HomeMy WebLinkAboutR-90-0938.TAN- 1 6-9 1
T H U r -. 2 6
1i
P . 0 2
J-90-813
11/9/90
RESOLUTION N0.9 0 ` 938
A RESOLUTION, WITH ATTACHMENTS, AUTHORIZING
THE CITY MANAGER TO EXECUTE THE NEGOTIATED
AGREEMENT, IN SUBSTANTIALLY THE FORM
ATTACHEDr BETWEEN THE CITY OF MIAMI AND
MIAMI CAPITAL FACILITIES, LTD. FOR THE
DESIGN AND CONSTRUCTION OF A FEDERAL LAW
ENFORCEMENT BUILDING IN THE AMOUNT OF
$35,000,000 ON A CITY -OWNED LAND PARCEL
LOCATED ON BLOCK 78N BETWEEN NORTHEAST 4TH
AND 5TH STREETS AND NORTHEAST 1ST AND NORTH
MIAMI AVENUES IN MIAMI, FLORIDA; AUTHORIZING
COMPENSATION FOR PROJECT DESIGN AND
DEVELOPMENT FROM FUNDS APPROPRIATED AND
AVAILABLE IN CAPITAL PROJECT ACCOUNT NO.
311014 ENTITLED "FEDERAL LAW ENFORCEMENT
BUILDING" FROM RENTAL REVENUE BOND PROCEEDS,
SERIES 1968, AND FROM THE AUTHORIZED
ISSUANCE OF ADDITIONAL RENTAL REVENUE BONDS;
AND FURTHER AUTHORIZING A U.S. GENERAL
SERVICES, DESIGN AND CONSTRUCTION DIVISION,
EMPLOYEE TO ACT AS THE FULL-TIME, ON -SITE
CITY REPRESENTATIVE FOR HS PROJECT, 'IN
ACCORDANCE WITH SECTION .29 OF THE ATTACHED
AGREEMENT, AT NO COST TO CITY.
WHEREAS, on July 12, 1990, the City of Miami Commission
adopted Resolution No. 90-535 accepting the recommendation of the
City Manager for the selection of Miami Capital Facilities, Ltd.
as the successful proposer for the design and construction of the
Federal Law Enforcement Building to be located on a City -owned
land parcel on Block 78N bounded by NE 4th and Sth Streets and NE
1st and North Miami Avenues in downtown Miami, Florida;
WHEREAS, Resolution No. 90-535 further authorized and
directed the City Manager to negotiate an agreement ,wttli Miami
Capital Facilitioe, Ltd. for the design and construction of the
Federal Law Enforcement Building; and
WHEREAS, the agreement attached herein as part of this
Resolution was negotiated in good faith by th* City of Miami
administration and representatives of Miami Capit 1 Facilities,
Ltd. and reviewed and approved by the U.S. Gen al Services
Adm1nietretion=
ATTACHMENTS
CONTAINED
CITY COMMISSION
=TING OF .
DEC 6 W
90- 938
T H U T : 26
0
P . 0 3
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAH11 FLORIDAt
Section 1• The City Manager is hereby authorized to execute
an agreement, in substantially the form attached, between the
City of Miami and Miami Capital Facilities, Ltd., for the design
and construction of a Federal Law Enforcement building in the
amount of $351000,000 to be located on a City -awned land parcel
on Block 78N bounded by northeast 4th and Sth Streets and
Northeast lot and North Miami Avenues in Miami, Florida.
Section 2. Compensation for the design and partial
development of the Federal Law Enforcement building is hereby
authorized to be paid from funds appropriated and available in
Capital Project Account No. 311014 entitled "Federal Law
Enforcement Building" from Rental Revenue Bond Proceeds, Series
1988, and for completion of construction from the authorized
issuance of additional rental revenue bonds.
Section 3. An employee of the U.S. General Services
Administration, Design and Construction Division, is hereby
authorized to act as the full-time, on -site City representative
for the project, in accordance with Section ; `9 of the attached
agreement, at no cost to the City. V10
section 4. This Resolution shall 'become effective
immediately upon its adoption.
PASSED AND ADOPTED this 6h _ day of December , 1990.
ATTSM
. i . t t 4, 4% , . -W,'
TTY HIRA2i ty er
- 2 -
/IER L. 51
90- 938
__J'AN i,Ea �41 TWlJ, 7 27 P . 04
i
i
CAPITAL IMPROVEMENT PROJECT
REVIEW1
?95—&7e /e r e
MARMARV R DRI EZ, Manager
CAP IT MPRO SMENT3
PREPARED AND APPROVED BY1
4�
LINDA K.- KEARSON
Assistant City Attorn*y
APPROVED A8 TO IORM.AND
CORRECTNUS s
•
AR L. E N EZ
ty Atto ney
A
W
CITY OF MIAMI. FLORIDA
�NyTtTA jgTV,f MEMORANDUM
,11'41 31 f i19 12: 16
To : Matty Hirai ., . DATE January 30, 1991
City Clerk FILE
E t_j i j%
SURJECT Resolution No. 90-938
FL Scrivener' s Error
FROM Jorge L. nandez
Gutty Attorn y
REFERENCES -
ENCLOSURES:
On December 6, 1990 the City Commission passed and adopted
Resolution No. 90-938 authorizing, inter alia, the City Manager
to execute the negotiated Agreement between the City of Miami and
Miami Capital Facilities, Ltd. for the design and construction of
a Federal Law Enforcement Building.
In the title of the Resolution, reference was made to
Section 1.29 of. the Agreement. Subsequent to the adoption of the
Resolution, it was disclosed by the Department of Development
that a scrivener's error had been made and that the correct
section is Section 1.27. This correction does not change the
intent nor substance of the Resolution or the Agreement.
Accordingly, it would be appreciated if you would affix this
memorandum to the Resolution as a means of correcting the error.
Thank you for your cooperation in this matter.
JLF/LKK/pb/595
sAN- 1 6 :::.��! _ T H U
T 2 T
P . 05
TNIS AG"EMENT (the "Agreement"), made and entered into this
day of , 1990, by and between the City of
Miami, a Flox:ida municipal corporation having its principal offices
at 3500 Pan American Drive, Miami, Florida, 33133 (hereinafter
referred to as "City") and Miami Capital Facilities, Ltd., 801
Brickeli Avenue, Suite 1400, Miami, Florida 33131 - (hereinafter
referred to as "Developer•).
III JUEB$ETH
WHEREAS, on October 39, 1996, the United States of America
acting by and through the General Services Administration and the
City of isi.ami, entered into a Memorandum of Understanding
expressing their intent to enter into negotiations for the City to
construct and lease to the United States of Americas a building to
house the U,56 Attorneys Office and other U. B . Law Enforcement
Agenoies in Mlamij and
WHEREAS, the approximately 730s000 occupiable square foot
building is to be located on &*sits, between Northeast 4th and Sth
Streets and Northeast let and Miami avenues in downtown Riami# and
WHEREAS, on July 330 19870 the City Commission adopted
Resolution No. 87-746 authorising the City Hanger to execute a
lease agreement between tho U.B. General Services Administration
and the City of Miami, setting forth the terms and conditions for
the City to construct and lease to the United States .an
approximately 250,000 occupiabl*.square foot building.to,house the
U.S. xttorney's office and other V.9. Law Enforcement Agencies in
Miami to be located on said real property site for a period not to
exceed thirty years with renewal options by the U.B. General
services Administration# and
WHEREAS, the City Manager executed a Lease Agreement with the
O.B. General Services Administration on October 22, 1987' and
WHERSAB, on June 9, 1188, the City Commission adopted
Resolution 88-450 authorising the issuance of a Request fox
Qualifications on behalf of the City and the U.S. General services
90- 938
r
THU V:27
Administration (*GSA*)# inviting qualified and experienced
development teams to submit professional qualifications for the
development
of an approximately
250,000 occupiable
square
foot
building in
downtown Miami to
be occupied by
Federal
law
enforcement agenciesl and
i+HEREAB, in response to the solicitation for professional
qualifications, twelve teams submitted qualifications on July 22,
1988, the published submission due datel and
WHEREAS# two of the twelve teams submitted letters dated
r6bruary 27, 1909, requesting that their submissions be withdrawn
from consideration#.and
WHzREAS, ten submissions of qualifications were reviewed for
compliance to requirements •at forth in the Request for
Qualifications that included demonstration of professional
experience and capability in specified disciplines, demonstration
of financial capability to successfully complete the project, and
compliance with specified minority participation requirements; and
WKRR ", the City, in cooperation with the V:B. GSA, has
determined five teams to be -qualified in accordance with the
minimum requirements not forth in the Request for Qualifioational
and
WHIRRAB, an October 6, 1989, the City Commission adopted
Resolution 89-1060 authorizing the issuance ,of a Request for
Proposals on December 6, 1989 for project design and cost of the
Federal Law Enforcement Building, said issuance solely limited to
the five qualified development teams, further specifying that the
proposal submission due date be April 10, 19901 and
WHZPJ a, on April 10, 1990, four proposal submissions,
Including the submission of Developer, were received by the City$
and
WHEREAS, on July 12, 1900, the City Commission adopted
Resolution 90-535 accepting the recommendation of the City Manager
for the Selection of Miami Capital raciiities, Ltd. as the
successful proposer (Developer) for the deiign and construction► of
a rederal Law Inforcement Building in downtown Miami and further
2
90-- 938
JraN— i +S-9 1 THU #7 L 29 P 07
authorising the City Manager to negotiate an agreement with Miami
Capital facilities, Ltd. for said project.
NOW THEREFORE, in consideration of the mutual covenants set
forth herein and other good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the parties hereto
agree as fellows#
SECTION 1.
1.1 A.ect. Rodrigues and Quiroga Architects Chartered
shall be the architects of record for the project.
1.2 Buildinq.Permits. Any and all permits, including the
Major Use Special Permit, required by the City and/or GSA
and/or any other governmental authority of competent
jurisdiction, which will permit Developer to commence
construction of the Project as required by this
A reement. The Building Permits shall be issued within
six (6) months after execution hereof.
2.5 Mitigates of Xnaurance. Those certificates issued by
insurance companies in accordance with the requirements
of section Y.
1.4 r.9gtLfieate of ocpupdngy. A temporary or the final
certificate of occupancy issued by the City upon
substantial completion of the Work.
1.5 Change ord". A written order to the Developer signed
by the City or its authorised agent and issued after the
execution of this Agreement, and accepted in writing by
Developer, authorising a Change in the Work (as per
Section 5.f) and/or an adjustment in the.Contract Price
(as defined in Section 5.1) and/or the Construction
schedule (as described in Section 5.7).
1.6 Q.j<y. The City of Miami.
1.7 CitX Attorney. The City Attorney of the City of Miami.
1.8 City Commission. The City of Miami Commission.
1.9 City xanaaer. :The City Manager of the City of Xiami.
1.10 Compl,:tion Date. The date on which a Certificate of
Occupancy is issued of ready to be issued in the event it
is withheld due to events beyond Developers control,
pursuant to applicable building codes and law for the
Work. The Completion Date shall be not later than 28
months after the issuance of the Building Permits, unless
extended pursuant to authorised extensions or Change
Orders. Any delays caused by Force Majoure shall operate
to extend the Completion Date by the same number of days
as such delay.
I.II rongtrUct ion CaMl. All construction costs related to the
Project and more particularly described as the Contract
Price in Section 5.1.
1.12 contract- Documo All documents related to the
construction of t • project listed in Section 5.1.2
including but not limited to, the Request for
Qualifications and Developers submission to same,
l
90- 938
! 'T'HU �7 29 P oe
Request for Proposals and Developer's submission dated
April 10, 1990, this Agreement and the Design Development
Documents shall be referred to as the Contract Documents.
1.13 ConRultnncs. Those consultants used by the Developer in
the project and submitted to the City pursuant to the
Request for Proposals.
1.14 Construction Contractor. Turner Construction Company, a
New York Corporation, shall be the general contractor for
the project.
1.15 Contracts_for..Construotion. All contracts and
agreements entered into by the Developer and the City
which are related to the construction of the Project.
1.16 Dayt-Vor nave. when used herein, "day" means a
calendar day, unless otherwise specified. "Working days"
means all days, except Saturdays, Sundays and National
holidays.
1.17 . The plans, drawings and
other documen ■ to fix, describe and design the size and
character of the improvements as to architectural,
structural, mechanical, lumbing, fire protection,
security and electrical systems, materials and such other
elements as may be appropriate, which shall be based on
the Schematic Design Documents.
Iola Dnv*looer. Miami Capital Facilities, Ltd., a Florida
limited partnership, shall be the Developer of the
Project.
1.19 Force 1laigure. Excuse for nonperformance caused by those
events more particularly described in Section 17.5 of
this Agreement.
1.20 M. The United States'General Services Administration.
1.21 Imarovements. All improvements related to the
development and construction of the pro ect including but
not limited to, a 250,000 occupiable square foot
building, as more particularly described in the Contract
Documents. The term "occupiable" As used in this
Agreement shall have the meaning ascribed to same in
Volume 222, Section Y, Appendix A of the Request for
Proposals, as amended by Addendum 11 to the Request for
Proposals,*dated February 2, 1990.
1.22 Insurance Coordinator. The Insurance Coordinator of the
City of Miami.
2*23 Progreso payments. All payments made by City to
Developer in accordance with Section 5.8 of this
Agreement.
1.24 Projeate The design, development and construction of an
approximately 250,000 occupiable square foot building in
Miami, Florida to be occupied by Federal law enforcement
agencies.
1.25 B.eggest or pro��. The Request For Proposals for
Development of a Federal Law Enforcement Ruildfng, Miami,
Florida, dated December 6, 1909 and all Addenda thereto.
1•26 The Request for
Qualifications for development of a Federal Law
Enforcement Building, Miami, Florida, dated June 22, 2900
and all Addenda thereto.
4
90- 938
J'AN- 1 6- 9 1 T HU 47: 2 9 P. 0 9
1.37 Res dent Enainger. A GSA Design and Construction
Division employee who shall act as the full-time, on -site
City representative for the project. The Resident
Engineer shall be available to Developer during working
hours and be fully acquainted with the Project, and shall
have the authority to approve changes in the Work, render
decisions promptly and furnish information expeditiously
and in time to most the dates and time frames set forth
in the Developer's progress schedule. The Resident
Engineer's 0 decisions and determinations as to matters of
payment, Change Orders, Changes in the Work and other
matters relating to the design and construction of the
Project shall be binding and conclusive upon the City,
GSA and the Trustee.
1.28 SchematJQ penLan Documents. Any and all schematic design
documents submitted by Developer to the City as part of
the Request for Proposals.
1.29 Subcontrag t. A Subcontractor is a person or entity who
has a direct contract with the Developers Construction
Contractor to perform any Work in connection with the
Project. The term Subcontractor does not include any
separate contractor employed by the City.
1.30 Truetea. NCNB National bank of Florida, Tampa, Florida.
The Trustee shall within two Jr2 Working days, upon
receipt of all proper forms om the City and the
Resident Engineer, direct the City to make all progress
payments from the construction fund (a portion of the net
proceeds of the City bonds) to Developer.
1.31 The work. The design, construction and management of the
Project by Developer, as required by this Agreement.
sBCTION II.
GENERAL_TERNS PERTAINING TO THE BjTSt TERM OF AGREEMENT
2.1 pSecrintion_of Bite. The project site is partieuiarl
described as Late 1, 2, a portion of Lot 3 and Lots 17'-20
of Block 700 Miami North, Kiami, Dade County Florida, a
sketch of which is attached hereto an Exhibit "A".
3.3 Site Review.
2.2.1 Developer represents to the City that, before
submitting its Proposal, the Developer has
carefully examined the entire site of the proposed
Work and adjacent premises and the various means of
approach and access to the site, and made all
necessary investigations to inform itself
thoroughly as to the facilities necessary for
delivering, placing and operating the necessary
construction equipment, and for delivering and
handling materials at the site, and informed itself
thoroughly as to all difficulties involved in the
completion of all the Work, and the standards
required by Metro -Dade Transportation
Administration (as referred to in Appendix H of the
Request for proposals).
2.292 The Developer shall immediately, upon entering the
pro act site for the purpose of beginning the Work,
review the Project site with the City for the
purpose of selecting area(s) to place materials fog
storage.
s
90— 938
e
t
JsusN 1 6-9 1 THu 071.30
0
P . to
The following resolution was introduced by Commissioner
Plummer, who moved its adoptions
R HSOLUTION NO. 90-938
A RESOLUTION, WITH ATTACHMENTS, AUTHORIZING
THE CITY MANAGER TO EXECUTE THE NEGOTIATED
AGREEMENT, IN SUBSTANTIALLY THE FORM
ATTACHED, BETWEEN THE CITY OF MIAMI AND MIAMI
CAPITAL FACILITIES, LTD. FOR THE DESIGN AND
CONSTRUCTION OF A FEDERAL LAW ENFORCEMENT
BUILDING IN THE AMOUNT OF $350000,000 ON A
CITY -OWNED LAND PARCEL LOCATED ON BLOCK 78N
BETWEEN NORTHEAST 4TH AND STH STREETS AND
NORTHEAST 1ST AND NORTH MIAMI AVENUES IN
MIAMI, rLORIDA{ AUTHORIZING COMPENSATION FOR
PROJECT DESIGN AND DEVELOPMENT FROM FUNDS
APPROPRIATED AND AVAILABLE IN CAPITAL PROJECT
ACCOUNT NO. 311014 ENTITLED "FEDERAL LAW
RNFORCEMENT BUILDING" FROM RENTAL R$V$NVE
BOND PROCEEDS, SERIES 19000 AND FROM THE
AUTHORIZED ISSUANCE OF ADDITIONAL RENTAL
REVENUE BONDS1 AND FURTHER AUTHORIZING A U.S.
GENERAL SERVICES, DESIGN AND CONSTRUCTION
DIVISION, EMPLOYEE TO ACT AS THE FULL TIME,
ON -SITE CITY REPRESENTATIVE FOR THE PROJECT,
IN ACCORDANCE WITH SECTION 1.29 OF THE
ATTACHED AGREEMENT, AT NO COST TO THE CITY.
(Hera follows body of resolution, omitted
here and on file in the Office of the City
Clerk.)
Upon being seconded by Commissioner Dawkins, the resolution
was passed and adopted by the following votes
AYSSs Commissioner Victor De Yurre
Commissioner Miller J. Dawkins
Commissioner Miriam Alonso
Via& Mayor J. L. Plummer, Jr.
Mayor Xavier L. Suarez
NOES, None.
ABSENT: Norse.
Mayor Suarazt Mr. Manager, do we, in fact, have an ordinance as
stated by Commissioner - Vice Mayor Plummer?
Mr. Odiot Yee, we have a penalty. Whether it 'a Called an
ordinance or whatever..,
Mayor Suarezi Can anybody cite to me the ordinance number?
Mr. Odiat I don't believe it's an ordinance. I believe we
have...
Mayor Suarez* I asked, do we, in fact, have an ordinance? Can I
Set a simple, Concise, clear answer?
Mr. Odiot It's on the standard contract documents and aspects of
the...
Mayor Buar4st The answer is, no ordinance.
Mr. Odios No, no ordinance.
Mayor Suarez t All right, whatever it is that you've got, would
You taake it available for me at lunch time so that I can go over
and see if we should elevate it to the role of an ordinance, to
the status of an ordinance.
C$K 30 December b, 1990
I P 1 i
..TAN-- 1 6-9 1 THU #7:30
i
AYESi Commissioner Victor Do Yurre
Commissioner Miller J. Dawkins
Commissioner Miriam Alonso
Vice Mayor J. L. Plummer, Jr.
Mayor Xavier L. Suarez
NOES: None.
ABSEN'Ti None,
THE ORDINANCE WAS _DXSIGNATED_ORDINANCE_NO. 10820 .
The City Attorney read the ordinance into the public record
and announced that copies were available to the members of the
City Commission and to the public.
COMMENTS MADE DURING ROLL CALLi
Vie* Mayor Plummers For a beautiful building downtown with no
other attributes, of course.
Commissioner Dawkins, For the same reason stated by J.L.
Plummer, yes.
24. AUTHORIZE EXECUTION Or NEGOTIATED AGREEMENT WITH MIAMI
CAPITAL IACILITIES LIMITED - FOR DESIGN AND CONSTRUCTION Or
A FBDERAL LAST ENFORCEMENT BUILDING (GSA BUILDING)
($35,000,000).
--------------------------------------------------------------
-------------
Mayor Suarest Item eight now. The penalties issue becomes fair
Item of discussion here.
Vice Mayor Plummers Mr. Mayor, as the one who originally put
Into our ordinances a penalty clause of one -tenth of one percent,
i think is the number, I feel that that is a good ordinance. I
think it is something that is to be strived for but I have to
say, in this particular case, unfortunately, in the bidding
process, there was, in fact, a penalty stipulated at $8,500 a
day. I cannot talk out at both sides of my mouth. Those who bid
understood that. They made their bids predicated on that and as
gar as I'm concerned, to uphold the integrity of this City and
its bidding procedures, we have no choice, in this particular
case...
Commissioner Dawkinse Are you moving it?
Vice Mayor Plummers I am moving to reduce...
Commissioner Dawkinss I second.
Vice Mayor Plummers ...it to that which was specified in the
bid.
Mayor 8uaress Moved and seconded. Do you know how you can tell
who is here for a particular item? When a motion like that is
made, they're all going Like this, you know.
Mr. Herb Baileys Adjusting my tie.
Vice Mayor Plummers Or your jockey shorts.
Mayor Suaresa Call the roll on that and then I want to speak
just a scintilla of time on the issue of what you referred to as
an ordinance bore. Call the roll.
CSK 35 December b, 1990
n?
Q.(Om..
Date
TO V FRO
Please note and see me Please give me your comments
Please note and return to me For your information
For your review and approval Immediate action desired
Please prepare reply for my Please answer, with copy
signature to me
Please follow through For your signature
Remarks:
Cj,
GSA
O6/88 tJ
90- 938
CITY OF MIA..11. FLORIDA
INTEROFFICE MEMORANDUM
TO Honorable Mayor and Members
of t _ City Commission
FROM Cesar H. Odio
City Manager
RECOMMENDATION:
NOV 1 11990 `,LE
Sus.;=_C- Resolution authorizing
execution of Agreement with
Miami Capital Facilities, Ltd.
4FFERENCES
For City Commission Meeting
ENCLOSURES of 12/ 6 /9 0
It is respectfully recommended that the City Commission adopt the
attached Resolution authorizing the City Manager to execute the
negotiated agreement, in substantially the form attached, between
the City of Miami and Miami Capital Facilities, Ltd., for the design
and construction of a Federal Law Enforcement Building in the amount
of $35,000,000 on a City -owned land parcel located on Block 78N
between Northeast 4th and 5th Streets and Northeast 1st and North
Miami Avenues in Miami, Florida; authorizing compensation from
available rental revenue bond proceeds and from authorized issuance
of additional rental revenue bonds appropriated to capital project
No. 311014 entitled "Federal Law Enforcement Building"; and further
authorizing an U.S. General Services Administration employee to act
as the full-time on -site City project representative, at no cost to
the City.
BACKGROUND:
The Department of Development recommends the adoption of the
proposed Resolution so that the negotiated agreement may be
executed, for the design and construction of the Federal Law
Enforcement Building in Miami at a total cost of $35,000,000.
On July 12, 1990 the City of Miami Commission adopted Resolution No.
90-535 selecting Miami Capital Facilities, Ltd. as the successful
proposer for the design and construction of the Federal Law
Enforcement Building in Miami. This resolution further authorized
the City Manager to negotiate an agreement with Miami Capital
Facilities, Ltd.
The agreement attached as part of this Resolution was negotiated in
good faith by the City of Miami administration and representatives
of Miami Capital Facilities, Ltd. It has been reviewed and approved
by the U.S. General Services Administration (letter attached),-
90- 938
Honorable Mayor and Members
of the City Commission
Pursuant to Resolution 90-535, the negotiated agreement with Miami
Capital 'Facilities, Ltd., is hereby presented for your review,
consideration, and approval prior to its execution.
Attachments:
Proposed Resolution
Draft Agreement
HJB/AW/mim
90- 938
J-90-815
11/9/90
RESOLUTION NO.9 0 " 938
A RESOLUTION, WITH ATTACHMENTS, AUTHORIZING
THE CITY MANAGER TO EXECUTE THE NEGOTIATED
AGREEMENT, IN SUBSTANTIALLY THE FORM
ATTACHED, BETWEEN THE CITY OF MIAMI AND
MIAMI CAPITAL FACILITIES, LTD. FOR THE
DESIGN AND CONSTRUCTION OF A FEDERAL LAW
ENFORCEMENT BUILDING IN THE AMOUNT OF
$35,000,000 ON A CITY -OWNED LAND PARCEL
LOCATED ON BLOCK 78N BETWEEN NORTHEAST 4TH
AND 5TH STREETS AND NORTHEAST 1ST AND NORTH
MIAMI AVENUES IN MIAMI, FLORIDA; AUTHORIZING
COMPENSATION FOR PROJECT DESIGN AND
DEVELOPMENT FROM FUNDS APPROPRIATED AND
AVAILABLE IN CAPITAL PROJECT ACCOUNT NO.
311014 ENTITLED "FEDERAL LAW ENFORCEMENT
BUILDING" FROM RENTAL REVENUE BOND PROCEEDS,
SERIES 1988, AND FROM THE AUTHORIZED
ISSUANCE OF ADDITIONAL RENTAL REVENUE BONDS;
AND FURTHER AUTHORIZING A U.S. GENERAL
SERVICES, DESIGN AND CONSTRUCTION DIVISION,
EMPLOYEE TO ACT AS THE FULL-TIME, ON -SITE
CITY REPRESENTATIVE FOR THE PROJECT, IN
ACCORDANCE WITH SECTION 1.27 OF THE ATTACHED
AGREEMENT, AT NO COST TO THE CITY.
WHEREAS, on July 12, 1990, the City of Miami Commission
adopted Resolution No. 90-535 accepting the recommendation of the
City Manager for the selection of Miami Capital Facilities, Ltd.
as the successful proposer for the design and construction of the
Federal Law Enforcement Building to be located on a City -owned
land parcel on Block 78N bounded by NE 4th and 5th Streets and NE
1st and North Miami Avenues in downtown Miami, Florida; and
WHEREAS, Resolution No. 90-535 further authorized and
directed the City Manager to negotiate an agreement with Miami
Capital Facilities, Ltd. for the design and construction of the
Federal Law Enforcement Building; and
WHEREAS, the agreement attached herein as part of this
Resolution was negotiated in good faith by the City of Miami
administration and representatives of Miami Capital Facilities,
Ltd. and reviewed and approved by the U.S. General Services
Administration;
ATTAC H Ii E T
CONTAINED
CITY COMMISSION
MEETING OF _.
D E C 6 1990
90-- 938 ,
AEfOl.{ITIOl1 llo.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The City Manager is hereby authorized to execute
an agreement, in substantially the form attached, between the
City of Miami and Miami Capital Facilities, Ltd., for the design
and construction of a Federal Law Enforcement Building in the
amount of $35,000,000 to be located on a City -owned land parcel
on Block 78N bounded by Northeast 4th and 5th Streets and
Northeast 1st and North Miami Avenues in Miami, Florida.
Section 2. Compensation for the design and partial
development of the Federal Law Enforcement Building is hereby
authorized to be paid from funds appropriated and available in
Capital Project Account No. 311014 entitled "Federal Law
Enforcement Building" from Rental Revenue Bond Proceeds, Series
1988, and for completion of construction from the authorized
issuance of additional rental revenue bonds.
Section 3. An employee of the U.S. General Services
Administration, Design and Construction Division, is hereby
authorized to act as the full-time, on -site City representative
for the project, in accordance with Section 1.27 of the attached
agreement, at no cost to the City.
Section 4. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 6th day of December , 1990.
r,
ATTEST"
MATTY HIRAI, City Clerk
XAVIER L. S*R
Z, Mayor
- 2 -
90- 938
El
CAPITAL IMPROVEMENT PROJECT
REVIEW:
EDUAR 0 R DRIG EZ, Manager
CAPIT IMPROVEMENTS
PREPARED AND APPROVED BY:
LIRDA K. EA ON
Assistant City Attorney
APPROVED AS TO FORM AND
CORRECTNESS:
-c
AJ RG L. ERNAN EZ i
City Atto ney
3
90-- 938
- -
9 14.
l'l
AGREEMENT
THIS AGREEMENT (the "Agreement"), made and entered into this
day of , 1990, by and between the City of
Miami, a Florida municipal corporation having its principal offices
at 3500 Pan American Drive, Miami, Florida, 33133 (hereinafter
referred to as "City") and Miami Capital Facilities, Ltd., 801
Brickell Avenue, Suite 1400, Miami, Florida 33131 (hereinafter
referred to as "Developer").
WITNESSETH
WHEREAS, on October 29, 1986, the United States of America
acting by and through the General Services Administration and the
City of Miami, entered into a Memorandum of Understanding
expressing their intent to enter into negotiations for the City to
construct and lease to the United States of America, a building to
house the U.S. Attorney's Office and other U.S. Law Enforcement
Agencies in Miami; and
WHEREAS, the approximately 250,000 occupiable square foot
building is to be located on a site between Northeast 4th and 5th
Streets and Northeast 1st and Miami Avenues in downtown Miami; and
WHEREAS, on July 23, 1987, the City Commission adopted
Resolution No. 87-746 authorizing the City Manager to execute a
lease agreement between the U.S. General Services Administration
and the City of Miami, setting forth the terms and conditions for
the City to construct and lease to the United States .an
approximately 250,000 occupiable square foot building to.house the
U.S. Attorney's Office and other U.S. Law Enforcement Agencies in
Miami to be located on said real property site for a period not to
exceed thirty years with renewal options by the U.S. General
Services Administration; and
WHEREAS, the City Manager executed a Lease Agreement with the
U.S. General Services Administration on October 22, 1987; and
— WHEREAS, on June 9, 1988, the City Commission adopted
Resolution 88-450 authorizing the issuance of a Request for
Qualifications on behalf of the City and the U.S. General Services
1
a � 90- 938
lti���
Administration ("GSA"), inviting qualified and experienced
development teams to submit professional qualifications for the
development of an approximately 250,000 occupiable square foot
building in downtown Miami to be occupied by Federal law
enforcement agencies; and
WHEREAS, in response to the solicitation for professional
qualifications, twelve teams submitted qualifications on July 22,
1988, the published submission due date; and
WHEREAS, two of the twelve teams submitted letters dated
February 27, 1989, requesting that their submissions be withdrawn
from consideration; and
WHEREAS, ten submissions of qualifications were reviewed for
compliance to requirements set forth in the Request for
Qualifications that included demonstration of professional
experience and capability in specified disciplines, demonstration
of financial capability to successfully complete the project, and
compliance with specified minority participation requirements; and
WHEREAS, the City, in cooperation with the U:S. GSA, has
determined five teams to be qualified in accordance with the
minimum requirements set forth in the Request for Qualifications;
and
WHEREAS, on October 61 1989, the City Commission adopted
Resolution 89-1060 authorizing the issuance of a Request for
Proposals on December 61 1989 for project design and cost of the
Federal Law Enforcement Building, said issuance solely limited to
the five qualified development teams, further specifying that the
proposal submission due date be April 10, 1990; and
WHEREAS, on April 10, 1990, four proposal submissions,
including the submission of Developer, were received by the City;
and
WHEREAS, on July 121 1990, the City Commission adopted
Resolution 90-535 accepting the recommendation of the City Manager
for the selection of Miami Capital Facilities, Ltd. as the
successful proposer (Developer) for the design and construction of
a Federal Law Enforcement Building in downtown Miami and further
Fa
90- 938
authorizing the City Manager to negotiate an agreement with Miami
Capital Facilities, Ltd. for said project.
NOW THEREFORE, in consideration of the mutual covenants set
forth herein and other good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION I.
DEFINITIONS
1.1 Architect. Rodriguez and Quiroga Architects Chartered
shall be the architects of record for the Project.
1.2 Building Permits. Any and all permits, including the
Major Use Special Permit, required by the City and/or GSA
and/or any other governmental authority of competent
jurisdiction, which will permit Developer to commence
construction of the Project as required by this
Agreement. The Building Permits shall be issued within
six (6) months after execution hereof.
1.3 Certificates of Insurance. Those certificates issued by
insurance companies in accordance with the requirements
of Section X.
1.4 Certificate of Occupancy. A temporary or the final
certificate of occupancy issued by the City upon
substantial completion of the Work.
1.5 Change Order. A written order to the Developer signed
by the City or its authorized agent and issued after the
execution of this Agreement, and accepted in writing by
Developer, authorizing a Change in the Work (as per
Section 5.4) and/or an adjustment in the Contract Price
(as defined in Section 5.1) and/or the construction
schedule (as described in Section 5.2).
1.6 City. The City of Miami.
1.7
City
Attorney. The
City
Attorney of the City of Miami.
1.8
City
Commission.
The
City of Miami Commission.
1.9 City Manager. The City Manager of the City of Miami.
1.10 Completion Date. The date on which a Certificate of
Occupancy is issued or ready to be issued in the event it
is withheld due to events beyond Developer's control,
pursuant to applicable building codes and law for the
Work. The Completion Date shall be not later than 28
months after the issuance of the Building Permits, unless
extended pursuant to authorized extensions or Change
Orders. Any delays caused by Force Majeure shall operate
to extend the Completion Date by the same number of days
as such delay.
1.11 Construction} Cam. All construction costs related to the
Project and more particularly described as the Contract
Price in Section 5.1.
1.12 Contract Documents. All documents related to the
construction of the Project listed in Section 5.1.2
including but not limited to, the Request for
Qualifications and Developer's submission to same,
3
go- 938
Request for Proposals and Developer's submission dated
April 10, 1990, this Agreement and the Design Development
Documents shall be referred to as the Contract Documents.
1.13 Consultants. Those consultants used by the Developer in
the Project and submitted to the City pursuant to the
Request for Proposals.
1.14 Construction Contractor. Turner Construction Company, a
New York Corporation, shall be the general contractor for
the Project.
1.15 Contracts for Construction. All contracts and
agreements entered into by the Developer and the City
which are related to the construction of the Project.
1.16 Day: Working Days. When used herein, "day" means a
calendar day, unless otherwise specified. "Working days"
means all days, except Saturdays, Sundays and National
holidays.
1.17 Design Development Documents. The plans, drawings and
other documents to fix, describe and design the size and
character of the Improvements as to architectural,
structural, mechanical, plumbing, fire protection,
security and electrical systems, materials and such other
elements as may be appropriate, which shall be based on
the Schematic Design Documents.
1.18 Developer. Miami Capital Facilities, Ltd., a Florida
limited partnership, shall be the Developer of the
Project.
1.19 Force Majeure. Excuse for nonperformance caused by those
events more particularly described in Section 17.5 of
this Agreement.
1.20 GSA. The United States General Services Administration.
1.21 Improvements. All improvements related to the
development and construction of the Project including but
not limited to, a 250,000 occupiable square foot
building, as more particularly described in the Contract
Documents. The term "occupiable" as used in this
Agreement shall have the meaning ascribed to same in
Volume III, Section I, Appendix A of the Request for
Proposals, as amended by Addendum II to the Request for
Proposals, dated February 2, 1990.
1.22 Insurance Coordinator. The Insurance Coordinator of the
City of Miami.
1.23 Progress Payments. All payments made by City to
Developer in accordance with Section 5.8 of this
Agreement.
1.24 Pro ect. The design, development and construction of an
approximately 250,000 occupiable square foot building in
Miami, Florida to be occupied by Federal law enforcement
agencies.
1.25 Request for Proposals. The Request for Proposals for
Development of a Federal Law Enforcement Building, Miami,
Florida, dated December 6, 1989 and all Addenda thereto.
1.26 Request for Qualifications. T h e Request f or
Qualifications for development of a Federal Law
Enforcement Building, Miami, Florida, dated June 22, 1988
and all Addenda thereto.
4
90- 938
1.27 Resident Engineer. A GSA Design and Construction
Division employee who shall act as the full-time, on -site
City representative for the Project. The Resident
Engineer shall be available to Developer during working
hours and be fully acquainted with the Project, and shall
have the authority to approve changes in the Work, render
decisions promptly and furnish information expeditiously
and in time to meet the dates and time frames set forth
in the Developer's progress schedule. The Resident
Engineer's decisions and determinations as to matters of
payment, Change Orders, Changes in the Work and other
matters relating to the design and construction of the
Project shall be binding and conclusive upon the City,
GSA and the Trustee.
1.28 Schematic pesiap Documents. Any and all schematic design
documents submitted by Developer to the City as part of
the Request for Proposals.
1.29 Subcontractor. A Subcontractor is a person or entity who
has a direct contract with the Developer's Construction
Contractor to perform any Work in connection with the
Project. The term Subcontractor does not include any
separate contractor employed by the City.
1.30 Trustee. NCNB National Bank of Florida, Tampa, Florida.
The Trustee shall within two (2) Working days, upon
receipt of all proper forms from the City and the
Resident Engineer, direct the City to make all progress
payments from the construction fund (a portion of the net
proceeds of the City bonds) to Developer.
1.31 The Work. The design, construction and management of the
Project by Developer, as required by this Agreement.
SECTION II.
GENERAL TERMS PERTAINING TO THE SITE; TERM OF AGREEMENT
2.1 Description of Site. The project site is particularly
described as Lots 1, 2, a portion of Lot 3 and Lots 17-20
of Block 78, Miami North, Miami, Dade County, Florida, a
sketch of which is attached hereto as Exhibit "A".
2.2 Site Review.
2.2.1 Developer represents to the City that, before
submitting its Proposal, the Developer has
carefully examined the entire site of the proposed
Work and adjacent premises and the various means of
approach and access to the site, and made all
necessary investigations to inform itself
thoroughly as to the facilities necessary for
delivering, placing and operating the necessary
construction equipment, and for delivering and
handling materials at the site, and informed itself
thoroughly as to all difficulties involved in the
completion of all the Work, and the standards
required by Metro -Dade Transportation
Administration (as referred to in Appendix B of the
Request for Proposals).
2.2.2 The Developer shall immediately, upon entering the
Project site for the purpose of beginning the Work,
review the Project site with the City for the
purpose of selecting area(s) to place materials for
storage.
5
90-- 938
2.2.3 The Developer shall verify all site conditions
shown or indicated on the property survey, all
existing trees, paved areas, utilities, etc., shall
be located before beginning any work and it shall
be responsible for any error resulting from its
failure to exercise such precaution, including
possible interference with the Metro -Dade
Transportation Administration Metromover system.
2.2.4 The Contract Price and schedule submitted by
Developer and agreed to pursuant to this agreement
are based upon the soil boring tests and
environmental assessment reports provided by the
City and GSA as part of the Request for Proposals.
In the event there are differing site conditions,
including but not limited to the existence of toxic
wastes or contaminants in the site or affecting the
site, same shall require a Change Order and shall
be addressed pursuant to the provisions of Section
5.4 below and Volume III of the Request for
Proposals, and Developer shall not be responsible
for any reasonable delays.
2.3 Developer's Use of the Site. The Developer shall submit
drawings indicating its proposed area of construction,
egress and ingress and fencing, for approval by the City
before commencing construction.
2.4 Term. The Work shall be comprised of a preconstruction
phase of six (6) months commencing upon execution hereof
relating to the design of the Project and a construction
phase relating to the construction of the Project which
shall be substantially completed on the Completion Date,
on or before 28 months after the issuance of all Building
Permits, subject to adjustment as elsewhere herein
provided, and delays if caused by the City, GSA or Force
Majeure.
SECTION III.
RECORD
3.1 Records. The Developer shall keep such full and detailed
j accounts and records as may be necessary for proper
financial management and general administration under
j this Agreement. The City and GSA shall be afforded
access to all the Developer's records, drawings,
receipts, vouchers, and similar data relating to this
Agreement and to all of Construction Contractor's and
Subcontractor's records relating to Change Orders and
disputed claims. The Developer shall preserve and shall
cause Construction Contractor and Subcontractor to
preserve all such records for a.period of five (5) years
after the final payment or longer where required by law.
SECTION IV.
LICEN=SEiS AND PERMITS AND RELATED NOTICES
4.1 Licenses and Permits. Unless otherwise provided in the
Contract Documents, the Developer shall secure and pay
for the Building Permits and all related governmental
fees, licenses and inspections necessary for proper
execution and completion of the Work which are required
pursuant to the Request for Proposals or by law.
4.2 Notices. The Developer shall comply with and give
notices required by laws, ordinances, rules, regulations
G
90-- 938
and lawful orders of public authorities bearing on
performance of the Work.
SECTION V.
CONTRACT PRICE;
MAJOR CONSTRUCTION AND IMPROVEMENTS
5.1 Contract Price.
5.1.1 The City shall pay the Developer as consideration
for Developer's completion of the Work of the
Project and Developer's performance under this
Agreement, the sum of Thirty Five Million Dollars
($35,000,000), which sum shall be hereinafter
referred to as the Contract Price and which shall
include, subject to Change Order, the entire cost
of the design, construction and completion of the
Work.
5.1.2 Contract Documents. The Contract Price is based
upon laws, codes, and regulations in existence at
the date of its establishment and upon the Contract
Documents as set forth below:
(a) The Request for Qualifications and Developer's
submission thereto;
(b) the Request for Proposals and Developer's
submission thereto;
(c) this Agreement;
(d) Design Development Documents;
(e) the Bid Price;
(f) Certificates of Insurance;
(g) Payment/Performance Bonds;
(h) Change Orders; and
(i) all other drawings, specifications, agree-
ments, addenda and other documents agreed to
between the City and Developer with respect to
the Work.
5.2 Schedule of Design and Construction of Improvements.
The Developer will prepare and submit for the City's and
GSA's approval, within ten (10) days after execution of
this Agreement, an estimated progress schedule for the
design and construction phases of the Work. The
preconstruction or design phase of such schedule shall
commence upon execution of this Agreement by the City and
Developer and shall end, subject to authorized extensions
and Change Orders, six (6) months later. The construc-
tion phase of the schedule shall commence at the
conclusion of the preconstruction or design phase upon
issuance of the Building Permits and shall end twenty-
eight (28) months later, unless extended pursuant to
authorized extensions or Change Orders. Such schedule
may be revised by Change Order as required by the
conditions of the Work, and by those conditions and
events which are caused by Force Majeure.
5.3 Plan_ Approvals (Submission, Review and Approval of
Contract Documentsl. It is the Developer's
responsibility to determine that the Contract Documents
are in accordance with applicable laws, statutes,
ordinances, building codes, rules and regulations; the
City shall be responsible to determine that the Contract
Documents are in compliance with applicable City laws,
ordinances and regulations. Notwithstanding the above,
if the Developer observes that portions of the Contract
Documents are at variance therewith, the Developer shall
90- 938
1
11
notify its Architect and the City in writing, and
necessary changes shall be accomplished by appropriate
modification. The Developer shall cause to be prepared
and submitted to the City within one hundred twenty (120)
days after execution of this Agreement, all required
Design Development Documents and any other plans,
drawings and specifications required for construction of
the building shell portion of the Work, and the City
shall expeditiously review and approve same (with such
notations as necessary) for compliance with the City and
GSA program requirements as contained in the Request for
Proposals; such review, comments and approval by the City
shall be within the time frames specified in Developer's
preconstruction phase schedule but shall in no event
exceed a total of sixty (60) days through and including
final approval and issuance of the Building Permits.
5.3.1 Changes in Plans and Specifications. The Developer
and the City agree to review, consider, revise and
approve all necessary changes in all of the plans
and specifications submitted by Developer pursuant
to 5.2 and 5.3 above within the time frames and
schedules specified in Developer's preconstruction
phase schedule.
5.3.2 Tenant Space Flans. The City shall provide to
Developer, not later than 140 days after receipt of
final floor plans, single line drawings for the
requisite space plans in order for the Developer to
prepare all necessary drawings, plans and
specifications required for construction of the
tenant improvements portion of the Work. The City
shall expeditiously review and approve same (with
such notations as necessary) for compliance with
the City and GSA program requirements, within such
time frames as shall permit the timely construction
of the tenant improvements. The City shall provide
to Developer, not later than 140 days after receipt
of sample boards, necessary finish selections for
the tenant improvements.
5.3.3 The parties agree that Developer shall construct
the tenant improvements; provided, that the City
reserves the right to contract with an unrelated
third party for any change order or additional
tenant work or any work that is unspecified at this
time. If the City introduces a separate contractor,
the City agrees that Developer shall not be
responsible for any failure by such separate
contractor to complete that contractor's work on or
before the Completion Date, and any delays in the
completion of that contractor's work shall be the
sole responsibility of such contractor.
5.4 Changes in Contract Documents (Changes in the Work).
The City, without invalidating this Agreement, may
request Changes in the Work or may approve changes in the
Work requested by Developer (within the general scope of
this Agreement) consisting of additions, deletions or
other revisions, with the Contract Price and the
Construction Schedule being adjusted accordingly. All
such Changes in the Work shall be authorized by Change
Order.
5.4.1 The increase or decrease in the Contract Price
resulting from a Change in the Work shall be
determined in one or more of the following ways:
rI
90-- 938
(a) by mutual acceptance of a sum and/or contract
time properly itemized and supported by
sufficient substantiating data to permit
evaluation; or
(b) by unit prices previously and subsequently
agreed upon.
5.4.2 The cost of such Work shall then be determined on
the basis of the value, costs and expenses of the
Work attributed to the change, with a corresponding
increase or decrease in the Contract Price. In the
event the change increases the Contract Price, the
increase shall be calculated based on the table
below. Design or engineering fees and costs
related to any change will include the architects/
engineers' overhead and profit, and will be subject
to a flat Developers charge of 10%, but will not
carry any overhead/profit to any subcontractor or
to the Construction Contractor. In the event of
changes that result in cost savings, the decrease
in Contract Price shall include only such cost
savings and will not automatically include any
reductions to the design or engineering fees, or to
Developer's costs, management fees or profit,
however they may include any necessary design or
engineering fees, plus Developer's profit according
to the table below. The Developer shall keep and
present, in such form as the City may prescribe, an
itemized accounting together with appropriate
supporting data of the increase or decrease in the
Contract Price.
TABLE
SCHEDULE OF VALUES
CONSTRUCTION
SUBCONTRACTOR
CONTRACTOR
pEVELOPER
Cost of Change
in the Work
O.H./Profit
O.H./Profit
Profit
$0 - 50,000
10% / 10%
10% / 10%
10%
50,000 - 100,000
8% / 9%
10% / 10%
9%
100,000 +
6.8% / 7%
10% / 10%
8%
5.4.3• The Developer shall execute the Work, in an
emergency endangering life or property, in which
case the Developer shall act, at its discretion, to
prevent threatened damage, injury or loss. Claims
arising from such Work shall be made within 30 days
after such Work.
5.4.4 Should unforeseen or differing conditions be
encountered in the performance of the Work below
the surface of the ground or should unforeseen or
differing conditions in an existing structure be at
variance with the conditions indicated by the
Contract Documents or City -furnished information,
of an unusual nature, differing materially from
those ordinarily encountered and generally
recognized as inherent in work of the character
provided for in this Agreement be encountered, the
Contract Price and the Construction Schedule shall
be equitably adjusted by Change Order upon claim by
either party made within 30 days after the first
observance of the conditions.
9
90- 938
rg
5.5 Procedures for Approyal or Disapproval. The procedures
for approval or disapproval of all construction design
documents, plans, drawings and specifications are set
forth in Developer's proposal.
5.6 Construction Schedules and Completion Dates.
5.6.1 Construction Schedules and Completion Date.
(a) Conditions Precedent to Commence Construction. The
City and the Developer agree that the construction
commencement date shall not take place and thus the
construction period shall not begin to run until
such time as:
(1) The parties have fully executed this
Agreement;
(2) The City has issued and sold bonds for the
Project and has agreed to issue and sell
additional bonds as may be necessary to fully
fund and pay for the Project. The City has
provided and if requested, will continue to
provide to Developer, evidence that sufficient
funds are available and committed for the
entire Contract Price of the Project. Without
limiting the generality of the foregoing, the
City shall provide Developer on or before the
execution hereof the amount of remaining funds
available for the Project from the City's bond
proceeds. Based on the contract amount, the
Developer shall prepare and submit to the City
for approval an estimated disbursement
schedule for the making of the Progress
Payments and Final Payment. The City shall,
well in advance of the date on which the
presently remaining bond proceeds will be
exhausted but not less than four (4) months
prior to such date, sell all or such portion
as may be necessary of the additional
$32,000,000 of completion bonds which have
been authorized for the Project in order that
the necessary funds will be available to make
payments to Developer as work progresses and
when due hereunder; or as an alternative to
said completion bonds, the City shall secure
from GSA the funds necessary to pay the
balance of the Contract Price and complete the
Project;
(3) The City has filed a Notice of Commencement as
required under the Florida Mechanic's Lien Law
and has served the Developer with a copy of
same and with a notice to proceed; and
(4) The Developer has obtained from the
appropriate departments of the City, the
Building Permits, approvals and licenses which
the Developer must obtain from the City and
GSA to develop and construct the Project.
(5) As of the date hereof, Greyhound Lines, Inc.
("Greyhound") has possession, pursuant to a
lease with the City, of the bus depot building
within the Project site. Greyhound recently
filed for reorganization under Chapter 11 of
the U.S. Bankruptcy Code. Pursuant to the
Request for Proposals the City committed to
the timely delivery of the Project site for
the performance of the Work. In the event
10
90-- 938
Sz
commencement of the Work is delayed due to the
occupancy or bankruptcy of Greyhound, any such
delay shall be negotiated and the Contract
Price and the Construction schedule shall be
1
adjusted by Change Order.
(6) The parties acknowledge that as of the date
hereof, there is pending in the Circuit Court
of the Eleventh Judicial Circuit in and for
Dade County, Florida, an appeal (Case No. 90-
188 AP ) from a protest filed by Miami Justice
Center Associates ("MJCA"), one of the
proposers pursuant to the Request for
Proposals, and an action for injunctive and
other relief (Case No. 90-27167 CA 17) filed
by MJCA seeking, inter alia, to invalidate
the selection of Developer as the successful
proposer. The parties have agreed to proceed
with the execution and performance of this
Agreement despite the foregoing appeal and
action; provided, however, that in the event
either party has reasonable cause to believe
that this Agreement or the performance thereof
may be jeopardized by said appeal or action,
such party may, without incurring any
liability to the other by virtue of the
execution hereof, notify the other of its
decision to delay the commencement of the
construction phase of the Work, in which case
the City's obligations to Developer relating
I;
to the construction phase of the Work and the
Developer's obligations to commence
construction shall be tolled, until such time
as said appeal and action have been favorable
resolved, or until such party reasonably
believes that the Project can proceed. In the
event the commencement of the Construction
Period is so delayed, any such delay shall be
deemed caused by Force Majeure and the
i
Contract Price and construction schedule shall
be adjusted by Change Order. Notwithstanding
the foregoing, the City, GSA and Developer
I
agree that the design phase of the Work, as
described in Section 5.2 above, shall commence
upon execution of this Agreement and that the
j
City shall make Progress Payments therefor as
i
provided in section 5.8.1.
(b) Completion of Construction Improvements. T h e
Completion Date of the Work is defined in Section
1.10. Warranties called for by this Agreement or
by the Contract Documents shall commence on the
-'
Completion Date of the Work. This date shall be
established by the issuance of the Certificate of
{
Occupancy.
(c) If the Developer is delayed at any time in the
progress of the Work by (1) any act or omission or
neglect of the City or by any separate contractor
employed by the City; or (2) by labor disputes not
caused by Developer's or Construction Contractor's
bad faith actions, fire, unusual delay in
transportation, adverse and unusual weather
conditions not reasonably anticipatable,
unavoidable casualties, or any causes beyond the
Developer's control, or by Force Majeure; or (3) a
delay authorized by arbitration, then the
Completion Date and the Contract Price (based upon
the actual costs, if any, incurred by Developer)
shall be modified by Change Order on account of
90- 938
delays caused by events described in parts (1) and
(3), but only the Completion Date will be adjusted
because of delays described in part (2).
(d) Notwithstanding the provisions of subparagraph (c),
immediately preceding, in the event of the
occurrence or the reasonable anticipation by
Developer or Construction Contractor of the
occurrence of certain events of Force Majeure that
could result in substantial damage or destruction
to the Project such as hurricanes, tornadoes,
tropical storms, riots, civil or military
disturbances, acts of terrorism or war, the
Developer and/or Construction Constructor, subject
to the approval of the Resident Engineer, shall be
authorized to take such precautionary measures as
may be appropriate under the circumstances and
shall be entitled to reimbursement from the City,
pursuant to Change Order, of the actual costs
incurred by Developer and/or by Construction
Contractor therefor.
5.6.2 Work by Others.
(a) Separate contracts may be awarded by the City
for simultaneous construction of interior
partitioning and interior finish work. The
Developer shall coordinate its work pursuant
to such contracts. The City shall cause such
other contractors, and their subcontractors,
to coordinate their work with Developer in
order that the progress of the Work shall not
be impeded or delayed.
(b) The Developer and the Construction Contractor
shall have the right to subcontract to
qualified subcontractors all or any portion of
the Work, subject to compliance with the
Contract Documents.
5.7 Payment/Performance Bonds. Developer agrees to furnish
to the City payment and performance bonds complying with
Section 255.05, Florida Statues (1989), issued by Florida
licensed surety companies and subject to the Insurance
Coordinator and City Attorney's approval.
On or before ten (10) days after execution hereof, the
Developer shall furnish the City with a performance and
payment bond equal to the amount of 110 percent (110%) of
the Work. The Developer will be responsible for
maintaining said bonds in operative force and effect
throughout the entirety of the construction of the
improvements to the site. The.Developer will promptly
make payment to all claimants supplying labor, materials,
or supplies used directly or indirectly in the
prosecution of the Work provided for in the agreement,
and to pay the City all losses, damages, expenses, costs
and attorney's fees, including appellate proceedings,
that the City sustains because of a default by the
Developer under the Agreement.
5.8 Progress Payments; Progress Reports. Payments shall be
made by the City to the Developer as follows:
5.8.1 Prior to the Construction Commencement Date, within
thirty (30) days after the execution of this
Agreement, and continuing each month thereafter
until the Construction Commencement Date, the City
shall make progress payments to the Developer based
upon progress of Work completed for all reasonable
12
9a-- 938
costs, fees, and expenses related to the awarding
of the Project and the preconstruction phase of the
Work, including but not limited to, all
architectural and engineering fees and costs, site
inspection and analyses costs, general contracting,
legal and accounting fees, and all permitting and
licensing fees and costs, subject to the City's
approval which shall not be unreasonably withheld
or delayed.
5.8.2 On or before the first day of each month after the
Construction Commencement Date, the Developer shall
submit to the Resident Engineer an Application for
Payment in such detail as may be required by the
City, based on the Work completed and materials
paid for and stored on the site and/or at locations
approved by the City, for the period ending on the
last day of the previous month. Prior to
submission of the first Application for Payment,
the Developer shall submit a schedule of values to
the City for approval.
5.8.3 Within two (2) days after receipt of each monthly
Application for Payment, the Resident Engineer
shall complete its review of the application and
determine such amounts as are properly due and
notify the Developer in writing of the reasons, if
any, for withholding payment in whole or in part.
The Resident Engineer shall not unreasonably
withhold or delay approval. The City shall, upon
receipt, transmit the application, as approved by
the Resident Engineer, to the Trustee. The Trustee
shall complete all required paperwork and direct
the City to make payment within two (2) Working
days of the receipt of the application for payment.
5.8.4 Within ten (10) days after receipt by the Resident
Engineer of each monthly Application for Payment,
the City shall pay directly to the Developer the
appropriate amounts for which approved Application
for Payment is made therein. The payment made
shall be deducted from the Contract Price. Payment
shall not constitute acceptance of Work not in
accordance with Contract Documents.
5.8.5 If the City should fail to pay the Developer in
accordance with Section 5.8.4 at the time the
payment of any amount becomes due, then the
Developer may, at any time thereafter, upon serving
written notice that it will stop the Work within
seven (7) days after receipt of the notice by the
City, and after such seven (7) day period, stop the
Work until payment of the amount owing has been
received, and the Construction Period shall be
tolled and the Completion Date shall be extended
until such time as the payment is made to the
Developer and the Developer acknowledges in writing
receipt of same. If Developer receives the payment
due within the aforesaid seven (7) day period,
Developer shall resume performance of the Work.
Written notice shall be deemed to have been duly
served if sent by certified mail to the last
business address known to the party who gives the
notice.
5.8.6 Payments due but unpaid as required by Section
5.8.5 shall bear interest at the variable rate of
one percent (1%) per annum above the prime rate of
Sun Bank/Miami, N.A., as same may be announced and
changed from time to time.
13
90- 938
5.9 Final Payment.
5.9.1 Final payment constituting the unpaid balance of
the Contract Price shall be due and payable 30 days
after the Completion Date upon final inspection and
acceptance by the City of the Work, subject to
completion of all contract requirements; notwith-
standing the foregoing, final payment shall be due
and payable prior to occupancy. If there should
remain minor items to be completed, the Developer
and the City shall list such items and the
Developer shall deliver, in writing, its guarantee
to complete said items within a reasonable time
thereafter. The City shall retain a sum equal to
the estimated cost of completing any unfinished
items, provided that said unfinished items are
listed separately and the estimated cost of
completing any unfinished items is agreed to by
Developer and City and likewise, listed separately.
Thereafter, the City shall pay to the Developer,
monthly, the amount retained for incomplete items
as each of said items is completed.
5.9.2 The making of Final Payment shall constitute a
waiver of all claims by the City against Developer
except those arising from:
a. Unsettled liens.
b. Improper workmanship or defective materials
appearing within one (1) year after the
Completion Date.
C. Failure of the Work to comply with the
Contract Documents.
d. Terms of any special guarantees required by
the Contract Documents.
e. Latent defects.
f. Any matter on which either Developer or the
City has requested arbitration, or which is
the subject of a pending arbitration
proceeding.
5.9.3 The acceptance of Final Payment by Developer shall
constitute a waiver of all claims against the City
except those arising from:
a. Any written claim previously submitted by
Developer to - City, which has not been
waived in writing by Developer and for
which payment has not been made.
b. Any matter on which either Developer or
the City has requested arbitration, or
which is the subject of a pending
arbitration proceeding.
5.10 Submission for Building Permits. Upon approval by the
City of all required plans and specifications, Developer
shall submit and file all necessary applications,
together with the required fees, including impact fees,
for the Building Permits necessary for the Work.
5.11 Payment of Contractors and &upal ies . D e v e l o p e r
covenants and agrees to pay, as and when due, all
contractors, subcontractors, materialmen and suppliers
19
90- 938
furnishing labor, equipment, materials and supplies to
the Project. Developer further covenants and agrees not
to suffer or permit the filing of any liens for labor,
materials, equipment or supplies against the Project.
5.12 Cancellation or Discharge of Liens filed. If any lien
shall be filed against the Project, Developer agrees upon
receipt of notice thereof, to promptly cause same to be
canceled, satisfied or discharged of record.
5.13 Construction Coordination and Cooperation. Developer
shall coordinate the timing and performance of the Work
among the various trades in order to obtain a cost-
efficient, continued and expeditious prosecution of the
Work; and shall further cause the various subcontractors,
materialmen and suppliers to cooperate with each other
and with Developer toward the same end. Developer shall
cooperate and coordinate with other contractors employed
by the City, and the City shall cause such other
contractors to cooperate and coordinate with Developer,
as provided in Section 5.6.2 above.
SECTION VI.
USE OF THE SITS
6.1 Allowable Uses. The parties agree as follows
regarding allowable uses of the premises.
6.1.1 Authorized principal use. T h e city a n d
Developer agree that upon surrender of the premises
by Greyhound, the principal use of the site shall
be those uses necessary incidental or convenient to
the design, development and construction of the
Project and the performance of the Work by
Developer. Accordingly, the City covenants and
agrees not to permit any person or entity, other
than Developer and its subcontractors, agents and
representatives, to use or possess the site prior
to the Completion Date, except as expressly
authorized in Section 6.1.2 below.
6.1.2 Authorized accessory use. In addition to the uses
permitted in Section 6.1.1, the site shall be used
only (i) by the City to aid, assist and further the
performance of the Work by Developer; (ii) by the
City or GSA to inspect or test the Work; and (iii)
by separate contractors, and their subcontractors,
but strictly limited to the performance of the work
permitted under Section 5.6.2.
6.1.3 Compliance with Building. Zoning and Planning Laws:
The City and Developer covenant and agree to comply
with all building, zoning and planning laws
applicable to the Project.
6.2 no Unlawful Use. The parties covenant and agree to use
the site for lawful purposes only as permitted above and
shall not conduct or suffer any illegal activities
thereon.
6.3 No Iindrance. The City covenants and agrees that within
its area of responsibility and control, it will not
hinder, delay, impede or obstruct, nor to suffer or
permit any third party to hinder, delay, impede or
obstruct the prompt and proper performance of the Work by
Developer, its contractors, subcontractors, agents,
representatives, suppliers and materialmen.
15
90-- 938
SECTION VII.
COSTS INCLUDED IN CONTRACT PRICE
7.1 The Contract Price includes, and therefore Developer
shall pay, all fees and charges for all of the necessary
permits and approvals required for the Work and all
legal, architectural and other professional services
..required for the design and construction of the Project,
as contemplated by the Request for Proposals. Developer
has examined the Request for Proposals and the Contract
Documents and is of the opinion that all required permits
and approvals are enumerated or disclosed therein. In
the event of changes in applicable laws or ordinances, or
public charges, assessments fees or costs affecting or
relating to the Work as to the design and construction of
the Project, then in any of such events Developer shall
be entitled to request a Change Order and the Contract
Price shall be adjusted accordingly.
7.2 The City shall have no contractual obligation to the
Developer's Subcontractors and shall communicate only
with the Developer.
SECTION VIII.
CITY NOT LIABLE FOR FAILURE OF UTILITIES
8.1 City Not Responsible for Utilities. The Developer
shall pay for all utilities consumed on the site as well
as connection and installation charges thereof through
issuance of a Certificate of Occupancy.
8.2 Public Charges/Fees. The parties agree as follows:
8.2.1 Covenant for Payment of Public Charges. Developer
agrees to pay for any public charges or fees
associated with the Work, subject to the provisions
of Section 7.1 above.
8.2.2 Evidence of Payment of Public Charges. Developer
agrees to provide evidence of payment of the public
charges or fees described in Section 8.2.1 above,
within thirty (30) days of a written request for
same.
SECTION I%.
INSPECTION AND AUDIT RIGHTS
9.1 Inspection of Site. The Developer agrees to permit
the City and GSA to enter the site at any time for any
purpose the City deems necessary to, incidental to or
connected with the performance of the Developer's duties
and obligations hereunder or in the exercise of its
rights or functions.
9.2 Audit Rights. The City and the GSA reserve the right to
audit, inspect and copy the records of the Developer with
respect to this Agreement and Developer's operations
relating thereto, at any time upon reasonable notice
during the performance of this Agreement.
16
90- 938
SECTION X.
INSURANCE
10.1 Deposit of Certificates of Insurance. Evidence of
compliance with the insurance requirements shall be filed
with the Claims Division of the City of Miami prior to
execution of the Agree...ent. Such insurance shall be
subject to the approval of the Insurance Coordinator. New
certificates shall be provided at least thirty (30) days
prior to coverage renewal dates thereafter. The
Developer agrees that upon request of the City that
certificates of the applicable policies will be delivered
within ten (10) days to the City.
All policies of insurance shall be written with companies
authorized to transact business in the State of Florida
and rated at least "A" as to management and class "V" as
to financial size in the latest edition of Best's Key
Rating Guide, published by the A.M. Best Company,
Oldwick, New Jersey.
Compliance with the insurance requirements shall not
relieve the Developer of its liability and obligations
under this section or under any other portion of the
Agreement or any other portion of the Contract Documents.
10.1.1 Endorsements. The Developer's insurance policies
shall be endorsed to name the City as an additional
insured to the extent of the City's interest
arising from this Agreement, to waive subrogation
against the City but only under the terms of the
all-risk policy referred to in Section 10.2 below,
to expand coverage as required herein, and to
provide that any failure of the Developer to comply
with any policy provisions will not void coverage
for the City.
Where applicable, the Developer's policies shall be
endorsed to include severalty of interest (cross -
liability) provisions so that the City will be
treated as if a separate policy were in existence
without increasing the policy limits of liability.
10.2 Property Coveracxe. The Developer shall purchase
insurance to cover all risks of loss including flood
coverage (as to flood insurance, to the extent it is
approved under the federal flood insurance program) to
the buildings/structures and personal property to be
built or existing on the premises, on a replacement cost
basis, with coinsurance waived by an agreed amount
endorsement. The policy or policies of insurance will be
provided from the commencement of construction to
completion and acceptance of construction in accordance
with all applicable laws and codes. Additionally, the
following insurances must be in force and effect during
all construction periods until completion and acceptance
of the Project:
( a ) All -builders Risk Policy in which the City is to
be named as insured as its interest may appear, and it is
to fully cover against the loss or damage of the Work
during the course of construction, including fire,
extended coverage, vandalism and malicious mischief;
(b) Proof of automobile coverage for limits of One
Hundred Thousand Dollars ($100,000), single limit for
bodily injury and for property damage to be provided,
naming the City as an additional insured as its interest
may appear.
17
90-- 938
10.3 Workers' Compensation. The Developer shall insure that
the Construction Contractor secures adequate workers'
compensation insurance for statutory obligations imposed
by the workers' compensation laws of the State of Florida
and where applicable, the United States Longshoremen's
and Harbor Workers Act, the Federal Employees Liability
Act, and the Jones Act.
10.4 General Liability. The Developer shall cause Construc-
tion Contractor to purchase and maintain in force during
the term of the Agreement general liability insurance
coverage on the comprehensive general liability form,
including an owner's and contractor's protective
liability to be issued naming the City of Miami and the
Developer as insured for single limits of Ten Million
Dollars ($10,000,000) per occurrence for bodily injury
and property damage.
The Developer shall maintain a minimum of a combined
single limit of one (1) Million Dollars per occurrence
for bodily injury and property damage liability. The
!i required limits of liability may be satisfied by a
combination of underlying and umbrella or excess
coverage.
The comprehensive general liability insurance shall
include in addition to premises and operation coverage,
products and completed operations coverage, broad form
property damage liability, independent contractors
coverage, personal injury liability coverage, XCU
(Explosion, Collapse and Underground) coverage and
contractual liability covering the liabilities assumed by
1 the Agreement. The City and GSA agree that the general
liability insurance coverages required pursuant to this
Section 10.4 shall be carried by Construction Contractor
with Developer, as appropriate, and the City as an
additional insured.
10.5 Excess Umbrella Liability. The limits of liability
required by this section, may be satisfied by a
combination of underlying and umbrella/excess coverage.
Umbrella liability coverage is preferred, but an
equivalent excess -liability form may be used. However,
in no case may excess coverage be utilized if such
coverage is more restrictive than underlying coverage.
10.6 Deductibles. The policy or policies of
contain a deductible which must be approved
the City, and be the responsibility of th
10.7
e
insurance may
in advance by
Developer.
Change of Coverage. The insurance requirements contained
in this Agreement represent minimum amounts of insurance
which in the opinion of the City are necessary to protect
the City's interest. They are not intended nor in any
way represent the type or amounts of insurance that are
sufficient or adequate to protect the Developer's
interest.
If at any time the City feels that insurance requirements
imposed upon the Developer are insufficient to protect
the City's interests, the City reserves the right to
modify or change the insurance requirements at that time.
18
90 938
10.8 Waiver of Subrogation.
10.8.1 The City and Developer waive all i:ights against
each other, the Architect/Engineer, the
Construction Contractor, Subcontractors and
subsubcontractors for damages caused by perils
covered by insurance provided under Section 10.2,
except such rights as they may have to the proceeds
of such insurance held by the City and Developer as
trustees. The Developer shall have the
Construction Contractor require similar waivers
from all Subcontractors and subsubcontractors.
10.8.2 The City and Developer waive all rights against
each other and the Architect/Engineer, Construction
Contractor, Subcontractor and Subsubcontractors for
loss or damage to any equipment used in connection
with the Project which loss is covered by any
property insurance. The Developer shall require
similar waivers from all Subcontractors and
Subsubcontractors.
10.8.3 The City waives subrogation against the Developer,
Architect/Engineer, Construction Contractor,
Subcontractors' and Subsubcontractors on all
property and consequential loss policies carried by
the City on adjacent properties and under property
and consequential loss policies purchased for the
Project after its completion.
10.8.4 If the policies of insurance referred to in this
paragraph require an endorsement to provide for
continued coverage where there is a waiver of
subrogation, the owners of such policies will cause
them to be so endorsed.
SECTION XI.
CITY INTEREST NOT ENCUMBERED
11.1 City's Interest in Site Not to be Encumbered. Developer
acknowledges that the Project is being developed on
City -owned property which is held in public trust and
accordingly, cannot be mortgaged, liened, encumbered,
pledged, hypothecated or subordinated in any way as a
part of the Agreement. Accordingly, Developer covenants
not to mortgage, lien, encumber, pledge, hypothecate or
subordinate in any way, the City owned property used to
develop the Project, and agrees to promptly satisfy,
release or discharge, any lien or encumbrance created or
caused on the property by the Developer.
SECTION %II.
18
12.1 NotLces. All notices given pursuant to this Agreement
shall be mailed by United States registered or certified
mail, return receipt requested, addressed to:
City Manager
City of Miami
3500 Pan American Drive
Miami, Florida 33133
19
Director
City of Miami
Department of Development
300 Biscayne Blvd. Way
Suite 400
Miami, Florida 33131
90- 938
PW
a]
Resident Engineer
U.S. General Services
Administration
Federal Building
51 S.W. 1 Avenue
Miami, Florida 33130
Miami Capital Facilities, Ltd.
Attns John Lowell, Jr.
801 Brickell Avenue, Suite 1400
Miami, Florida 33131
Miami Capital Facilities, Ltd.
Attn: Martin Hopwood, Esq.
Suite 600
520 Madison Avenue
New York, NY 10022
Jorge L. Fernandez, Esq.
City Attorney
One S.E. 3rd Avenue, filth Floor
Miami, Florida 33131
Contracting Officer
U.S. General Service
Administration
Public Buildings Service (4PE)
401 West Peachtree Street, NW
Suite 2500
Atlanta, GA 30365
Turner Construction Co.
Attn: David E. Truesdell
2333 Ponce de Leon Blvd.
Suite 500
Coral Gables, Florida 33134
Ramon E. RasCo, Esq.
Rasco & Reininger, P.A.
5200 Blue Lagoon Dr., Suite 700
Miami, Florida 33126
SECTION BIII.
INDEMNIFICATION
13.1 Indemnification. To the extent not covered by
insurance provided pursuant to this Agreement, the
Developer covenants and agrees that it shall indemnify,
hold harmless, and defend the City and GSA, its officials
and employees, from and against any and all claims,
suits, actions, damages or causes of action arising
during the term of the Agreement for any personal injury,
breach of contract, negligence, inadvertence,
construction claims, defects, losses, delays, stoppages
and/or defects and/or mistakes, loss of life, or damage
or loss to property and all actions arising, in tort or
in contract, in law or equity, by virtue of the
Agreement, sustained in or about the premises, or any
violation of law, covenant, restriction, rule or
regulation or any claim or suit of any nature arising
from the Developer's use of the property, by reason of or
as a result of the Developer's occupancy and use thereof,
acts or omissions to act, and will indemnify, pay and
discharge from and against any orders, judgments or
decrees which may be entered thereon, and from and
against all costs, attorney's fees (including appellate
fees), expenses and liabilities incurred in and about the
defense of any such claim and the investigation thereof.
The independent and separate consideration for this
indemnity is the award of the.Agreement.
SECTION BIV.
14.1 Liens. The Developer warrants and guarantees that all
Work, materials and equipment covered by an Application
for Payment are free' and clear of all liens, claims,
security interests or encumbrances, whether incorporated
in the Project or not.
14.2 City_'s Contractors. The City represents, warrants, and
agrees to promptly pay any contractors in direct contract
with the City, and accordingly, shall keep the property
free and clear of any liens, claims, security interests,
20
90-- 938
s
a '
or other property rights of contractors in direct
contract with the City.
1 SECTION XV.
N+AIVSRS IN WRITING
15.1 Waivers and Surrenders to be in Writina. No waiver of
any right, term, provision, condition, covenant or
agreement herein contained shall be effective unless set
forth expressly in writing signed by the party waiving
such right, etc., and any such waiver shall be effective
only to the extent set forth in such writing.
SECTION XVI.
NO CONTRACTS BEYOND TERM
16.1 No Contracts Beyond Term. Except as expressly
provided herein or in a separate writing signed by both
parties, the rights, obligations and agreements of and
between the parties shall cease and terminate upon the
completion or sooner termination of this Agreement.
SECTION XVII.
DEFAULT AND REMEDIES;
FORCE MAJEURE
17.1 Events of Default - Developer. The following events are
hereby defined as "Events of Developer's Default":
(a) Failure of the Developer to perform any of its
material covenants, conditions and obligations
under this Agreement, including any covenant,
condition or obligation of the Developer to perform
the Work and the continuance of such failure for a
period of thirty (30) days after notice thereof in
writing from the City Manager to the Developer.
(b) If a final unappealable order of relief shall be
entered by a court of competent jurisdiction upon
any petition filed by or against the Developer, as
debtor, seeking relief (or instituting a case)
under Chapters 7, 9, 11, or 13 of the Bankruptcy
Code of 1978, 11 U.S.C. (Sec. 10 et seq.) or any
successor thereto.
(c) If the Developer admits in writing its inability to
pay its debts,or if a receiver, trustee or other
court appointee is appointed for all or a
1� substantial part of'Developer's property and not
discharged within thirty (30) days.
_ (d) If the Developer makes an assignment for the
benefit of creditors or if any proceedings are
filed by the Developer to declare the Developer
insolvent or unable to meet its debts, and such
proceedings are not dismissed within sixty (60)
days.
(a) If the Developer persistently or repeatedly refuses
or fails, except in cases for which an extension of
time is provided, to supply enough properly skilled
workmen or proper materials, or if it fails to make
prompt payment to subcontractors or for materials
or labor, and such failure or refusal continues for
21
90- 938
4
i
thirty (30) days after written notice to Developer
from the City Manager.
(f) If the Developer persistently disregards laws,
ordinances, rules, regulations or orders of any
public authority having jurisdiction, and such
disregard continues for thirty (30) days after
written notice to Developer from the City Manager.
17.2 Remedies for Developer's Default. If any of the Events
of Developer's Default shall occur the City may, without
prejudice to any right or remedy and after giving the
Developer and his surety, if any, ten (10) days' written
notice, and during such period the Developer fails to
cure the default, terminate the employment of the
Developer and take possession of the site and may finish
the Work by whatever method it may deem expedient.
17.2.1 Liquidated Damages - Construction. If the Developer
fails to complete the Project within the time
specified in the Agreement, or any negotiated
extension, the Developer shall pay to the City as
liquidated damages, the sum of $8,500.00/Day for
each day of delay. This sum represents the City's
daily cost of bond financing for construction of
the Project. If the City terminates the
Developer's right to proceed, the resulting damages
will consist of liquidated damages until such
reasonable time as may be required for final
completion of the Project together with any
increased costs occasioned the City in completing
the Project. If the City does not terminate the
Developer's right to proceed, the resulting damages
will consist of liquidated damages until the
Project is completed.
17.3 Events of Default - City. The following events are
i` hereby defined as "Events of City's Default:
(a) Failure of the City to comply with the progress
schedule for the design and construction phases of
the Work, and the continuance of such failure for
thirty (30) days after notice thereof from
Developer.
(b) Failure of the City to make payments to the
Developer for the Work in accordance with the
provisions of Sections 5.8 and 5.9, such that
payment is not received within thirty (30) days of
the required payment date.
(c) Failure of the City to perform any of the other
material covenants, conditions, and obligations
_1) which are to be performed by the City in accordance
with this Agreement and the continuance of such
failure for a period of thirty (30) days after
notice thereof in writing from Developer to the
City.
17.4 Remedies for City's Default. If any of the Events of
City's Default shall occur, the Developer may upon ten
(10) days written notice to the City, terminate this
Agreement and recover from the City payment for all Work
executed, and for any loss sustained upon any materials,
equipment, tools, construction equipment and machinery,
and for reasonable profit and for consequential and
incidental damages.
17.5 Force Maieure. For the purpose of any of the provisions
of this Agreement, neither, the City nor the Developer,
22
90- 938
as the case may be, nor any successor in interest, shall
be considered in breach of or in default in any of its
obligations in the event of unavoidable delay (herein
called "Force Majeure") in the performance of such
obligations due to Acts of God; strikes, lockouts, or
other industrial disturbances not caused by the bad faith
acts of either party; acts of public enemies, blockades,
wars, insurrections or riots; epidemics, landslides,
earthquakes, fires, storms, hurricanes, tornadoes,
floods, or washouts; governmental restraints beyond the
control of the City or GSA, either federal, state, county
or city, civil or military; civil disturbances;
explosions; inability of Developer to obtain necessary
materials, supplies, labor, or permits whether due to
existing or future rules, regulations, orders, laws or
proclamations, either federal, state, county or city,
civil or military, or otherwise; and other causes beyond
the control of either party, whether or not specifically
enumerated herein. It is the purpose and intent of this
paragraph that, in the event of the occurrence of any
such unavoidable delays or Force Majeure, the time or
times for the performance of the covenants, provisions
and obligations of this Agreement shall be extended for
the period of unavoidable delay; provided however, that
the party seeking the benefit of the provisions of this
section shall, within thirty (30) days after such party
shall have become aware of such unavoidable delay, give
notice to the other party thereof, in writing; of the
cause or causes thereof and the time delayed.
17.6 Obligations, Rights and Remedies Cumulative. No right,
power or remedy conferred upon or reserved to the City or
Developer by this Agreement is intended to be exclusive
of any other right, power or remedy, but each and every
such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right,
power and remedy given hereunder or now or hereafter
existing at law or in equity or by statute.
17.7 Non -Action or Failure to Observe Provisions Hereof. No
delay or omission by City or the Developer to exercise
any right, power or remedy accruing upon any default
shall exhaust or impair any such right, power or remedy
or shall be construed to be a waiver of any such default
or acquiescence therein. No waiver of any default
hereunder shall extend to or shall affect any subsequent
or any other then existing default or shall impair any
rights, powers or remedies consequent thereon.
17.8 Surrender of Site. Upon completion of all of the Work,
including any items remaining to be done after the
Completion Date, or upon the earlier termination of this
Agreement, Developer shall surrender and deliver the site
to the City, in accordance with the terms and conditions
hereof.
17.9 Developer's Surety And Insurance Company With Respect to
Obligations. Developer agrees that in the event its
insurer or surety shall fail to perform any obligation
required to be performed by such insurer or surety the
Developer shall be responsible for and shall perform such
obligation.
17.10 Arbitration. All claims, disputes and other matters in
question arising out of, or relating to, this Agreement
or the breach thereof, shall be decided by arbitration in
accordance with the Construction' Industry Arbitration
Rules of the American Arbitration Association then
obtaining unless the parties mutually agree otherwise.
23
90- 938
This agreement to arbitrate shall be specifically
enforceable under the prevailing arbitration law.
Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with
the American Arbitration Association.. The demand for
arbitration shall be made not more than ninety (90) days
after the claim, dispute or other matter in question has
arisen, and in no event shall it be made when institution
of legal or equitable proceedings based on such claim,
dispute or other matter in question would be barred by
the applicable statute of limitations.
The award rendered by the arbitrators shall be final and
judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof.
Unless otherwise agreed in writing, the Developer shall
carry on the Work and maintain the Construction Schedule
during any arbitration proceedings and the City shall
continue to make payments in accordance with this
Agreement.
I
j All claims which are related to or dependent upon each
other shall be heard by the same arbitrator or
arbitrators, even though the parties are not the same,
unless a specific contract prohibits such consolidation.
17.11 Attorneys Fees. In the event of any arbitration or
litigation proceedings between the parties, the
prevailing party shall be entitled to recover all of its
costs and expenses, including reasonable attorneys' fees
in all courts, before and after suit is filed, during
trial and through all appeals, from the non -prevailing
party.
SECTION BVIII.
EQIIAL EMPLOYMENT
18.1 Equal Employment Opportunity and Nord -Discrimination. The
Developer agrees that there will be no discrimination
against any person on account of race, color, sex,
religious creed, ancestry, national origin, mental or
physical handicap in the use of the premises and the
improvements thereon.
SECTION BIB.
MISCELLANEOUS
1� 19.1 co flirt of Interest. The Developer. is aware of the
conflict of interest laws of the City of Miami, Dade
County, Florida, State of Florida and Federal Government,
and agrees that it will fully comply in all respects with
the terms of such laws. Any such interests on the part
of the Developer or its employees must be disclosed in
writing to the City. The Developer, in the performance
of the Agreement, shall be subject to the more
restrictive laws regarding conflict of interest
promulgated by federal, state or local government, as
applicable.
19.2 §everability. If any section, or other provision of this
Agreement, or its application is held to be invalid,
illegal, or unenforceable in any respect or for any
reason, by any court of competent jurisdiction, the same
shall not affect in any respect whatsoever the validity,
24
90- 938
Ei
legality and enforceability of the remainder of this
Agreement and each provision thereof shall be valid and
enforced to the fullest extent permitted by law.
19.3 Successors. Except as otherwise provided, this
Agreement shall be binding upon and inure to the benefit
of the Developer and the City and their successors and
assigns.
19.4 Co}lsent. Any consent required by this Agreement shall be
given in writing and, if from the Developer, by the
General Partner of the Developer, and if from the City,
by the City Manager. The City agrees that whenever in
this Agreement the City's consent or approval is required
or permitted, such consent or approval shall not be
unreasonably withheld or delayed; and that whenever in
this Agreement the City may request or require some act
or thing of Developer such request or requirement shall
be reasonable.
19.5 Applicable Laws. The Developer agrees as follows%
19.6.1 Rules and Regulations. The Developer agrees that
it will abide by any and all ordinances, resolu-
tions, rules and regulations pertaining to the
development of the Project which are now in effect,
or which may at any time during the term of the
Agreement be promulgated by the City.
19.6.2 Compliance with Federal. State and Local Laws.
The Developer shall comply with all applicable
laws, ordinances and codes of federal, state and
local governments.
19.7 Minority Procurement Compliance. T h e Developer
acknowledges that it has been furnished a copy of
Ordinance No. 10538, the Minority/Women Business
Affairs and Procurement Program Ordinance of the City
of Miami, attached to the Request for Proposals as
Appendix D, and agrees to comply with all applicable
substantive and procedural provisions therein, including
any amendments thereto.
19.8
Award of Agreement. The Developer warrants that it has
not employed or retained any person by the City or the
United States Government to solicit or secure the
Agreement and that it has not offered to pay, paid, or
agreed to pay any person employed by the City or the
United States Government any fee, commission,
percentage, brokerage fee, or gift of any kind
contingent upon or resulting from the award of making
_
the Agreement.
-1, 19.9
EgUity Participation. The Developer's response to the
equity participation requirements as set forth in the
Request for Qualifications, upon which the Developer was
_
determined qualified, shall be applicable throughout the
term of the Agreement. However, in the event of any
changes in the composition of ownership of Developer, the
City agrees to approve same provided Developer shall at
all times during the term hereof continue to meet these
requirements.
19.10
Time. Time shall be of the essence in this Agreement.
19.11
Exculpation. Notwithstanding anything to the contrary
contained in this agreement or the Contract Documents, no
general or limited partner of Developer (nor any direct
or indirect partner, incorporator, shareholder, trustee,
officer or director , disclosed or undisclosed, past,
25
90-r 938
--Al
present or future of a partner of Developer) nor
Contractor or any Consultant shall be personally liable
for any liability or obligation of Developer to the City
in connection with this Agreement and the City will look
solely to the assets of Developer (but excluding any
negative capital accounts of any partners of Developer)
and the payment and performance bonds furnished by
Developer and Developer's policies of insurance to
satisfy any claims it may have against Developer with
respect to such liabilities and obligations.
19.12 Entire Agreement: Amendments. This Agreement, including
all documents described in Section 5.1.2, constitutes the
entire agreement between the Developer and the City with
respect to the matters contained herein, and when duly
executed, constitutes the complete agreement between the
Developer and the City. This Agreement may not be amended
except in writing executed by both parties.
19.13 Conflicts. In the event of any conflicts or any
inconsistencies between the terms and conditions of this
Agreement and the terms and conditions of any of the
other Contract Documents, including but not limited to
the Request for Proposals, the parties agree that the
terms and conditions of this Agreement shall control and
supersede.
IN WITNESS WHEREOF, the parties, by and through their duly
authorized representatives, have executed this Agreement in their
respective names, all as of the day and year first above written.
ATTEST:
Corporate Secretary
ATTEST:
NATTY HIRAI
City Clerk
APPROVED AS TO INSURANCE
REQUIREMENTS:
SEGUNDO PEREZ
Insurance Coordinator
I:\Work\An9e1a\503\FLES.AGM
Miami Capital Facilities, Ltd.
By: Miami Capital Facilities, Inc.,
its General Partner.
By:
John Lowell, Jr., President
CITY OF MIAMI, A MUNICIPAL
CORPORATION OF THE STATE
OF FLORIDA
By:
CESAR H. ODIO, City Manager
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
JORGE L. FERNANDEZ,
City Attorney
26
00- 938