HomeMy WebLinkAboutParticipation AgreementLOCALLY FUNDED JOINT PARTICIPATION AGREEMENT
BETWEEN THE FLORIDA DEPARTMENT OF TRANSPORTATION
AND THE CITY OF MIAMI
PERFORMING ARTS CENTER STREET IMPROVEMENTS
— NE 2nd Avenue from NE 13th to NE 14th Streets
(FDOT Financial Project Number 251688-2-52-01)
This AGREEMENT, made and entered into this //i`day of , 4o e► / ,. 2Q ,
by and between the Florida Department of Transportation, a component agency of the State of
Florida, hereinafter referred to as "FOOT," and the City of Miami, a municipal corporation of the
State Of Florida, hereinafter referred to as the "CITY".
WITNESSETH:
WHEREAS, Miami -Dade 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, FDOT has an existing construction project, programmed as Financial
Project Number 251688-2-52-01, to widen and resurface the existing lanes on NE 2nd Avenue
from NE 11th Street to NE 14th Street; and
WHEREAS, both parties to this Agreement wish to facilitate capital improvements to the
rights -of -way surrounding the PAC by performing the work more particularly described in
Exhibits "A" and "B", to be included as part of FDOT Project Number 251688-2-52-01, which
Exhibits are attached hereto and made a part of this Agreement (hereinafter referred to as the
"PROJECT"),; and
Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Project Number 251688-2-52-01.
Page 1 of 14
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 by each party upon completion and final acceptance of the PROJECT;
NOW, THEREFORE, in consideration of the promises and covenants contained herein,
the parties agree:
1 RECITALS The recitals are true and correct and are hereby incorporated into and
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2 EFFECTIVE DATE AND TERM. This Agreement shall take effect upon its execution and
shall terminate upon completion and close-out of the PROJECT. The City Manager and
FDOT District Secretary may extend the term of this Agreement upon mutual consent,
affected by an amendment to this Agreement.
3 RESPONSIBILITIES OF CITY
The CITY shall provide the materials, equipment and/or funding detailed in Exhibits "A" and
"B", 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.
3.1 Financial Participation: The CITY shall provide funding to FDOT in the amount of
TWO HUNDRED SIXTY-FOUR THOUSAND FIVE HUNDRED TWENTY-FIVE
DOLLARS ($264,525.00) in accordance with the financial provisions listed in Section
5 of this Agreement.
3.2 Funding Source: CITY funds available for this PROJECT are:
Funding Amount
Fiscal Year
Funding Source of Commitment
Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Project Number 251688-2-52-01.
Page 2 of 14
$264, 525
Community Redevelopment
Agency Funds
2005-2006
3.3 Design: The CITY has secured and will oversee engineering design services for
PROJECT pursuant to an existing Professional Services Agreement between CITY
and A & P Consulting Transportation Engineers ('Design Firm"). The Design Firm will
provide complete construction documents, and will provide post -design services
including construction contract administration. CITY will manage and facilitate
technical reviews of all work associated with the development and preparation of the
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plans and specifications. Both parties agree that the retention and discharge of the
Design Firm shall be the responsibility of the CITY in accordance with applicable
laws and City procedures,
3.4 Permits and Approvals. During the course of design, the CITY 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. The CITY will assist the FDOT 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.
3.5 Resolution. The CITY shall submit this Agreement to its Board of City
Commissioners for approval by Resolution. A copy of said Resolution is attached
hereto as Exhibit "C", which is herein incorporated by reference.
4 RESPONSIBILITIES OF FDOT
Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Project Number 251688-2-52-01.
Page 3of14
4.1 Construction. FDOT shall be responsible for the construction and administration of
the PROJECT in accordance with the provisions of Section 6. FOOT agrees to
supplement the existing FDOT construction contract, Contract #E6C27, with H&R
Paving, Inc. ("Contractor") to incorporate PROJECT scope. The Contractor's
performance bond will be increased by a value sufficient to cover the additional work
included in PROJECT scope. Contract #E6C27 requires construction to be
completed no later than August 11, 2006. The Supplemental Agreement to Contract
#E6C27 negotiated by FDOT for the PROJECT shall contain: 1) the same
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address unforeseen conditions and owner required changes which shall not exceed
twenty-five percent (25%) of the base amount of the contract, unless otherwise
approved by designated representatives of the CITY and FDOT.
4.2 Notifications: FDOT will provide regular reports to CITY as to the status of the
PROJECT and shall notify CITY within five (5) business days, or sooner if warranted,
of key events including, without limitation, receipt and/or pending acceptance of
Contractor's bid, problems with the PROJECT and change order requests.
4.3 Accounting and Records: FDOT 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. FDOT shall additionally maintain
and furnish to CITY, upon request, supporting documentation for all expenditures of
CITY funds as well as lists of subcontractors engaged in the PROJECT.
4.4 Claims & Change Orders: FDOT shall notify the CITY in writing when claims or
change orders arise. FOOT shall invite the CITY to participate in negotiations of
these claims and change orders.
Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Project Number 251688-2-52-01.
Page 4 of 14
5 FINANCIAL PROVISIONS
5.1 The CITY agrees that it will, no later than thirty (30) calendar days after the FDOT's
execution of this Agreement, furnish the FDOT an advance deposit (the "CITY's
Participation") in the amount of TWO HUNDRED SIXTY-FOUR THOUSAND FIVE
HUNDRED TWENTY-FIVE DOLLARS ($264,525.00) for full payment of the
estimated PROJECT cost for Locally Funded Project Number 251688-2-52-01. The
CITY's Participation shall be the total estimated PROJECT cost plus allowances
(25% Contingency) as described in the attached Exhibit "B". The FDOT may utilize
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accruing to the CITY's Participation, or other sums provided by CITY hereunder,
which are not utilized by FDOT for payment of PROJECT costs, shall be remitted to
CITY as provided in a Memorandum of Agreement between the CITY, FDOT, and
the State of Florida, Department of Financial Services, Division of treasury, and after
final accounting as provided herein below.
5.2 If the accepted bid amount plus allowances (the "Bid") is in excess of the CITY's
Participation for the PROJECT, the CITY will provide additional funds ("Additional
Funds") to cover the deficiency within fourteen (14) calendar days of notification from
FDOT or prior to posting of the accepted bid, whichever is earlier, so that the CITY's
Participation is equal to the Bid, subject to the approval of the CITY Commission.
FDOT shall notify CITY as soon as it becomes apparent the accepted Bid will exceed
the CITY's Participation. If CITY cannot provide the Additional Funds within the
aforementioned fourteen (14) days, then the CITY shall advise FDOT's PROJECT
Manager in writing of the anticipated date for receipt of Additional Funds, if approved
by the CITY Commission. If the CITY Commission does not approve Additional
Funds for the PROJECT, then the parties may reduce or modify the scope of the
Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Project Number 251688-2-52-01.
Page .of14
PROJECT, or this Agreement shall terminate and the parties shall be released from all
further obligations hereunder, except for the obligations that are intended to survive
termination of the Agreement. The CITY understands that a delay in providing
Additional Funds to FDOT can delay the PROJECT, and may result in additional costs
in completing the PROJECT.
5.3 If the accepted Bid is less than the CITY's Participation, FDOT will refund the
difference to the CITY after PROJECT final accounting as provided herein below.
5.4 Further, where FDOT deletes work in Contractor's Contract #E6C27 and replaces
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shall be reduced by an amount equal to the credit accepted by FOOT for the work
deleted in Contract #E6C27 after FDOT's final reconciliation of Contract #E6C27 and
PROJECT costs.
5.5 Should PROJECT modifications or changes to bid items occur that increase the
C1TY's share of total PROJECT costs, CITY will be notified by FDOT accordingly and
such modifications or changes are to be approved by the CITY. The CITY agrees to
provide, without delay, subject to approval by the CITY Commission, Additional
Funds to ensure that cash on deposit with the FDOT is sufficient to fully fund the
PROJECT. The FDOT shall notify the CITY as soon as it becomes apparent that
actual costs will overrun the award amount and will seek the CITY's input in ways to
reduce costs, if possible; however, failure of the FDOT to so notify the CITY shall not
relieve the CITY from its obligation to pay for its full participation during the
PROJECT and on final accounting as provided herein below. Funds due from the
CITY for the PROJECT that arise in the foregoing manner are to be paid within forty
(40) calendar days from the date of the invoice or are subject to an interest charge at
a rate established pursuant to Section 55.03, Florida Statutes. FDOT understands
that approving Additional Funds to the CITY's Participation requires CITY
Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Protect Number 251688-2-52-01.
Page 6 of 14
Commission approval and FDOT will coordinate with CITY prior to issuing a
PROJECT invoice.
5.6 The FDOT intends to have its final and complete accounting of all costs incurred in
connection with the work performed hereunder within three hundred and sixty (360)
days of final payment to the Contractor. The FDOT considers the PROJECT
complete when the final payment has been made to the Contractor, not when the
construction work is complete. All PROJECT cost records and accounts shall be
subject to audit by a representative of CITY for a period of three (3) years after final
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agree that in the event the final accounting of total PROJECT costs pursuant to the
terms of this Agreement is Tess than the total funds paid by the CITY (CITY's
Participation plus Additional Funds, if applicable), a refund of the excess, plus
earned interest as established for the PROJECT in a Memorandum of Agreement
between the CITY, FDOT and the State of Florida, Department of Financial Services,
Division of Treasury, will be made by FDOT to CITY. If the final accounting is not
performed within three hundred and sixty (360) days, the CITY is not relieved of its
obligation to pay for its full participation in the PROJECT.
5.7 In the event the final accounting of total PROJECT costs is greater than the total
funds paid by the CITY, the CITY will pay the additional amount within forty (40)
calendar days from the date of the invoice from FDOT, if approved by the CITY
Commission. The CITY agrees to pay interest at a rate established pursuant to
Section 55.03, F.S., on any invoice not paid within forty (40) calendar days until the
invoice is paid.
5.8 The payment of funds under this Locally Funded Agreement will be made directly to
FDOT for deposit, and, as provided in a Memorandum of Agreement between the
Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Protect Number 251688-2-52-01.
Page 7 of 14
CITY, FDOT, and the State of Florida, Department of Financial Services, Division of
Treasury.
6 CONSTRUCTION ADMINISTRATION AND INSPECTION. FDOT shall exercise all
responsibilities of the "owner" under the construction contract, including construction
administration and inspections. FDOT 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, FDOT's designated
representative shall have final authority. The CITY's Engineer and FDOT's designated
representative shall jointly perform the inspection of the PROJECT which immediately
precedes substantial completion. FDOT shall certify upon completion of the PROJECT that
the PROJECT has been constructed pursuant to the design plans, specifications and
approved change orders.
7 ELIGIBLE EXPENSES: Eligible PROJECT line items are only those expressly detailed in
the attached Exhibits "A" and "B".
8 INDEMNIFICATION. To the extent permitted by Section 768.28, Florida Statutes, the
parties agree to indemnify each other for liability due to any act of omission, neglect or
wrongdoing of a party or any of its officers, agents, or employees. Further the parties agree
to defend each other against any and all such claims or demands which may be claimed
and have arisen as a result of or in connection with the parties' participation in this
Agreement. Nothing contained herein shall be construed to contradict the provisions of
Section 768.28, Florida Statutes, nor shall this Article be construed to require either party to
indemnify the other for the negligent acts of the other.
Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Project Number 251688-2-52-01.
Page 8 of 14
8 MAINTENANCE RESPONSIBILITIES. Upon completion and final acceptance of the
PROJECT, the parties will assume maintenance responsibilities as set forth below:
CITY through Miami CRA
• Decorative light poles, fixtures and
bases within the right of way
• Sidewalk pavers
• PROJECT landscaping
FDOT
• Roadway, curb and gutter
• Roadway signalization and signage
9 NOTICES. Any and all notices required to be given under this Agreement shall be sent by
first class mail, addressed as follows:
To FDOT: Florida Department of Transportation
Attention: Kenneth Robertson, JPA Coordinator
law NVV`111 Avenue, Room 6137
Miami, FL 33172-4800
Ph: (305) 470-5452 Fax: (305) 470-5552
To the CITY: City of Miami, Florida
Attention: Mary H. Conway, P.E.
Director, Department of Capital Improvements and. Transportation
444 S.W. 2nd Avenue, 10th Floor
Miami, Florida 33233-0708
Ph: (305) 416-1027 Fax: (305) 416-1019
10 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.
11 ENTIRE 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
Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Project Number 251688-2-52-01.
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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.
12 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 complete
understanding of all rights and obligations herein and that the preparation of this Agreement has
been their joint effort. The agreed upon language ex expresses their mutual intent and the re � g pp suiting.
document shall not, solely as a matter of judicial construction, be construed more severely
against one of the parties from the other.
13 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.
14 SEVERANCE If any part of this Agreement shall be determined to be invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby if such remainder
continues to conform to the terms and requirements of the applicable law.
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Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Project Number 251688-2-52-01.
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IN WITNESS WHEREOF, the parties hereto set their hands and official seals the
day and year first above written.
ATTEST:
(Affix CAail,
Legal Review:
Michael Schloss, District General Counsel
ATTEST:
BY:
PPriscilla Thompson
t City Clerk
(Affix City Seal)
Approved by City Attorney
as to al form and correctne
e L. Fernandez
Attorney
FDOT, FLORIDA DEPARTMENT OF
TRANSPORTATION, a component
agency •f the State of Florida
CITY OF AMI, a m •al
corporati•j.f the ' ate of'Flori
BY:
Joe Arno a
City Manager
Approved to In
e Requirements:
�� lr
Risk Management
Locally Funded Joint Participation Agreement between Florida Department of Transportation and
City of Miami, Financial Project Number 251688-2-52-01,
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