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HomeMy WebLinkAboutExhibitBICENTENNIAL PARK MOORING BOLLARDS JOINT PARTICIPATION AGREEMENT This AGREEMENT, made and entered into this day of , 2010, by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the STATE OF FLORIDA, hereinafter referred to as the "CITY", and the MIAMI DOWNTOWN DEVELOPMENT AUTHORITY, a public-private non-profit business organization of the CITY OF MIAMI, hereinafter referred to as "DDA," and the BAYFRONT PARK MANAGEMENT TRUST, a limited agency and instrumentality of the CITY, hereinafter referred to as the "TRUST". WITNESSETH WHEREAS, all parties herein wish to facilitate the construction of a marine improvement project within or adjacent to the CITY, DDA, and TRUST limits, hereinafter referred to as the "Project," described as follows: "Design and construction of ten (10) in water mooring bollards along the northern edge of the FEC slip adjacent to Bicentennial Park to accommodate the mooring of large vessels. Construction is anticipated to include steel reinforced concrete auger piles with reinforced concrete pile caps to allow the placement of bolted -on iron mooring bollards." WHEREAS, the CITY has completed the design of the Project, and intends to contract, construct and administer the remainder of the Project, subject to the terms and conditions of this Agreement; and 1 WHEREAS, the CITY has applied for and received two grants from the Florida Inland Navigation District ("FIND") in furtherance of the Project, totaling $555,705, consisting of a Phase I grant in the amount of $42,450 for design expenditures, and a Phase II grant in the amount of $513,255 for construction expenditures; and WHEREAS, the DDA and the TRUST share the CITY's interest in implementing the Project and support the CITY's efforts by providing funding if necessary; 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. 2.1 Design: The CITY has secured engineering design and consulting services from Cooper, Robertson & Partners, LLP ("Design Consultant"), 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. The CITY's Design Consultant shall be made available to DDA and TRUST to review shop drawings and perform required post -design services, limited to Project design. The DDA and TRUST agree that the retention and discharge of the Design Consultant shall be the 2 responsibility of the CITY in accordance with applicable laws and CITY procedures. 2.2 Permits and Approvals: 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. 2.3 Right -of -Way: The CITY shall acquire at its sole expense, any right-of-way that is required to complete the construction of the Project. 2.4 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 DDA and TRUST, at the request and cost of the DDA and/or TRUST, as applicable. The CITY agrees to permit the DDA and 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 available to the DDA or TRUST for inspection within five (5) business days upon receipt of a written request from the DDA or TRUST. 2.5 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 3 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. The DDA and TRUST agree that the selection, retention and discharge of such general contractor shall be the responsibility of the CITY. The parties agree that the Build 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 Bicentennial Park. The general contractor shall familiarize itself with normal Bicentennial Park operations and special events where the Build Work is to be performed so that it can conduct the work in the best possible manner. 2.6 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 DDA and TRUST access to the site for review, inspection, observation, and comment during construction. The DDA N and TRUST will assist the CITY in preparation of the final punch list and close-out of the Project. 2.7 Funding: The CITY's contribution is currently estimated at $803,750, which may include design, construction, construction management, administration, and construction contingency. In the event that $803,750 from the CITY, $555,705 from FIND and $150,000 from the TRUST is insufficient to complete the Project, the DDA will contribute funding. Expenditures will be assigned to the various agencies in accordance with the Payment Schedule attached as Exhibit "B." In the event that the combined contribution from all sources is insufficient to complete the Project, the CITY shall be responsible for the completion of the Project. 2.8 Signage: The CITY shall erect a sign and/or monument at the Project site identifying all contributors to the Project. 3 DDA FUNDING AMOUNT, REIMBURSEMENT OF PROJECT COSTS: The DDA agrees to provide funds for the Project, if needed, in an amount not to exceed $150,000, for eligible expenses, as defined herein, incurred by the CITY for the construction and construction administration of the Project, only in the event that the CITY, FIND and TRUST funds are insufficient to complete the Project. The CITY, FIND and TRUST contributions to the Project must be expended prior to the DDA contributing funds. The DDA shall disburse to the CITY funds for the Project upon review and approval of all invoices associated with the construction and construction administration of the Project that provide evidence that DDA's contribution is the final funding required to complete the Project. In the event the 5 total Project cost is less than projected in Exhibit "A", the DDA contribution shall be decreased accordingly. The DDA shall incur no liability for any costs in excess.of said funding amount unless there has been a duly authorized increase approved by the DDA Board of Directors. 4 TRUST FUNDING AMOUNT, REIMBURSEMENT OF PROJECT COSTS: The TRUST agrees to provide funds for the Project in the not to exceed amount of $150,000, for eligible expenses, as defined herein, incurred by the CITY for the construction and construction administration 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. 5 RESPONSIBILITIES OF CITY AND TRUST: The CITY and TRUST shall consider a reimbursement program from dockage fees, ticket revenues, and other revenue sources collected on a long-term basis to reimburse the capital costs contributed by the DDA. 6 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 Project. Provided that prior legislative authorization for funding is in place, additional amendments may be executed by the CITY and DDA and TRUST. Otherwise, further funding 9 commitments shall be subject to the approvals of the parties' respective governing boards. 7 ELIGIBLE EXPENSES: The parties agree that only the 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 DDA and 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. 8 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. 9 INDEMNIFICATION: To the extent authorized by Florida law, the CITY and TRUST hereby agree to indemnify, defend, save and hold harmless the DDA to the extent of all the limitations included in Section §768.28, Florida Statutes, from all claims, demands, liabilities and suits of any nature whatsoever arising out of, because of or due to the breach of this Agreement by the CITY and/or TRUST, their agents or employees. It is specifically understood and agreed that this indemnification clause does not cover or indemnify the DDA for its sole negligence or intentional breach of this Agreement. To the extent authorized by Florida law, the DDA hereby agrees to indemnify, defend, save and hold harmless the CITY and TRUST to the extent of all the 7 limitations included in Section §768.28, Florida Statutes, from all claims, demands, liabilities and suits of any nature whatsoever arising out of, because of or due to the breach of this Agreement by the DDA, its agents or employees. It is specifically understood and agreed that this indemnification clause does not cover or indemnify the CITY or TRUST for either's sole negligence or intentional breach of this Agreement. 10 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. 11 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. E:3 12 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. 13 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, DDA, or TRUST elects to terminate this Agreement. An election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. 14 DEFAULT: If any 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. 15 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. 16 MISCELLANEOUS PROVISIONS: 16.1 None of the officers, agents, or employees of DDA shall be deemed to be employees of the CITY for any purpose(s) whatsoever. 9 16.2 Title and paragraph headings are for convenient reference and are not a part of this Agreement. 16.3 No waiver 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. 10 17 NOTICES: Any and all notices required to be given under this Agreement shall be sent by first class mail, addressed as follows: To the DDA: Attention: Alyce M. Robertson, Executive Director. Miami Downtown Development Authority 200 South Biscayne Boulevard, Suite 2929 Wachovia Financial Center Miami, FL 33131 (305) 579.6675 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 Program City of Miami 444 SW Second Avenue, 8th Floor Miami, Florida 33130 (305) 416-1280 With a copy to: Carlos A. Migoya, City Manager City of Miami 444 S.W. 2 Avenue, 10th Floor Miami, Florida 33130 With a copy to: Julie O. Bru, City Attorney City of Miami 444 S.W. 2nd Avenue, 9th Floor Miami, Florida 33130 11 IN WITNESS WHEREOF, the parties hereto set their hands and official seals the day and year first above written. ATTEST: DOWNTOWN DEVELOPMENT AUTHORITY, BY ITS BOARD OF DIRECTORS BY: BY: Sandra Hernandez, Board Secretary ATTEST: ;MV Priscilla A. Thompson Clerk of the Board (Affix City Seal) Approved by City Attorney as to form and legal sufficiency M Julie O. Bru City Attorney Approved by Risk Management as to insurance requirements Alyce M. Robertson, Executive Director BAYFRONT PARK MANAGEMENT TRUST, of the City of Miami, a limited agency and instrumentality of the City (`TRUST') Timothy F. Schmand Executive Director CITY OF MIAMI, a municipal corporation of the State of Florida M. Carlos A. Migoya, City Manager LeeAnn Brehm Director, Risk Management 12 EXHIBIT A Miami Downtown Development Authority and Bayfront Park Management Trust will reimburse the City of Miami for the construction and construction administration of the following Project elements: Demolition Mobilization Pilings Pile Caps Bollards Fenders Ladders Lights Testing Inspection DDA Contribution: $150,000 TRUST Contribution: $150,000 FIND Phase I Design Grant: $42,450 FIND Phase II Construction Grant: $513,255 City Contribution*: $803,750 Total Project Budget: 1 $1,659,455 "City Contribution includes $100,000 contribution from District 2 Quality of Life funds 13 EXHIBIT B Payment Schedule The funds from the various parties will be expended in the following order: 1. FIND Contribution 2. TRUST Contribution 3. CITY Contribution 4. DDA Contribution, if necessary 14