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HomeMy WebLinkAboutExhibit 1JOINT PARTICIPATION AGREEMENT CITY OF MIAMI AND MIAMI-DADE COUNTY PERFORMING ARTS CENTER STREET IMPROVEMENTS This AGREEMENT, made and entered into this day of , 2005, by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the State Of Florida, hereinafter referred to as the "CITY", and MIAMI-DADE COUNTY, a political subdivision of the State of Florida, hereinafter referred to as the "COUNTY" WITNESSETH WHEREAS, the COUNTY is funding, managing and supervising the development of the Performing Arts Center of Greater Miami ("PAC"), a regional cultural facility and community resource that is currently under construction and is located within the area bounded by NE 14th Street, N. Bayshore Drive, NE 13th Street and NE 2nd Avenue; and WHEREAS, both parties wish to facilitate capital improvements to the rights -of -way surrounding the PAC, hereinafter referred to as the "Project," more particularly described in the Exhibit A, attached and incorporated herein; and WHEREAS, the parties wish to utilize their respective resources in combination to design, contract, construct and administer the Project, subject to the terms and conditions of this agreement; and WHEREAS, both parties further wish to designate the maintenance responsibilities to be assumed upon the completion of the Project; NOW, THEREFORE, in consideration of the promises and covenants contained herein, the parties agree: a-.S - 0,5729-133 revised 11/8/2005 1 1 EFFECTIVE DATE AND TERM. This Agreement shall take effect upon its execution and shall terminate upon completion and close-out of the Project. Project construction is to be completed by the August 2006 opening of the PAC. The City and County Managers may extend the term of this agreement upon mutual consent, affected by a letter of understanding. 2 RESPONSIBILITIES OF CITY The CITY shall provide the materials, equipment and/or funding detailed in Exhibit A, in addition to the services described herein below. The Director of the Department of Capital Improvements and Transportation ("DIRECTOR" and "DEPARTMENT" respectively) shall be the CITY'S authorized representative to manage all aspects of the CITY's responsibilities hereunder. 2.1 Financial Contribution: CITY shall contribute funds to COUNTY, in the maximum amount of $741,000 for eligible expenses, as defined herein, incurred by COUNTY for the design, construction and administration of the Project. The CITY shall disburse funds to the COUNTY for the Project in the manner set forth herein. The City shall not be liable for any cost, expense or fee in excess of $741,000, except as provided in Section 4 of this agreement. 2.2 Funding Source: The funds available for this Project are: Funding Amount $741,000 Funding Source Community Redevelopment Agency Funds Fiscal Year of Commitment 2005-2006 2.3 Design Services: The CITY has secured and will oversee engineering design services for PROJECT pursuant to an existing Professional Services Agreements between CITY and A & P Consulting Transportation Engineers, a qualified firm. The selected firm will perform complete construction documents, and will provide post - revised 11/8/2005 2 design services including construction contract administration. CITY will manage and facilitate technical reviews of all work associated with the development and preparation of the construction documents for the Project, and will seek the COUNTY's input on progress plans and specifications. Both Parties agree that the selection, retention and discharge of such firm shall be the responsibility of the CITY in accordance with applicable laws and City procedures. 2.4 Permits and Approvals. During the course of design, the DEPARTMENT shall identify all necessary permits and shall coordinate the review of construction documents by utilities and permitting agencies such as the Miami -Dade County Water and Sewer Department and the Department of Environmental Resources Management. The CITY shall make all necessary adjustments as required for approval and/or permitting by those agencies. It has been determined that acquisition of additional right of way is not required. The DEPARTMENT will assist the selected Contractor(s) in obtaining all necessary CITY permits, and utility adjustments for the Project in accordance with applicable State, Federal and Local Laws and ordinances. 3 RESPONSIBILITIES OF COUNTY 3.1 Project Signage. The COUNTY, in coordination with CITY Project Engineer, shall furnish and install a Project sign in each direction of traffic indicating the Project funding, in proximity to the start/end of the Project limits. Should MOT signage be required as part of the work, the Project sign shall be placed in an appropriate location before the MOT signage range. The Project signs shall remain in place for the duration of the work or as directed by the Project Engineer. 3.2 Construction. The COUNTY shall procure the services of a properly licensed contractor to construct the Project. The COUNTY may award the construction revised 11 /8/2005 3 contract through any available lawful means which, in the COUNTY's discretion, affords the most competitive price for construction of the Project and allows completion by the deadline, including, but not limited to, bid solicitation, request for proposals, the award of a change order on existing COUNTY contract(s), or the extension of unit -prices provided in connection with prior competitive bid awards. The construction contract shall provide that the Project be completed not later than AUGUST 2006. The construction contract shall also contain a requirement that the contractor provide a payment and performance bond, in a form acceptable to CITY's Risk Management Administrator, at least in the amount and form required by law naming the COUNTY and CITY as joint obligees or joint contracting public entities. The construction contract shall contain a contingency amount to address unforeseen conditions and owner required changes which shall not exceed ten percent (25%) of the base amount of the contract, unless otherwise approved by designated representatives of the CITY and COUNTY. Subsequent to the evaluation of bids or proposals by the COUNTY_. and prior to the COUNTY's acceptance of a bid or proposal, the COUNTY shall provide said evaluation to the DIRECTOR for review and comment. The parties agree that the selection, retention and discharge of such contractor shall be the responsibility of the COUNTY. 3.3 Accounting: The COUNTY shall at all times maintain separate accounting for the costs of the Project so those costs may be independently verified and audited by the CITY, at the request and cost of the CITY. 3.4 Claims & Change Orders: The COUNTY shall notify the CITY in writing when claims or change orders arise. The COUNTY shall invite the CITY to participate in negotiations of these claims and change orders. revised 11/8/2005 4 4 PROJECT COST ADJUSTMENTS: The amount committed by CITY is 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 committed for the Project. Provided that prior legislative authorization for funding is in place, additional amendments may be executed by the City Manager and COUNTY MANAGER. Otherwise, further funding commitments shall be subject to the approvals of the parties' respective legislative boards. 5 SCHEDULE & MANNER OF REIMBURSEMENTS: Attached hereto as Exhibit A is a copy of the estimated budget for the Project. CITY shall furnish COUNTY with any and all revisions thereto. At the time of construction contract award for this Project, the COUNTY shall submit the Estimated Quarterly (or Monthly) Construction Payout Schedule for the Project to the CITY. CITY shall reimburse COUNTY for funds it expended for the work described in Exhibit A, upon receipt of COUNTY invoice identifying completed work. The reimbursement of funds to the COUNTY shall be based upon COUNTY -approved invoices with certified copies of payment requests attached. 6 CONSTRUCTION ADMINISTRATION AND INSPECTION. The COUNTY shall exercise all responsibilities of the "owner" under the construction contract, including construction administration and inspections. The COUNTY may delegate this function to an authorized agent or Construction Engineering Inspector or Observer (CEI/CEO consultant). The CITY may assign an inspector who shall have an oversight role in the routine daily inspections. In the case of a disagreement over the interpretation of the plans, the COUNTY's designated representative shall have final authority. The CITY's Engineer and the COUNTY's designated representative shall jointly perform the inspection of the Project which immediately precedes substantial completion. Final payment to the COUNTY and the obligation of maintenance responsibility to the parties shall be subject to the final revised 11/8/2005 5 acceptance of the Project by the CITY. The COUNTY shall certify upon completion that the Project has been constructed pursuant to the design plans, specifications and approved change orders. 7 ELIGIBLE EXPENSES: The parties agree that only the below identified expenses that may be incurred by the COUNTY and that are directly related to the Project, including both hard and soft costs, are eligible for reimbursement, provided adequate documentation accompanies the reimbursement request in the form of approved invoices, verified payment requests, documented journal entries, and/or check vouchers. Construction -related costs for the work specifically identified in Exhibit A incurred by the COUNTY no earlier than October 1, 2005 prior to the effective date of this Agreement shall also be reimbursed provided they are also Eligible Expenses as defined herein. • Construction and Construction -related costs for work elements described in Exhibit Awork described in Exhibit AConstruction Engineering Observation / Inspection Services if required and only in excess of that already being provided for the - GOUNT-'�'s--existing--project-for-the-construct-ion-of-the PAC -AUDIT —The COUNTY agrees. -to --permit the -CITY's-_auditors . to inspect the books, recordss-and accounts of the Project for three years after completion of the Project. These records shall be made available to the CITY for inspection within five (5) working days upon written receipt of a written request from the COUNTY. Audits shall be conducted at the CONTRACTOR's cost and expense. 9 INDEMNIFICATION. To the extent authorized by Florida law, the CITY hereby agrees to indemnify, defend, save and hold harmless the COUNTY, to the extent of all limitations included in §768.28 Florida Statute, 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, its agents or employees. It is specifically understood and agreed that this indemnification clause does not cover or indemnify the COUNTY for its sole negligence or breach of contract. revised 11 /8/2005 6 To the extent authorized by Florida law, the COUNTY hereby agrees to indemnify, defend, save and hold harmless the CITY, to the extent of all the limitations included in §768,2, 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 COUNTY, its agents or employees. It is specifically understood and agreed that this indemnification clause does not cover or indemnify the CITY for its sole negligence or breach of contract. In the event of breach or non-performance by the persons or companies selected by the COUNTY to perform the work, the COUINTY shall, upon written request by the CITY, assign to the CITY any and all of its rights under the affected contract for purposes of the CITY's prosecution of claims, actions or causes of action resulting from such breach or non- performance. The COUNTY agrees to cooperate fully with the CITY in the prosecution of any such claim or action. Any damage recovered by the COUNTY which is attributable to expenditure by the CITY shall be returned to the CITY by the COUNTY, within sixty (60) days of receipt. 10 MAINTENANCE RESPONSIBILITIES. Upon completion of the Project, the parties will assume maintenance responsibilities as set forth below: COUNTY CITY • Light poles, fixtures and bases within • Roadway, curb and gutter the boundaries of the PAC stated herein • Sidewalk pavers outside of PAC boundary • Light poles, fixtures and bases outside of PAC the boundary, though the Miami Community Redevelopment Agency 11 NOTICES. Any and all notices required to be given under this agreement shall be sent by first class mail, addressed as follows: To the: COUNTY Attention: Bill Johnson Assistant County Manager revised 11/812005 7 Miami -Dade County 111 NW First Street Miami, FL 331-- (305) 375-2300 To the CITY: Attention: Mary H. Conway, P.E. Director, Department of Capital Improvements and Transportation City of Miami 444 S.W. 2nd Avenue, 10`h Floor Miami, Florida 33233-0708 (305) 416-1027 12 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. 13 ENT.IRE 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. 14 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 revised 11/8/2005 8 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. 15 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. 16 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 or COUNTY elect to terminate this Agreement. An election to terminate this --Agreement based -upon -this -provision -shall be --made within seven--(7) clays -after the finding .._by. the court becomes final. IN WITNESS WHEREOF, the parties hereto set their hands and official seals the day and year first above written. ATTEST: BY: (affix seal) revised 11/8/2005 9 MIAMI-DADE COUNTY, a political sub- division of the State of Florida BY: George Burgess, County Manager Approved by County Attorney as to form and legal sufficiency Print Name ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida BY: BY: Priscilla Thompson City Clerk (Affix City Seal) Joe Arriola City Manager Approved by City Attorney Approved to Insurance Requirements: as to Legal form and correctness: Dania Carrillo, Administrator City Attorney Risk Management revised 11/8/2005 10