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HomeMy WebLinkAboutR-88-1045J-88-459 10/20/88 RESOLUTION NO. NS-1 04.1 A RESOLUTION ACCEPTING A GRANT FROM THE JAMES L. KNIGHT FOUNDATION ("KNIGHT FOUNDATION") IN AN AMOUNT OF NOT MORE THAN $678,171 FOR THE EXCLUSIVE PURPOSE OF FUNDING A PORTION OF THE EXPENSES ASSOCIATED WITH THE CONSTRUCTION OF THE TOWER OF LIGHT ("TOWER") LOCATED IN BAYFRONT PARK AND THE PURCHASE OF EQUIPMENT, INSTALLATION AND PROGRAMMING FOR A COMPUTER CONTROLLED LASER PROJECTION SYSTEM WHICH IS PLANNED FOR THE TOWER AND FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY AND THE KNIGHT FOUNDATION IN SUBSTANTIALLY THE FORM ATTACHED SETTING FORTH THE TERMS AND CONDITIONS OF SAID GRANT. .WHEREAS, Motion No. 87-1058 adopted November 19, 1987 by the City Commission authorized and directed the City Manager to accept a grant from the James L. Knight Foundation for the construction of the Tower of Light located in Bayfront Park and the purchase of equipment, installation and programming for a computer controlled Laser Projection System which is planned for the Tower; and WHEREAS, Resolution No. 87-1059 adopted November 19, 1987 by the City Commission authorized the City Manager to enter into an agreement with the Science Faction corporation for the purchase of said equipment, installation and programming for the computer controlled Laser Projection System for Bayfront Park at a total cost of $298,200 subject to approval by City Attorney and City Manager of issues relating to insurance, indemnification, failure to provide a performance bond, and payment/delivery schedule; and WHEREAS, subsequently the City began the process of executing said agreement with Science Faction Corporation; and WHEREAS, execution of the agreement was delayed by problems related to indemnification of the City from claims that may arise out of use of the Laser Projection System and by disagreements related to the performance bond issue, payment and delivery schedule, and insurance requirements; and 94 "CLOSED CITY COMMISSION MEETING OF Noy g 1988 ,?:.SOLUTION No. 887:104 IAARKS r r WHEREAS, Science Faction Corporation has advised us that the delay has caused an increase in the cost of the lasers and in its legal fees from $298,200 to $318,200; and WHEREAS, Science Faction has therefore presented an increased purchase price of the Laser Projection System to cover these additional costs; and WHEREAS, the James L. Knight Foundation originally agreed to fund a portion of the expenses associated with the construction of the laser tower and the purchase of the equipment, installation and programming for a computer controlled Laser Projection System and has agreed to increase its grant to the City of Miami in an amount equal to and expressly for funding the increased cost; and WHEREAS the City Manager recommends the acceptance of the aforementioned grant and the execution of the grant agreement in substantially the form attached hereto, subject to the terms and conditions set forth therein; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is hereby authorized to accept a grant from the James L. Knight Foundation and execute an agreement for such grant, in substantially the form attached hereto, in an amount not to exceed $678,171 to be used exclusively for a portion of the expenses associated with the - construction of the Tower of Light located in Bayfront Park and the purchase of equipment, installation and programming for a computer controlled Laser Projection System which is planned for the Tower. Section 2. This Resolution shall be effective upon its adoption and the provisions thereof, unless otherwise indicated herein, shall also become operative upon its adoption. _a- 88-1045 r r PASSED AND ADOPTED this 3rd day of November XAVIER L. SUARR -�;7z ATTEST: PREPARED^ AND APPROV�D BY: r G. MIRIAM MAER ASSISTANT CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: JO E L. FE ANDEZ CITY ATTORN GMM/rot/M834 -3- MA 1988. I -A This Agreement ("Agreement"), dated as of the day of , 1988, is by and between the City of Miami, a municipal corporation of the State of Florida (the "City") and the Knight Foundation, a not for profit corporation incorporated under the laws of the State of Ohio (the 'Foundation"). WHEREAS, the City is the owner of certain real property (the ''Land") situated in the City of Miami, which is a part of the property commonly known as Bayfront Park and is more particularly described in Exhibit "A" attached hereto and incorporated herein by reference; WHEREAS, the redevelopment of Bayfront Park under the approved design plans prepared by Isamu Noquchi, which were adopted and approved by the City, is substantially completed; _ WHEREAS, the City has requested the Foundation to make a grant for the purpose of providing funds for the Tower of Light ("Tower") located in Bayfront Park; WHEREAS, the Foundation plans to provide funds which are to be used exclusively for the funding of a portion of the expenses associated with the construction of the Tower and the laser and lighting system which is planned for the Tower ("Laser System"); WHEREAS, the Foundation does not intend to control, in any way, the construction, operation or maintenance of the Tower or the Laser System. NOW, THEREFORE, the parties hereto covenant and agree as follows: 1. Grant By Foundation. The Foundation hereby agrees to make a grant to the City in the amount of $678,171.00 (the "Grant") to fund the purchase of the Laser System, subject to the terms and conditions of this Agreement. All residual funds remaining once the Laser System has been purchased shall be used to defray expenses incurred by the City for the construction of the Tower. The grant will be delivered to the City Manager within thirty (30) days after the execution of this Agreement. 2. Certain Obligations Of The City. (a) Purchase of Laser System. The City shall purchase the Laser System in a manner which meets the City's laws and regulations. The Foundation shall have no role in or responsibility for the selection of a vendor for or operator of the Laser System. (b) Name of the Tower; Plaque. The Foundation shall have the right initially to select and later change, if it chooses, the official name of the Tower, which name may commemorate individual(s) of the Foundation's choosing. Such name(s) shall be the official name(s) used by the City and the operator of the Bayfront Park in all literature, promotions, and any other materials relating to Bayfront Park. In addition, the City shall erect a bronze plaque, or a plaque of similar quality acceptable to the Foundation, on the premises at the specific location(s) chosen by the Foundation. The Foundation shall not select a location which interferes with any rights conferred upon any parties with valid leases or contracts with the City. Such plaque(s) shall bear an inscription as prescribed by the Foundation. No other name or designation of the Tower shall be used by the City or any lessee or agent of the City for any purpose. The Foundation shall be permitted to appear and reasonably participate in any dedication ceremonies which involve the dedication of the Tower, and the City agrees that 88-1.045 MIN the dedication ceremony which shall be conducted for the Tower shall be comparable to any other ceremony conducted on behalf of any other integral part of Payfront Park. (c) Operating Funds. The City will establish and maintain a Trust Account for the purpose of financing the ongoing operation and maintenance of the Tower and Laser System. For the City's 1989 fiscal year, the City will deposit no less than $50,000.00 to such Trust Account, which deposit shall be made no later than January 1, 1989; and on or before January 1 of each fiscal year thereafter, the City will deposit to the Trust Account no less than $50,000.00. The City shall have the option to derive the funds for the Trust Account from lease revenues and other fees derived from the use of the Tower and its base, and subject to the availability of funds and revenues from the Bayfront Park Management Trust. The funds deposited to the Trust Account, and any profit resulting from, or interest or income produced by, the investment of such funds, shall be used solely and exclusively for the operation and maintenance of the Tower and Laser System. 3. Representations And Warranties Of The City. (a) Authority. The City has full power and authority to enter into this Agreement and consummate the transactions contemplated hereby. This Agreement has been approved by those persons having proper authority and is in all respects legal, -valid and binding in accordance with its terms. (b) Ownership of the Premises. The City is. lawfully seized of the Land in fee simple, and the Land is free and clear of any and all claims, liens and encumbrances which would prohibit the City from entering into this Agreement. 4. General Terms. The following shall be applicable throughout the period of this Agreement and thereafter as provided herein: (a) Rights of Third Parties. All conditions on the Foundation hereunder are imposed solely and exclusively for the benefit of the Foundation and its successors and assigns, and no other person shall have standing to require satisfaction of such conditions and no other person shall, under any circumstances, be deemed to be a beneficiary of this Agreement. In particular, the Foundation makes no representations and assumes no duties or obligations as to third parties concerning the Tower and Laser System. (b) Foundation Is Not City's Agent. Nothing in this Agreement shall be construed to make the Foundation the City's agent for any purpose whatsoever, or the City and the Foundation partners, or joint or co -venturers. (c) Foundation Not Liable For City's Debts or Claims. In no event shall this Agreement be construed to make the Foundation or any agent, representative or employee of the Foundation liable to any person for labor, materials, or services delivered to the City or for debts or claims accruing or arising to any persons an parties against the City. (d) No Third Party Beneficiaries To Agreement. No persons or entities are intended to be third party beneficiaries of this Agreement or any document or instrument related to the Grant or to have any claim or claims in or to any undisbursed or retained Grant proceeds. (e) Foundation Not Liable for Damage or Loss. Neither the City nor other third persons shall be entitled to claim any loss or damage against the Foundation or against its agents, representatives or employees for failure to properly -2- R8-1045 'W� or - discharge their duties under this Agreement. 'nothing contained in this Agreement, shall impose upon the Foundation any obligation to oversee the proper use or application of any disbursements and advances of funds made pursuant hereto or the proper construction, operation or maintenance of the Tower or Laser system. (f) Headings. The headings of the sections, paragraphs and subdivisions of this Agreement are for convenience of reference only, and shall not limit or otherwise affect any of the terms hereof. (g) Invalid Provisions to Affect No Others. If performance of any provision hereof or any transaction related hereto is limited by law, then the obligation to be performed shall be reduced accordingly; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Agreement in part, then the invalid part of said clause or provision only shall be held for naught, as though not contained herein, and the remainder of this Agreement shall remain operative and in full force and effect. (h) Governing Law. The laws of the State of Florida shall govern the interpretation and enforcement of this Agreement. (i) Complete Agreement. This Agreement and the Exhibits hereto contain a complete and exclusive statement of -- all the arrangements between the parties hereto, and all prior negotiations and agreements between the parties. (j) Waiver. If the Foundation shall waive any provisions of this Agreement, or shall fail to enforce any of the conditions or provisions of this Agreement, such waiver shall not be deemed to be a continuing waiver and shall never be construed as such; and the Foundation shall thereafter have the right to insist upon the enforcement of such conditions or provisions. Furthermore, no provision of this Agreement shall be amended, waived, modified, discharged or terminated, except by instrument in writing signed by the parties hereto. (k) Successors and Assigns. This Agreement shall inure to the benefit of and be binding on the parties hereto and their successors and assigns. This Agreement shall not be assignable by the City without the prior written consent of the Foundation, which consent shall not be unreasonably withheld. (1) Limitation of Foundation's Liability. The sole liability of the Foundation to City for any breach of the terms of this Agreement by the Foundation is to pay the amount of the Grant. Once paid, the Foundation shall have no further liability whatsoever to the City. (m) Further Assurances. The City will take or cause to be taken as promptly as practicable all action, execute or cause the execution of all documents and do or cause to be done all things for the better and more effective carrying out of the intent and purposes of this:Agreement. (n) Recording. The Foundation shall have the right to record, in the Public Records of Dade County, Florida, this Agreement or a short form memorandum thereof, and the City will, at the request of the Foundation, execute such a short form memorandum permitting its recording. (o) Other Matters. The Foundation shall have no other liability or -obligation of any nature whatsoever to the City as a result of this Agreement or any matters relating to or arising out of the construction, use, maintenance or operation of the Tower or the Laser System. _3_ 88-1045 y (p) Designees of Foundation. Whenever the Foundation has any rights, or privileges under this Agreement, the Foundation, in its sole discretion, may designate any person or persons as it shall see fit to perform any portion of such rights or privileges. IN WITNESS WHEREOF, the City and the Foundation have caused this Agreement to be executed on the date first above written. Signed, sealed and delivered in the presence of: As to all parties: CITY OF MIAMI Approved as to form and legal sufficiency: City Attorney City of Miami 0619K By: Attest: (Seal) KNIGHT FOUNDATION a Attest `� 101✓ 7koS70 (Seal) —4— CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO. Honorable Mayor and Members of the City Commission Cesar H. Odio FROM City Manager RECOMMENDATION: DATE OCT 2 4 1988 SUBJECT Laser Projection Bayfront Park REFERENCES! ENCLOSURES: FILE System 53 It is respectfully recommended that the City Commission adopt the attached resolution accepting a grant from the James L. Knight Foundation in the amount of $678,171 for the exclusive purpose of funding a portion of the expenses associated with the construction of the Tower of Light located in Bayfront Park and the purchase of equipment, installation and programming for a computer controlled Laser Projection System which is planned for the Tower and further authorizing the City Manager to execute an agreement between the City and the Knight Foundation setting forth the terms and conditions of said grant. BACKGROUND: On November 19, 1987 the City Commission adopted Motion No. 87- 1058 authorizing and directing the City Manager to accept a grant from the James L. Knight Foundation for the construction of the Tower of Light located in Bayfront Park and the purchase of equipment, installation and programming for a computer controlled Laser Projection System which is planned for the Tower. Furthermore, on the same date, the City Commission passed Resolution No. 87-1059 authorizing the City Manager to enter into an agreement with the Science Faction Corporation for the purchase of said equipment, installation and programming for the computer controlled Laser Projection System for Bayfront Park at a total cost of $298,200, subject to approval by City Attorney and City Manager of issues relating to insurance, indemnification, failure to provide a performance bond, and payment/delivery schedule. The Administration has now reached an agreement with Science Faction Corporation for the furnishing of the Laser Light Projection System at a cost of $315,200. The James L. Knight Foundation has agreed to increase the grant amount to cover the increased cost of the Laser Projection System. 88--105