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HomeMy WebLinkAboutexhibit-interlocal agreementINTERLOCAL AGREEMENT BETWEEN THE CITY OF MIAMI AND MIAMI-DADE COUNTY THIS INTERLOCAL AGREEMENT, ["AGREEMENT"] by and between Miami -Dade County, a political subdivision of the State, ["COUNTY"], and the City of Miami, Florida ["CITY"], a municipal corporation of the State of Florida, is• enteredinto this day of , 200 . WITNESSETH WHEREAS, on July 30, 2003, the U.S. Department of Army, represented by the U.S. Army of Engineer, Jacksonville District ["USACE'], has entered into a project cooperation agreement ["USACE Agreement"] with the COUNTY for the COUNTY to be the Local Sponsor, hereinafter defined, for the Miami River Dredging Project to dredge the federal navigational channel of the Miami River ["Project"], WHERES, as the Local Sponsor, the COUNTY is required to contribute the non- federal share ["Local Share"] approximately twenty (20%) percent of the Total Project Cost, defined below; and WHEREAS, the USACE will administer and conduct the Project, and has authorized funding for approximately eighty percent (80%) of the total costs of the Project ["Federal Share"] that is associated with the dredging of the federal portion of the navigational waters ["Federal Waters"]; and WHEREAS, COUNTY has requested that CITY participate in the funding needed for the Local Share of the Project; and WHEREAS, the COUNTY and the CITY have requested and the USACE has agreed to include, as an addition to the Project to be funded solely by non-federal sources, the dredging of areas within the River but outside of the federal navigational channel, hereinafter referred to as "Local Waters"; and WHEREAS, given the importance of the Miami River to the entire South Florida region, the Local Share for the dredging of the Federal Waters shall be apportioned between the State of Florida ["STATE"], a the COUNTY, and the CITY; and WHEREAS, given the importance of the Miami River to South Florida and Miami -Dade County, the cost for the dredging of the non-federal portion of the river, the revised 12/19/2003 1 "Local Waters" shall be apportioned between the COUNTY, the COUNTY's Unincorporated Municipal Service Area ["UMSA"] and the CITY; and WHEREAS, CITY is willing to participate in such funding for the Project because of the benefit to its residents and the positive economic impact the Project would have to the business community throughout the City; and WHEREAS, the Project will provide dredging of the Miami River, is designed to remove sediment and obstructions from the river, and will thereby increase the depth and navigatability of this natural asset; and WHEREAS, the Board of County Commissioners of Miami -Dade County has authorized, by Resolutions R-421-00 and R- •, its County Manager to enter into an agreement describing the respective roles in the Local Funding Plan for the Local Share of the Project costs; and WHEREAS, pursuant to Resolution No. 00-313 and Commission of the City 'of Miami has authorized the City agreement with COUNTY for the implementation of the Project NOW THEREFORE, in consideration of the mutual contained herein and the mutual benefits to be derived from parties hereto agree as follows: No. , the City Manager to execute an promises and covenants this AGREEMENT, the Section 1. Purpose: The purpose of this AGREEMENT is to clarify the parties' roles and obligations regarding the funding being provided with respect to the Project. Section 2. Funding Responsibilities: A) Project Funding Plan: The Project's funding plan, to be defined in the USACE Agreement, identifies the costs covered by the USACE and the costs of the Local Share to be funded by the Local Sponsor, through a Local Funding Plan. B} Local Sponsor: COUNTY shall act as the local sponsor for this Project and as such shall delineate local funding responsibilities in accordance with the Local Funding Plan. C) Local Funding Plan: The Local Funding Plan shall delineate the contributions of the STATE, COUNTY, and CITY in accordance with Attachment A. D) Local Share: That portion of the Total Project Cost that is not borne by the federal government through the ACOE and is assigned as the financial responsibility of the Local Sponsor. It is also defined in the USACE Agreement as the "non-federal share". This shall generally include: 100% of the cost for land utilized in the Project, which may include, but is not limited to, costs associated with property rights -of -way, relocations, easements, and similar Project requirements. The Local Share revised 12/19/2003 2 • additionally includes approximately 20% of costs incurred by the USACE for engineering, legal and technical services, administration, supervision, inspections, surveys, testing, permitting, equipment, mobilization and demobilization, demolition, construction, hauling, and disposal fees. The Local Share shall include costs incurred by COUNTY, CITY and STATE provided they are directly associated with and required for the completion of the Project. For the purpose of this Agreement, the Local Share also includes the costs for dredging the Local Waters. E) Total Project Costs: Shall mean all costs directly associated with and required for the completion of the Project whether paid by the USACE, COUNTY, CITY or STATE, and paid to third parties or provided through in-house resources. Project Costs shall generally include land utilized for the Project, engineering;' ' legal and technicaI services, administration; supervision, inspections, surveys, testing, permitting, equipment, land acquisition or lease, mobilization and demobilization, demolition, construction, dredging, hauling, and disposal fees. F) Responsibilities of COUNTY: COUNTY, as local sponsor for the Project, agrees to provide, and warrants and represents that it has, in combination with CITY and STATE contributions, the amount of funding necessary to cover the Local Share needed for the completion of the Project. Additionally, COUNTY shall furnish to CITY complete copies of all documentation sent to COUNTY by USACE or other parties relating to the Project, including,but not limited to any and all documents provided to the Project Coordinating Team, pursuant to the USACE Agreement. G) Responsibilities of CITY: CITY agrees to provide a percentage of the Local Share of funding necessary to complete the Project, as outlined in Attachment A. This sum shall be provided in accordance with the reimbursement procedures contained herein. Reimbursement Procedures: It is understood that USACE will submit to COUNTY periodic requests for payment for the Project stipulating the date the funds are required and the amount. After the COUNTY has made payment to USACE, COUNTY will submit to CITY an invoice, with supporting documentation, for reimbursement of the City's percentage of the Local Share of Total Project Costs ["Reimbursement Request"]. City will remit payment to COUNTY within forty-five (45) days after receipt of invoice and documentation. With the exception of the initial Reimbursement Request, all Reimbursement Requests shall include a summary of the work performed to date and related costs for the Project, a calculation of the Total Project Cost to date, a breakdown of the Total Project Cost attributable to the Local Share, and the City's portion of the Local Share. revised 12/19/2003 3 COUNTY shall furnish to CITY complete copies of all documentation, financial information and records provided to COUNTY by USACE, and by COUNTY to USACE or others relating to expenditures and other contributions to the Project. I) Limitation on Reimbursements: Should the following costs be included in the calculation of the Total Project Costs and/or the Local Share, reimbursement shall be limited as stipulated below. a. In -House Expenses: In-house expenses shall be limited to those documented costs for Project management, administration and inspection costs, permitting or permit review, engineering or surveying; operating costs fore currently owned- equipment, and other in -kind services that are required and provided directly for the Project. Either CITY or COUNTY may elect to include such costs in the calculation of the Local Share, and shall be credited those costs toward its respective portion of the Local Share. B. Real Property: CITY shall not reimburse COUNTY for the cost of purchasing real property to be utilized for the Project. For any lease of real property used in direct connection with and during the Project, CITY agrees to reimburse COUNTY a percentage of the actual amount of the lease as outlined in Attachment A. For real property currently owned by COUNTY and +,placed into use solely for the purposes of the Project, CITY will pay COUNTY a percentage, as outlined in Attachment A, of either: a) an agreed upon rate, or b) Fair Market Rent, whichever is less. Fair Market Rent will be determined by an appraisal of the subject property performed at COUNTY'S expense by a State certified general appraiser acceptable to CITY. c. Other Technical and Professional Services: Third party expenses incurred by either CITY or COUNTY in direct connection with the Project for technical and other professional services shall be included in the calculation of the Local Share, and shall be eligible for reimbursement or credit in accordance with Attachment A. d. Total Reimbursements: The cumulative total of reimbursements paid by CITY under this agreement shall not exceed $6,000,000 over the expected length of the Project J) Additional Contributions: COUNTY and CITY agree to seek additional financial contributions, grants, in -kind services and other such assistance in support of the Project and that such contributions shall be applied as a credit directly to either the entire Local Share of the Project or to that portion of the Local Share attributable to CITY and COUNTY jointly, as may be appropriate. K) Interim And Final Accounting: COUNTY shall furnish to CITY a copy of the results of any interim and final accounting or audit, or amendments thereto, performed by or on revised 12/19/2003 4 behalf of by the USACE, the COUNTY or others relating to the Project. The CITY shall have the right to reimbursement of any funds it paid that are determined to be in error or inconsistent with the terms of this Agreement. L) Non -Compliance: CITY shall have the right to reimbursement, either in whole or in part as it may determine, of funds provided by CITY hereunder for noncompliance by COUNTY with any of the terms of this AGREEMENT. M) Refund: Should COUNTY receive a credit or refund from USACE, CITY shall receive a share proportionate to its contribution to the Local Share as outlined in Attachment A. : •: Section 3. Effective Date and Term: This AGREEMENT shall take effect upon its execution and shall terminate upon the completion of the Project, including the completion of all final closeout documentation. • Section 4. Compliance with Codes and Laws: Each party agrees to abide by all applicable laws, orders, rules and regulations, with the COUNTY being responsible for monitoring and/or obtaining and abiding by all federal, state and local laws and regulations necessary for the development and completion of the Project. Section 5. Access and Audits: The CITY may; at reasonable times, and for a period of up to three (3) years following the date of final payment by the CITY to COUNTY under this Agreement, audit, or cause to be audited, those books and records of COUNTY which are related to this Project. COUNTY agrees to maintain all such books and records at its principal place of business for a period of three (3) years after final payment is made under this Agreement. Section 6. Independent Entities: The parties agree that they are independent entities and neither is an agent or servant of the other. No person employed by either party to this AGREEMENT, shall in connection with the performance of this AGREEMENT or any services or functions contemplated hereunder, at any time, be considered the employee of the other party, nor shall an employee claim any right in or entitlement to any pension, workers' compensation benefit, unemployment compensation, civil service or other employee rights or privileges granted by operation of law or otherwise, except through and against the entity by whom they are employed. Section 7. Liability: The parties to this AGREEMENT shall not be deemed to assume any liability for the negligent or wrongful acts, or omissions of the other party. Nothing contained herein shall be construed as a waiver, by either party, of the liability limits established in Section 768.28 of the Florida Statutes, as may be amended. COUNTY acknowledges that CITY, its employees, commissioners and agents are solely providing funding assistance for the Project and are not involved in the design, construction, operation or maintenance of the Project. revised 12/19/2003 5 Section 8. Breach and Opportunity to Cure: The parties expressly covenant and agree that in the event either party is in default of its obligations under this AGREEMENT, the party not in default shall provide to the defaulting party thirty (30) days written notice before exercising any of its rights with regard to such default. Section 9. Litigation Costs/Venue: In the event that CITY or COUNTY institutes any action or suit to enforce the provisions of this AGREEMENT, the prevailing party in such litigation shall be entitled to reasonable costs and attorney's fees at the trial, appellate and post judgment levels. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of Florida. COUNTY and CITY agree to submit to service of process and jurisdiction of the State of Florida, for any controversy or claim arising out of or relating to this AGREEMENT or a breach of this AGREEMENT. Venue for any court action between the.parties for any • such •controversy arising from or related to this AGREEMENT shall be in the Eleventh judicial Circuit in and for Miami -Dade County, Florida, or in the United States District Court for the Southern District of Florida, in Miami -Dade County, Florida. Section 10. Notice: All notices required to be given under this AGREEMENT shall be in writing, and deemed sufficient to each party when sent by United States Mail, Certified Return Receipt Requested, to the following: The County: The City: (Contact name & Address) Joe Arriola, "City Manager City of Miami 3500 Pan American Drive Miami, FL 33133-0708 305.416.1025 With copies to: Alejandro Vilarello, City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, FL 33130 305.416.1800 Section 11. Modification and Amendment: Except as expressly permitted herein to the contrary, no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and equal dignity herewith. The City Manager and County Manager may execute amendments to this Agreement without the necessity of obtaining respective Commission approval to accommodate funding contributions from other parties, to be depicted as modifications to Attachment A, that result in reduced contributions from the CITY and the COUNTY. revised 12/19/2003 6 Section 12. Joint Preparation: The preparation of this AGREEMENT bps been a joint effort of the parties, 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. Section 13. Headings: Captions and headings in this AGREEMENT are for ease of reference only and do not constitute a part of this AGREEMENT and shall not affect the meaning or interpretation of any provisions herein. Section 14. Waiver: There shall be no waiver of any right related to this AGREEMENT unless in writing and signed by the party waiving such right. No delay or failure to exercise a right under this AGREEMENT shall impair such right or shall be construed to be a waiver thereof. Any waiver shall be limited to the particular right so waived and shallnot be deemed a_waiver of the same right at a later time or of any other right under this AGREEMENT. Section 15. Representation of CITY: CITY represents that this AGREEMENT has been duly authorized. by the City Commission, as the governing body of the City of Miami, Florida and it has granted the City Manager the required power and authority to execute this AGREEMENT. Section 16. Representation of COUNTY: COUNTY represents that this AGREEMENT has been duly approved, executed and delivered by the Board of County Commissioners, as the governing body of the County, and it has granted the Miami -Dade County Manager the required power and authority to execute this AGREEMENT. Section 17. Invalidity of Provisions, Severability: Wherever possible, each provision of the AGREEMENT shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this AGREEMENT shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this AGREEMENT, provided that the material purposes of this AGREEMENT can be determined and effectuated. Section 18. Mutual Indemnity: To the extent permitted by law COUNTY and CITY mutually agree to indemnify and hold harmless each other and their officers, employees, agents and instrumentalities from any and all liability, losses or damages, including attorneys' fees and costs of defense, which the other or its officers, employees, agents or instrumentalities may incur based on the sole negligence of either COUNTY or CITY and resulting in claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to, or resulting from performance of this AGREEMENT by COUNTY or CITY or their employees, agents, servants, partners, principals, consultants or contractors. The indemnitors 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 indemnitee, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attomey's fees which may issue thereon. Provided, however, this indemnification shall only be to the extent and within the limitations of Section 768.28 Florida Statutes, subject to the provisions of that statute, revised 12/19/2003 7 whereby COUNTY or CITY shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum of $100,000, or any claim or judgment or portions thereof, which when totaled with all other claims or judgments paid by COUNTY or CITY arising out of the same incident or occurrence, exceed the sum of $200,000 from any and all personal injury or property damage claims, liabilities, losses or causes of action which may arise as a result of the sole negligence of COUNTY or CITY. Section 19. Termination Rights: The parties shall have the right to terminate this AGREEMENT, by giving the other party sixty (60) days written notice, upon discontinuation of the Project, unavailability of funds by City, County, State or ACOE, or if a party determines, in its sole discretion, that continuation of its participation in this AGREEMENT are no longer in its best interest. A) In the event that CITY terminates this AGREEMENT because the Project has been discontinued or because CITY in its sole discretion, determined that continuation of its participation in this AGREEMENT is not in the best interest of CITY, then COUNTY shall send a Reimbursement Request for CITY'S percentage of the Local Share, less any disputed charges, for the costs and expenses that were incurred prior to the date of termination. In no event shall CITY be liable to COUNTY for any additional compensation, other than provided herein, or for any consequential damages. B) In the event that COUNTY terminates this AGREEMENT because the Project has been discontinued or because COUNTY, in its sole discretion, determined that continuation of its participation in this AGREEMENT is not in the best interest of COUNTY, then COUNTY shall issue to CITY a Reimbursement Request for CITY'S percentage of the Local Share, Iess any disputed charges, for the costs and expenses that were incurred prior to the date of termination and COUNTY shall adhere to the provisions in Section 2(f)(ii) entitled "Limitation on Reimbursements". Section 20. Entirety of Agreement: This AGREEMENT incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained in this AGREEMENT. The parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this AGREEMENT that are not contained in this AGREEMENT, and that this AGREEMENT contains the entire agreement between the parties as to all matters contained herein. Accordingly, it is agreed 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 any oral representations or modifications concerning this AGREEMENT shall be of no force or effect. This AGREEMENT may be modified, altered or amended only by a written amendment duly executed by both parties hereto or their authorized representatives. Section 21. Contingency Clause. Funding for this Project is contingent on the availability of funds and upon thirty (30) days written notice is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations. revised 12/19/2003 8 IN WITNESS THEREOF, the parties through their duly authorized representatives hereby execute this AGREEMENT with an effective date of , 200 . ATTEST: CITY OF MIAMI, Florida, a municipal corporation Priscilla A. Thompson, City Clerk Approved as to Form and Correctness: By: Joe Arriola, City Manager Execution Date by City: Approved as to Insurance Requirements: Alejandro Vilarello Dania Carrillo, Director City Attorney Risk Management MIAMI-DADE COUNTY, FLORIDA BY: George Burgess County Manager For the Board of County Commissioners, Miami -Dade County, Florida. Stephen P. Clark Center 111 NW 1st Street Miami, Florida 33128 HARVEY RUVIN, CLERK Attest: By: Deputy Clerk Date Approved by County Attomey as to form and legal sufficiency. revised 12/19/2003 9 Attachment A Miami River Dredging - Cost Share Federal Navigational Channel Local Waters (Bank -to -Bank) In the event that the State or other ponies agree to contribute to cost for the Local Waters portion of the Project, then that contribution will be first deducted from the total cosh for this work and the City's and the County's portion will be proportionately reduced. revised 12/I9/2003 10