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HomeMy WebLinkAboutExhibitDraft 06/12/06 MAINTENANCE AGREEMENT For Grant by Fundacion Pro Integracion Dominicana,Inc. To City of Miami This Maintenance Agreement ("Agreement") is made this _ day of , 2006 (the "Effective Date"), by and between the City of Miami, a municipal corporation of the State of Florida, located at 444 S.W. 2" � Avenue, 101h Floor, Miami, Florida 33130 ("CITY") and Fundacion Pro Integracion Dominicana, Inc., a Florida not -for -profit corporation, whose principal address is ("BENEFACTOR") RECITALS A. WHEREAS, Juan Pablo Duarte Park has been an integral part of the Dominican Community in the Allapattah neighborhood and is used for festivals and as a focal meeting point; and B. WHEREAS, the pavilion at Juan Pablo Duarte Park, located at the northeast corner of Juan Pablo Duarte Park as indicated in Attachment A hereto, contains several head busts and other commemorative brass plates in honor of Juan Pablo Duarte and other Dominican leaders; and C. WHEREAS, the BENEFACTOR has indicated an interest in making a grant of commemorative brass plates and/or head busts in honor of community leaders who have contributed to the cultural and economic development of the Dominican community in Miami and funding their installation and maintenance; and Draft 06/12/06 1 D. WHEREAS, the Miami City Commission, pursuant to Resolution No. adopted on 2006 (a copy of which is attached hereto as "Attachment B") has authorized the City Manager to enter into a maintenance agreement with BENEFACTOR who will be responsible for the funding, installation and maintenance of future commemorative plates and head busts of community leaders of BENEFACTOR'S choice subject to Miami City Commission approval of BENEFACTOR"S choices; and E. WHEREAS, BENEFACTOR's Board of Directors has authorized BENEFACTOR to enter into and to undertake the responsibilities and obligations under this Agreement pursuant to its not -for -profit corporation resolution adopted on , 2006 (a copy of which is attached hereto as "Attachment E"). NOW, THEREFORE, the parties hereto covenant and agree in consideration of the mutual covenants and promises herein contained, as follows: TERMS 1. RECITALS AND INCORPORATIONS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The description of the AREA (described below) is hereby incorporated into, made a part of this Agreement, and attached hereto as Attachment "A". The CITY'S Resolution No. is hereby incorporated into, made a part of this Agreement, and attached hereto as Attachment "B", The description of funding, installation, and maintenance is hereby incorporated into, made a part of this Agreement, and attached hereto as Attachment "C". The Insurance Requirements are hereby incorporated into, made a part of this Agreement and attached hereto as Attachment "D". BENEFACTOR'S not -for -profit corporate resolution is [)raft 06/12/06 2 hereby incorporated into, made a part of this Agreement and attached hereto as Attachment "E". 2. GRANT AND MAINTENANCE. A. The BENEFACTOR agrees to make a grant of commemorative brass plates and/or head busts in honor of community leaders who have contributed to the cultural and economic development of the Dominican community in Miami ("GRANT") to be installed in the plaza in front of the existing pavilion located in the northeast corner of Juan Pablo Duarte Park ("AREA") as more particularly described in Attachment "A" attached hereto and made part hereof. BENEFACTOR hereby acknowledges and agrees that and CITY hereby reserves the right to approve in advance the names of the individuals to be honored with a brass plate and/or head bust. B. BENEFACTOR hereby grants funding for and agrees to provide for installation and maintenance of any and all commemorative brass plates and/or head busts approved by CITY and provided by BENEFACTOR. C. BENEFACTOR represents to the CITY that: (i) it possesses or it will require all individuals, subcontractors, and/or businesses creating, installing, and/or maintaining the commemorative brass plates and/or head busts to posses all qualifications, licenses and any particular expertise required for the performance of such tasks, including but not limited to full qualification to do business in Florida and all required licenses for working in the State of Florida, Miami -Dade County, and the City of Miami; (ii) it is not delinquent in the payment of any sums due the City, including payment of permits, fees, occupational licenses, etc., nor in the performance of any obligations to the City, (iii) all individuals, subcontractors, Draft 06/12/06 3 and/or businesses assigned to perform the tasks are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; (iv) the tasks will be performed in the manner, at such times, and for the budgeted amounts described in Attachment "B", and (v) each person executing this Agreement on behalf of BENEFACTOR has been duly authorized to so execute the same and fully bind BENEFACTOR as a party to this Agreement. 3. FUNDS. The BENEFACTOR agrees to fund the creation of, the installation and maintenance of, and to provide for the continuing maintenance of the GRANT for the term of this Agreement as more particularly described in Attachment "C" attached hereto and made part hereof. The BENEFACTOR shall be solely responsible for any and all costs associated with the installation and maintenance of the GRANT. 4. USE OF AREA. The . CITY agrees to provide the BENEFACTOR limited, non-exclusive use of the AREA, during normal Area hours of operation, for the installation and maintenance of the GRANT. The CITY reserves the right to deny BENEFACTOR to access, to enter, or to remain in the AREA for reasonable cause. Additionally, the BENEFACTOR shall submit the names of the individuals to be honored for prior approval by the CITY prior to any creation of commemorative brass plates and/or head busts for display in the AREA and prior to any placing/installing of commemorative brass plates and/or head busts in the AREA 5. TERM. The term of this Agreement shall commence on the date it is fully executed by all parties being the Effective Date and shall end on the date which is five (5) years from the Effective Date, at which time all of the obligations, rights and Draft 06/12/06 4 responsibilities of the parties shall terminate, as herein provided, unless the CITY's Director of the Department of Parks and Recreation and the City Manager have recommended and the City Commission has approved a new term, extension, amendment to, and renewal of this Agreement for a specific period of time. 6. REMEDIES FOR NON-COMPLIANCE. If the BENEFACTOR materially fails to perform any of its obligations or covenants hereunder, or materially breaches any of the terms contained herein, then the CITY shall have the right to take one or more of the following actions: (a) Deny BENEFACTOR use of the AREA, or (b) Terminate this Agreement, or (b) Take other remedies that may be legally advisable. 7. TERMINATION FOR CONVENIENCE. CITY retains the right to terminate this Agreement at any time without penalty to the CITY. CITY may terminate this Agreement by notice to the BENEFACTOR at any time in CITY's sole discretion without penalty to the City. S. CONFLICT OF INTEREST. BENEFACTOR has received copies of, and is familiar with the following provisions regarding conflict of interest in the performance of this Agreement by the BENEFACTOR. BENEFACTOR covenants, represents and warrants that it will comply with all such conflict of interest provisions. Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, BENEFACTOR hereby certifies to CITY that no individual member of BENEFACTOR, no employee, and no subcontractor under this Agreement nor any immediate family member of any of the same is also a member of any board, Draft 06/12/06 5 commission, or agency of the City. BENEFACTOR hereby represents and warrants to the CITY that throughout the term of this Agreement, BENEFACTOR, its employees, its board members, and its subcontractor will abide by this prohibition of the City Code, 9. INDEMNIFICATION. BENEFACTOR shall indemnify and save harmless the CITY, its agents, officers, and employees from and against any and all claims, liabilities, losses, and causes of action which may arise out of the BENEFACTOR's performance under this Agreement, including all acts or omissions to act on the part of the BENEFACTOR and any of its contractors/subcontractors, employees, agents and any person acting for or on their behalf; and from and against any and all costs, attorney's fees, expenses and liability in relation to any orders, judgments or decrees which may be entered against the CITY; and all costs, expenses and liabilities incurred by the CITY in connection with the defense of any such claims or in the investigation thereof 10. INSURANCE: A. BENEFACTOR shall, at all times during the term hereof, maintain such insurance coverage(s) as may be required by the City. The insurance coverage(s) required as of the Effective Date of this Agreement are attached hereto as Exhibit D and incorporated herein by this reference. The BENEFACTOR shall add the City of Miami as an additional named insured to its commercial general liability policy and as a named certificate holder on all policies. BENEFACTOR shall correct any insurance certificates as requested by the City's Risk Management Administrator. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage(s) and shall be furnished to the City Risk Management Administrator on Certificates of Insurance indicating such insurance to be in force and Draft 06/12/06 6 effect and providing that it will not be canceled, modified, or changed during the performance of the Services under this Agreement without thirty (30) calendar days prior written notice to the City Risk Management Administrator. Completed Certificates of Insurance shall be filed with the City prior to the performance of installation and maintenance of the brass plates and head busts hereunder, provided, however, that BENEFACTOR shall at any time upon request file duplicate copies of the policies of such insurance with the City. B. BENEFACTOR understands and agrees that any and all liabilities regarding the use of any of BENEFACTOR's employees, board of directors, or any of BENEFACTOR's subcontractors for tasks related to this Agreement shall be borne solely by BENEFACTOR throughout the term of this Agreement and that this provision shall survive the termination of this Agreement. BENEFACTOR further understands and agrees that insurance for each employee and/or board member of BENEFACTOR and each contractor or subcontractor performing tasks related to this Agreement shall be maintained in good standing and approved by the City Risk Management Administrator throughout the duration of this Agreement. C. BENEFACTOR shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration of this Agreement, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, BENEFACTOR shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Administrator at a minimum of ten (10) calendar days in advance of such expiration. In the event that expired certificates are not replaced, with Draft 06/12/06 7 new or renewed certificates which cover the term of this Agreement and any extension thereof: (i) the City shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the City's Risk Management Administrator; or (ii) the City may, at its sole discretion, terminate the Agreement for cause and seek re -procurement damages from BENEFACTOR in conjunction with the violation of the terms and conditions of this Agreement. D. Compliance with the foregoing requirements shall not relieve BENEFACTOR of its liabilities and obligations under this Agreement. 10. AMENDMENTS. No amendments to this Agreement shall be binding on either party, unless in writing and signed by both parties. 11. OWNERSHIP OF DOCUMENTS. All documents developed by the BENEFACTOR or at its request pursuant to this Agreement shall be delivered to the CITY upon completion of the work, receipt of the commemorative brass plates and/or head busts, and as otherwise contemplated by this Agreement, and shall become the property of the CITY, without restriction or limitation on its use, BENEFACTOR agrees that all documents maintained and generated pursuant to this Agreement shall be subject to all provisions of the Public Records Law, Chapter 119, Florida Statutes. It is further understood by and between the parties that any documents which are given by the CITY to the BENEFACTOR pursuant to this Agreement shall at all times remain the property of the CITY, and shall not be used by the BENEFACTOR for any other purposes whatsoever, without the written consent of the CITY. Draft 06/12/06 8 12. NON-DELEGATABILITY, The obligations of the BENEFACTOR under this Agreement shall not be delegated or assigned to any other party by BENEFACTOR without the CITY's prior written consent which may be withheld by the CITY, in its sole discretion, 13. MISCELLANEOUS. A. This Agreement shall beconstrued and enforced according with all applicable laws, ordinances and codes of U.S. Federal, State of Florida, and local governments. Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. 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 or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then the same shall be Draft Mil 2/06 deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall rule. F. BENEFACTOR shall comply with all applicable laws, rules and regulations in the performance of this Agreement, including but not limited to licensure, and certifications required by law, if any, far BENEFACTORs of the brass plates, head busts, and tasks contemplated by this Agreement. 14. NOTICES: All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail, addressed to the party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the clay on which personally served; or, if by mail, on the fifth day after being posted, or the date of actual receipt, whichever is earlier. CITY OF MIAMI DIRECTOR, PARKS AND RECREATION DEPARTMENT 444 S.W. 2ND AVENUE, 8`h Floor MIAMI, FL 33130 With copies to: City Manager, City of Miami 444 S.W. 2"d Avenue, 10th Floor Miami, Florida 33130 City Attorney, City of Miami 444 S.W. 2" Avenue, 9th Floor Miami, Florida 33130 FUNDACION PRO INTEGRACION DOMINICANA, INC. Attn: Draft 06/12/06 10 15. INDEPENDENT CONTRACTOR. BENEFACTOR, its contractors, subcontractors, and its employees and agents shall be deemed to be independent contractors, and not agents or employees of the CITY, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the CITY, or any rights generally afforded classified or unclassified employees; further, they shall not be deemed entitled to the Florida Workers' Compensation benefits as employees of the CITY. 16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. 17. FORCE MAJEURE. A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its Drafi 06/12/06 11 best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted, 18. ENTIRE AGREEMENT. This instrument and its attachments constitute the sole and only agreement of the parties hereto relating to said GRANT, funding, installation, and maintenance of brass plates and head busts in the AREA, and correctly sets forth the rights, duties, and obligations promises, negotiations, or representations not expressly set forth in the Agreement are of no force or effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by the respective officials thereunto duly authorized on the first date above written. ATTEST: (AFFIX SEAL) FUNDACION PRO INTEGRACION DOMINICANA, INC. a Florida not -for profit corporation BY: Name: Name: CORPORATE SECRETARY PRESIDENT CITY OF MIAMI, a municipal corporation of the State of Florida ATTEST: BY: PRISCILLA A. THOMPSON, CITY CLERK JOE ARRIOLA CITY MANAGER APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: LEEANN BREHM, RISK JORGE L. FERNANDEZ MANAGEMENT ADMINISTRATOR CITY ATTORNEY Draft 06fl2/06 12