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09-16-08 Item 2bSUU7'y c. ry ' J INCORPORATED •� 1927 CITY OF SOUTH MIAMI INTER- OFFICE MEMORANDUM To: City Commission From: W. Ajibola Balogun + City Manager Date: September 16, 2008 Re: YMCA's request to review Lease Agreement to address potential changes in the operations, per Section 3.8 In Accordance with Section 3.8 of our current Lease Agreement with the YMCA, Mr. Alfredo Sanchez, President/ CEO of the YMCA submitted the attached letter requesting that the City meet with the YMCA to review and amend the current Agreement. I have attached a copy of the current Lease Agreement for your review, comments and direction on the YMCA's request. Should you have any questions or comments, please do not hesitate to call me. END OF MEMORANDUM �v YMCA OF GREATER MIAMI BOARD OF DIRECTORS Gilberto Neves Chairman Odebrecht Construction, Inc. Andrew Stearns Secretary Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Lisa D. Napier Treasurer Deloitte & Touche LLP Vernell "Bimbo" Coles American Residential Realty Group August 27, 2008 VIA CERTIFIED MAIL. RETURN RECEIPT RFOUESTED Mr. Ajibola Balogun City Manager City of South Miami 6130 Sunset Drive South Miami, Florida 33143 f- AUG 2 9 2008 Thomas Cornish Se:tlin Insurance Re: Lease Agreement dated December 1, 2005 by and between the City of Caridad C. Errazquin South Miami (the "City") and The Young Men's Christian Association of Colonial Bank, N.A. Tomas R Erban Greater Miami (the "YMCA "), as amended by Amendment to Lease Retired Business Executive Agreement dated December 1, 2005 (as so amended, the "Agreement "), David R. Heffernan Abadin Cook with respect to South Miami Park and Downrite Field Frank Jantzen III AVMed Health Plans Miguel R. Montaner BankUnited Brian P. Mormile U.S. Trust Natacha Munilla Thunder Electrical Contractors, Inc. Harold E. Patricoff Shutts & Bowen LLP Cesar A. Pizarro The Miami Herald - El Nuevo Herald Ann E' Pope Ann Pope Consulting David H. Promoff Retired Banker M. J. "Manny" Rodriguez Florida Power & Light Company Suzanne Salichs Office of Mayor Carlos Alvarez Robert o Sanchez Health Care Consulting Ser0cr, Jay A. Steinman Carlton Fields, P.A. Carlos M. Trueba Rodriguez, Trueba & Co., PA BOARD OF TRUSTEES Frederick Jackson, Jr. Chairman BeecherJackson Helio Castroneves Castroneves Racing Arthur H. Hertz Wometco Enterprises. Inc. Joseph T. Natoli University of Miami Jean D,Shehan Philanthropist Willard Shepard NBC 6 Rosa Sugranes Iberia Tiles Corporation G. Ed Williamson II Williamson Cadillac Joe Zubizarreta Zubi Advertising Alfred Sanchez President & CEO Dear Mr. Balogun: Thank you for meeting with me and the other representatives of the YMCA on August 26th. As we discussed during our meeting, in Section 3.8 of the Agreement, the City and the YMCA have agreed to meet every three years during the term of the Agreement for the purpose of reviewing the Agreement. The YMCA hereby formally requests that the City meet with the YMCA to review and amend the Agreement. Please have your attorney contact our attorney, Bob Murray of Morgan, Lewis & Bockius LLP (305- 415- 3352), to coordinate this process. Thank you. cc: Luis Figueredo, Esq. Nagin Gallop Figueredo 18001 Old Cutler Road, Suite 556 Miami, FL 33157 -6416 VVe build strong kids, strong families, strong communities Association Office • 1200 NW 78 AVENUE • SUITE 200 • MIAMI, FL 33126 • TEL: 305 - 357 -4000 • FAX: 305 - 357 -6633 • ymca @ymcamiami.org • wvvv✓.ymcamiami.org Office of the City Manager September 2, 2008 Mr. Alfred Sanchez President & CEO YMCA of Greater Miami Association Office 1200 NW 78 Avenue, Suite 200, Miami, Florida 33126 C7l��l, i evc;y � Via Fax: 305.357.6633 and Via Certified Mail: 7002 2410 0005 7153 6001 Reference: Response to letter received on August 29, 2008 YMCA's Request to review current agreement for South Miami Park Dear Mr. Sanchez: We received your attached letter late Friday, August 29, 2008. Our City Commission agenda for Tuesday, September 2, 2008 was finalized on Thursday, August 28, 2008. Your letter will be included in the September 16, 2008 City Commission agenda for discussion. Should you have any questions or comments, please do not hesitate to me at (305) 668 -2510. Sincerely, X W. Ajibola 2dogun City Manager C: Luis Figueredo, City Attorney South Miami br&W-d All-America City II '`: I 2001 6130 Sunset Drive South Miami, Florida 33143 -5093 • Tel: (305) 663 -6338 • Fax: (305) 663 -6345 www.cityofsouthmiami.net LEASE AGREEMENT THIS AGREEMENT is made and entered into this 1 st day of December, 2005 by and between the City of South . Miami, a political subdivision of the State of Florida, (hereinafter referred to as the City) and The Young- Men's Christian Association Of Greater Miami, a registered non -profit corporation, (hereinafter referred to as YMCA), and is duly attested to by the signatures of authorized officials of each organization. WITNESSETH: WHEREAS, the City is the owner of South Miami Park (hereinafter referred to as the "Park"), a 10 -acre park and recreation facility located at 4300 SW 58.t' Avenue, South Miami, Florida 33143; and, WHEREAS, the City wishes to provide the greatest number of recreational programs possible to its residents; and, WHEREAS, the City and YMCA (collectively the "Parties.. ") desire to enter into this Lease Agreement for the YMCA to lease the real property depicted and scored in yellow on Exhibit "A" attached hereto-, and the improvements located thereon ( "Leased Property"). WHEREAS, YMCAs have been serving their communities for nearly 150 years by meeting the needs of families and individuals. WHEREAS, the City and the YMCA recognize that the health, social service and recreational programs offered and operated by the YMCA will provide the citizens of South Miami with significant benefits. WHEREAS, the City and YMCA desire the longest term relationship allowable under the City Charter to maximize the period that the YMCA's programs and services benefit the South Miami community. NOW THEREFORE, in consideration of the mutual promises and covenants contained in this agreement, and for other good and valuable consideration, the receipt and legal sufficiency of which is acknowledged by both parties, the parties agree as follows: 1. RECITALS - WHEREAS CLAUSES The parties acknowledge and agree that the recitals, whereas clauses, set forth above are true and correct and are incorporated by reference into this Agreement. 2. TERM OF AGREEMENT The initial term of this Agreement shall. be for fifty years, th e longest term permitted under the City. Charter fifty years and shall begin on September 1, 2005 and terminate on August 31, 2055. (i) During the final year of the lease term, the city, provided that the YMCA has complied with the terms and conditions of the lease agrees to consider, in it's sole discretion, a renewal. of the lease agreement in accordance with the City Charter. (ii) In the event, that the City Charter is amended to authorize lease agreements of city owned property to extend beyond fifty years, this agreement shall be amended to allow for the maximum term permitted under the charter amendment. 3. PROJECT FINANCING 3.1 Borrowings. Upon receipt of a written request from the YMCA, the City will use commercially reasonable efforts to participate in the Florida League of Cities Municipal Loan Program and borrow (collectively referred to as the Borrowings) the funds required to develop the new community center to replace the existing Recreational Facilities. The Borrowings shall equal $8,000,000.00. Prior to submitting an application to the Florida League of Cities, the City Commission must be reasonably satisfied that the YMCA has. the financial capacity to repay the Borrowings. By entering into this Agreement, YMCA agrees to pay the principal of, and interest on, all loans that comprise the Borrowings, and this obligation of the YMCA shall be collateralized and guaranteed by the YMCA in a manner acceptable to the City Commission. The City's commitment to use its commercially reasonable efforts to borrow funds as provided for in this paragraph 3.1 expires on the fifth anniversary of this Agreement. 3.2 Field Lighting. As additional consideration for the underwriting the community center discussed in 3.1, the YMCA shall contribute $250,000 from the. Borrowings to be utilized for the installation of the field lighting. 3.3 Payment of Rents and Notes. YMCA shall pay the City (i) a Base Rent of one dollar per year; and (ii) the payments due under the YMCA Notes for payment by City. 3.4 Delivery of Payments. Payments shall be by check made payable to "City -of South Miami" and, unless instructed otherwise in writing by, the City, delivered to: City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Attn: City Manager 3.5 Delinquency. The payment for the YMCA Note is delinquent if not received by the City ten (10) days before the respective due date for loan repayment. The City may assess the YMCA a charge of 18% per annum on a pro rated basis until such amount is paid in full. If the payment remains delinquent for thirty (30) days after the date which such payment is otherwise due, an Event of Default shall have occurred, and the City may proceed to exercise all of its rights. Page 2 of 17 3.6 Furnishings. Upon the expiration of this Agreement, all property, including furnishings, fixtures and equipment located within the Recreational Facilities will become the property of the City with the exception of furnishings acquired by the YMCA through donations specifically designated for use by YMCA programs. 3.7 Feasibility Study. Within, thirty days from the effective date of this Agreement, the YMCA shall retain a consultant to evaluate and prepare a report concerning the feasibility of replacing the existing on -site Recreational Facilities with a new community center. If the study concludes that the membership revenue generated by the YMCA at this location and the market can support the principal and interest payments required by the Borrowings and the YMCA determines in its sole discretion that it is feasible to construct a new community center, the YMCA agrees to complete construction of the community center within five years of the effective date of this Agreement, provided that the City makes available to the YMCA the Borrowings. In the event that the YMCA, elects not to build a new community center, the YMCA agrees to deposit $20,000 annually into a segregated escrow account to be utilized for improvements, maintenance and repairs. The parties shall mutually agree on maintenance, repairs, and replacements to be performed 3.8 Review of A,gxeement. The Parties agree to. meet every three years during the term of the Agreement for the purpose of reviewing the greement to address potential changes in the operations of the facilities. 4. DEFINITIONS For the purposes of this Agreement, the following terms will apply: 4.1 "Recreational Facilities" means existing and future recreational structures located within the Park property that include but are not limited to the basketball courts, racquetball courts, swimming pool, recreation center and office building and leetedd- located on the Leased Property. 4.2 "Downrite Fields or Fields" means all open -.field space located within the Park suitable for recreational programming. 4.3 "Common Areas" means all areas not typically associated with recreational programming opportunities and will include parking areas, whether paved or un- paved, transition areas and buffer zones. 4.4 "Charter" means the municipal charter of the City of South Miami, Florida. 4.5 "City" means the City of South Miami, Florida. 4.6 "Default Rate" means eighteen Percent (18 %) p.a. for purposes of subparagraph 3.4: 4.7 "Development Code" means the City of South Miami Land Development Code as in effect on the Effective Date hereof and as amended from time to time. Page 3 of 17 4.8 "YMCA Notes" shall mean the YMCA's obligation to pay the principal of, and interest on, the Borrowerings made by the City and evidenced by promissory notes duly executed and delivered by the YMCA to be used exclusively to construct new community center on the Leased Property. 5. USE AND OPERATION OF THE LEASED PROPERTY .5.1 The YMCA shall ensure that every program event it operates on the Leased Property and on the Fields is adequately staffed to ensure that every activity sponsored by the YMCA is properly supervised. 5.2 The YMCA shall be responsible for all utilities and additional operating costs associated with the Leased Property and/or programming offered by the YMCA. 5.3 The restroom facilities located on the Leased Property will be available to all Park patrons during Park hours. 5.4 The City will be responsible for the complete operation of the fields located within the Park. The City will be responsible for maintaining all common areas within the Park. 6. PROGRAMMING AND RIGHT OF FIRST REFUSALThe Parties agree to meet on or about August 1 of each year (the "annual scheduling meeting") in order to coordinate a schedule for use of the Downrite Fields located within the Park for the upcoming fiscal year (October 1 through September 30). During the lease term, 10% of playable field space each year shall be made available to the YMCA for its use and 100% of the field space shall be made available Monday through Friday from 9:00 a.m. to 5:00 P.M. during June and July for the YMCA's annual Summer Program. After, termination of all daily summer programs the fields shall be cleaned up and available for use by the City by 6:00 p.m. The City will be granted the right of first refusal to conduct activities, events or programs on the Leased Property at no charge. Similarly, the YMCA will be granted the right of first refusal to conduct activities, events or programs at no charge on the Downrite Fields during days and times not previously scheduled ( "open dates ") as determined at the annual scheduling meeting. Each Party's right of first refusal must be exercised within thirty days of the annual scheduling meeting, otherwise the open dates may be made available to a third party. Each Party shall establish and use its best efforts to manage and operate their respective locations diligently and professionally, in the best interests of the City and the YMCA, and in accordance with industry standards. The YMCA shall make available opportunities for other duly recognized community organizations to use the facilities, at a reasonable charge to cover expenses, and on a space available basis, and when access does not interfere with membership services or regular YMCA programs. The YMCA will provide professional staffing necessary to ensure high quality programming during the specified operating hours. 7. MAINTENANCE Each party shall provide for the complete maintenance and upkeep of their designated locations on a seven -day per week basis, during operating hours typically associated with community recreation programs. Each party will be responsible for paying for one half of the total cost for garbage and trash removal from the site. In the event that either party conducts an event that requires additional garbage and trash removal, then said party will be responsible for paying for the additional services required. Page 4 of 17 7.1 YMCA shall be responsible for the following: a) YMCA shall provide on -going maintenance and janitorial services for the Leased Property and shall maintain the Recreational Facilities in good condition, at its own cost and expense. The City will provide the necessary janitorial supplies including all necessary cleaning supplies and paper products for the restrooms. b) YMCA shall provide litter control and janitorial services to (i) the Leased Property and (ii) the portion of the Downrite field that it utilizes daily during practices, league play and tournaments. If the City determines that litter control and janitorial services are not being provided effectively, the City will provide 48 hours written notice to YMCA to correct the condition. If the YMCA does not correct the uncleanly and unsanitary condition within 48 hours of receiving the written notice, the City will provide the service and bill YMCA for the cost of service and the YMCA will pay all costs related to this service. c) If the City determines there are maintenance needs, the City will inform the YMCA representative, by electronic mail, or mail of the needs. Response times to correct these needs shall be as follows: i. Needs that the City determines in its sole discretion do not present a safety concern must be corrected within 30 days, unless the corrective work takes more than 30 days to correct and the YMCA is diligently pursuing same. ii. Needs that the City determines in its sole discretion present a minimal liability /safety concern must be designated by signage and the public prevented from access to the area of concern within 24 hours and the problem. shall be corrected within 7 days, unless the corrective work takes more than 7 days to correct and the YMCA is diligently pursuing same. iii. Needs that the City determines in its sole discretion present a significant liability /safety concern must be designated by signage and the public prevented access to the liability immediately and the problem shall be corrected with 48 hours, unless the corrective work takes more than 48 hours to correct-and the YMCA is diligently pursuing same. d) If the YMCA does not correct any maintenance /vandalism needs within the time allowed, the City will have them corrected and will bill the YMCA for the cost of the repairs and the City will be entitled to full payment for those repairs. e) The YMCA shall be responsible for all related costs of operation of the recreational facility including but not limited to staffing, repairs and maintenance, materials, supplies and utilities associated with the operation and maintenance of the Leased Property. f) The YMCA shall be responsible for locking the entrance gate and turning off all lights when YMCA programs are the last to finish at night. g) During the times that the YMCA uses the Fields, the YMCA shall collect all litter from the Fields and place it in the on -site dumpster for removal by the City. Page 5 of 17 h) During the times that the YMCA uses the Fields, the YMCA will be responsible for all costs associated with the operation of the Fields including future field lighting. 7.2 City shall be responsible for the following: a) Turf maintenance including all mowing, fertilization, aeration, pesticide control, weed control, field preparation and field marking. b) Irrigation repair and maintenance including pumps, lines and sprinkler heads. c) Litter removal from the fields in use by City programs. d) Pruning of trees and shrubs throughout the Park. e) Weeding of landscaped areas and Common Areas. f) Removal or painting out of graffiti. g) Opening the entrance gate for the City use of the Park and locking the entrance gate and turning off all lights when City programs are the last to finish at night. h) All utilities associated with the operation and maintenance of the Fields, including future field lighting. i) Repaving, repairing and maintaining the parking areas of the Common Areas. j) Repairing and maintaining the fences and locks around the perimeter of the Park. k) Providing security to the Park. 8. HURRICANE/EMERGENCY PROCEDURES 8.1 Both parties will jointly develop operating procedures to be followed in the event of a declaration of a "State of Emergency" by the Governor of Florida or by the City. At a minimum, these procedures will provide for preparations, notifications., etc. provided for in the City's current Hurricane Preparedness Manual. 8.2 Each party will be responsible for contacting the proper authorities (South Miami Police Department, Miami -Dade Fire Rescue, etc.) in the event of an emergency during each party's use of the Fields or the Leased Property. 9. HOURS OF OPERATION The YMCA will open and close the Leased Premises as follows: • Monday through Sunday from 9:00 a.m. to 6:00 p.m. Notwithstanding the foregoing schedule, the YMCA may provide additional hours of programming of the Recreational Facilities, and will submit such additions to the City in writing Page 6 of 17 not less than 30 days prior to the effective date. The minimum hours of operation will be adjusted in the event that athletic field lighting becomes available. 10. FEES The YMCA will establish a fee schedule for activities and programs conducted at the Leased Property. The YMCA will establish the membership and program fee schedule in its sole discretion provided said fee schedule is generally in accord with the fees charged by recreation service providers at other comparable locations. The YMCA programs and activities shall be open to all upon payment of the applicable fee without regard to age, race, religion, color, sex, place of residence, or national origin and meet all ADA requirements. It is understood. that typical YMCA fees may be charged, and the YMCA will seek financial assistance to include those who cannot afford the fees within. the limit of YMCA resources. The YMCA shall in�ikc every effort to allow participation by all children, regardless of their ability to Pay. 11. INSURANCE/INDEMNIFICATION The City shall not be held liable or responsible for any claims which may result from acts, errors or omissions of YMCA, its subcontractors, suppliers or laborers. In reviewing, approving or rejecting any submissions or acts of YMCA, the City in no way assumes responsibility or liability for the acts, errors or omissions of YMCA or its subcontractors. YMCA shall not commence work under this Agreement until it has obtained and submitted proof of all insurance required by the City. YMCA shall defend, indemnify and hold the City harmless from any and all claims, liability, losses, expenses and causes of action arising solely out ora negligent act, error, or omission or misconduct of YMCA, or YMCA's subcontractors, members, invited guests, suppliers and laborers incident to the performance of YMCA's services under this agreement. YMCA shall pay all claims, losses, fines, penalties, costs and expenses of any nature whatsoever resulting from its intentional misconduct or negligence. YMCA shall maintain during the term of this Agreement the following insurance: A. Comprehensive general liability insurance with broad form endorsement, completed operations and products liability, contractual liability, severability of interest with cross liability provision, and personal injury and property damage liability with at least a combined single limit of $1,000,000.00 per person and $2,000,000.00 per occurrence for bodily injury and property damage liability. The policy or policies shall name City as additional insured and shall reflect the hold harmless provision contained herein. B. Physical Property Damage Insurance covering all real and personal property in Leased Property in an amount equal to at least one hundred percent (100 %) of the replacement cost of all such property. C. Workers' Compensation Insurance in compliance with Chapter 440, Florida Statutes, as presently written or hereafter amended. D. The policies shall contain waiver of subrogation against the City where applicable and shall expressly provide that the policy or policies are primary over any other insurance that the City may have. The City reserves the right to request a copy of the required policies for review. All policies shall contain a " severability of interest" or "cross liability" clause without obligation for premium payment of the City. Page 7 of 17 E. All insurance policies required must be written by a company or companies rated at least "A" as to management. and at least "Class X" as to financial strength in the latest edition of the Best's Insurance Guide, published by Alfred M. Best Co., Inc., Fulton Street, New York, New York, and qualified to do business under the laws of the State of Florida. F. The policy or policies of insurance required shall be written in a manner such that the policy or policies may not be canceled or materially changed without 30 days advance written notice to the City. Written notice shall be sent to Director of Finan ce, at the above address: City of South Miami To the Attention of the Finance Director 6130 Sunset Drive South Miami, Florida 33143 -5093 G. YMCA shall furnish certificates of insurance to . the City prior to the commencement of operations. The certificates shall clearly indicate that YMCA has obtained insurance in the type, amount, and classification as required for strict compliance with this paragraph. Compliance with the foregoing requirements shall not relieve YMCA of its liability and obligations under this agreement. 12. HOLD HARMLESS In addition to the insurance coverage provided to,the City, the YMCA shall hold the City, including its officials, employees and representatives, harmless and indemnify it against all claims, demands, damages, actions, causes of actions, liability, costs, expenses, and attorney's fees arising out of, or resulting from, injury.to or death of persons, or damage to or loss of property, sustained on or about the licensed premises, arising from the negligent use, acts, actions, omissions or failures to act of the YMCA or of any of its employees, agents, representatives, invitees, or guests. Additionally, the protections provided by this provision shall also include any costs, expenses, or legal fees the City may incur in establishing that the YMCA or its insurer are responsible to provide protection, coverage, and representation to the City, its officials, employees, and representatives for any incident that may occur during the term hereof. The City shall hold the YMCA, including its officials, employees and representatives, harmless and indemnify it against all claims, demands, damages, actions, causes of actions, liability, costs, expenses, and attorney's fees arising out of, or resulting from, injury to or death of persons, or damages of property, sustained during City's use of the Leased Property or Downrite Fields. 13. CONCESSION OPERATIONS Each party will retain the right to operate food and beverage concessions at their respective locations. All such operations must meet all current laws, ordinances, rules and regulations governing the preparation and dispensing of food and beverage products. Commodities to be sold at the concession stand shall include food, drinks and snacks and must be sold at prices comparable with other like concessions in the surrounding area. No items may be sold in glass containers. No alcoholic beverages may be sold or consumed at the Park. The Parties may collaborate with other organizations to operate their concession - operation. Each party will furnish all necessary equipment and supplies needed to operate and maintain their respective concession operations. Page 8of17 14. JOINT USE/PROGRAMMING The Parties agree to make their best efforts to work together whenever possible to conduct mutually beneficial programs and events. The City and YMCA agree, as a basic starting point, to meet regularly as needed to review programs and proposed, schedules and to assure that any program competition is minimized. Neither the YMCA nor the City shall have the power, right, or authority, expressed or implied, to act or perform its duties in such a way as to commit, obligate or bind the other, except as expressly provided in this Agreement and only to the extent specifically set forth herein. 15. REVENUES Each party shall be entitled to all revenue generated through their respective programming activities and concession operations at the Park. 16. EXAMINATION AND RETENTION OF YMCA'S RECORDS All YMCA revenue records and accounts must be kept according to generally accepted accounting principles. The City, or any of their duly authorized representatives, shall, for a period extending three years from the date of termination of this Agreement have access to and the right to examine any of YMCA's books, ledgers, documents, papers, or other records involving transactions related to the operations of the Park for the purpose of making audit, examination, excerpts, and transcriptions. The City may, at reasonable times inspect YMCA's facilities (if applicable) and perform inspections, as the City deems reasonably necessary, to determine whether the services required to be provided by YMCA under this Agreement conform to the terms of the Agreement... YMCA shall make available to the City all reasonable facilities and assistance to facilitate the performance of inspections by City representatives. If, in the City's sole determination, the City is required to take corrective action to ensure proper maintenance of any Recreational Facilities, the City may require the YMCA to reimburse the City for such action. YMCA understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provision of Chapter 119, Florida Statutes, and agrees to provide City personnel with access to its records in order to allow the City to respond to public record requests. YMCA's failure or refusal to comply with the provisions of this paragraph shall result in the immediate cancellation of this Agreement by the City. The right to access and examination of records in this paragraph shall continue until disposition of any mediation, claims, litigation or appeals. 17. . PUBLIC DOCUMENTS All documents, reports, plans, specifications or other records, including electronic records, between the YMCA and the City under this Agreement are public records, and may be subject to public inspection and copying, as provided by Chapter 119, Florida Statutes. 18. ALTERATIONS AND IMPROVEMENTS The YMCA shall not make any permanent alterations, improvements or additions to the Leased Property without the prior written consent of the City, which consent will not be reasonably withheld. Any alteration, improvement or addition to the Leased Property, approved by the City, shall be designed, constructed, installed and maintained in a good, safe and workmanlike manner, complying with all applicable building codes, and shall be paid for in full by the YMCA. Upon expiration of the lease term or any option term, any such alteration, improvement or addition to the Leased Page 9 of 17 Property including but not limited to the new community center shall become the property of the City. 19. FACILITY RENOVATIONS The YMCA shall commence the planned renovations identified in the attached Exhibit "B" ( "Renovations ") within thirty days of receipt of written approval from the City, and shall complete the renovations within 180 days.. The Reriovations performed by the YMCA shall be conducted at the YMCA's expense and shall conform to all applicable laws and codes. 20. PROHIBITED ACTIVITIES The YMCA shall only use the Leased Property for those activities contemplated by this Agreement. The YMCA represents and warrents that it will not use the Leased Property for any unlawful purpose and shall comply with all laws and permitting requirements applicable now, or in the future, to the operation of the Leased Property. The YMCA shall not permit any offensive; or dangerous activity, nor any nuisance or other conduct in violation of the public policy of the City, county or state on the approved premises. 21. NON- DISCRIMINATORY PRACTICES In the operation of the YMCA program at the approved premises, all management and operational services, including those activities related to direct contact with the public, and those involving the hiring, treatment and advancement of employees, the YMCA shall not discriminate in any manner based :upon race, color, creed, religion, ancestry, national origin, gender, age, physical /mental handicap or in any other manner. 22. EVENTS OF DEFAULT BY YMCA The following events are hereby defined as "Events of Default" by YMCA: 22.1 Failure to Pay. Failure of YMCA to pay any, debt service on the Borrowings, or any other payments of money as herein provided or required when due shall constitute a monetary default of YMCA hereunder. In the event that any debt service on the Borrowings, or other payment of money is not paid to the City within ten (10) days prior to the date the same becomes due and payable, the City may assess the YMCA a charge of 18% per annum on a pro rated basis until such amount is paid in full. If the payment remains delinquent for thirty (30) days after the date which such payment is otherwise due, an Event of Default shall have occurred, and the City may proceed to exercise any and all remedies provided herein or available at law for an Event of Default including but not limited to termination of this Agreement and institution of foreclosure proceedings. YMCA covenants and agrees to pay to the City interest on the amount thereof from the date such payment or installment became due and payable to the date of payment thereof, at the Default Rate. 22.2 Failure to Perform. Failure of YMCA to perform in accordance with or to comply with any of the covenants, conditions and agreements which are to be performed or complied with by YMCA in this Agreement other than those requiring payment of money as provided in subparagraph 22.1 above, and the continuance of such failure for a period of 30 days after notice thereof in writing from the City to YMCA (which notice shall specify the respects in which the City contends that YMCA has failed to perform any such covenants, conditions and agreements), shall constitute an Event of Default; provided, however, if such default cannot with reasonable diligence be cured within 30 days and YMCA within such 30 -day period shall have Page 10 of 17 commenced and thereafter shall have continued diligently to prosecute all actions necessary to cure such default, then YMCA shall have such additional time as YMCA requires while and so long as YMCA continues to diligently prosecute all reasonable actions necessary to cure such default. Until the City has provided YMCA with. written notice pursuant to this subparagraph 22.2 and the time periods for cure set forth in this Agreement have elapsed without such cure having been effected, the failure of YMCA to perform or comply with the non - monetary covenants, conditions and agreements of this Agreement shall not be deemed an Event of Default. 23. EVENTS OF DEFAULT BY CITY The following events are hereby defined as "Events of Default" by The City: 23.1 Failure to Perform Failure of the City to perform in accordance with or to comply with any of the other covenants, conditions and agreements which are to be performed or complied with by the City in this Agreement, and the continuance of such failure for a period of 30 days after notice thereof in writing from YMCA to the City (which notice shall specify the respects in which YMCA contends that the City has failed to perform any such covenants, conditions and agreements), shall constitute an Event of Default; provided, however, if such default cannot with reasonable diligence be cured within 30 days and the City within said 30 day period shall have commenced and thereafter shall have continued diligently to prosecute all actions necessary to cure such default then the City shall have such additional time as the City requires while and so long as the City continues to diligently prosecute all reasonable actions necessary to cure such default. Until YMCA has provided the City with written notice pursuant to this subparagraph 23.1 and the time periods for cure set forth in this Agreement have elapsed without such cure having been effected, the failure of the City to perform or comply with the covenants, conditions and agreements of this Agreement shall not be deemed an Event of Default. In the event that the City does not cure timely the defaulting condition as provided for in this subparagraph 23.1 the YMCA shall have the right to correct the defaulting condition and receive reimbursement from the City for reasonable costs and expenses incurred with the curing of such defaulting condition.. The City's failure to reimburse the YMCA shall be a breach of this Agreement. 24. TERMINATION BY DEFAULT Should the either party default on the terms of this Agreement and fail to cure the default within 30 days as provided for in this Agreement, the- non-defaulting party may terminate this Agreement. 25. TERMINATION BY MUTUAL AGREEMENT This Agreement may be terminated at the mutual agreement of both Parties prior to the expiration of the initial term or any subsequent renewal term. 26. COMPLIANCE WITH LAWS The YMCA shall, at its sole expense, comply with all laws, orders, ordinances, rules and regulations of any governmental authority or quasi - governmental authority having or asserting authority or jurisdiction. The YMCA shall at its sole expense execute file and obtain, as applicable, punctually when due, all forms reports, licenses, permits, and returns required by law in connection with its use and operation of the Leased Property. Page 11 of 17 27. ATTORNEY'S FEES In the event of litigation between the parties hereto, arising out of this Agreement, the prevailing party shall be entitled to attorneys' fees and costs. Neither party shall be entitled to pre judgement interest. 28. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Florida and shall be determined by a court of competent jurisdiction in Miami -Dade County, Florida. '29. ENTIRE AGREEMENT The Agreement, when signed by all of the parties, constitutes the full and complete understanding and agreement of all parties and may not be in any manner interpreted or fulfilled in contradiction of its express terms. This Agreement and the incorporated attachments constitute the entire understanding between the parties and integrates by its terms all previous agreements or understandings, oral or written, between the parties. In the event of any conflict, the terms of this Agreement will govern over the provisions of any incorporated documents. 30. SEVERABILITY Should any paragraph or any part of- any paragraph of this agreement be rendered void, invalid or unenforceable by any court of law, for any reason, determination shall not render void, invalid or unenforceable any other section or part of any section of this agreement. 31. CONSTRUCTION OF THIS AGREEMENT The parties agree that this Agreement is a product of all of their efforts, that it expresses their mutual understandings, and that it should not be interpreted in favor of either party or against either of them. 32. CONTINGENCY FEE AND CODE OF ETHICS WARRANTY YMCA. warrants that neither it, nor any principal, employee, agent, representative amount of which is contingent upon the to pay, and YMCA has not, and will not, pay a fee the City awarding this Agreement to YMCA. YMCA warrants that neither it, nor any principal, employee, agent, representative or family member has procured, or attempted to procure, this Agreement in violation of any of the provisions of the Miami -Dade County or the City's conflict of interest and code of ethics ordinances. A violation of this paragraph will result in the termination of the Agreement. 33. WARRANTY OF AUTHORITY The signatories to this Agreement warrant that they are duly authorized by action of their respective City commission, board of directors or other authority to execute this Agreement and to bind the parties to the promises, terms, conditions -and warranties contained in this Agreement. 34. ASSIGNMENT /SUBLICENSE The YMCA shall not (i) assign, transfer, pledge or hypothecate this Agreement, or any interest it may have hereunder, or (ii) sublet the Property or any part thereof without the prior written consent of the City. This Agreement is binding upon the successors and permitted assigns of the YMCA and City. The City may in its sole discretion withhold consent to any request. Page 12 of 17 35. WAIVER OF DEFAULTS Waiver by .the City of any breach or default by the YMCA under any terms of this Agreement shall not be deemed to nor shall the same constitute a waiver of any subsequent breach or default on the part by the YMCA. 36. BENEFICIARIES This is an Agreement only by and between the City and YMCA and for their benefit and the benefit of their successors and assigns permitted by this Agreement. No other person or party shall be beneficiary hereof or have any rights hereunder, and no rights are conferred by this Agreement upon any other person or party, whether their name may be used or otherwise identified in this Agreement. 37. HEADINGS The headings preceding the text of the sections and subsections of this Agreement are used solely for convenience of reference and shall not affect the meaning, construction or effect of this Agreement. 38. YMCA AS INDEPENDENT CONTRACTOR The YMCA is acting under this Agreement as an Independent Contractor and nothing contained herein, no .act. of the YMCA or the City, or any other facts or circumstances, shall be construed to establish the YMCA as a .partner or joint venturer or as an agent of the City. The YMCA shall take all reasonable steps in dealing with third parties to ensure that such parties understand the authority and status of the YMCA hereunder as that of Independent Contractor. 39. NOTICES All notices, requests and demands to be made or given to the parties hereto shall be in writing and shall be delivered in reasonable time to the addresses indicated below. Such notices, requests and demands, if sent by mail, shall be deemed delivered three days after deposit in the mail, or if delivered by hand or courier, at the time delivered. City Manager President City of South Miami YMCA of Greater Miami 6130 Sunset Drive 1200 NW 78 Avenue South Miami, Florida 33143 Miami, Florida 33126 a) The YMCA shall provide to the City the name address and telephone number of the individual(s) with daily operational and supervisory responsibilities of the Facilities. 40. RIGHTS OF OWNER Notwithstanding anything contained in this Agreement to the contrary, nothing. contained herein is intended to restrict, or shall have the effect of impairing any and all rights possessed by the City as owner of the facilities (including, without limitation, the right of entry into and access to said structures); provided, however, that the City shall not, when exercising its rights as owner, interfere with, obstruct or otherwise prevent the YMCA from exercising its duties as operator of the facilities in accordance with the terms and conditions of this Agreement. 41. PERFOMANCE AND PAYMENT BOND Prior 'to the commencement of construction of the new Recreational Facilities, the YMCA in accordance with section 255.05 F.S. shall deliver to the City an acceptable Performance and Payment Bond issued in form and by such surety as approved by the City, for the full cost of all services and construction. Page 13 of 17 42. LIENS The YMCA shall not directly or indirectly create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the Property or any interest therein. The YMCA shall promptly, at its own expense, take such action as may be necessary to duly discharge any such mortgage, pledge, lien, charge, encumbrance or claim i. f the same shall arise at any time. 43. REASONABLENESS OF APPROVALS Nothing in this Agreement shall be construed to waive or limit the City's governmental authority as a municipal corporation and political subdivision of the State of Florida. Unless specified otherwise, where approval or consent of the City is required under this Agreement, such consent or approval shall be deemed to refer to the City's consent or approval as a property owner, such consent or approval shall be contractual in nature and shall not be in lieu of any required governmental approval of the City. 44. YMCA EMPLOYEES The YMCA agrees to conduct thorough background checks on all of its employees and volunteers. The YMCA may conduct criminal history checks on any YMCA personnel when the YMCA deems it necessary to protect the health and safety of its guests, members or employees. The YMCA may retain the City to perform the criminal and background checks contemplated by this Agreement. The YMCA understands and covenants that it shall not employ, or accept voluntary services from any individual who has been suspended on the grounds of unethical or immoral behavior, including improper sexual or physical conduct with children or students. Violation of this provision will result in immediate termination of the Lease. 45. RECOGNITION OF DOWN -RITE ENGINEERING'S CONTRIBUTIONS The City agrees to name the Fields "Down -Rite Field" in recognition and appreciation of the contributions made and maintain the such name as long as the Park is owned by the City. The size and location of the sign shall be as determined by Down -Rite, provided such the sign complies with the City code of Ordinances. 46: HONORARY MEMBERSHIPS FOR SOUTH MIAMI RESIDENTS The YMCA agrees to offer City Residents (i) the right to become honorary members of the new community center without paying an annual YMCA membership fee and (ii) YMCA programs at a discounted fees. 47. COMPETITIVE SELECTION OF CONSULTANTS AND CONTRACTORS In the event that the YMCA utilizes the Borrowings or any other funding procured by the City to design and build the community center the YMCA shall comply with any. competitive bid requirements imposed by the lender. 48. SURRENDER OF THE PREMISES Upon termination of this Lease, the YMCA shall remove its personal property and surrender possession of the Premises in its "as is" condition. The YMCA shall have no responsibility for making any extraordinary repairs or replacements, or be required to make any representations or warranties concerning the condition of the Leased Property upon surrender. 49. TIME OF ESSENCE Time shall be of essence with regard to the performance by the YMCA and the City of all of their respective obligations under this Agreement. Page 14 of 17 IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed, all as of the day and year indicating their agreement. Attest: For City: 0?2 CITY CLERK CITY M GER For YMCA: SECRETARY CUASWENT Alfred Sanchez President and CEO Approved as to form and legal sufficiency: w City Attomey C:/My Documents /Word Documents/YmcaagrRev5 Page 15 of 17 EXHIBIT A Legal Description of Land The S 1/2 of the SW 1/4 of the NE 1/4 of the NE 1/4, less the East 25 feet, and the S 1/2 of the SE 1/4 of the NW 1/4 of the NE 1/4, in Section 24, Township 54 South, Range 40 East, lying and being in Miami -Dade County, Florida. Page 16 of 17 in v , ADJACENT m .m N u BUILDING a; C f .. i — - �� -- mot--- � . • � • - - --�� • -- � �•�— .-a . . t 25 _-� F. .P. .. ASPHALT % F-A V E M E. N T 423'y RAQUET :o L* Q° \„ ° I a. BALL o t, o� I ; I M COURT 25.0' I F It 2 Q• x I z o PaHV c ST Y m �1 8 N �- H9Glri C. . S. — i ° u• �, _ ti° ,I•0 N °300 "' I m I h,� so.3• t`v� v '. 19.5 � n. ,.f -,i,i. Q ' •` =^� —fir —fir Ln ld V Q' ) I 1' __r p �� . r• 9. C7 ~ l o d x z I O '.. J �� to °° o uI� ONE STORY C:B :Z. c I Li �� WARE PA V I L L I 0 N � � a 11 � `n = I vii [_ m BASKET BALL COURT ° _� ` f 4.5 �•U a� •� • �• szs5 �, 0.5• CURB) LT A S P H A L T P A V It M E N T I _.,CLF b GATE F. I.P. ,v�FD. NA D. F WA L(. i iri o N.E m I 25' 25` SEC Sri T EXHIBIT EXHIBIT B Planned Park Renovations 1. Downstairs locker rooms: • Acoustical drop ceilings • Upgraded lighting • New interior doors and hardware (ADA) • New bathroom configuration (ADA) partitions and stalls • New counters, fixtures, lavatories (ADA) • New restroom paper dispensers and receptacles • Downstairs painting • New benches and seating (ADA) • New water fountains • Placement of a French drain at the lower -level of the YMCA building. 2. Pool. repair and cleaning: • Locate and repair leaking pipes • Repair of pool finish • Replace D.E. filters • Acid wash and pressure clean • Re- filling of the pool 3. Exterior painting: • Pressure clean and painting of the four exterior buildings • Pressure cleaning of all exterior sidewalks • Pressure cleaning of the four courts 4. Additional Grounds Work:. • Finish sidewalks at entrance /exits to parking lot (2 locations) • Research slope requirements of sidewalks for any necessary changes (ADA) Page 17 of 17