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HomeMy WebLinkAboutExhibit 1Further Revised Draft PROJECT CO-OPERATION AGREEMENT GRANTEE: Turkel Resource Foundation, Inc., a Florida not-for-profit corporation PROJECT: Dorsey Memorial Library Restoration Project Location: 100 Northwest 17 Street, Miami, FL commission 2 (Sarnoff) District Grantee Project Name Phone Fax Manager: Leonard Turkel 305-476-3546 305-448-6691 Name Phone Fax Address to Leonard Turkel above above Notifications Cr ry State Zip Regarding this Document Mailing 2871 Oak Avenue Miami FL 33133 Address Street same Miami FL 33129 Address $250,000 through County GOB and up to $6,000 toward Funding Miami Dade County General Obligation Bond CITY FUNDING AMOUNT: construction Sources: and CIP Funding for Project B-30351 performance bond, for not to exceed $256,000 Resolution 06-0611 and 12/14/2006 and Enabling Legislation: Resolution 09 - Adoption Dates $300,000 construction, Total Estimated Project Cost: detailed in CIP Job Number: Project B-30351 Exhibit A (if applicable) Project Description: Construction, construction management and project management activities relating to the renovation of a historic City -owned property referred to as "PROJECT". THIS AGREEMENT (hereinafter referred to as the "AGREEMENT") is made and entered into as of , 2008, with the specified effective date, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as "CITY"), with offices at 444 S.W. 2nd Avenue, Miami, Florida 33130-1910 and the GRANTEE named above, with offices located at the Grantee Street Address given above, and as acknowledged and agreed by GRANTEE's construction contractor Poinciana Development Group, Inc, a Florida for-profit corporation (hereinafter referred to as "CONTRACTOR") with offices located at 2454 N.W. 78" Street, Miami, Florida 33247-1700, pursuant to Grantee's Standard Form of Agreement between Owner and Contractor for a Commercial Project, dated November 1, 2007 with Contractor (hereinafter referred to as the "Restoration Contract", a copy of which is attached hereto and incorporated hereby as Attachment 1). RECITALS: The intent of this Agreement is to outline the respective expectations and obligations of the parties regarding the specified cooperative capital improvement restoration project (the "PROJECT") named above and further defined in this document. The GRANTEE has initiated and/or is responsible for the completion of the PROJECT, for which it has requested financial assistance from the Miami -Dade County ("County") through its Building Better Communities Bond Program and which funding has been granted to the CITY by the County in order for CITY to pass-through the grant funding for the City - owned Dorsey Memorial Library for payment of certain allowable costs and expenses of the Project being undertaken by GRANTEE and CONTRACTOR. The CITY has adopted Enabling Legislation, referenced above and incorporated by reference as though set forth in full, to verify the paramount public purpose of the PROJECT, to allow the CITY'S participation in the PROJECT, and authorizes the CITY MANAGER to execute the necessary documents for this purpose. WHEREAS, GRANTEE is to be the developer and restoration project manager of the PROJECT which will be a renovated historic property to be utilized as a public library offering historic archives and other printed materials, and educational resources, which will be located at the CITY property located at 100 NW 17th Street (the "Site") for not less than twenty-five (25) years from the date its doors open to the public; WHEREAS, a branch of the Miami Dade County Public Library ("County") is to be located at the Site following Project completion which will further enhance the understanding of the historic relevance of the Site and provide a valuable amenity to the community. The agreement between the City and the County is to be negotiated separately. This Agreement and a separate Indemnification and Maintenance Agreement with GRANTEE through the City's Department of Public Facilities (the "Indemnification and Maintenance Agreement") shall remain in effect until such time as it is superseded by the use agreement between the City and County; WHEREAS, the PROJECT will be a significant community asset, and the grant funds appropriately employed by the GRANTEE in accordance with this Agreement serve an important public purpose, and accordingly the CITY has agreed to make the Grant to the GRANTEE under the terms and conditions set forth herein and to permit GRANTEE and CONTRACTOR to restore the Project as authorized by the Enabling Legislation. NOW, THEREFORE, in consideration of foregoing, the GRANTEE and the CITY intend as follows, and CONTRACTOR agrees and acknowledges as follows: Definitions: 1.1 CITY FUNDING AMOUNT: shall mean the dollar amount specified in the table on page 1 of this Agreement offered in support of the PROJECT. 1.2 DELIVERABLES: Items identified on Exhibit A to be submitted to the CITY for approval prior to the twenty-five percent (25%) advance and/or proceeding to a subsequent task or activity of the WORK and required as a condition for the City to submit to the County for reimbursement, as applicable. 1.3 DIRECTOR: shall mean the CITY's Director of the Department of Capital Improvements, or his authorized Designee. 1.4 ELIGIBLE EXPENSES: For purposes of this Agreement, Project -related costs that may be funded from the CITY FUNDING AMOUNT shall be defined to mean and include fees for general contractors, construction material suppliers, professional engineers, architects, landscape architects, surveyors, mapping, other bona fide design professionals, planning professionals and related materials, and geotechnical testing. There shall be no mark up on such cost passed to the CITY. All persons and/or firms engaged shall be duly licensed and certified as required by the laws of the State of Florida. These costs are identified in Exhibit A as approved Project - related expenses, and as such, shall be eligible for advance and/or reimbursement, as applicable, and for the City to submit to the County for reimbursement, as applicable, from the CITY FUNDING AMOUNT. 1.5 GRANTEE: A Florida not-for-profit corporation existing under the laws of the State of Florida. 1.6 GRANTEE Project Manager: Person designated by Grantee to manage and supervise all activities relating to the PROJECT. 1.7 INELIGIBLE EXPENSES: For purposes of this Agreement, eligible expenses may not be used for payment to employees, employee benefits, day-to-day expenses, payroll, lobbyists, legal counsel, or other obligations, debts, liabilities or costs or GRANTEE. In addition, expenses shall not include the costs of land or rights of way, and fees for lobbyists, legal or tax, environmental or regulatory counsel, auditors, accountants, brokers and salespersons or any other costs not expressly allowable by Section 1.4. There shall be no mark up by GRANTEE on any costs, that is, only the actual, direct cost incurred by GRANTEE may be billed to the CITY for reimbursement. 1.8 PROJECT: Shall mean all restoration, activities and items, including but not limited to the WORK, required to provide a restored, functional and/or useable facility or program for the use and enjoyment of the public as described above and as approved by the CITY Commission as appropriate for CITY participation. 1.9 WORK: Shall mean the restoration, activities and items approved by CITY (or Director) to be paid by the CITY FUNDING AMOUNT, as identified in Exhibit A or revisions thereto. 1.10 TERM: Shall mean the period this agreement is in effect, which shall commence on the effective date and shall terminate no later than three (3) years from the effective date. The CITY shall provide the option to renew for additional one (1) year periods upon the CITY's approval for satisfactory performance and progress. 2 CITY Representative: Except as otherwise stipulated herein, the DIRECTOR shall be responsible to render direction, assistance and decisions to GRANTEE regarding this Agreement. The DIRECTOR shall assign a Representative to handle the day-to-day, ministerial and other matters relating to this Agreement. 3 Assistance From CITY: The CITY agrees to provide the following: 3.1 Financial assistance in an amount not to exceed $250,000, the CITY FUNDING AMOUNT, from the designated FUNDING SOURCE for the WORK approved by the Enabling Legislation and as further specified in the attached Exhibit A. CITY shall have no obligation under this Agreement to fund any amounts in excess of the CITY FUNDING AMOUNT. Said funds will be paid on a one- time up -front twenty-five percent (25%) advance as permitted by the County's Building Better Communities Bond Program and/or thereafter on a reimbursement basis for invoices from the GRANTEE, as applicable, to GRANTEE as set forth in Section 9 herein, with the City seeking reimbursement from the County. 3.2 Other Assistance — not applicable Grantee Responsibilities: 4.1 The GRANTEE shall ensure the timely and satisfactory completion of the WORK relating directly to the PROJECT within the Total Estimated Project Cost and within the Time for Performance as specified in Exhibit A to this Agreement. 4.2 GRANTEE is working to provide all additional funds above the CITY FUNDING AMOUNT to complete the PROJECT up to the Total Estimated Project Cost, including without limitation any Cost Overruns and/or change orders for the WORK. See copies of letters attached in Composite Exhibit B regarding additional funding. 4.3 The GRANTEE shall manage and supervise all aspects of the WORK by CONTRACTOR and all others including without limitation, designing, engineering, scheduling, permitting, materials, labor, means and methods of construction, and the hiring of contractors, consultants, and suppliers the like. 4.4 In accordance with the County's Building Better Communities Bond Program, the City is being permitted by the County to advance GRANTEE a one-time twenty-five percent (25%) up -front advance. Thereafter, to the extent not covered by the twenty-five percent (25%) up -front advance permitted by the County, the GRANTEE shall fund the cost of all WORK from its own resources and seek reimbursement from the CITY (who will in turn seek reimbursement from the County) in the manner set forth in this Agreement. 4.5 Any advance payment of the CITY FUNDING AMOUNT and funds of the GRANTEE shall be maintained in separate and independent bank accounts to be used solely and exclusively for the PROJECT. Any interest accruing from any advance of City funds shall be regularly reported and repaid to the City. 4.6 Unless otherwise approved by the CITY Commission, GRANTEE shall not be entitled to any unspent funds from the CITY FUNDING AMOUNT should the WORK be completed at a cost less than the CITY FUNDING AMOUNT. 4.7 If the cost of completion of the Project is less than the FUNDING AMOUNT, one hundred percent (100%) of the savings shall accrue to the CITY. 5 Ownership: The parties agree that the CITY shall be the owner of the documents, plans, specifications and permits created by virtue of the CITY FUNDING AMOUNT, which shall be made freely available to GRANTEE for its use in connection with the PROJECT, provided however, that the City of Miami retains ultimate ownership. GRANTEE shall convey title to such documents and/or property to CITY. The City Manager shall have the authority to accept ownership and title to such documents and /or property and may convey, license and assign same to GRANTEE for its use for a set term, as the CITY will reserve fee title to such items. 6 Progress Reports: In addition to those items listed on Exhibit A as Deliverables, the DIRECTOR or his duly authorized designee, may require for his review and approval all specifications and/or preparatory or design documents and cost estimates at progress phases deemed appropriate by the DIRECTOR. GRANTEE and CONTRACTOR, as applicable, shall duly consider and implement comments and revisions suggested by the DIRECTOR from such periodic reviews. Throughout the preparatory or design process, GRANTEE and CONTRACTOR, as applicable, shall each use its best efforts to ensure that the WORK and the PROJECT can be completed within the CITY FUNDING AMOUNT and Total Estimated Project Cost, respectively. Such Documents shall be forwarded to the DIRECTOR for his review and approval as to consistency with the PROJECT as presented by GRANTEE to CITY, and said approval by DIRECTOR shall not be unreasonably withheld, conditioned or delayed. In the event the DIRECTOR fails to comment in writing on such documents in writing within thirty (30) days of their transmittal to him, the documents will be deemed approved without the necessity of further action. GRANTEE shall keep DIRECTOR informed as to the progress of the PROJECT by submitting progress reports quarterly within 30 days of the month following the end of each quarter ending December 31, March 31, June 30 and September 30. The report should provide information regarding project status, activities, funding raised and expended. Any periods of inactivity must be justified and approved by the CITY. The County's Building Better Communities Bond Program requires that the provisions in Section 6 of the General Obligation Bond Funding Agreement between the City and the County shall apply to the City, its contractors and their respective officers, agents and employees. The County requires that the City shall incorporate the provisions in said Section 6 as set forth below in all contracts and all other agreements executed by its grantees and contractors in connection with the performance of Projects funded by the Building Better Communities Bond Program. Any rights that the County has under said Section 6 shall not be the basis for any liability to accrue to the County from the City, its grantees, contractors or third parties for such monitoring or investigation or for the failure to have conducted such monitoring or investigation and the County shall have no obligation to exercise any of its rights for the benefit of the City. Accordingly, Section 6 states in its entirety: "Section 6. Access and Audits: The Municipality shall maintain adequate records to justify all charges, expenses, and costs incurred which represent the funded portion of the Project for at least three (3) years after completion of the Project. The County shall have access to all books, records, and documents as required in this section for the purpose of inspection or auditing during normal business hours. Pursuant to Section 2-1076 of the Miami -Dade County Code the County shall have the right to engage the services of an independent private -sector inspector general ("IPSIG") to monitor and investigate compliance with the terms of this Agreement. The Office of the Miami -Dade County Inspector General (IG) shall have the authority and power to review past, present and proposed County programs, accounts, records, contracts and transactions, and contracts such as this Agreement for improvements some cost of which is funded with County funds. As such, the IG may, on a random basis, perform audits on this Agreement throughout the duration of said Agreement (hereinafter "random audits"). This random audit is separate and distinct from any other audit by the County. The IG shall have the power to retain and coordinate the services of an Independent Private Sector Inspector General (IPSIG) who may be engaged to perform said random audits, as well as audit, investigate, monitor, oversee, inspect, and review the operations, activities and performance and procurement process including, but not limited to, project design, establishment of bid specifications, bid submittals, activities of the Municipality and contractor and their respective officers, agents and employees, lobbyists, subcontractors, materialmen, staff and elected officials in order to ensure compliance with contract specifications and detect corruption and fraud. The IG shall have the power to subpoena witnesses, administer oaths and require the production of records. Upon ten (10) days written notice to the Municipality (and any affected contractor and materialman) from IG, the Municipality (and any affected contractor and materialman) shall make all requested records and documents available to the IG for inspection and copying. The IG shall have the power to report and/or recommend to the Board whether a particular project, program, contract or transaction is or was necessary and, if deemed necessary, whether the method used for implementing the project or program is or was efficient both financially and operationally. Monitoring of an existing project or program may include reporting whether the project is on time, within budget and in conformity with plans, specifications, and applicable law. The IG shall have the power to analyze the need for, and reasonableness of, proposed change orders. The IG is authorized to investigate any alleged violation by a contractor of its Code of Business Ethics, pursuant Miami -Dade County Code Section 2- 8.1. The provisions in this section shall apply to the Municipality, its contractors and their respective officers, agents and employees. The Municipality shall incorporate the provisions in this section in all contracts and all other agreements executed by its contractors in connection with the performance of this Agreement. Any rights that the County has under this Section shall not be the basis for any liability to accrue to the County from the Municipality, its contractors or third parties for such monitoring or investigation or for the failure to have conducted such monitoring or investigation and the County shall have no obligation to exercise any of its rights for the benefit of the Municipality." 7 Changes to Scope of WORK: In order to assure that the WORK and the PROJECT can be completed within the CITY FUNDING AMOUNT and Total Estimated Project Cost, respectively, the GRANTEE may request adjustments to the scope of WORK identified in Exhibit A. Approval of such adjustments and any revisions to Exhibit A shall be at the sole discretion of the DIRECTOR, which approval shall not be unreasonably withheld. There shall be no modification in scope that, solely in the opinion of the DIRECTOR, negatively impacts or reduces the standards of quality or aesthetics incorporated into the PROJECT as originally presented to the CITY. 8 Eligible Expenses: The parties agree that all expenses the GRANTEE incurs that are directly related to the Project, including both hard and soft costs, are eligible for reimbursement, provided adequate documentation accompanies the reimbursement request in the form of approved invoices, verified payment requests, and/or check vouchers. For purposes of this Agreement, Project - related hard costs that may be reimbursed shall be defined to mean and include fees for labor, materials, supplies, equipment, supervisory personnel, required insurance and bonding, and/or the provision or installation of furnishings, fixtures and equipment. Project -related soft costs that may be reimbursed shall be defined to mean and include fees for professional engineers, architects, landscape architects, surveyors, mapping, other bona fide design professionals, permitting and associated costs, and geotechnical testing. Advance and/or Reimbursement Requests: 9.1 The one-time up -front up to twenty-five percent (25%) advance and the first reimbursement request will be payable following the execution of this Agreement. All subsequent reimbursements for complete and accurate invoices and receipts submitted by GRANTEE to City shall be paid within time permitted by the Florida Prompt Payment Act, but the City shall strive to pay within twenty (20) days of each such submission by GRANTEE to City and the City, in turn, will seek reimbursement from the County. 9.2 GRANTEE shall submit a detailed advance request, a detailed invoice, or detailed reimbursement request, as required by Section 3.1, which complies with Florida's Prompt Payment Act, §218.70, Fla. Stat. (2004) to the CITY for all Eligible Expenses relating to the WORK performed during the preceding period, along with reasonable substantiating documentation as requested by the DIRECTOR, including, without limitation, copies of detailed estimates for the advance and thereafter, detailed invoices and cancelled checks. Provided the WORK has been performed, the CITY shall make payment within twenty (20) days after the date the CITY receives a completed detailed advance request, or detailed completed reimbursement request, as applicable, including a sufficiently detailed invoices, detailed receipts and other detailed applicable substantiating documentation. 9.3 DIRECTOR, in his/her sole discretion in accordance with the County's Building Better Communities Bond Program, may approve advance payments to GRANTEE of not more than twenty-five percent (25%) of the available balance of the CITY FUNDING AMOUNT upon receipt of written request justifying, in DIRECTOR'S sole opinion, the need for such advance payment. A percentage of such advance payment shall be deducted from all subsequent reimbursement requests until such time that the advance payment is covered 100%. Verification and substantiation as to the use of such advance payment shall be as stated above. The DIRECTOR has the right to retain a portion of the CITY FUNDING AMOUNT equal to such advance payment until such time as the advance payment are properly documented. 9.4 Pre -Agreement Expense: GRANTEE expenses paid prior to the execution of this Agreement but no earlier than permitted by the grant may be considered by CITY for reimbursement provided such expenses are deemed by the DIRECTOR, or designee, to meet the definition of Eligible Expenses, Section 1.4. 9.5 The last twenty-five percent (25%) of funding for which the GRANTEE seeks reimbursement from the City (for which the City in turn will seek reimbursement from the County) shall be subject (before disbursement to the GRANTEE) to receipt by the City of the final certificate of occupancy and approval by the City of all required detailed invoices and detailed receipts from the GRANTEE for that final funding amount. 9.6 GRANTEE agrees that the City shall credit to the City and subtract/debit from GRANTEE's funding the cost of any payment/performance bond paid by the City on behalf of the Project as required by Section 12.2 below and such subtraction/debit shall be made against the first reimbursement draw amount to be funded to GRANTEE by the City. 10 Timeliness and Completion: Unjustified periods of inactivity, failure to adhere to approved time schedule and to complete project may result in reimbursements, permits, and/or certificates of occupancy being withheld and funds reverting back to the CITY with the responsibility for PROJECT completion remaining with the GRANTEE. 11 No damages for Delay: In the event of any delays to the PROJECT and/or WORK, GRANTEE's sole remedy shall be to seek an extension of time from the DIRECTOR. GRANTEE is not entitled to delay damages under this Agreement or under any related agreement with the CITY. The CITY will not be liable for any delay damages or damages in any way attributable to performing work out of sequence, acceleration claims, Eichlea formula claims, or other similar type claims, work slow downs, inefficiencies, sequencing issues, strikes, lockouts, reduced productivity, or even Acts of God. 12 Insurance and Bonding: 12.1 Insurance: The CITY's Risk Management Administrator reserves the right to require GRANTEE and/or the Contractor, as applicable, prior to commencing the WORK, to provide the CITY's Risk Management Administrator with evidence, consisting of certificates or policies of insurance documenting: (a) builder's risk insurance (applicable for construction projects only); and (b) general liability insurance, (c) professional liability insurance. The CITY of Miami and the GRANTEE, as applicable, shall be a named insured on all liability policies relating to the WORK except professional liability policies. See Exhibits D-1 & D-2 Insurance Requirements. 12.2 Payment and Performance Bond: Before any advance or reimbursement to the GRANTEE, where WORK includes the construction of improvements, prior to commencing the WORK, GRANTEE or the City (up to an amount not to exceed six thousand dollars ($6,000)), as applicable, shall provide to the CITY's Risk Management Administrator a copy of the Payment and Performance Bond from the general Contractor in substantially the form prescribed for a public construction bond by Section 255.05, Fla. Stat. (2004). The CITY shall be a named obligee on the Payment And Performance Bond required by this section which shall be in an amount not less than the CITY FUNDING AMOUNT allocated for those improvements. As allowed under the provisions of §255.05(7), Florida Statutes (2004) the CITY'S Risk Management Administrator may, in writing, decide to accept an alternative form of security in lieu of the Payment and Performance Bond, in such form and amounts as may be reasonably required by the CITY's Risk Management Administrator. 12.3 The CITY's Risk Management Administrator shall be given at least 30 days prior written notice of any cancellation, lapse, or material modification of said insurance coverage and/or bond. 13 Indemnity: The GRANTEE shall indemnify, defend and hold harmless at its own cost expense, the CITY and its officers, employees, agents and instrumentalities from any and all liability, losses or damages, including attorneys' fees and costs of defense, which the CITY or its officers, employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting from the performance of this agreement by the GRANTEE or its employees, agents, servants, partners, principals or subcontractors. The GRANTEE shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits or actions of any kind or nature in the name of the CITY, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorneys' fees which may issue thereon. 14 Audit Rights: Pursuant to the applicable provisions of §18-100 to §18-102 of the Code of the CITY of Miami, as amended from time to time which are deemed as being incorporated by reference herein, the CITY may audit GRANTEE's records relating to this Agreement, during regular business hours, at a location within the CITY of Miami during the term of this Agreement and for three (3) years thereafter or as required from time to time by the City Code and the County Code, whichever period of time is less. For the purpose of inspection or auditing, Miami Dade County, as financial contributor to the Project, shall have access to all books, records, and documents as required to maintain adequate records justifying all charges, expenses, and costs incurred which represent the funded portion of the Project. Such access shall be granted during normal business hours.Office of the MIAMI-DADE COUNTY INSPECTOR GENERAL (IG) shall have the authority and power to review past, present and proposed County programs, accounts, records, contracts and transactions, and contracts such as this Agreement for improvements some cost of which is funded with County funds. As such, the IG may, on a random basis, perform audits on this Agreement throughout the duration of said Agreement (hereinafter "random audits"). This random audit is separate and distinct from any other audit by the County. The IG shall have the power to retain and coordinate the services of an Independent Private Sector Inspector General (IPSIG) who may be engaged to perform said random audits, as well as audit, investigate, monitor, oversee, inspect, and review the operations, activities and performance and procurement process including, but not limited to, project design, establishment of bid specifications, bid submittals, activities of the Municipality and contractor and their respective officers, agents and employees, lobbyists, subcontractors, materialmen, staff and elected officials in order to ensure compliance with contract specifications and detect corruption and fraud. The IG shall have the power to subpoena witnesses, administer oaths and require the production of records. Upon ten (10) days written notice to the Municipality (and any affected contractor and materialman) from IG, the Municipality (and any affected contractor and materialman) shall make all requested records and documents available to the IG for inspection and copying. The IG shall have the power to report and/or recommend to the Board whether a particular project, program, contract or transaction is or was necessary and, if deemed necessary, whether the method used for implementing the project or program is or was efficient both financially and operationally. Monitoring of an existing project or program may include reporting whether the project is on time, within budget and in conformity with plans, specifications, and applicable law. The IG shall have the power to analyze the need for, and reasonableness of, proposed change orders. The IG is authorized to investigate any alleged violation by a contractor of its Code of Business Ethics, pursuant to Miami -Dade County Code Section 2-8.1. 15 Compliance With Laws: GRANTEE and the CITY shall at all times comply with all applicable municipal, county, state and federal laws, ordinances, codes, statutes, rules and regulations, approved development orders, and written CITY of Miami Guidelines governing the design and construction of the Improvements and the granting of funds for use thereof. 16 Miscellaneous: 16.1 Enforcement. The provisions of this Agreement may be enforced in Miami Dade County by all appropriate actions in law and in equity by any party to this Agreement. In order to expedite the conclusion of the actions brought pursuant to this Agreement, the parties, their successors and assigns will not demand jury trial nor file permissive counterclaims outside the bounds of this Agreement in such actions. Each party shall bear their own respective attorney's fees. A court of competent jurisdiction may award court costs to a prevailing party. 16.2 Counterparts. This Agreement may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which when taken together shall be deemed to be one and the same instrument. 16.3 CITY Officials. The "CITY" is a municipal corporation, and the CITY Manager as its Chief Administrative Officer, or the DIRECTOR as the CITY Manager's designee, is empowered to make all decisions with regard to this Agreement on behalf of the CITY, unless otherwise provided by law or by resolution of the CITY Commission. 16.4 Successors and Assigns. This Agreement may not be assigned, sold, pledged, hypothecated or encumbered, in whole or in part, to any third party or business entity, contract vendee, successor , assign or to an institutional lender providing funding for the PROJECT, without the prior approval of the Miami CITY Commission. The CITY is relying on the commitment, skill and reputation of GRANTEE in performing this work and may withhold or cancel funding in the event there is any assignment, pledge, sale or other disposition by GRANTEE without having first secured the approval of the CITY Manager or his designee, which may be unreasonably withheld or delayed. 16.5 Notices. Any and all notices required or desired to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand (including recognized overnight courier services, such as Federal Express) or three (3) business days after deposit in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, and addressed to the CITY Manager and/or Director of Capital Improvements Program ("CIP") for the CITY,- and ITY;and President/CEO of the GRANTEE as applicable at the address for such party set forth in the introductory paragraph to this Agreement (or to such other address as any party hereunder shall hereafter specify to the other in writing). 16.6 Construction. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation hereof. All of the parties to this Agreement have participated fully in the negotiation of this Agreement, and accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and reference to any particular gender shall be held to include every other and all genders. 16.7 Exhibits. All of the Exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 16.8 Amendments: Termination. This Agreement may not be amended, modified or terminated except by written agreement of the parties hereto. Further, no modification or amendment, excepting a termination for cause by the CITY under Section 17 herein, shall be effective unless in writing and executed by the parties, employing the same formalities as were used in the execution of this Agreement. 16.9 OSHA. The GRANTEE warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances. The CITY reserves the right to refuse GRANTEE access to CITY property, including project jobsites, if GRANTEE employees are not properly equipped with safety gear in accordance with OSHA regulations or if a continuing pattern of non-compliance with safety regulations is exhibited by GRANTEE. 16.10 ADA. In the course of providing any work, labor or services funded by the CITY, GRANTEE (or its agents and representatives, as applicable) shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") including Titles I & II of the ADA regarding non-discrimination on the basis of disability, and related regulations, guidelines and standards as appropriate. Additionally, GRANTEE will take affirmative steps to ensure non-discrimination in employment of disabled persons. 16.11 Temporary Operations: The GRANTEE shall provide all necessary security, utilities, staffing or other required services to secure that facility on a temporary basis and to maintain that facility on the basis required by the City's Improvement and Indemnification Agreement with GRANTEE, until such time that the GRANTEE and/or its CONTRACTOR, as applicable, receives and the City provides the Certificate of Occupancy and the County begins operation of a public library at the Site. In no event shall the Grantee be required to maintain temporary security (a) past the term of this Agreement, or (b) if the Certificate of Occupancy is terminated. 16.12 Severability: Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, then such provision, paragraph, sentence, word, or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then the same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limited as necessary in its use. 17 Default. Termination: 17.1 In the event of default, CITY shall suspend or withhold the advance and/or any reimbursements from GRANTEE and shall withhold acceptance of the restoration by the DEPARTMENT. The GRANTEE agrees to repay the CITY on or before thirty (30) days from the date the City Manager declares default of the Agreement that has not been cured to the satisfaction of the City Manager in accordance with Section 19.3 of this 17.2 Agreement. In the event of default, unless otherwise waived by the City Commission, the FUNDING AMOUNT will be considered a loan from the CITY and the CITY may institute any civil actions available by virtue of Florida law, including without limitation, moneys lent and/or open account, among others, to recover such funds. Any amounts not waived by the City Commission and not paid when due shall accrue interest at the highest rate permitted by Florida law. Default, and subsequent termination for cause may include, without limitation, any of the following: 17.2.1 GRANTEE fails to obtain the insurance or bonding herein required. 17.2.2 GRANTEE fails to comply, in a substantial or material sense, with any of its duties under this Agreement, any terms or conditions set forth in this Agreement, or any Agreement it has with the CITY , its architect, engineer or contractor arising by virtue of this Agreement, beyond the specified period allowed to cure such default. 17.2.3 GRANTEE fails to complete the Improvements in a timely manner as required by this Agreement. 17.3 Termination for Cause: Force Majeure. In the event of a default, which is not cured within ninety (90) days following the date of a written notice mailed as provided in Section 16.5, the parties shall have all rights and remedies provided by law or equity, subject to the limitations of this Agreement. The CITY Manager may grant one additional extension of not more than ninety (90) additional days in total if such failure to cure is due to Force Majeure as that term is interpreted under Florida law. 17.4 This Agreement and/or the CITY's funding obligations under the Agreement may be terminated, for cause, at the option of and by the CITY Manager, if any default is not cured by GRANTEE or GRANTEE does not comply with any material terms, covenants or condition provided herein within ninety (90) days from the date of a written notice from the CITY Manager; or when, in the opinion of the CITY Commission, termination is necessary to protect the interests of public health, safety or general welfare. This subsection shall not apply during any period of Force Majeure extension pursuant to Section 17.3. 17.5 The laws of the State of Florida shall govern this Agreement. Venue in any civil actions between the parties shall be in Miami -Dade County, Florida. In order to expedite the conclusion of any civil actions instituted by virtue of this Agreement the parties voluntarily and mutually waive their respective rights to demand a jury trial or to file permissive counterclaims in civil actions between them. Each party shall bear their own attorney's fees. 17.6 Survival of Obligations: All obligations (including but not limited to indemnity and the obligations to defend and hold harmless) and rights of any Party arising during or attributable to the period prior to expiration or earlier termination of this Agreement shall suvive such expiration or earlier termination. 18 No Third -Party Beneficiaries: Neither the CITY nor GRANTEE intends to directly or substantially benefit a third -party by this Agreement. Therefore, the parties agree there are no third party beneficiaries to this Agreement and that no third -party shall be entitled to assert a claim against either of them based upon this Agreement. 19 Authority of GRANTEE Signatories and Contractor Acknowledgement: The undersigned executing this Agreement on behalf of GRANTEE has authority of record pursuant to the attached Corporate Resolution (in Composite Exhibit B incorporated hereby and made a part hereof by this reference), and all applicable laws of the State of Florida to act on behalf of and bind GRANTEE to every condition, covenant and duty set forth herein. The undersigned Contractor acknowledging this Agreement has authority of record pursuant to the attached Corporate Acknowledgement Resolution (in Composite Exhibit C incorporated hereby and made a part hereof by this reference)and all applicable laws of the State of Florida to act on behalf of and to bind Contractor to every condition, covenant and duty applicable to contractor as set forth herein. 20 Contingency Clause: Funding for this Agreement is contingent on the availability of funds and of continued authorization for program activities and is subject to termination due to lack of funds or authorization, reduction of funds, and/ or change in laws or legal requirements. 21 Joint Preparation: Preparation of this Agreement has been a joint effort of the CITY and GRANTEE and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other. IN WITNESS WHEREOF, the parties have executed this Agreement and the Contractor has acknowledged this Agreement, all as of the day and year first above written, which shall have an effective date of WITNESS GRANTEE, Turkel Resource Foundation, a Florida Not -For -Profit Corporation Signature Print Name, Title ATTEST: Grantee Corporate Secretary (Affix Corporate Seal) WITTNESS: Signature Print Name, Title ATTEST Contractor's Corporate Secretary (Affix Corporate Seal) ATTEST: Priscilla A. Thompson, City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: LeeAnn Brehm, Risk Management Director Signature Leonard Turkel, President Acknowledged by Contractor: Poinciana Development Group, Inc, a Florida for-profit corporation Signature Print Name, Title CITY OF MIAMI, a municipal corporation of the State of Florida Pedro G. Hernandez, City Manager APPROVED AS TO LEGAL FORM AND CORRECTNESS: Julie O. Bru, City Attorney APPROVED AS TO CAPITAL IMPROVEMENT PROGRAM: By: Ola O. Aluko, Director EXHIBIT A EXHIBIT A: Dorsey Memorial Library Renovation DETAILED PROJECT INFORMATION ITEMIZED SCOPE OF WORK, PROJECT BUDGET, TIME OF COMPLETION Submitted by: Turkel Resource Foundation Date: A' B C D E F CITY FUNDING:'OTHER' ESTIMATED ESTIMATED POJEtT ELEMENTITASK Vendor AMOUNT , SOUI�ES COST DELIVERABLE COMPLETION TIME The Project Elements/Tasks listed above with an amount listed in Column B, CITY FUNDING AMOUNT,shall constitute the WORK; all items listed in Column A shall constitute the PROJECT. Time of Performance: WORK BEGINS