HomeMy WebLinkAboutBack-Up DocumentsAMENDED AND RESTATED
MEMORANDUM OF UNDERSTANDING
This Amended and Restated Memorandum of Understanding (the "MOU") is entered
into this day of , 2022 by and between the City of Miami, a municipal corporation
of the State of Florida whose principal address is 444 Southwest 2nd Avenue, loth Floor,
Miami, Florida 33130 (the "City"); Miami -Dade County, a political subdivision of the State
of Florida, whose principal address is III NW 1st Street, Miami, Florida 33128 (the
"County") the following terms and conditions:
Recitals
WHEREAS, on March 23, 2017, the City of Miami City Commission adopted
Resolution No. R-17-0143, approving a memorandum of understanding between the
County and City (the "Initial MOU"), providing funding in an amount up to Fifty Million
Dollars ($50,000,000.00), subject to (i) availability of the funding from City park impact
fees; (ii) reduction of the funding based on the County's receipt of funding from third parties;
and (iii) reduction of funding based on reduced project costs; and
WHEREAS, on June 20, 2017, the Miami -Dade County Board of County
Commissioners adopted Resolution No. 641-17 approving the Initial MOU; and
WHEREAS, under the Initial MOU, the City has already contributed funding of
Three Million Eight Hundred Seventy One Thousand Six Hundred Ninety Dollars
($3,871,690.00) to The Underline project (the "Contributed Funding"); and
WHEREAS, the terms and conditions of this MOU do not impact two previous
separate grant agreements which are (1) a grant in the amount of Two Hundred Thousand
Dollars ($200,000.00) from the City to the Parks Foundation of Miami -Dade County in
2015 for improvements to the Metrorail Right -of -Way for The Underline project (City
Resolution No. R-15-0371), and (2) a grant not to exceed the amount of One Million Dollars
($1,000,000.00) from the City to the County for the funding of phase one of The Underline
project (City Resolution No. R-15-0397), which contributions are not affected by this MOU
(together, the "Previous Funding Commitments"); and
WHEREAS, the City desires to continue its commitment to facilitate the design,
development, and enhancement of a ten (10) mile long portion of land consisting of the
Miami -Dade County Metrorail right of way from the southern seawall of the Miami River
to the Dadeland South Metrorail Station, in connection with a series of multiple open space
recreational areas, walkways, trails, and bikeways projects collectively known as The
Underline (hereinafter, "The Underline"); and
WHEREAS, rather than providing a grant for The Underline that is subject to
reduction as provided in the Initial MOU, the City desires to provide an amount certain,
through a significant reduction from the original absolute commitment, which funds may
be collected through the City's park impact fees relating back to prior resolutions approved
by the City Commission, and which may be used by the County for the Qualifying Expenses
defined herein; and
WHEREAS, as amended, the revised grant amount, exclusive of the Previous
Funding Commitments, would be Fifteen Million Dollars ($15,000,000) less the
Contributed Funds (the "Grant"); and
WHEREAS, the City and County will have obtained as of the date hereof the
legislative, administrative or other necessary approvals and authorizations to enter into this
MOU setting forth the County's and City's rights and obligations;
NOW, THEREFORE, in consideration of the mutual promises of the parties
contained herein and other good and valuable consideration, receipt and sufficiency of which
is hereby acknowledged, the City and the County agree as follows:
Terms and Conditions
1. Incorporation of Recitals; Effect on Other Agreements. Each of the
foregoing recitals are true and correct, incorporated herein by reference, and made a part
hereof.
a. Other Agreements. This MOU is intended to and shall amend, restate,
and supersede, in every respect, the Initial MOU, which shall be of no further force or effect;
no other agreement between the County and City shall be modified, superseded, or in any
other manner impacted by the approval of this MOU.
b. Compliance with Initial MOU. Each party acknowledges and agrees
that the other party has complied with the terms and conditions of the Initial MOU and that
(i) neither party thereto owes the other party any monetary amounts under the Initial MOU
and (ii) that neither party thereto shall have a claim against the other arising out of or
relating to the performance of any right or obligation under the Initial MOU.
2. Funding and Use of Grant. On the terms and conditions set forth herein and
the County's compliance with all of its obligations hereunder, the City hereby agrees to make
available to the County the Grant to be used for the design, development, and enhancement
of The Underline.
a. Funding. The County acknowledging the City's prior contribution of
the Contributed Funds, the City shall provide the remainder of the Grant funds to the
County within thirty (30) days of the effective date of this MOU. The County shall be
required to deposit any such funds into a segregated account within the County's internal
finance system. The City represents and warrants that Grant funds will be provided to the
County from a funding source that shall not limit or compromise the County's ability to use
The Underline for public transportation purposes, including for the continued operation of
existing systems and services or for the future expansion of public transportation systems and
services.
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b. Use of Grant. The Grant shall be expended on Qualifying Expenses
incurred in connection with the planning, design, development and enhancement of The
Underline within the City's territorial boundaries. For the purpose of this MOU, a Qualifying
Expense shall mean all planning, design, development and enhancement costs, including, for
example, the costs of land acquisition and development, expansion of existing surfaces,
surveying, site testing, construction, engineering, construction management and inspection,
and permitting. Qualifying Expenses shall specifically exclude costs related to the operation
and maintenance of The Underline, and costs associated with environmental remediation.
3. Grant Administration. The County shall not require the City's approval
before expending Grant funds that have been transferred to the County pursuant to § 2(a),
above. Notwithstanding the foregoing, the County shall provide the City with a quarterly
report detailing how the County has expended Grant funds.
4. Term. The term of this MOU shall commence when approved by all parties
and shall terminate upon the earlier of
a. The City's transfer of the full Grant amounts pursuant to § 2(a) of this
MOU; or
b. Except as provided in the last sentence of this paragraph, the issuance
of a notice of termination for default by any party, which shall be issued only in the event
of a material default of this MOU and only after sixty (60) days have elapsed from the
issuance of a notice of default identifying the default(s) to be relied upon in the notice of
termination. During the 60-day period, the party against whom default is alleged may cure
the alleged default, in which case the notice of termination shall not issue. If the alleged
default cannot be cured within the 60-day period, but the party against whom default is
alleged commenced efforts to cure the alleged default within the 60-day period, then a notice
of termination shall not issue as long as efforts to cure the default remain in progress.; or
C. Except as provided in subsection (iii) of this paragraph, the issuance of
a notice of termination for convenience by any party to this MOU, which termination shall
be effective fifteen (15) days after its issuance. In the event of termination pursuant to this
subparagraph:
i. If by the City, the City shall be relieved of all obligations under
this MOU except those obligations that expressly survive the termination of this MOU;
provided, however, that the City shall not be entitled to reclaim funds previously transferred
to the County under § 2(a) of this MOU; or
ii. If by the County, until funds provided to the County in
accordance with § 2(a) are exhausted, the County shall continue to utilize such funds in
accordance with § 2(b) and provide the City with the quarterly reports required under §§ 2(a)
and 3. Upon exhaustion of such funds, the County shall be relieved of all obligations under
this MOU except those obligations that expressly survive the termination of this MOU.
5. Survival of Rights and Obligations / Representations and Warranties.
Termination of this MOU will not relieve any party of liability for any claim(s) against it that
arose before the termination of the MOU, including the obligation to indemnify in
accordance with § 11 of this MOU. The representation and warranty contained within § 2(a)
of this MOU shall continue indefinitely beyond the termination of this MOU. The City shall
have a continuing right to audit the County, solely to evaluate compliance with §§ 2(a) and
(b) and (3) for a period of four (4) years beyond the date of the final report provided by the
County to the City pursuant to §§ 2 (a) and (b) and 3.
6. Audit Rights. During the term of this MOU and upon reasonable notice, the
City shall have the right to conduct audits of all of the County's records pertaining to the
Grant and to visit any site on which Grant funds have been expended in order to conduct
monitoring and evaluation activities. Any monitoring and evaluation activities conducted by
the City shall be conducted at the City's own expense and without disruption to the County's,
and/or its affiliated entities' operations on said site.
7. Notice. All notices or other communications that may be given pursuant to
this MOU shall be in writing and delivered by electronic mail, personal service, or registered
mail to the address indicated for the particular parry below. Such notice shall be considered
given on the day of e-mailing or personal service, or if by registered mail, five (5) days after
posting. It is understood and agreed that notice may be provided to the successor of any
officials listed below. If notice is:
To the City:
City Manager, City of Miami
444 Southwest 2nd Avenue, 10`h Floor
Miami, Florida 33130
Attn.: Art Noriega, City Manager
I• �
City Attorney, City of Miami
444 Southwest 2nd Avenue, Suite 915
Miami, Florida 33130
Attn.: Victoria Mendez, City Attorney
To the County:
Miami -Dade County Mayor's Office
I I I Northwest 1st Street, 29th Floor
Miami, Florida 33128
Attn.: County Mayor
AND
Miami -Dade County Attorney
111 Northwest 1st Street. 28th Floor
Miami, Florida 33128
Attn.: County Attorney
8. Exclusive Remedies for Noncompliance. If the County expends the Grant for
a purpose other than as permitted by § 2(b) of this MOU, the City's sole and exclusive remedy
under this MOU shall be that the County shall be required to reimburse the City in the amount
of the improper expenditure(s). An expenditure shall be presumptively improper (subject to
rebuttal through evidence) if it is not accounted for in the reports provided by the County to
the City in compliance with and pursuant to §§ 2(a) and (b) and 3.
9. Liability of Cit. In the event of breach of this MOU by the City or the County
a party may only seek specific performance of this MOU and any recovery shall be limited
to the funding from the Grant pursuant to this MOU. In no event shall the City be liable to
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the County for additional compensation, including consequential or incidental costs or
damages.
10. Marketing. In a manner that is commensurate with the amount of funds
provided by the City to the County pursuant to § 2(a) of this MOU, as reasonably determined
by the County, the County shall mention that the development of The Underline was
supported and funded by the City on all approved signage within the territorial limits of the
City, promotional media and brochures, publications and similar documents, or data
pertaining to the development of The Underline. The foregoing, however, shall not be
construed to require the County to erect signage specifically to recognize the City's
contributions under this MOU.
11. Indemnification.
a. By the County. The County does hereby agree to indemnify and hold
harmless the City to the extent and within the limitations of § 768.28, Fla. Stat., subject to
the provisions of that statute whereby the County shall not be held liable to pay a personal
injury or property damage claim or judgment by any one person which exceeds the sum of
$200,000.00 from any and all personal or property damage claims, liabilities, losses, and
causes of action which may arise solely as a result of negligence of the County. However,
nothing herein shall be deemed to indemnify the City from any liability or claim arising out
of the negligent performance or failure of performance of the City or any unrelated third parry.
b. By the City. The City does hereby agree to indemnify and hold
harmless the County to the extent and within the limitations of § 768.28, Fla. Stat., subject
to the provisions of that statute whereby the City shall not be held liable to pay a personal
injury or property damage claim or judgment by any one person which exceeds the sum of
$200,000.00 from any and all personal or property damage claims, liabilities, losses, and
causes of action which may arise solely as a result of negligence of the City. However,
nothing herein shall be deemed to indemnify the County from any liability or claim arising
out of the negligent performance or failure of performance of the County or any unrelated
third party.
12. Non-Delegability. The obligations of the County under this MOU shall not
be delegated or assigned to any other party without the City's prior written consent which
may be withheld by the City, in its sole discretion, for any or no reason whatsoever.
However, it is understood that the County will require the services of various contractors
and subcontractors to facilitate the creation and completion of The Underline. Nothing
herein shall be construed as prohibiting the County from contracting with others to facilitate
the design, development and enhancement of The Underline consistent with the restrictions
of the use of the Grant.
13. Amendments. No amendment to this MOU shall be binding on any party,
unless in writing and signed by the respective authorized representatives of the other parties.
14. Interpretation. This MOU shall be interpreted in accordance with the laws of
the State of Florida.
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a. Captions. The captions in this MOU are for convenience only and are
not a part of this MOU and do not in any way define, limit, describe or amplify the terms and
provisions of this MOU or the scope or intent thereof
b. Entire Agreement. This instrument constitutes the sole and only
agreement of the parties hereto relating to the Grant, and correctly sets forth the rights, duties,
and obligations of the parties. There are no collateral or oral agreements or understandings
between the City and the County relating to the MOU. Any promises, negotiations, or
representations not expressly set forth in this MOU are of no force or effect. This MOU shall
not be modified in any manner except by an instrument in writing executed by the respective
authorized representatives of the parties. The masculine (or neuter) pronoun and the singular
number shall include the masculine, feminine and neuter genders and the singular and plural
number. The word "including" followed by any specific item(s) is deemed to refer to examples
rather than to be words of limitation.
C. Construction. Should the provisions of this MOU require judicial or
arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing
the same shall not apply the assumption that the terms hereof shall be more strictly construed
against one party by reason of the rule of construction that an instrument is to be construed
more strictly against the party which itself or through its agents prepared same, it being agreed
that the agents of both parties have equally participated in the preparation of this MOU.
d. Covenants. Each covenant, agreement, obligation, term, condition or
other provision herein contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making the same, not dependent
on any other provision of this MOU unless otherwise expressly provided. All of the terms and
conditions set forth in this MOU shall apply throughout the term of this MOU unless
otherwise expressly set forth herein.
e. Conflicting Terms. In the event of conflict between the terms of this
MOU and any terms or conditions contained in any attached documents, the terms of this
MOU shall govern.
f. Waiver. No waiver or breach of any provision of this MOU shall
constitute a waiver of any subsequent breach of the same or any other provision hereof, and
no waiver shall be effective unless made in writing.
g. Severability. Should any provision contained in this MOU be
determined by a court of competent jurisdiction to be invalid, illegal or otherwise
unenforceable under the laws of the State of Florida, then such provision shall be deemed
modified to the extent necessary to conform with such laws, or if not modifiable to conform
with such laws, that same shall be deemed severable, and in either event, the remaining terms
and provisions of this MOU shall remain unmodified and in full force and effect.
h. Third -Party Beneficiaries. No provision of this MOU shall, in any
way, inure to the benefit of any third party so as to make such third party a beneficiary of this
MOU, or of any one or more of the terms hereof, or otherwise give rise to any cause of action
in any party not a parry hereto.
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15. Attorneys' Fees and Costs. In the event of any litigation between the parties
under this MOU, the parties shall bear their own attorneys' fees and costs at trial and appellate
levels.
16. Compliance with Federal, State, and Local Laws. The City, and the County
understand that this MOU is subject to certain federal, state, and local laws and regulations
pertaining to public records, conflicts of interest, record keeping, etc. and each agree to
comply with and observe all applicable laws, statutes, rules, regulations, codes, and
ordinances as such may be amended from time to time.
IN WITNESS WHEREOF, I/we have hereunto set my/our hand(s) and seal(s) this
day of , 2022.
ATTEST:
Harvey Ruvin, Clerk
Deputy Clerk
ATTEST:
Todd Hannon, City Clerk
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
Victoria Mendez, City Attorney
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MIAMI-DADE COUNTY, FLORIDA
By its Board of County Commissioners
Daniella Levine Cava, Mayor
As to form and legal sufficiency:
Miguel A. Gonzalez
Assistant County Attorney
CITY OF MIAMI
Art Noriega, City Manager
APPROVED AS TO RISK
MANAGEMENT REQUIREMENTS:
Anne Marie Sharpe, Risk Manager
Department of Risk Management