONDITIONER
COLDSPOT AIR CONDITIONER
COLDSPOT AIR CONDITIONER
COLDSPOT AIRCONDITIONER
COLDSPOT AIRCONDITIONER
'COLDSPOT AIRCONDITIONER
,CODLSFOT AIRCONDITIONER
COLDSPOT AIRCONDITIONER
COLDSPOT AIRCONDITIONER
COLDSPOT AIRCONDITIONER
COLDSPOT AIRCONDITIONER
AIR -CONDITIONER
AIR CONDITIONER
AIR CONDITIONER
RUDD.AIR COND •
INST OF NEW.AIR COND
AIR 'CONDITIONER
EMERSON AIR COND
AIR CONDITIONER
BISCAYNE AIR-9TH FLOOR
BISCAYNE AIR-10TH FLOOR
5183D 'FLOOR MACHINE
Other Equipment
51836
51817
51843
51865.
51866
VACUUM CLEANER
1 COUNTERFEIT DETECTOR
NATIONAL CHEWI CAL
popcom, hot dog broiler
Gusman Popcorn
51867 Gusman Popcorn machine
Date Placed Tag Serial Model
in Service Number Number. - Number Total Comments/Status
fully depr
fully depr
fully depr
fully depr
fully depr
! 0-1 fully depr
115 fully depr
a' fully depr
,1=3 'Eti 0= fully depr
aag1a fully depr
: E— -- —3-v313476g fully depr
T— (_ fully depr
-
fully depr
04 fully depr
-- tom--..
i)= fully depr
fully depr
} =} T II fully depr
fully depr
fully depr
fully depr
fully depr
fully depr
fully depr
n^� fully depr
=8� =fit 31t
•
20
fully depr
fully depr
fully depr
Ia fully depr
�D2 fully depr
1-Nov-86
790.00
1-Apr-87
1,630.00
1-Jun-77
1,368.72
1-Jan-78
280.82
1-Feb-87
2,423.66
1-Feb-87
1,650.00
1-Jun-87
163.12
1-Jun-03I
635.42
fully depr
fully depr
fully depr
fully depr
1-Jul-03
1-Jul-03
1-Aug-03
1-Feb-89
1-Sep-01
1-Sep-01I
1-Sep-01
1-Oct-05
1-Aug-86
1-Aug-86
1-Oct-86
1-Oct-86
1-Oct-86
1-Sep-86
1-Sep-86
1-Sep-86
1-Oct-86
1-Oct-86
1-Oct-86
1-Oct-86
1-Oct-86
1-Oct-86
1-Nov-86
1-Nov-86
1-Nov-86
1-Nov-86
1-Nov-86
1-Dec-86
1-Dec-86
1-Dec-86
1-Nov-86
1-Dec-86
1-Dec-86
1-Nov-86
1-Nov-86
1-Jan-87
1-Jan-87
1-Jan-87
1-Jan-87
1-Jan-87
1-Dec-86
1-Jan-87
1-Feb-87
1-Mar-87
1-Mar-87
1,285.00
1,944.00
2,134.00
1,633.00
1,398.00
1.,398.00
1,398.00
5,727.03
320.00
8,770.00
158.85
3,664.00
3,651.80
384,00
7,000,00
819.11
2,866.00
2,895.00
2,679.00
698.26
89,79
91.27
176.00
176.00
1,960.00
80.00
80.00
249.63
382.50
324.00
358.52
752.90
1,291.75
2,870.00
9,513,00
387.50
8,750.00
961.00
1,101.60
14,814.00
5,000.00
72,75
585.25
223.65
127.50
1-Mar-87
210.00
1-Mar-87I
396.38
l
1-Feb-87
520.79
1-Mar-87
1,146.52
1-Mar-87
1,035.00
1-May-87
6, 000.00
1-May 87,
8,750.00
1-May-87
674.66
1-May-B7
119.57
1-May-87
174.04
i-10ey-87
306,36
1-May-8.7
500.85
1-M v-P 7
I
e o
1-Jul-87
8,750.00
1-Jul-87
250.00
1-Jul-87
1,100:00
1-Jul-87
2,695.00
1-Jul-87
7.80
1-Jul-87.
12.00
1-Aug-87
623.97
1-May-99
838.80
1-Aug-87
7,037.00
1-Aug-87
12.60
1-Aug-87•
460.00
1-Aug-87
420.00
1-Aug-87
895.06
1-Aug-87
20.40
1-Aug-87
365,00
1-Aug-87.
400.00
1-Aug-87
45.90
1-Aug-87
208.54
1-Aug-87
440.60 •
1-Aug-87
31.96
1-Aug-87
121,00
1-Aug-87
525.00
1-Aug-87.
379.46
1-Aug-87
5,749.00
1-Sep-87
16.80
1-Sep-87I
28,20
1-Sep-87
40.00
1-Sep-87
540.00
1-Sep-87
240.00
1-Sep-87
460.00
1-Sep-87
240.00
1-Sep-87
230,00
1-Oct-87
176.00
1-Oct-B7
40.00
1-Oct-87
110.00
1-Oct-87
24.30
1-Oct-87
6,854.30
1-Oct-87
14.36
1-Oct-87
.72.06
1-Oct-87
230.00
1-Oct-87
9.00
1-Oct-87
175.00
1-Oct-87
41.75
1-Oct-87
137.80
1-Oct-87
110.24
1-Oct-87
1,094.25
1-Nov-87
40.00
1-Nov-87
40.00
1-Nov-87
160.00
1-Nov-87
160.00
1-Nov-87
160.00
1-Nov-87
160.00
1-Nov-87
40.00
1-Nov-87
71.70
1-Nov-87
33:60
1-Nov-87
230.00
1-Nov-87
80.00
1-Nov-87
475.00
1-Nov-87
210.00
1-Nov-87
612.00
1-Nov-87
191.36
1-Apr-88
60.00
31-Jan-89
5,890,00
1-Feb-88
631.90
1-Feb-88
191.00
1-Sep-88
34.75
1-Sep-88
92.49
1-Sep-88
1, 028.80
31-Oct-88
511.72
31-Oct-88
2,280.00
31-Oct-88
3,178,00
31-Oct-88
280.00
1-Dec-88
9,300.00
1-Feb-90
3,416.00
1-Mar-90
35,85
1-Mar-90
804.40
1-Jun-95
1,000,00
1-Mar-99
249.99
1-Oct-02
131.89
1-Dec-02
10.52
•
1-Jun-03
495.00
1-Apr-83
842.00
1-Sep-83
1,040.00
1-Jul-85
820.00
1-Sep-85
200,00
1-Jan-86
3,490.00
1-Feb-86
`
100,00
1-Feb-86
19,900.00
1-Jul-87.
I
550,00
1-Mar-88
5,280.00
1-Apr-78
2,910.00
1-May-78
1,100.00
1-May-78
I
900.00
1 May-78..
170.00
1-Wray-78
170.00
1-May-78
170.00
1-May-78
170.00
1-May-78
170.00
1-May-78
I
170.00
1-May-78
170.00
1-May-78
170.00
1-May-78
170.00
1-May-78
170.00
1-May-78
170.00
1-May-78
170.00
1-May-78
170.00
1-May-78
170.00
1-Jul-78
520.00
1-Sep-78
I 375.00
1-May-76 I
I
263.28
1-May-76 I
263,28
4
�
,=
1-Sep-84
I
7,000.00
1-Feb-85
5,661.25
1-Apr-85
4,788.75
1-Jun-85
512.00
1-Sep-85
2,812.00
1-Nov-85
I
36.96
1-Dec-85
17, 500.00
1-Dec-85
462.00
1-Dec-85
1,327.00
1-Feb-86
I
408.00
1-Feb-86
34,967.22
1-Feb-86
534.00
1-Feb-86
2,220.00
1-Apr-86
9,215.00
1-Dec-87
6,650,00
1-Sep=86
2,673.50
1-Oct-B6
I
441.90
1-Oct-86
1-Oct-86
1-Oct-86
1-Oct-86
1-Sep-86
1-Sep-86
1-Sep-86
1-Sep-86
343.86
8,750.00
245.40
25.48
7,000,00
759.00
256,00
1,256.89
1-Jun-87
1-Jun-87
1-Jun-87I
1-Jun-87
1-Apr-89
1-Apr-89
1-Jan-79
1-Apr-79
1-May-79
1-May-79
1,648,97
1,101.68
766.61
423.86
398.00
398.00
360.00
313.00
313.00
363,00
1-Aug-79
1-Jan-80
1-Apr-80
1-May-80
1-Jul-80
1-Sep-80
1-Sep-80
1-Sep-81
1-Oct-81
1-Oct-82
1-Dec-82
1-Oct-83
1-Jun-84
1-Jun-84
1-Jul-82
1-Aug-84
11-Jul-85
1-Jun-86
1-Jun-86
1-Oct-83
1-Aug-84
31-Dec-84
1-Dec-78
1-Nov-82
1-Apr-84
1-Jun-84
1-Nov-84
1-Nov-84
31-Oct-84
313.00
337.00
292.00
382.00
308,00
390.00
411.00
334.00
1
399.00
269.00
453,00
168.00
2,926.00
1,410.00
322.50
575,00
429.99
2,065.74
1,888.97
580.96
267.90
2,250.00
4,500.00
402.30
6,058.50
1,549.85
153.85
759.00
699.20
1-Mar-84
115,59
1-Nov-82
105.00
1-Apr-85
.350.00
1-Mar-02
4,450.00
1-Feb-05
733.50
i-Feb-05
733.50
EXHIBIT C
MEMORANDUM OF Ul\DERSTANDING
BETWEEN
TH lc CITY OF MIAMI
AND
OLYMPIA CENTER, INC.
WHEREAS, the City of Miami, a municipal corporation of the State of Florida ("City") and Olympia
Center, Inc., a not -for -profit 501(c)(3) exempt Florida corporation ("Provider") (hereinafter collectively
referred to as the "Parties"), have come together to collaborate in the funding and completion of the repairs and
improvements listed herein of the property located at 174 East Flagler Street, Miami, Florida, 33131 a/k/a
Gu.snnan Center for the Performing Arts Theatre (the "Property").
WHEREAS, this Memorandum of Understanding is incorporated as an Exhibit to that certain
Management Agreement between the Parties executed of even date herewith; and
WHEREAS, the Parties have been made aware of the structural and financial status of the Property and
have agreed to utilize their best efforts to obtain funding, either individually or collaboratively, for the repairs
and improvements set forth below; and
WHEREAS, the City has conunitted to using its best efforts to allocate approximately Three Hundred
Ninety Thousand Dollars ($390,000) of the City's Limited Ad Valorem Tax Bonds (Homeland
Defense/Neighborhood Capital Improvement Projects) (hereinafter "Bond Funds") .towards the most pressing
repairs needed at the Property; and
WHEREAS, the table below delineates the existing emergency and urgent repairs of the Property, along
with an estimated cost of the repairs and any funding already secured for such repairs;
GUSMAN THEATRE
EMERGENCY & URGENT
REPAIRS Updated 01/25/2011
FUNDING EST. FUNDING
SECURED NEEDED
GUSMAN FACADE *See Engineering Report
Terra Cotta Tile Repair/Replacement
Brick Anchorage, Repointing & Crack Repair
Structural Repairs
Waterproof Coating
TOTAL 3,000,000
GUSMAN WINDOWS
Window Restoration/Replacement
Sealants
TOTAL 1,825,000
WATERPROOFING, WATER INTRUSION REPAIRS AND MISC. STRUCTURAL REPAIRS
**CAP 08/09 North and West Wall Repair & Waterproofing 40,000 40,000
***CAP 10/11 Fire Escape Repair & Structural Repairs 22,931 42,069
NAR: DocumentNo.:266791
1
Remaining Water remediation North/West Exterior repairs 250,367
MISC. Roof Repairs, Drainage improvements etc. 100,000
Drainage Improvements & Repaving of Alley 100,000
Basement Drainage Improvements (New Sump Pit & Pumps) 35,000
Outdoor Duct and Parapet Sealing 25,000
Repair Projection Room Walls Due to Water Intrusion 15,000
Replace Cracked Floor Slab at Fire Pump Room 20,000
Seal Attic HVACDuctwork 25,000
Repair Water Damage to Decorative Plaster Balcony Beams 50,000
SUBTOTAL 702,436
EXISTING
EMERGENCIES
****CAP 09/10 Emergency Egress 39,000 51,907
REPLACE DETERIORATED FIRE PUMP VALVES 90,000
*****MISC REPAIRS URGENT 32,576
SUBTOTAL 174,483
A/E FEES & EXPENSES ESTIMATED @ 10% 570,192
TOTAL GUSMAN EMERGENCY REPAIRS 101,931.00 6,272,110.90
OLYMPIA FACADE 2,997,250
UPCOMING URGENT GUSMAN NEEDS
Necessary upgrades and improvements to equipment and the building 308,238
Repair Dressing rooms 26000
Carpet Cleaning 10,000
Replace (3) Marquee Message Boards & Add (1) New Message Board above Entrance Doors 200,000
Rewire F.O.H. Electrical & Misc. Lighting Replacement 500,000
Box Office Repairs 75,000
Replace Stage Lighting Dimmers 850,000
Remodel Dressing Rooms 700,000
Repair Second Ave Marquee 100,000
Restore Vestibule Tile Floor 750,000
Wiring the building for a T-1 line: Parts labor and services TBD 27,000
Replace All Deteriorated Exterior Facade Lighting 150,000
SUBTOTAL 3,696,238
A/E FEES & EXPENSES ESTIMATED @ 10% 369,624
GRAND TOTAL URGENT NEEDS 4,065,862
GRAND TOTAL EMERGENCY & URGENT GUSMAN NEEDS 101,931.00 10,337,972.70
GRAND TOTAL OLYMPIA AND GUSMAN COMBINED 13,335,222.70
* Weiss Jenney Report on the Gusman Facade
09/08 CAP GRANT (Expires if work is not complete September 30, 2011)
10/11 CAP GRANT
90/10 CAP GRANT
INTERNAL ONGOING REPAIR LIST UPDATED
NAR: Document No.: 266791
2
NOW, THEREFORE, it is hereby agreed by and between the Parties as follows:
• There will be clearly stated the roles and responsibilities each Party will assume to ensure the success of
the proposed project.
a Describe the resources each Party will contribute to the project either through time, in -kind contribution
or with the use of grant funds, e.g. office space, project staff, training.
• Identify the representatives of the planning and development team who will be responsible for planning,
developing, and implementing project activities and describe how they will work together and work with
project staff.
• Demonstrate a commitment on the part of all Parties to work together to achieve stated project goals and
to sustain the project once grant funds or any other applicable funds are no longer available.
ATTEST:
ItAzdek,
Priscilla A. Thompson
City Clerk
APPROVED AS TO FORM
AND CORRECTNESS
By:
Julie O/Bru
City Attorney
ATTEST:
By �L
Carlos T
}
asure
By:
Ra ph .,Patino, Vice President
NAR: Document No.: 266791
THE CITY OF MIAMI,
a municipal corporation of
the State of.Florida
By:
ony E. Crapp, J .
City Manager
APPROVED�S T• INSURANCE
REQUIREMV' NTS
Gary Reshe y, Director
iskc Management
OLYMPIA CENTER, INC.,
A Florida Not -for -Profit Corporation
By:
Herman Ehev. 'resident
3
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Olympia Theater and Office Building [Image]
URL: http:Rpdfhost.focus•nps.00v/docs/NRHP/Text1E40o0829.pdf
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•URL: http://pdfhostfocus.nps.gov/dots/NRHP/Photos/84000839.pdf
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Publisher National Park Service
Published: 03/08/ 1984
Access; Public access
Restrictions: All Rights Reserved
Format/Size: Physical document with text, photos and map
Language: eng: English
Note: 174 E. Flager St.
Item No.; 84000839 .NRIS (National Register Information System)
Subject: EVENT
Subject: ARCHITECTURE/ENGINEERING
Subject: ARCHITECTURE
Subject: COMMERCE
Subject: PERFORMING ARTS
Subject: LATE 19TH AND 20TH CENTURY REVIVALS
Subject: BUILDING
Subject: 1925-1949
Keywords; Fuller,George A.,Co.;Eberson,John;1925
Place: FLORIDA — Miami -Dade County — Miami
Record Number. 305530
Record Owner, National Register of Historic Places
Freedom of Information Act Pr vecy Policy Dlsclstmer Accessibility
Last updated: 03/14/11 73
1. i, I 1 r•