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HomeMy WebLinkAboutexhibit- agreementMAINTENANCE AGREEMENT THIS AGREEMENT is entered into this day of , 2003 (but effective as of ) by and between the City of Miami, a municipal corporation of the State of Florida ("City"), Bayfront Park Management Trust, a limited agency and instrumentality of the City ("Trust") and Rouse -Miami, Inc. a Florida corporation ("Rouse"). RECITALS: WHEREAS, the City owns property between on the east side of Biscayne Boulevard between N.E. 3rd Street and N.E. 4th Street (the Property) upon which a monument known as the Torch of Friendship ("Torch") is located, a diagram of the Property containing the Torch is attached hereto as Exhibit A; and WHEREAS, the Property is located in the middle of the access road between Bayside Marketplace ("Bayside") and Bayfront Park and particularly it is located at the front entrance of Bayside; and WHEREAS, the Property is a common gathering place for tourists and community -based political demonstrations; and WHEREAS, Rouse, lessee and operator of Bayside, proposes to beautify and assist in the maintenance of the Property; and WHEREAS, the Trust is also willing to assume some of the responsibility for maintenance and upkeep of the Property; and WHEREAS, the Trust and Rouse have agreed to assist in maintenance of the Property, as further described below; and WHEREAS, the City Commission conceptionally approved Rouse's donation pursuant to Resolution No. 93-474, adopted on July 22, 1993; and WHEREAS, the City Commission, by Resolution No. , adopted on 2003, authorized the City Manager to execute an agreement between the City, the Trust and Rouse, under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, parties agree as follows: TERMS: 1. RECITALS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. 2. TERM: The term of this Agreement shall be five (5) years, commencing on the effective date hereof. 3. OPTION TO EXTEND: The parties shall have one (1) option to extend the term hereof for a period of five (5) years each. If the parties decide to exercise this option, said extension of the term of the Agreement shall not require additional City Commission approval. In order to exercise the option to renew, the Trust and Rouse shall send to the City Manager a signed notice indicating that both the Trust and Rouse desire to extend the Agreement with the City at least ninety (90) days prior to the termination of the agreement. Thereafter, the City Manager shall have thirty (30) days to respond in writing to the Trust and Rouse, indicating whether the City agrees to extend the Agreement for the additional term. If the parties decide to exercise this option, said extension of the term of the Agreement shall not require additional City Commission approval. 4. OWNERSHIP FOR THE PROPERTY: Notwithstanding the responsibilities, obligations and duties of the parties contained herein, the City of Miami is the owner of the Property. Rouse does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Public Property by virtue of this Agreement. Additionally, Rouse does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of any expenditure of funds by Rouse for improvements, construction, repairs, partitions, or alterations to the Property which may be authorized by the City or the Trust. EWright\Conaacts12003\K03.00081 TorchOfxriendshipAgree1W01 Agreement 2 5. TRUST'S RESPONSIBILITIES: The Trust shall be responsible for the maintenance responsibilities described below: 1. Pressure washing the Property; 2. Replacement of medallions on the wall of the Torch; 3. Repairs to the statues on the Property; and 4. Repairs to the walls of the Torch. The Trust's contract administrator for this Agreement shall be the Trust's Executive Director. The Trust's Executive Director may change the contract administrator by sending a letter indicating his/her designee. b. ROUSE'S RESPONSIBILITIES: Rouse will, at no cost to the City, be responsible for the maintenance responsibilities described below: 1. Removing trash from the Property; 2. Landscaping on the Property, including but not limited to, moving, cutting andlor trimming the grass and pruning and replacing flowers and shrubbery; 3. Replacing light bulbs in light polls on the Property; 4. Supplying and replacing national flags on the Property; and 5. Ensuring that the Torch remains lit by calling the company that provides fuel for the Torch. Rouse's contract administrator for this Agreement shall be the General Manager of Rouse - Miami, Inc. Rouse's General Manager may change the contract administrator by sending a letter indicating his/her designee. 7. CITY'S RESPONSIBILITIES: The City, as owner of the Property shall be responsible for all other maintenance responsibilities for the Property not specifically enumerated herein. The City's contract administrator for this Agreement shall be the Director, City of Miami Parks and Recreation Department ("Director"). The Director may change the contract administrator by sending a letter indicating his/her designee. In addition, the City, through its Police Department shall be responsible for issuing permits to a person(s) or organization(s) seeking to use the Property. If a permit is issued, the Police Department shall notify the contract administrator for the Trust and Bayside of the date and time that person(s) or organization will use the property. EWrightlContracts\20071K03.O0081 TorchOfFricndshipAgree1W01 Agreement 3 8. INDEMNIFICATION: A. Trust shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attomey's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of its services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Trust or its employees, agents or subcontractors (collectively referred to as "Trust") or (ii) the failure of the Trust to comply with any of the paragraphs herein or the failure of the Trust to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. Trust expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Trust, or any of its subcontractors, as provided above, for which the Trust's liability to 'such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. B. Rouse shall indemnify, defend and hold harmless the Indemnitees and each of them and the Trust and its officials, employees and agents and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of its services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Rouse or its employees, agents or subcontractors (collectively referred to as "Rouse") or (ii) the failure of the Rouse to comply with any of the paragraphs herein or the failure of the Rouse to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. Rouse expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Rouse, or any of its subcontractors, as provided above, for which the Rouse's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 9. ASSIGNMENT: This Agreement shall not be assigned by the parties, in whole or in part, without the prior written consent of the other parties to this Agreement, which may be withheld or conditioned, in their sole discretion. 10. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: EWrightlContrects120031K03-00081 TorchO[FriendshipAgree1W01 Agreement 4 The parties understand that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. The parties agree to comply with and observe all applicable federal, state and local laws, rules, regulations, codes and ordinances, as may be amended from time to time in the performance of this Agreement. 11. DEFAULT: If the Trust or Rouse fail to comply with any term or condition of this Agreement, or fail to perform any of its obligations hereunder, then said party shall be in default. Upon the occurrence of a default hereunder, in addition to all remedies available to it by law, the City may immediately, upon written notice, terminate this Agreement. Trust and Rouse understand and agree that termination of this Agreement under this section shall not release Trust or Rouse, as the case may be from any obligation accruing prior to the effective date of termination. 12. TERMINATION RIGHTS: A. Any party shall have the right to terminate this Agreement at any time, by giving written notice to the other parties to this Agreement at least sixty (60) business days prior to the effective date of such termination. In such event, the City shall not be obligated to pay any amounts to Trust or Rouse. B. The City shall have the right to terminate this Agreement, without notice or liability to Trust, upon the occurrence of an event of default hereunder. In such event, the City shall not be obligated to pay any amounts to Trust or Rouse. 13. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. EWright\Contracts12003%03.00081 TorchOfFriendshipAgree1W01 Agreement 5 For: Rouse City Trust Rouse Send notices to: Joe Arriola, City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133-0708 Timothy Schmand, Executive Director Bayfront Park Management Trust 301 North Biscayne Blvd. Miami, Florida 33132 Raul Tercilla, General Manager 501 Biscayne Boulevard Miami, Florida 33132-1924 14. MISCELLANEOUS PROVISIONS: Send conies to: Alejandro Vilarello, City Attorney City of Miami 444 S.W. 2"d Avenue, Suite 945 Miami, Florida 33130 Santiago Corrada, Director Parks And Recreation 444 S.W. 2"d Avenue, 8th Floor Miami, Florida 33130 Keith A. Carswell, Director Economic Development 444 S.W. 2"d Avenue, 3rd Floor Miami, Florida 33130 Alejandro Vilarello, City Attorney City of Miami 444 S.W. 2"d Avenue, Suite 945 Miami, Florida 33130 A. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue for any litigation regarding the provisions in this Agreement shall be in Miami -Dade County, Florida. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. 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. D. 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, 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 same shall be deemed severable, and in either RWright\Contraets\20031K03-00081 TorchOf rendshipAgree\W01 Agreement 6 event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by property authorized representatives of the parties hereto. 15. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, Iegal representatives, successors, or assigns. 16. INDEPENDENT CONTRACTOR: Trust and Rouse are providing these services to the City as independent contractors, and not as agents or employees of the City. Accordingly, by virtue of this Agreement, the Trust and Rouse shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Trust and Rouse further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Trust or Rouse, and agree to provide workers' compensation insurance for any employee or agent of Trust or Rouse rendering services to the City under this Agreement. 17. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement is of no force or effect. [Signatures are on the following page] EWrightlCantracts120031K03.00081 TorchOQ+riendshipAgrse1W01 Agreement 7 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. ATTEST: Print Name: Title: Corporate Secretary ATTEST: Print name: Print Title: ATTEST: Priscilla A. Thompson, City Clerk APPROVED AS TO FORM AND CORRECTNESS: Alejandro Vilarello, City Attorney By: "Rouse" Rouse -Miami, Inc. a Florida corporation Print Name: Title: Bayfront Park Management Trust, a limited agency and instrumentality of the City of Miami, a municipal corporation Tim Schmand, Executive Director CITY OF MIAMI, a municipal corporation Joe Arriola, City Manager APPROVED AS TO INSURANCE REQUIREMENTS: Diane Ericson, Director Risk Management EWrightleoniracts\20031K03.00081 TorchOfFriendshipAgree1W01 Agreement 8 Attachment A Diagram of the Property Y *Y Exhibit A ti Torch of Friendship - r\:E • ,i V ' 'v r, l'J '