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HomeMy WebLinkAboutpre interlocal agreementEXECUTION COPY INTERLOCAL AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND MIDTOWN MIAMI COMMUNITY DEVELOPMENT DISTRICT DATED DECEMJER,.,_, 2004 (R5IL e c'/v IOLIO INTERLOCAL AGREEMENT THIS 1NTERLOCAL AGREEMENT (the "Agreement") is made and executed this _ day of , 2004 between The City of Miami, Florida, a municipal corporation of the State of Florida (the "City"), and the Midtown Miami Community Development District (the "CDD"), a local unit of special purpose government established pursuant to Section 1,01(A)(21) of the County's Home Rule Charter (the "Charter") and Chapter 190, Florida Statutes, as amended, known as the Uniform Community Development District Act of 1980 (the "Act"). WITNESSETH: WHEREAS, it is the purpose and intent of this Agreement to permit and authorize the City and the CDD to make the most efficient use of their respective powers, resources, authority and capabilities by enabling them to cooperate on the basis of mutual advantage and to achieve the results provided for in this Agreement pursuant to Section 163.01, Florida Statutes, known as the Florida Interlocal Cooperation Act of 1969 (the "Cooperation Act"); and WHEREAS, it is the purpose of the Cooperation Act to provide a means by which the City and the CDD may exercise their respective powers, privileges, and authority which they may have separately, but which pursuant to this Agreement and the Cooperation Act they may exercise collectively; and WHEREAS, the CDD was created by the County pursuant to Ordinance No. 03-271 adopted by the Board of County Commissioners of the County on December 16, 2003 and effective on December 26, 2003, as a local unit of special purpose government for the purpose of delivering certain community development services and facilities within and outside the boundaries of the District; and WHEREAS, City Resolution No. R-03-135 adopted on November 13, 2203, supported the petition submitted to the County by Biscayne Development Partners LLC for the creation of the CDD; and WHEREAS, the CDD has decided to undertake the design, acquisition and construction of certain roadways (within and outside the boundaries of the CDD), water and sewer facilities, a storm water management system, streetscape and landscape in Midtown Miami in the summer of 2003; and WHEREAS, while the City Commission has not yet ratified the Miami Streetcar Project from the currentfeasibility study stage to subsequent development and implementation phases; and WHEREAS, the City's Transportation Office has determined that limited additional engineering services for conceptual and final design by the CDD, to be obtained as provided by law, are warranted regarding the streetcar as it impacts the proposed street design and construction within Midtown Miami; and WHEREAS, engineering services include $128,000 for conceptual design, $457,000 for final design, and $30,000 for permitting modifications for a total amount not to exceed $613,000; and WHEREAS, the estimated amount of $613,000 is derived from Capital Improvement Project No. 341140, B-71215 Streetcar Project; NOW THEREFORE, for and in consideration of the mutual premises set forth above and the covenants, obligations, duties and benefits set forth in this Agreement, the CDD and the City agree as follows: ARTICLE 1 DEFINITIONS Section 1.1 Definitions. In addition to terms defined within the text of this Agreement and in the Indenture, the capitalized terms set forth below shall have the following meanings, unless the context requires a different meaning: "Agreement" shall mean this Agreement and its Exhibits. "CDD" shall mean the Midtown Miami Community Development District, a local unit of special purpose government established pursuant to Section 1.01(A)(21) of the County's Home Rule Charter and Chapter 190, Florida Statutes, as amended, known as the Uniform Community Development District Act of 1980. "City" shall mean the City of Miami, Florida, a municipal corporation of the State of Florida. "Fiscal Year" shall mean October 1 through September 30 of each year. "Force Majeure" shall mean an act of God, epidemic, lightning, earthquake, fire, explosion, storm, hurricane, flood or similar occurrence, strike, and act of a public enemy, or blockade, insurrection, riot, general arrest or restraint of government and people, civil disturbance or similar occurrence, which has had or may reasonably be expected to have a material adverse effect on the rights or obligations under this Agreement, which by the exercise of due diligence the party relying thereon as justification for not performing any obligation under this Agreement shall not have been able to avoid, and which is not the result of a willful or negligent action or omission of such party. "Parties" shall mean the City and CDD. "Project" shall mean, for purposes of this Agreement, the development of conceptual and final design through engineering services, as further detailed in the attached Scope of Services, Exhibit A, to be provided by the CDD, and/or their agents, representatives or contractors, with the financial contribution to be made by the City to the CDD, to determine those proposed Streetcar system elements that can be integrated during construction of the Midtown Miami for the proposed alignment on most of Midtown Boulevard, through the cultural plaza, a portion of Buena Vista Avenue, and, N.E. 36th Street at NE I:t Avenue, "Project Manager" shall mean, for the City, the Director of the CIP and Transportation Department or the Assistant Transportation Coordinator. For the CAD, Project Manager shall mean, the CDD's contractor for the engineering services. ARTICLE II REPRESENTATIONS, FINDINGS Section 2.1 The City represents and warrants as follows: Section 2.1.1. The City is duly organized and validly existing as a municipal corporation under the laws of the State of Florida, Section 2.1.2. The City has full power and authority to enter into the transactions contemplated by this Agreement and to carry out its obligations under this Agreement. Section 2.1.3. The City has duly authorized the execution and delivery of this Agreement, and assuming its due authorization, execution and delivery by the CDD, this Agreement constitutes a valid and legally binding obligation of the City, enforceable in accordance with its terms, except to the extent that its enforceability may be limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors' rights generally, or by the exercise of judicial discretion in accordance with general principles of equity. Section 2.2, The CDD represents and warrants as follows: Section 2.2.1, The CDD is duly organized and validly existing as a local unit of special purpose government under the Act and the Charter and as an independent special district under Chapter 189, Florida Statutes. Section 2.2.2. The CDD has full power and authority to enter into the transactions contemplated by this Agreement and to carry out its obligations under this Agreement. Section 2,2.3, The CDD has duly authorized the execution and delivery of this Agreement, and assuming its due authorization, execution and delivery by the City, this Agreement constitutes a valid and legally binding obligation of the CDD, enforceable in accordance with its terms, except to the extent that its enforceability may be limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors' rights generally, or by the exercise of judicial discretion in accordance with general principles of equity. Section 2.3 The City and the CDD agree as follows: Section 2.3.1. The CDD shall perform and complete conceptual and final design, permit modifications and construction amount after the final design is completed warranted regarding the Miami Streetcar Project as it impacts the proposed street design and construction within the Midtown Miami Project. Section 2.3.2. The CDD shall perform and complete the design, technical specifications, special provisions, pay items and cost estimates per the attached "Scope of Services, Exhibit A" and in accordance with applicable standard City, County and State laws, rules, regulations, and design criteria to the reasonable satisfaction of the City Manager or his designee. Section 2.3.3. The CDD, through its own forces or through its contractors, providers, agents and representatives agree to provide and complete conceptual and final design, permitting modifications and construction, upon final design completion, to accommodate the proposed Miami Streetcar through Midtown Miami. Section 2.3.4. The CDD will submit the technical reports to City in a timely manner to be approved by the City, and with the concurrence of the City Manager, which will not be unreasonably withheld, conditioned, or delayed. Section 2.3.5. Submittals by the CDD must be signed and sealed by a professional engineer registered under Chapter 471, Fla. Stat., certifying that the submittal and associated work comply with the laws, rules, and applicable ordinances of the City, CDD and its agents, servants and contractors shall comply with all applicable federal, state and local laws, codes, rules and regulations in performing its duties, responsibilities, and obligations pursuant to this Agreement. Section 2.3.6. The CDD agrees to work with the City to obtain any local or state approvals or permits required for the Project. Section 2.4 It is found and declared that: Section 2.4.1. Expending public funds to finance the conceptual and final design, permitting modifications and that the construction amount will be determined after final design is complete of the Project is in the best interests of the City and the CDD and their respective citizens and residents. ARTICLE III CITY PAYMENTS OF PROJECT COSTS Section 3.1. Generally. Section 3.1.1. The City shall disburse to the CDD funds for the conceptual design, final design, permit modifications and construction once final design is completed in the manner set forth in this Section. The engineering services include $126,000 for conceptual design, $457,000 for final design, and $30,000 for permitting modifications for a total amount not to exceed $613,000. The City shall not be liable for any cost, fee, expense or liability in excess of this amount. The construction amount will be determined after the final design is complete. Section 3.1,2. The amounts shown above are based on the current estimated costs of the Project. 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. Such amendments may be executed by the City Manager without the need for approval by the City Commission providing that any amendment which causes the total amount set forth in section 3.1,1 to be increased shall require the prior approval of the City Commission, Section 3.1.3. Payments to the CDD shall be based on invoices the City has received from the CDD's contractor (Contractor) for the engineering services with detailed timeshcet and contractor invoice documentation. All invoices shall be sufficiently detailed as to comply with the State of Florida Prompt Payment Act, §218,70, et, seq., Fla. Stat. For purposes of this Agreement no payments shall be made by the City for costs or expenses relating to the Project for lobbyists, legal, corporate, general, tax, environmental or regulatory counsel, auditors, accountants, and brokers and salespersons, ARTICLE IV GENERAL PROVISIONS Section 4. General Provisions Section 4.1. Limitation on Governmental Liability. Nothing in this Agreement shall be deemed a waiver of immunity limits of liability of either the City or the CDD beyond any statutory limited waiver of immunity or limits of liability contained in Section 768.28, Florida Statutes, as amended or other statute. Nothing in this Agreement shall inure to the benefit of any third party for the purpose of allowing any claim, which would otherwise be barred under the Doctrine of Sovereign Immunity or by operation of law. No covenant, stipulation, obligation or agreement contained in this Agreement shall be deemed to be a covenant, stipulation, obligation or agreement of any present or future member of the governing body or agent or employee of the City or the CDD in its, his or their individual capacity, and neither the members of the governing body of the City or the CDD nor any official executing this Agreement shall be liable personally or shall be subject to any accountability for reason of the execution by the City or the CDD of this Agreement or any related act. Section 4.1.2. (a) Termjnattjop for Cause. Each of the parties shall give the other parties written notice of any default under this Agreement and shall allow the defaulting party 30 days from the date of its receipt of such notice within which to cure any such default or, if it cannot be cured within the 30 days, to commence and thereafter diligently pursue to completion good faith efforts to effect such cure and to thereafter notify the other parties of the actual cure of any such default. Failure to cure such default within 60 days of the notice of default shall entitle the non - defaulting party the ability to cancel this Agreement and, as of the effective date of such cancellation, the parties will be automatically discharged from the Agreement. 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 the CDD or the CDD does not comply with any material terms, covenants or condition provided herein within 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 as defined in this Agreement. Termination for cause shall include, but not be limited to, failure to suitably perform the work, failure to continuously perform the work in a manner calculated to meet or accomplish the objectives of City as set forth in this Agreement notwithstanding whether such any such breach was previously waived or cured. (b) Termination for Convenience,. This Agreement may be terminated by the City, acting by and through its city Manager, for convenience, without any cause, upon not less than thirty (30) days notice to CDD. This Agreement may also be terminated by the City Manager upon such notice as the City Manager deems appropriate under the circumstances in the event the City Manager determines that termination is necessary to protect the public health, safety, or general welfare, (c) In the event this Agreement is terminated for convenience, by receiving a notice in accordance with the "NOTICES" section of this Agreement, CDD shall be paid for any services performed by the date of this Agreement, however, upon being notified of the City's election to terminate, CDD shall refrain from further services or incurring additional expenses under the terms of this Agreement. CDD acknowledges and agrees that ten ($10.00) dollars of the compensation to be paid by City, the adequacy of which is hereby acknowledged by CDD, is given as specific consideration to CDD for the City's right to terminate this Agreement for convenience. CDD shall have no recourse from a termination for convenience done in accordance with this section. (d) In the event the Agreement is terminated, any compensation payable by City shall be withheld until all documents are provided to the City as required by this Agreement. Section 4.1.3. Notices. All notices, requests, consents and other communications shall be in writing and shall be delivered, mailed by First Class Mail, postage prepaid, or overnight delivery service, to the parties, as follows. If to the City: With Copy to: The City of Miami, Florida 3500 Pan American Drive Miami, Florida 33133 Attention: City Manager City. Attorney's Office The City of Miami, Florida 444 S.W. 2"d Avenue, Suite 945 Miami, Florida 33130 Attention: City Attorney If to the CDD: Midtown Miami Community Development District c/o Sevem Trent Services Inc. 210 N. University Drive, Suite 802 Coral Springs, Florida 33071 Attention: District Manager With a Copy to: Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A. 888 S.E. 3rd Avenue, Suite 301 Fort Lauderdale, Florida 33316 Attn: Dennis Lyles Either party may make changes in the respective addresses from time to tome by notice to the other party, Notices and consents given by mail in accordance with this Article shall be deemed to have been given five (5) business days after the day of dispatch, notices and consents given by any other means shall be deemed to have been given when received. Section 4.1.4. Assignment or Transfer. A party may not assign or transfer its rights or obligations under this Agreement to another unit of local government, political subdivision or agency of the State of Florida without the prior written consent of the other party or to a private party or entity. Section 4.1,5, )inding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties, and their respective successors. Section 4.1.6. Amendment and Waivers. Any amendment to or waiver of any provision of this Agreement must be in writing and mutually agreed to by all the parties. Section 4.1.7, Filing. After approval of this Agreement by the respective governing bodies of the City and the CDD and its execution by the duly qualified and authorized officers of each of the parties, the CDD shall cause this Agreement to be filed with the Clerk of the Circuit Court of Miami -Dade County, Florida, in accordance with the requirements of Section 163.01(1 I), Florida Statutes. Section 4.1.8. Applicable Law and Venuq.This Agreement and its provisions shall be governed by and construed in accordance with the laws of the State of Florida, In any action, in equity or law, with respect to the enforcement or interpretation of this Agreement, venue shall be in the Miami -Dade County, Florida. In any litigation arising out of this Agreement, the parties shall bear their own respective attorney fees. In order to expedite the conclusion of any litigation the parties voluntarily and knowingly waive their rights to demand a jury trial or to file a permissive counterclaim in any litigation between them arising out of this Agreement. Section 4.1.9. Severability, If any part of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable part shall be deemed severable and the remaining parts of this Agreement shall continue in full force and effect provided that the rights and obligations of the parties are not materially prejudiced and the intentions of the parties can continue to be effected. Section 4.1.10. Entire Agreement. This instrument and all the attached exhibits and schedules constitute the entire agreement between the parties and supersede all previous discussions, understandings and agreements between the parties relating to the subject matter of this Agreement, It is further understood between the parties that the CDD will be issuing subsequent agreements to its contractors, providers, agents or representatives to perform the engineering services for the Project. Section 4,1.11. Amendments. No modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared by the same formality as this Agreement and executed by the parties. Section 4.1.12. CDD represents and warrants that there shall be no unlawful discrimination as provided by federal, state or local laws in connection with its performance under this Agreement. Section 4.1.13. Term of Agreement. This Agreement shall be in full force and effect from the date of execution hereof and shall continue until the Scope of Services for this Project are completed, subject to the cancellation provisions set forth herein. ARTICLE V INDEMNIFICATION, LIABILITY INSURANCE AND LIABILITY PROTECTION Section 5.1. It is expressly understood and intended that City and CDD are only parties to this Agreement and neither party is an agent, partner, joint venture, or representative of the other. Section 5.2. Subject to the monetary limits of Section 768.28, F.S., City shall defend, indemnify and hold harmless CDD from any claim or damage for personal injuries or property damage, arising from the negligent act, omission or performance or failure of performance of City or City's agents, contractors, servants and employees hereunder relative to the negligent performance of any action by the City. Subject to the monetary limits of 768.28, FS CDD shall defend, indemnify and save harmless City from any claim or damage for personal injuries or property damage, arising from the negligent act, omission or performance or failure of performance of CDD or CDD's agents, contractors, servants, and employees hereunder relative to the negligent performance of any services being performed by any of them by virtue of this Agreement. To the extent allowed by law, the CDD shall save and hold harmless the City against any all liabilities, claims, judgments or costs of whatsoever kind and nature for injury to, or death of any person or persons and for the loss of any or damage to any person or property resulting from the use, service, operation or performance of work or services under the terms of this Agreement or contracts the CDD enters into in order to effectuate this Agreement, resulting from the negligent acts or omissions of the CDD, or of its contractors, subcontractors, or any of the employees, agents, or representatives of the CDD. This Indemnity, save and hold harmless is given for the exclusive use and benefit of the City and shall not benefit any other third party person or business entity and shall survive the term or cancellation of this Agreement. ARTICLE VI RELATIONSHIPS OF THE PARTIES Section 6.1. Nothing in this AGREEMENT shall be deemed to constitute any party a partner, agent or representative of the other party. ARTICLE VII HEADINGS Section 7.1. 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. ARTICLE VIII COUNTERPARTS Section 8.1. This Agreement may be executed in one or more counterpart (s), each of which shall be deemed an original. ARTICLE IX INVALIDITY OF PROVISIONS Section 9.1. 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, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, and this Agreement shall remain in full force and effect. (Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, the City and the CDD have each caused this Agreement to be executed and delivered as of the date indicated above: (SEAL) THE CITY OF MIAMI, FLORIDA ATTEST: Priscilla A. Thompson, City Clerk APPROVED AS TO LEGAL FORM AND CORRECTNESS: Jorge L. Fernandez, City Attorney K-0401040 APPROVED AS TO INSURANCE REQUIREMENTS: Dania Carrillo, City Risk Manager (SEAL) ATTEST: Secretary, Board of Supervisors Joe Arriola, City Manager MIDTOWN MIAMI COMMUNITY DEVELOPMENT DISTRICT Chairman, Board of Supervisors