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HomeMy WebLinkAboutContract bwn USA-City of MiamiDACW17-85-H-0019 CONTRACT BETWEEN THE UNITED STATES OF AMERICA AND THE CITY OF MIAMI. FLORIDA FOR RECREATION DEVELOPMENT AT THE BAYFRONT PARK. MIAMI HARBOR, FLORIDA THIS CONTRACT, entered into this 2244 day of 60 ' 19611, by and between .the UNITED STATES 4DF »ER1CA' ft, reinafter called the "Government"). represented by the Contracting Officer executing this contract and the City of Miami (hereinafter called the "City"), WITHESSETH THAT: WHEREAS, construction of the Miami Harbor Project (hereinafter called the "Project") was authorized by Rivers and Harbors Act approved March 2, 1945 (PL 14 79th Congress) as modified by the Land Acquisition Policy Act of 1960 (PL 86-645) as set forth in Senate Document 71 85th Congress; and WHEREAS, Section 4 of the 1944 Flood Control Act, as amended (16 U.S.G. 460d) authorized the Federal Government to construct, maintain, and operate recreational facilities at water resource development projects and further authorized the Federal Government to permit local interests to construct, operate, and maintain such recreational facilities; and WHEREAS. construction of the Project has been completed, and the Government and the City desire to provide recreation facilities (hereinafter referred to as "facilities") for the Project; and WHEREAS, the city is empowered to contract with the Government to construct. operate, and maintain recreation facilities; and WHEREAS. the cost of constructing said facilities will be shared by the parties in accordance with cost -sharing provisions of the Federal Water Project Recreation Act (PL 89-72), (16 U.S.C. 460 L-12); and WHEREAS, the legislative history of the Energy and Water Development Appropriation Act of I984 (PL 98-50), as amended by the Energy and Water Development Appropriation Act of 1985 (PI 18-360), made funds available for the project and set forth the unusual and unique features of this project; 2RDarr.4'V a.. NOW THEREFORE, the parties agree es follows: ARTICLE 1 - LANDS AND FACILITIES (a) The Government agrees to design and construct the facilities to provide for optimum enhancement of general recreation consistent with other authorized project purposes. Prior to the first Government expenditure for recreation facilities to be constructed under this contract, the City will convey to the United States by Warranty Deed, supported by title evidence satisfactory to the Contracting Officer, 5.69 acres of land consisting of 3.1. acres of upland and 2.52 acres of submerged land. Details of the lands to be conveyed, as concurred in by the City, are shown on Exhibit "A" attAcbed.hereto and made part of this contract. (b) The Government in cooperation with the City will prepare.a mutually acceptable Plan of Recreation Development and Management which will depict and identify the Facilities which the Government will construct in accordance with this contract. The presently estimated cost of facilities to be so provided is contained in Exhibit "B", attached hereto and made a part hereof. Such estimate of facility cost is subject to reasonable adjustment as appropriate upon Completion of construction and approval of the above- mentioned•"Plan of Recreation Development and Management." (c) Following completion and acceptance by the City of all construction for initial recreational development, the Government will make available, by lease, approximately 4.27 acres of upland and 1.42 acres of submerged land more fully described in the "Plan of Recreation Development and'Management" together with facilities located thereon and acquired or constructed pursuant to this contract, and the City agrees to execute a 50-year lease substantially in the format of Exhibit "C" attached hereto for purposes of Project operation and maintenance. No provisions of this contract, including this subparagraph (c), shall merge into any such lease, but each and every obligation of each party hereto shall remain in full force and effect unless altered by mutual agreement or Article 9 hereto. (d) title to all lands and facilities specifically acquired, developed, or constructed by or with Government assistance to enhance the recreation potential of the Project shall at all times be in the United States. (e) The performance of any obligation or the expenditure of any funds by the Government under this contract is contingent upon Congress making 2BPMT-17367 the necessary appropriations and funds being allocated and made available for the work required hereunder. ARTICLE 2 - CONSIDERATION AND PAYMENT (a) Project Development. The estimated separable cost of project development, including lands and facilities, is estimated to be $10,454,000. The Government's share of the separable cost is estimated to be $4,489,000. The city's share of the separable cost is estimated to be $5,965,000. Prior to the first Government expenditure hereunder and again each Government fiscal year hereafter, the Government Contracting Officer !hall calculate the estimated expenditures which each party shall have madethrough the end of such period. If the total. estimated..expendlture4-V.Xhe. Government shall exceed those of the city, the city shall pay the Government such sun as will equal the expenditures of the parties. In computing expenditures there shall be considered, in addition to cash expenditures, the fair market value of contributed land, at the time such land is provided, which value shall not include enhancement due to the Project. The fair market value of all land so provided and the actual costs of all other contributions in kind will be credited toward the city's share subject to Article 1(b). However, the credit allowed shall not exceed the amount of the Government's share of the design and construction costs attributable to the recreation facilities to be developed under this contract. (b) Other Federal Funds. No credit of any kind whats72ver will be allowed the city for expenditures financed by, involving, or consisting of, either in whole or in part, contributions or grants of assistance received from any Federal agency, in providing any lands or facilities for recreation. (c) Adjustments to Reflect Costs. The dollar amounts set forth in this Article are based upon the Government's best estimates and are subject to adjustments based on the costs actually incurred. Such estimates are to he construed as representations of the total financial responsibilities of each of the parties except for adjustments for actual costs. ARTICLE 3 - CONSTRUCTION ANO OPERATION OF A00ITIONAL FACILITIES Certain types of facilities, including but not necessar: y limited tf 1 3 2BPMT-17368 to restaurants, lodges, cabins, clubhouses, marinas, and such similar revenue -producing facilities, may be constructed by the City or third Parties and may be operated by the City or by third parties on a concession basis. Any such construction and operation of these types of facilities shall be compatible with all project purposes and shall be subject to the prior approval of the Contracting Officer. However, the City shall not receive credit for costs of such facilities against amounts due and payable under Article 2 and such facilities shall not be deemed to be developed or constructed with Government assistance for purposes of Article'T(d). ARTICLE 4 - FEES AND CHARGES No fees for entrance to the recreation areas being developed or for use of project facilities and areas will be assessed or collected by the City as hart of initial project operation. In the event it is subsequently determined by the City that such fees should be assessed and collected, a mutually acceptable fee schedule will be negotiated bv.the parties which shall thereafter be reviewed by the parties not less often than every five years and renegotiated after such review at the request of either party. ARTICLE 5 - FEDERAL AND STATE LAWS (a) In acting under its rights and obligations hereunder, the City agrees to comply with all applicable Federal and State laws and regulations, including but not limited to the provisions of the Davis -Bacon Act (40 U.S.C. 276 a-a(7)); the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333); and Part 3 of Title 29, Code of Federal Regulat.. m s. (b) The City furnishes, as part of this agreement, an assurance, Exhibit "D", that it will comply with Title VI of the Civil Rinhts Act of 1964 (78 Stat. 241, 42 U.S.C. 2000d, et seq) and Deoartment of Defense Directive 5500.11 issued pursuant thereto and published in Part 300 of Title 32, Code of Federal Regulations. The City agrees that it will obtain such assurances from all of its concessionaires. ARTICLE 6 - OPERATION AND MAINTENANCE The City shall be resoonsible for all operation, maintenance, and replacement without cost to the Government, of all facilities developed to suoport project recreation and under no circumstances shall these responsibilities be assumed by the Federal Government. The City shall maintain all Project lands, water, and facilities in a manc:rr satisfactory to the Contracting Officer and pursuant to the provisions of the 2BPMT-17369 lease which will subsequently be entered into between the parties hereto. ARTICLE 7 - RELEASE OF CLAIMS The Government and its officers and employees shall not be liable in any manner to the City for or on account of damage caused by the development, operation, and maintenance of the recreation facilities of the Project. The City hereby releases the Government and agrees to hold it free and harmless and to indemnify It from all damages, claims, and demands that may result from development, operation, and maintenance of the recreation areas and facilities, except damages due to the fault or negligence of the United States or its .contractors. ARTICLE 8 - INSURANCE (a) The City shall require all concessionaires and sublessees to obtain from an insurance company licensed in the State and acceptable to the Government, Iiability or indemnity insurance providins for minimum limits of S1,000,000 per person in any one claim, and an aggregate limit of S2,000,000 for any number or persons of claims arising from any one incident with respect to bodily injuries or deaths resulting therefrom, and $50.000 for damage to property, or a combined single limit coverage of S2,050,000 for all damage. suffered or alleged to have been suffered by any person or persons resulting from operations under any agreement between the City and its concessionaires. (b) The City shall obtain from an insurance company licensed in the State and acceptable to the Government, liability or indemnity insurance providing for minimum limits of $1.000,000 per person in any one claim,, and an aggregate limit of $2,000,000 for any number of persons or claims for damages against the City for injury to or loss of prc..erty, personal injury or death, suffered or alleged to have been suffered by any person or persons resulting from operation by the City. ARTICLE 9 - TRANSFER OR ASSIGNMENT The City shall not transfer or assign this contract nor any rights acquired thereunder, nor grant any interest, privilege or license whatsoever in connection with this contract without the approval of the Secretary of the Army or his authorized representative except as provided in Article 3 of this contract. 2BPMT-17370 ARTICLE 10 - DEFAULT If the City fails to meet any of its obligations under this agreement, the Government may terminate the whole or any part of this contract and the lease granted to the City for accomplishing the purpose of this agreement. The rights and remedies of the Government provided in this Article shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract. ARTICLE 11 - EXAMINATION OF RECORDS The Government and the City shall maintain books, records, documents, and other evidence pertaining to costs and expenses incurred under this contract, to the extent and in such detail as will properly reflect all net costs, direct and indirect, for labor, materials, equipment, supplies, and services and other costs and expenses of whatever nature involved therein. The Government and the City shall make available at their offices at reasonable times, the accounting records for inspection and audit by an authorized representative of the parties to this contract during the, period this contract is in effect. ARTICLE 12 - RELATIONSHIP OF PARTIES The parties to this contract act in an independent capacity in the performance of their respective functions under this contract and neither party is to be considered the officer, agent, or employee of the other. ARTICLE 13 - INSPECTION The Government shall at all times have the right to make inspections concerning the operation and maintenance of the lands and facilities to be provided hereunder. ARTICLE 14 - OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, or Resident Commissioner, shall be admitted to any share or part of this contract, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this contract if made with a corporation for its general benefit. ARTICLE 15 - COVENANT AGAINST CONTINGENT FEES The City warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon agreement or under- standing for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the City for the purpose of securing 6 2BPMT-17371 business. For breach or violation of this warranty, the Government Mall have the right to annul this contract without liability or in its discretion to add to the contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. ARTICLE 16 - ENVIRONMENTAL QUALITY (a) In furtherance of the purpose and policy of the National Environmental Policy Act of 1969 (Public Law 91-190), 42 U.S.C. 4321, 4331-4335) and Executive Order 11514, entitled "Protection and Enhancement of Environmental Quality," March 5. 1970 (35 Federal Register 4247, March 7, 1970) the Government and the City recognize the importance of preservation and enhancement of the quality of the environment and the elimination of environmental pollution. Actions by either party wflI ba after consideration of all possible effects upon the project environmental resources and will incorporate adequate and appropriate measures to insure that the quality of the environment will not be degraded or unfavorably altered. (b) During construction and operation undertaken by either party, specific actions will be taken to control environmental pollution which could result from their activities and.to comply with applicable Federal, State and local laws and regulations concerning environmental pollution. Particular attention should be given to (1) reduction of afr pollution by. control of burning, minimization of dust, containment of chemical vapors, and control of engine exhaust gases and smoke from temporary heaters; (2) reduction of water pollution by control of sanitary facilities, storage of fuels and other contaminants, and control of turbidity and siltation from erosion; (3) minimization of noise levels; (4) on and off site disposal of waste and spoil activities; and (5) prevention of landscape defacement and damage. ARTICLE 17 - BINDING EFFECT (a) This agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and assigns. (b) Failure on the part of either party to complain of any act or failure to act of the other party or to declare the other party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder. 7 2BPMT-1 7372 ARTICLE 18 - EFFECTIVE DATE This contract shall take effect upon approval by the Secretary of the Army or his authorized representative. IN WITNESS WHEREOF, the parties have executed this contract as of the day and year first above written. THE UNITED STATES OF AMERICA ;si'n Colonel, Corps of engineers Contracting Officer U.S. Army Engineer District Jacksonville DATE: 22 hP% 1Sd5 APPROVED: BY: DATE: 22 APR 435 CITY OF MIAMI, a municipal corporation of the State of Florida City Manager Cit Clerk APPRO E 6 CORRECTNESS LUC A ALLEND6DGiiERTr' City Attorney 2BPMT-17373