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HomeMy WebLinkAboutExhibitPublic Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING ("MOU") is made and entered into this day of , 20 , effective upon signature ("Effective Date"), by and between the City of Miami, a municipal corporation of the state of Florida, whose address is 444 Southwest 2nd Avenue, Miami, Florida 33130 ("City") and Miami Waterfront Ventures, LLC., a Delaware limited liability company, whose address is 4100 NE 2 Avenue, Suite 307, Miami, Florida 33137 ("MWV", together with the "City" referred to as the "Parties"). RECITALS WHEREAS, MWV is currently developing the Una Residences Project (the "Project") at the property located at 175 SE 25 Road, Miami, Florida (the "Property"); and WHEREAS, the Property fronts the dead-end portion of SE 25t' Road which is public right of way consisting of unpaved open space which the City Commission designated as a Play Street pursuant to Resolution No. R-16-0274 (the "Play Street Area"); and WHEREAS, the Play Street Area is currently unpaved with landscaping and irrigation and the existing seawall is in need of replacement; and WHEREAS, in connection with the development of the Project, MWV is required to replace the existing seawall per Section 54-56 of the City Code; and WHEREAS, in connection with the development of the Project, MWV has proffered certain public benefits to the City including a Waterfront walkway in accordance to Miami 21, Appendix B, and other enhancements to the Play Street Area along with certain right-of-way improvements along SE 25t' Road (collectively, the "Street Improvements"), pursuant to the terms of this MOU which will result an inviting neighborhood street accentuated by new public green, open space for the public to enjoy unique views of the City's waterfront; and WHEREAS, the City Commission, pursuant to Resolution No. , a copy of which is attached hereto as Exhibit 1, authorized the City Manager to accept the proposed public benefit improvements to SE 25t' Road and the Play Street Area from MWV; and WHEREAS, Resolution No. also authorized MWV to temporarily utilize the Play Street Area to facilitate the construction of the Street Improvements and the Project; and WHEREAS, MWV is authorized to transact business in the State of Florida and is the fee simple owner of the Property; and WHEREAS, this MOU does not enlarge, modify or alter any development rights which MWV has obtained by virtue of a building permit or other approvals, but rather is meant to memorialize the understanding between the City and MWV, that includes outlining the process to Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J complete the Street Improvements and the Project and to temporarily use and occupy the Play Street Area; and NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the sufficiency of which is hereby acknowledged by the Parties, the City and MWV agree that the foregoing recitals are true and correct and further agree as follows: A. INCORPORATION BY REFERENCE The recitals set forth in the preamble to the MOU are incorporated by reference as though set forth in full herein and made a part hereof. B. SCOPE OF STREET IMPROVEMENTS MWV hereby agrees to complete, at its sole cost and expense, the Street Improvements as generally depicted in the conceptual plan attached as Exhibit 2 (the "Plans") and described herein, including: 1. Construction of a new seawall along the length of the terminus end of SE 25 RD. 2. Construction of a Baywalk and related improvements along SE 25 Road including new pedestrian path, pavers, landscaping, trees, lighting, trash receptacles, benches, directional signage, etc. in accordance with all applicable regulations. 3. Right-of-way and landscape improvements along SE 25 h Road as provided in Exhibit 3. Right of way Improvements shall be as required under the building permit plans and in accordance with Section 54-56 of the City Code. The existing median along SE 25t' Road and the Play Street Area have landscaping and irrigations systems that MWV will replace and/or restore under Building Permit No. BD18-018345-001 -BOO 1. Any amendments, alterations, variations, modifications, extensions, or waivers to the Plans shall only be valid when they have been reduced to writing, duly approved, and signed by the City Manager and/or his/her designee. Detailed final plans, including all design, engineering and consultants' plans needed for completion of the Street Improvements, shall be forwarded to the City, to the attention of the Director of the Department of Resilience and Public Works, for review and approval as to consistency with the applicable engineering standards and regulations. The Director of the Department of Resilience and Public Works may circulate the proposed final plans to other departments, as needed, to ensure compliance with all other applicable regulations. All approvals under this section shall not be unreasonably withheld or delayed. Any and all costs associated with the Street Improvements shall be borne by MWV. All Street Improvements shall be constructed at no cost to the City and are agreed not to be a debt, duty, or obligation of the City. The City agrees to expeditiously review any and all plans submitted by the Developer in conjunction with the Street Improvements. The City Commission hereby authorizes the City Manager to execute any and all agreements, building permit applications, demolition applications, utility permit applications, access agreements, and/or other similar instruments requested by MWV in connection with the design and development of the Street Improvements and the Project. The City further agrees to support the Developer's efforts to obtain approval for the Street Improvements including but not 2 Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J limited to having an authorized representative from the City attend meeting(s) with the City, Miami - Dade County, State of Florida, and/or any other local, municipal, county, state, or federal government authority or agency having jurisdiction over the public right of way and shoreline, regarding the Street Improvements and providing written support for the proposed Street Improvements. MWV shall execute, record, and deliver to the City a Covenant Running with the Land providing that MWV will maintain the Street Improvements in accordance with the City's standards and specifications City. C. OWNERSHIP OF STREET IMPROVEMENTS The Parties agree that the City shall be the sole owner of the Street Improvements once all applicable permits have been finalized and closed following their completion, and upon acceptance of the Street Improvements by the City. D. OCCUPATION OF PLAY STREET AREA Upon approval of this MOU by the City Commission, the City agrees to temporarily authorize MWV to occupy and use the Play Street Area under the conditions set forth in this MOU and requirements in accordance with the provisions of Section 54-3 of the Code of the City of Miami, Florida, as amended ("Ci . Code"). MWV shall be allowed to use and occupy the Play Street Area as necessary to facilitate the construction of the Street Improvements and the Project including but not limited to storage of construction materials and equipment, staging of cranes and such other uses as many be needed to permit the construction of the Street Improvements and the Project subject to approval by the Department of Resilience and Public Works. The Parties acknowledge that the Play Street Area is located within the City's public right-of-way. In consideration for this MOU and the Street Improvements, and pursuant to Section 54-3(e)(8) of the City Code, the City Commission authorizes the City Manager to waive right-of-way closure fees required under Section 54-3 of the City Code for the temporary use and occupation of the Play Street Area in connection with the construction of the Waterfront walkway Improvements, except for the fee(s) pursuant to Section 54-3(e)(2). E. CONSTRUCTION MANAGEMENT 1. Maintenance of Traffic (MOT) MWV recognizes the requirement to develop maintenance of traffic ("MOT") plans in connection with any work which may impact the right-of-way around the Property. MOT plans will be developed by MWV's contractors and submitted to the City Manager or his/her designee for review, comment and approval prior to any such work taking place. Any traffic flow and changes to pavement marking and signage requires approval from Miami -Dade Department of Transportation and Public Works. MWV hereby agrees that vehicular access to the Brickell Biscayne Condominium, located at 150 SE 25' Road, shall be maintained at all times during construction of the Project and the Street Improvements. Additionally, MWV and the City agree that, during the term of this MOU, temporary Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J pedestrian access to the waterfront shall be maintained. However, the Parties hereby agree that pedestrian access to the waterfront may be limited, subject to change, and periodically unavailable during the construction of the Street Improvements and the Project. The City reserves the power to regulate the hours and manner of public access to the waterfront and may limit such access for safety reasons and as necessary to complete the construction of the Project and the Street Improvements. MOT plans for the Project and the Street Improvements shall be frequently updated as construction progresses. All modifications to the MOT plans shall be submitted to the City Manager or his/her designee for review, comment, and approval. 2. Noise In order to reduce potentially hazardous conditions that endanger both life and property, MWV will make every effort to create the least amount of disruption to the City over the shortest amount of time during construction of the Project. In support of the expeditious and orderly construction of the Project, the City Manager authorizes a waiver of the noise restrictions for construction equipment pursuant to Section 36-6(c) of the City's Code of Ordinances, Monday through Saturday from 7:00am to 7:00pm, but not including holidays. The City Manager confirms that shortening the construction schedule of the Project will reduce the hazardous conditions which endangers life and/or property. MWV or its contractors must attain approval prior to any work to take place on Federal holidays and/or Sundays to the City Manager. Any such waiver request for Federal holidays and/or Sundays will be reviewed by the City Manager on a case by case basis within fourteen (14) days of receiving the request. Violation of this provision may result in a code enforcement violation pursuant to Chapter 2, Article X, provided, however, the City reserves all legal remedies under Florida law and the use of one remedy shall not preclude the use of another. F. TERM Unless earlier terminated by the City, this MOU shall automatically terminate upon the final acceptance of the Street Improvements by the City. The term may be extended by the mutual written consent of MWV and the City Manager in the form of an Amendment to this MOU. G. INSURANCE AND BONDING INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE MOU MIAMI WATERFRONT VENTURES, LLC I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 fl Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured Contingent and Contractual Liability Premises and Operations Liability Explosion, Collapse and Underground Hazard Primary Insurance Clause Endorsement Completed Operations Period (3) following completion II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation USL&H, if applicable Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J Each Occurrence $ 5,000,000 Aggregate $ 5,000,000 City of Miami listed as an additional Insured. Coverage is excess follow form over all liability polices contained herein. V. Owners & Contractor's Protective Each Occurrence General Aggregate City of Miami listed as named insured VI. Payment and Performance Bond City listed as Obligee VII. Builders' Risk $1,000,000 $1,000,000 $TBD Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $10,000 All other Perils 5% maximum on Wind/Hail and Flood City of Miami listed as loss payee A. Coverage Extensions: As provided by carrier VIII. Protection and Indemnity Each Occurrence $1,000,000 Policy Aggregate $1,000,000 Jones Act Included City of Miami listed as additional insured The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or 0 Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. H. INDEMNIFICATION MWV shall indemnify, defend, and hold harmless the City and its respective officials, officers, employees, agents and instrumentalities from any and all liability, losses or damages, including reasonable attorneys' fees and costs of defense, which the City and/or its respective officials, officers, employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of action or proceedings of any kind or nature arising out of, relating to or resulting from the performance of this Agreement by MWV, or its respective employees, agents, servants, partners, principals, contractors or subcontractors, except to the extent arising, as applicable, from the City's willful or wanton acts or omissions for the applicable term in accordance with the Florida Statute Section 95.11, period of no more than five (5) years from the date of completion of the Street Improvements. To the extent arising from a liability that is covered by the foregoing indemnification, MWV shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits or actions of any kind or nature, through counsel designated by MWV in consultation with the City Attorney, in the name of the City, where applicable, including appellate, mediation , arbitration or litigation proceedings, and shall pay all costs, judgments, and reasonable attorney's fees which may issue thereon. MWV agrees that any insurance protection provided by MWV and/or its contractor(s) shall in no way limit the responsibility to indemnify, keep and save harmless and defend, as applicable, the City and its officials, officers, employees, agents and instrumentalities. The provisions of this Section on indemnification shall survive the expiration or termination of this MOU for the applicable term in accordance with the Florida Statute Section 95.11, period of no more than five (5) years from the date of completion of the Street Improvements. I. TERMINATION FOR CAUSE This MOU and/or the City's obligations under the same may be terminated, for cause, at the option of the City, if any default is not cured by MWV within thirty (30) calendar days of receiving written notice from the City. The City may extend such time at its sole discretion or terminate the MOU upon failure of MWV to cure such default in the specified timeframe. The City may, upon the occurrence of a default that is not cured within the stipulated time, without prejudice to any other rights or remedies available to it by law and upon written notice to MWV, terminate this Agreement and may complete the Street Improvements by whatever reasonable method the City may deem expedient and necessary. J. MODIFICATIONS Any amendments or modifications to this MOU shall only be valid when they have been reduced to 7 Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J writing, duly approved, and signed by both Parties, employing the same formalities as were used in the execution of this MOU or as otherwise indicated herein. K. NOTICES All notices or other communication required or desired to be given pursuant to this MOU shall be in writing, and shall be delivered by personal service or registered or certified mail to the other Parry at the addresses indicated below. Such notice shall be deemed given on the day on which personally served or, if by registered or certified mail, on the fifth (5) day after mailing or the date of actual receipt, whichever is earlier. It is the responsibility of each Party to advise the other in writing of any changes in mailing address or personnel responsible for accepting notices under this MOU CITY OF MIAMI City Manager City of Miami 3500 Pan American Drive Miami, Florida 33132 With copies to: Director, Department of Resilience and Public Works City of Miami 444 SW 2nd Avenue, 8t' Floor Miami, Florida 33130 City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 L. GOVERNING LAW & VENUE MIAMI WATERFRONT VENTURES Fran Scola c/o Miami Waterfront Ventures, LLC. 4100 NE 2 Avenue Suite 307 Miami, Florida 33137 With a copy to: Carlos R. Lago, Esq. Greenberg Traurig 333 SE 2nd Avenue. 44t' Floor Miami, FL 33131-3238 This MOU shall be interpreted, construed, and enforced in accordance with, and governed by, the laws of the State of Florida. Venue in any and all controversies, proceedings, or actions arising out of this MOU and any action involving the enforcement or interpretation of any rights hereunder shall lie solely in Miami -Dade County, Florida. The Parties shall bear their own attorney's fees. M. CONSTRUCTION Section headings are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this Agreement. The Parties to this MOU have participated fully in its negotiation, and accordingly, this Agreement shall not be more strictly construed against any one of the Parties hereto. Wherever used herein, the singular shall include the plural and plural shall include the singular, and reference to any gender shall be held to include every other and all genders. Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. f J N. COUNTERPARTS This MOU may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same MOU. The parties shall be entitled to sign and transmit an electronic signature of this MOU (whether by facsimile, PDF, or other email transmission), which signature shall be binding on the party whose name is contained therein. O. SUCCESSORS AND ASSIGNS This MOU shall be binding upon the Parties hereto, and their respective heirs, executors, legal representatives, successors and assigns. P. SEVERABILITY If any provision of this Agreement is 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 severable, with the remaining provisions remaining unmodified and in full force and effect. Q. ENTIRE MOU This instrument, and its attachments, constitutes the only MOU of the Parties hereto relating to the subject matter hereof and correctly sets forth the rights, duties, and obligations of each to the other, as of this date. No other agreement, oral or otherwise, regarding the subject matter of this MOU shall be deemed to exist or bind the Parties. [signatures on following page] 0 Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective officials thereunto duly authorized, this day and year above written. CITY OF MIAMI, A Florida Municipal MIAMI WATERFRONT VENTURES, Corporation Delaware limited liability company By: By: Arthur Noriega V, City Manger Name: Title: Attest: Todd Hannon, City Clerk Approved as to Legal Form and Correctness: Victoria Mendez, City Attorney 10 Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J Exhibit 1 Resolution No. 11 Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J Exhibit 2 Plans 12 Public Benefits and Construction Agreement City and Miami Waterfront Ventures Reso. % J Exhibit 3 Right-of-way and Landscape Improvements Right of way Improvements shall be as required under the building permit plans for the Project and in accordance with Section 54-56 of the City Code. Note: Median and the play street have landscaping and irrigations systems that will need to be replaced/restored. Install new 2' Curb and Gutter along the frontage of the Property, including along a portion of the Play Street Area. 2. Mill, resurface and stripe existing pavement the right-of-way for SE 25t' Road fronting the Property. 3. Install new 6' concrete sidewalk along the frontage of the Property to Biscayne Bay. 4. Replace/restore irrigation systems in existing median and within the Play Street Area. 5. Additional right of way restoration maybe required at time of inspection prior to TCO/CO. 13