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BAYFRONT PARK BAYWALK IMPROVEMENTS . -am 6t ?,PI
JOINT PARTICIPATION AGREEMENT
This AGREEMENT, is made and entered into this day of , 2009, by and
between the CITY OF MIAMI, FLORIDA, a municipal corporation of the STATE OF
FLORIDA, hereinafter referred to as the "City", and the BAYFRONT PARK
MANAGEMENT TRUST, a limited agency and instrumentality of the City, hereinafter
referred to as the "TRUST".
WTNESSETH
WHEREAS, both parties herein wish to facilitate the construction of a Bayfront
Park Baywalk Improvement Project, within both the City and TRUST limits, hereinafter
referred to as the "Project," described as follows:
The construction of improvements along the Baywalk from Chopin Plaza to
approximately NE 3rd Street; demolition of portions of existing concrete walks
including hauling and proper disposal of all debris; demolition of existing plant
material including trees, shrubs, and existing ground cover; excavation and
preparation of new planters with suitable planting material and topsoil; plant
material to include, large feature trees, large palms, medium trees, ground cover;
all necessary topsoil and mulch; irrigation including reworking existing systems
and potentially new pumps and controls; site furnishings including park benches
and litter receptacles; lighting systems to include pole mounted fixtures and up
lights; and site drainage.
1
WHEREAS, the TRUST wishes to improve the aesthetics of the existing Baywalk
and wishes to utilize the resources of the City in order to design, contract, construct and
administer the Project, subject to the terms and conditions of this agreement; and
WHEREAS, the TRUST wishes to support the City's design, construction, and
administration efforts by providing funding in an amount not to exceed $1,600,000.00;
NOW, THEREFORE, in consideration of the promises and covenants contained
herein, the parties agree:
1 EFFECTIVE DATE AND TERM: This Agreement shall take effect upon its
execution and shall terminate upon completion and close-out of the Project.
2 RESPONSIBILITIES OF CITY:
The City is responsible for the management and administration of the Project.
Design: The City will secure engineering design and consulting services from
qualified firms to develop the construction plans, technical specifications,
special provisions, pay items and cost estimates for the Project (the
"Design Work") in accordance with standard City design criteria, to the
satisfaction of the City's Capital Improvements Department Director or
designee. The City's design consultant shall be made available to the
TRUST to review shop drawings and perform required post -design
services, limited to Project design. The TRUST agrees that the selection,
retention and discharge of the design consultant shall be the responsibility
of the City in accordance with applicable laws and City procedures. The
City shall have the right to award the Design Work to a qualified firm
through an existing Agreement if deemed the most advantageous method
2
to complete the Project. The City and the TRUST have discussed the
experience desired of a firm for this Project and the City will use its best
efforts to comply with the wishes of the TRUST as it relates to the firm
chosen.
Permits and Approvals: During the course of the design, the City shall obtain all
necessary approvals, permits, and utility adjustments; and coordinate the
review of construction documents by utilities and permitting agencies. The
City shall make all necessary adjustments as required for approval and/or
permitting by those agencies. The City shall obtain all necessary approvals,
permits, and utility adjustments for the Project in accordance with applicable
State, Federal and Local Laws and ordinances.
Right -of -Way: The City shall acquire at its sole cost and expense, any right-of-way
that is required to complete the construction of the Project. Further, the City
recognizes that a portion of Bayfront Park, more particularly the Baywalk
area, is owned by the Army Corps of Engineers ("CORPS') and leased to the
City until 2040. The City further recognizes that CORPS approval will be
required for these improvements. The City shall acquire at its sole cost and
expense, approval from CORPS for the required improvements.
Accounting: The City shall at all times maintain separate accounting for the costs of
the Project so those costs may be independently verified and audited by the
TRUST, at the request and cost of the TRUST. The City agrees to permit the
TRUST auditors to inspect the books, records and accounts of the Project for
three years after completion of the Project. These records shall be made
3
available to the TRUST for inspection within five (5) working days upon
receipt of a written request from the TRUST.
Construction: The City shall procure the services of a licensed contractor holding a
general contractor's license to construct the Project (the "Build Work"). The
City may award the contract through any available lawful means which, in the
City's discretion, affords the most cost effective and advantageous method for
construction of the Project and which may include, but is not limited to, bid
solicitation, request for proposals, the award of a change order on existing
City contract(s), or the extension of unit -prices provided in connection with
prior competitive bid awards. The City shall have the right to award the Build
Work to a qualified firm through an existing Agreement if deemed the most
advantageous method to complete the Project.
Subsequent to the evaluation of bids or proposals by the City, if
applicable, and the City's determination of the most advantageous bid or
proposal, the City shall provide said evaluation to the TRUST for review and
approval. The TRUST agrees that the selection, retention and discharge of
such contractor shall be the responsibility of the City.
The parties agree that the work to be performed shall at all times be
conducted in such manner and in such sequence as will ensure the least
practicable local interference. The general contractor shall exercise safety
and care and be flexible so as not to interfere with the normal operations or
special events hosted within Bayfront Park. The general contractor shall
familiarize itself with normal Park operations and special events where the
4
work is to be performed so that it can conduct the work in the best possible
manner to the complete satisfaction of the City's Project Manager and the
TRUST's Executive Director.
Construction Administration and Inspection: The City shall exercise all
responsibilities of the owner under the construction contract, including
construction administration and inspections. The City may delegate this
function to an authorized agent or Construction Engineering Inspection
consultant. The City will allow the TRUST unfettered access to the site for
review and observation during construction. The TRUST will assist the City in
preparation of the final punch list and close-out of the Project.
3 RESPONSIBILITIES OF TRUST:
Funding Amount,: The TRUST agrees to provide funds for the Project in the not to
exceed amount of $1,600,000, for eligible expenses, as defined herein,
incurred by the City for the design and construction of the Project. The
TRUST, at the sole discretion of the Executive Director, shall disburse to the
City funds on a reimbursement basis, or directly to vendors, upon
presentation of invoices and satisfactory documentation from the City
indicating payment is due. The TRUST shall incur no liability for any costs in
excess of said funding amount unless there has been a duly authorized
increase approved by the TRUST's Board of Directors. The not to exceed
amount of $1,600,000 shall include a fee of no more than 12% paid to the
City's Capital Improvement Department for the management and oversight of
the Project.
9
Proiect Cost Adjustments: The parties recognize that adjustments to the above -
referenced costs may be required in the future and that at the option of the
parties, amendments may be entered into to revise the funds available for the
Project. Provided that prior legislative authorization for funding is in place,
additional amendments may be executed by the City and TRUST. Otherwise,
further funding commitments shall be subject to the approvals of the parties'
respective governing boards.
4 ELIGIBLE EXPENSES: The parties agree that only the design, construction, and
construction administration expenses incurred by the City that are directly related to
the Project and specifically identified in Exhibit A, are eligible expenditures for
TRUST's funding, and documentation will be made available to substantiate
expenditures in the form of approved invoices, verified payment requests,
documented journal entries, and/or check vouchers, at the request of the TRUST.
5 COMPLIANCE WITH LAWS: The parties shall comply with applicable federal, state
and local laws, codes, ordinances, rules and regulations in performing their
respective duties, responsibilities, and obligations pursuant to this Agreement and
with all applicable laws relating to the Project. The parties shall not unlawfully
discriminate in the performance of their respective duties under this Agreement.
6 DISPUTE RESOLUTION, APPLICABLE LAW: The parties shall resolve any
disputes, controversies or claims between them arising out of this Agreement in
accordance with the "Florida Governmental Conflict Resolution Act", Chapter 164,
Florida Statutes, as amended. This Agreement shall be governed by the laws of the
State of Florida. Venue in any proceedings shall be in Miami -Dade, Florida.
0
7 ENTIRE AGREEMENT, AMENDMENTS: This document incorporates and includes
all prior negotiations, correspondence, conversations, agreements and
understandings applicable to the matters contained herein and the parties agree that
there are no commitments, agreements, or understandings concerning the subject
matter of this agreement that are not contained in this document. Accordingly, the
parties agree that no deviation from the terms hereof shall be predicated upon any
prior representations or agreements, whether oral or written. It is further agreed that
no modification, amendment or alteration in the terms contained herein shall be
effective unless set forth in writing in accordance with this section. No modification,
amendment or alteration in the terms or conditions contained herein shall be
effective unless contained in a written document prepared with the same or similar
formality as this Agreement and executed by the parties.
8 JOINT PREPARATION: The parties acknowledge that they have sought and
received whatever competent advice and counsel as was necessary for them to form
a full and complete understanding of all rights and obligations herein and that the
preparation of this Agreement has been their joint effort. The language agreed to
expresses their mutual intent and the resulting document shall not, solely as a
matter of judicial construction, be construed more severely against one of the parties
from the other.
9 SEVERANCE: In the event a portion of this Agreement is found to be invalid by a
court of competent jurisdiction, the remaining provisions shall continue to be
effective unless the City or TRUST elect to terminate this Agreement. An election to
7
terminate this Agreement based upon this provision shall be made within seven (7)
days after the finding by the court becomes final.
10 DEFAULT: If either party fails to comply with any term or condition of this
agreement, or fails to perform any of its obligations hereunder, then that party shall
be in default. Upon the occurrence of a default hereunder, the non -defaulting party,
in addition to all remedies available to it by law, may immediately, upon written
notice to the other party, terminate this agreement.
11 TERMINATION RIGHTS: Either party shall have the right to terminate this
agreement, in its sole discretion, at any time, by giving written notice to the other
party at least thirty (30) days prior to the effective date of such termination.
12 MISCELLANEOUS PROVISIONS:
12.1 Title and paragraph headings are for convenient reference and are not a
part of this Agreement.
12.2 No waives or breach of any provision of this Agreement shall constitute a
waiver of any subsequent breach of the same or any other provision hereof, and
no waiver shall be effective unless made in writing.
13 NOTICES: Any and all notices required to be given under this agreement shall be
sent by first class mail, addressed as follows:
To the TRUST:
Attention: Timothy F. Schmand, Executive Director.
Bayfront Park Management Trust
301 N. Biscayne Blvd.
Miami, FL 33132-2226
(305)373-8780
E:3
With a copy to:
Julie O. Bru, City Attorney
City of Miami
444 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
To the City:
Attention: Ola O. Aluko, Director
Capital Improvements Department
City of Miami
444 SW Second Avenue, 8th Floor
Miami, Florida 33130
(305) 416-1280
With a copy to:
Julie O. Bru, City Attorney
City of Miami
444 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
IN WITNESS WHEREOF, the parties hereto set their hands and official seals the
day and year first above written.
ATTEST:
Priscilla A. Thompson
Clerk of the Board
ATTEST:
BAYFRONT PARK MANAGEMENT TRUST, of
the City of Miami, a limited agency and
instrumentality of the City ("TRUST")
I0-ya
Timothy F. Schmand
Executive Director
CITY OF MIAMI, a municipal
corporation of the State of Florida
BY: BY:
9
Priscilla Thompson
City Clerk
(Affix City Seal)
APPROVED AS TO FORM AND
CORRECTNESS:
Julie O. Bru
City Attorney
Pedro G. Hernandez, P.E.
City Manager
APPROVED AS TO INSURANCE
REQUIREMENTS:
LeeAnn Brehm
Risk Management Director
10
EXHIBIT A
Bayfront Park Trust Management funds are eligible to be expended by the City of
Miami for the design and construction of the following Project elements:
Demolition
Excavation
Walkways
Site Furnishings
Lighting Systems
Sidewalk Reconstruction
Landscaping
Irrigation System
Site Drainage
TRUST Funding Amount: not to exceed $1,600,000
11
BAYFRONT PARK BAYWALK IMPROVEMEN
JOINT PARTICIPATION AGREEMENT
This AGREEMENT, is made and entered into this d y of , 2009, by and
between the CITY OF MIAMI, FLORIDA, a municipal orporation of the STATE OF
FLORIDA, hereinafter referred to as the "City", and the BAYFRONT PARK
MANAGEMENT TRUST, a limited agency and i trumentality of the City, hereinafter
referred to as the "TRUST".
WTNE ETH
WHEREAS, both parties herein/hin
to facilitate the construction of a Bayfront
Park Baywalk Improvement Project, w'oth the City and TRUST limits, hereinafter
referred to as the "Project," describe as follows:
The construction of impr vements along the Baywalk from Chopin Plaza to
approximately NE 3rd reet; demolition of portions of existing concrete walks
including hauling an proper disposal of all debris; demolition of existing plant
material including rees, shrubs, and existing ground cover; excavation and
preparation of n w planters with suitable planting material and topsoil; plant
material to incl de, large feature trees, large palms, medium trees, ground cover;
all necessa , topsoil and mulch; irrigation including reworking existing systems
and potent'ally new pumps and controls; site furnishings including park benches
and litter receptacles; lighting systems to include pole mounted fixtures and up
lights; d site drainage.
1
WHEREAS, the TRUST wishes to improve the aesthetics of the exXting Baywalk
and wishes to utilize the resources of the City in order to design, contrKct, construct and
administer the Project, subject to the terms and conditions of this 46reement; and
WHEREAS, the TRUST wishes to support the City's gresign, construction, and
administration efforts by providing funding in an amount not/o exceed $1,600,000.00;
NOW, THEREFORE, in consideration of the prorrfises and covenants contained
herein, the parties agree:
1 EFFECTIVE DATE AND TERM: This
execution and shall terminate upon comp
2 RESPONSIBILITIES OF CITY:
ement shall take effect upon its
and close-out of the Project.
The City is responsible for the managg(nent and administration of the Project.
Design: The City will secure er)6ineering design and consulting services from
qualified firms to devefp the construction plans, technical specifications,
special provisions, )say items and cost estimates for the Project (the
"Design Work") irk' accordance with standard City design criteria, to the
satisfactionof he City's Capital Improvements Department Director or
designee, e City's design consultant shall be made available to the
TRUST t� review shop drawings and perform required post -design
services/ limited to Project design. The TRUST agrees that the selection,
rete7eCity
n and discharge of the design consultant shall be the responsibility
of t in accordance with applicable laws and City procedures. The
Cify shall have the right to award the Design Work to a qualified firm
rough an existing Agreement if deemed the most advantageous method
2
to complete the Project. The City and the TRUST have discussed the
experience desired of a firm for this Project and the City will/se its best
efforts to comply with the wishes of the TRUST as it reel,6tes to the firm
chosen.
Permits and Approvals: During the course of the design/the City shall obtain all
necessary approvals, permits, and utility adjustfnents; and coordinate the
review of construction documents by utilitie and permitting agencies. The
City shall make all necessary adjustme s as required for approval and/or
permitting by those agencies. The Ci shall obtain all necessary approvals,
permits, and utility adjustments for he Project in accordance with applicable
State, Federal and Local Laws d ordinances.
Right -of -Way: The City shall acquVe at its sole cost and expense, any right-of-way
that is required to complefe the construction of the Project. Further, the City
recognizes that a Polon of Bayfront Park, more particularly the Baywalk
area, is owned by th¢ Army Corps of Engineers ("CORPS") and leased to the
City until 2040. ,The City further recognizes that CORPS approval will be
required for theXe improvements. The City shall acquire at its sole cost and
expense, appftval from CORPS for the required improvements.
Accounting: The/City shall at all times maintain separate accounting for the costs of
the Proj�ct so those costs may be independently verified and audited by the
TRUSS`, at the request and cost of the TRUST. The City agrees to pen -nit the
T auditors to inspect the books, records and accounts of the Project for
throe years after completion of the Project. These records shall be made
3
available to the TRUST for inspection within five (5) worki d days upon
receipt of a written request from the TRUST.
Construction: The City shall procure the services of a license contractor holding a
general contractor's license to construct the Project (the "Build Work"), The
City may award the contract through any availa le lawful means which, in the
City's discretion, affords the most cost effecti -e and advantageous method for
construction of the Project and which m . include, but is not limited to, bid
solicitation, request for proposals, th award of a change order on existing
City contract(s), or the extension f unit-prices provided in connection with
prior competitive bid awards. T e City shall have the right to award the Build
Work to a qualified firm thro gh an existing Agreement if deemed the most
advantageous method to mplete the Project.
Subsequent to th evaluation of bids or .proposals by the City, if
applicable, and the City's determination of the most advantageous bid or
proposal, the City shall provide said evaluation to the TRUST for review and
approval. The RUST agrees that the selection, retention and discharge of
such contrac or shall be the responsibility of the City.
The pa ies agree that the work to be performed shall at all times be
conduct d in such manner and in such sequence as will ensure the least
practi , able local interference. The general contractor shall exercise safety
and care and be flexible so as not to interfere with the normal operations or
s ecial events hosted within Bayfront Park. The general contractor shall
amiliarize itself with normal Park operations and special events where the
4
work is to be performed so that it can conduct the work in the bes possible
manner to the complete satisfaction of the City's Project Manager and the
TRUST's Executive Director.
Construction Administration and Inspection: The City shall exercise all
responsibilities of the owner under the con ruction contract, including
construction administration and inspection . The City may delegate this
function to an authorized/and
nstruction Engineering Inspection
consultant. The City will aST unfettered access to the site for
review and observation durin. The TRUST will assist the City in
preparation of the final puncIie-out of the Project.
3 RESPONSIBILITIES OF TRUST:
Funding Amount,: The TRUSS7 agrees to provide funds for the Project in the not to
exceed amount of1 600 000 for eligible expenses, as defined herein
� g p ,
incurred by the C' y for the design and construction of the Project. The
TRUST, at the s le discretion of the Executive Director, shall disburse to the
City funds n a reimbursement basis, or directly to vendors, upon
presentatio of invoices and satisfactory documentation from the City
indicatin payment is due. The TRUST shall incur no liability for any costs in
exces of said funding amount unless there has been a duly authorized
inc r ase approved by the TRUST's Board of Directors.
Project Cost Adjustments: The parties recognize that adjustments to the above -
referenced costs may be required in the future and that at the option of the
parties, amendments may be entered into to revise the funds available for the
5
Project. Provided that prior legislative authorization for funding i /in place,
additional amendments may be executed by the City and TRU . Otherwise,
further funding commitments shall be subject to the appr als of the parties'
respective governing boards.
4 ELIGIBLE EXPENSES: The parties agree that only t , e design, construction, and
construction administration expenses incurre/by City that are directly related to
the Project and specifically identified in EA, are eligible expenditures for
TRUST's funding, and documentation w'Imade available to substantiate
expenditures in the form of approv d invoices, verified payment requests,
documented journal entries, and/or ch ck vouchers, at the request of the TRUST.
5 COMPLIANCE WITH LAWS: The arties shall comply with applicable federal, state
and local laws, codes, ordin nces, rules and regulations in performing their
respective duties, responsibi ' ies, and obligations pursuant to this Agreement and
with all applicable laws r lating to the Project. The parties shall not unlawfully
discriminate in the perfo mance of their respective duties under this Agreement.
6 DISPUTE RESOLU ON APPLICABLE LAW: The parties shall resolve any
disputes, controve sies or claims between them arising out of this Agreement in
accordance wit the "Florida Governmental Conflict Resolution Act", Chapter 164,
Florida Statut s, as amended. This Agreement shall be governed by the laws of the
State of FI ida. Venue in any proceedings shall be in Miami-Dade, Florida.
7 ENTIRE GREEMENT AMENDMENTS: This document incorporates and includes
all g for negotiations, correspondence, conversations, agreements and
understandings applicable to the matters contained herein and the parties agree that
P
there are no commitments, agreements, or understandings concerning the su ject
matter of this agreement that are not contained in this document, Accor -i gly, the
parties agree that no deviation from the terms hereof shall be predic ed upon any
prior representations or agreements, whether oral or written. It is urther agreed that
no modification, amendment or alteration in the terms cop wined herein shall be
effective unless set forth in writing in accordance with this section. No modification,
amendment or alteration in the terms or conditigfis contained herein shall be
effective unless contained in a written documenyprepared with the same or similar
formality as this Agreement and executed by,the parties.
8 JOINT PREPARATION: The parties Xcknowledge that they have sought and
received whatever competent advic7of
rid counsel as was necessary for them to form
a full and complete understandin all rights and obligations herein and that the
preparation of this Agreement as been their joint effort. The language agreed to
expresses their mutual inte t and the resulting document shall not, solely as a
matter of judicial construct on, be construed more severely against one of the parties
from the other.
9 SEVERANCE: In tye event a portion of this Agreement is found to be invalid by a
court of competent jurisdiction, the remaining provisions shall continue to be
effective uzis
s the City or TRUST elect to terminate this Agreement. An election to
terminate tAgreement based upon this provision shall be made within seven (7)
days aft the finding by the court becomes final.
7
10 DEFAULT: If either party fails to comply with any term or condition oy/this
agreement, or fails to perform any of its obligations hereunder, then that Darty shall
be in default, Upon the occurrence of a default hereunder, the non- .faulting party,
in addition to all remedies available to it by law, may imme i tely, upon written
notice to the other party, terminate this agreement.
11 TERMINATION RIGHTS: Either party shall have ,tfie right to terminate this
agreement, in its sole discretion, at any time, by Oving written notice to the other
party at least thirty (30) days prior to the elle
12 MISCELLANEOUS PROVISIONS:
12.1 Title and paragraph heading
part of this Agreement.
date of such termination.
for convenient reference and are not a
12.2 No waiver or breach of/any provision of this Agreement shall constitute a
waiver of any subsequent.Kreach of the same or any other provision hereof, and
no waiver shall be effegtive unless made in writing.
13 NOTICES: Any and a�inotices required to be given under this agreement shall be
sent by first class rn61, addressed as follows:
To the TRUST:
Attention: Timothy F. Schmand, Executive Director.
Bayfront Park Management Trust
301 N. Biscayne Blvd.
Miami, FL 33132-2226
(305)373-8780
With a copy to:
Julie O. Bru, City Attorney
City of Miami
444 S,W. 2"d Avenue, 9th Floor
Miami, Florida 33130
To the City:
Attention: Ola O. Aluko, Director
Capital Improvements Department
City of Miami
444 SW Second Avenue, 8th Floor
Miami, Florida 33130
(305) 416-1280
With a copy to:
Julie O. Bru, City Attorney
City of Miami
444 S.W. 2nd Avenue, 91h Floor
Miami, Florida 33130
IN WITNESS WHEREOF, the parties he
day and year first above written.
ATTEST:
set their hands and official seals the
BAYFRONT PARK MANAGEMENT TRUST, of
the City of Miami, a limited agency and
instrumentality of the City ("TRUST")
BY: BY:
Priscilla A. Thome on Timothy F. Schmand
Clerk of the Boq:r`d Executive Director
t
ATTEST: ;/ CITY OF MIAMI, a municipal
corporation of the State of Florida
BY: / BY:
Priscilla Thompson Pedro G. Hernandez, P.E.
City Clerk City Manager
(Affix City Seal)
APPRC
CORRE
Julie O.
City Att,
10
EXHIBIT A
Bayfront Park Trust Management funds are eligible to be expe ,died by the City of
Miami for the design and construction of the following Proje elements;
Demolition
Excavation
Walkways
Site Furnishings
Lighting Systems
Sidewalk Reconstruction
Landscaping
Irrigation System
Site Drainage
TRUST Funding Amount: not to exceed,41,600,000
11