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HomeMy WebLinkAboutExhibit 13AGREEMENT TWEEN THE CITY OF Miairi'FLORIDA ANO 4'IIAM1DARE COUNTY GOB Project Number 82-70586/P.arks and Facility Improvements Grapeland Water Park THis AGREEMENT (the "Agreement") by and between Miami -Dade JCourity, a political subdivision of the State of Florida (the "County") through its governing body, the Board of County Commissioners of Miami -Dade County, Florida the ":Board") and theCity of Miami, Florida, a municipal corporation organized under the laws of -the State of Florida, through its governing body, Commissioners of the City of Miami, Florida « e "Municipality") Lis entered into this day of , 2006. WITNESSETH WHEREAS, on July 20, 2004, the Board enacted Resolution Nos. R-912.04, R-913- 04, R-914-04, R-915-04, R-916-04, R-917-04, .R-918-04 and R-919-04 authorizing the issuance of $2.926 billion in general obligation bonds for capital projects and on November 2, 2004, a majority of those voting approved the bond program'>(the "BBCdG-O8 Program"); and WHEREAS, the aforementioned Resolutions include specific countywide projects, neighborhood projects for the Unincorporated Municipal Service Area and municipalities and .associated allocations for activities such as but not limited to development, improvement, rehabilitation, restoration or acquisition of real property; and WHEREAS, GOB Project -Number 82/Parks and Facility improvements, (the "Project") is eligible for funding from the BBC GOB Program in a total amount not to exceed'$26,761,000 (tie 'Funding Allocation"); and WHEREAS, the Municipality is undertaking completion of construction and irnprovements to park facilities at Little Haiti Soccer Park (the "Project 82-70685"), Grapeland Water Park (the "Project 82-70586"), and improve linear pars, greenways, and bay walk (the "Project 82-70587") which was specifically approved as part of the BBC GOB Program or is eligible for funding from one of the programs to be funded under the BBC GOB Program; and WHEREAS, the Project as a whole is estimated to cost $63,061,000 (the "Total Project Cost"). Project 82-70586 is estimated to cost $29,800,000and-will be funded from the sources listed in Exhibit 1; and Building Better Communities Municipal Agreement 1of]I WHEREAS, pursuant to the terms of this Agreement the County has agreed to allocate $8,509,000 from the Series A 2005 Bonds 'for the Project 82-70586 (the "Funding Cycle Allocation"); and WHEREAS, the Commissioners of both the County and the Municipality have authorized, by resolution, their respective managers to enter into this Agreement for each Funding Cycle Allocation describing their respective rotes in the funding for the Project costs with respect to such Funding Cycle Allocation, NOW THEREFORE, pursuant to Resolution No. R-595-05, which specifically authorizes the County Manager to execute such agreements, sub -agreements and other required contracts and documents, to expend Building Better Communities bond funds received for the purpose described in the funding request, and in consideration of the mutual promises and covenants contained herein and the mutual benefits to be ,derived from this Agreement, the parties hereto agree as follows: Section 1. Purpose: The purpose of this Agreement is to clarify the parties' roles and obligations regarding the funding being provided with respect to Project 82- 70586. Section 2. funding Responsibilities: a. b. c. Project Funding Plan: A Project 82-70588 funding plan identifying theFunding Allocation to be funded by the County solely from BBC GOB Program proceeds and the costs to be funded by the Municipality through a local funding plan or written project funding commitments from third parties is attached as Exhibit 1. included shall be a projected timetable for each 'Funding Cycle Allocation and the amount funded to date, if any. Representations of the Municipality: The Municipality -covenants and warrants that it has, in combination with the Funding Allocation, the amount of funding necessary for the -completion of Project .82- 70586. The additionalsources of funding are listed in Exhibit 1. Responsibilities of the County: The County agrees to provide solely from BBC GOB 'Program proceeds for the Funding Cycle Allocation in an amount equal to $8,509,000. This amount represents a portion of the amount necessary to complete the Project. This sum shall be provided in accordance with the reimbursementlprocedures oontairved in the County's f308 Administrative Rules attached as Attachment 1. In the event that the ProjectMilestones, as defined and set fah in Exhibit 1 of this Agreement are not within 10% of completion, the dollars to be funded for subsequent .Milestones may bedelayed for one calendar year in accordance with the Administrative Rules, see Section 18 of this Agreement. Section 3. Effective mate and Term: This Agreement shall take effect upon execution and shall terminate upon the completion of Project 82-70586, including the completion of all final closeout documentation. Suiiding Better.Communities Municipal Agreement 2ofil Section 4. Compliance with Codes and Laws: Each party agrees to abide by all Applicable Laws necessary for the development and completion .of Project 82- 70586. "Applicable Law" means any applicable law (including, without limitation, any environmental I,aw), enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ, injunction, franchise, permit, certificate, .license, authorization, Sor other direction or requirement of any governmental authority, political subdivision, or any division or department thereof, now existing or hereinafter enaoted, adopted, promulgated, entered, or issued. Notwithstanding the foregoing, "Applicable Laws" and "Applicable Laws" shall expressly include, without limitation, all applicable zoning, land use, DRI and Florida Building Code requirements and regulations, all applicable impact fee requirements, all requirements of Florida 'Statutes, specifically including, but not limited to, Section 255.05 related to payment and performance bonds, Section 255.20 related to contractor selection and Section 287.055 related to competitive selection of architects and engineers, all requirements of Chapters 119.and 286 of the Florida Statutes, Section 2-11.15 of the Code (Art in Public Places), and all other applicable requirements contained in this Agreement and Attachment 1, which exhibit is hereby incorporated in this Agreement by this reference. Section 5. Contractual obligation to comply with certain County requirements: All records of the Municipality and its contractors pertaining tbo Project 82-70586 shall be maintained in Miami -Dade County and, upon reasonable notice shall be made available to representatives of the County. In addition, the Office of Inspector General of Miami -Dade County shall have access thereto for any of the purposes provided in Sec. 2-1076 of the Code of Miami -Dade County. The Municipality shall cause each contract to include a provision that contractor shall comply with all requirements of Section 2-1076, and that contractor will maintain all files, records, accounts of expenditures for contractor's portion of the Work and that such records shall maintained within Miami-Dade.County and County shall have access thereto as provided in this Agreement. The Municipality shall comply with the requirements of Florida Statutes related to retainage of funds due a contractor and shall include appropriate language in its construction contracts and shall require the contractor to include such language in its subcontracts. All applicable County Rules, regulations, Ordinances, Resolutions, Administrative .Orders, and the County Chaffer re'feronced in this agreement are posted on theCounty's webs He: "rni-amidade.gov". Section .6. Access and Audits: The Municipality shall maintain adequate records to justify all charges; expenses, and costs incurred which represent the funded portion of Project 82-70586 for al least three (3) years .after completion of the Project. The County shawl have .access to all books,records, and documents as required in this section for the purpose of inspection or ..auditing during normal business hours. Building Better Communities Municipral Agreement 3 of 11 Pursuant to -Section 2-1076 of the Miami -Dade County Code the minty shall have the right to engage the services of an independent private -sector inspector general ("IPSIG") to monitor and investigate compliance with the terms of this Agreement. Th•e Office of the ,MIAMI-DADS COUNTY iNSPECTOR GEN€RAL I1G) •shall have the authority and power to review past, present and proposed unty programs, accounts, records, contracts and transactions, and oontracts such as Ibis Agreement for improvements some cost of which is funded with County funds. As such, the IG may, on as random basis, perform audits on this Agreement throughout the duration of said Agreement (hereinafter "random audits"). This random audit is separate and distinct from any other audit by the County. The IG shall have the power to retain and -coordinate the services of an Independent Private Sector inspector ,General {1PSiG) who may be engaged to perform said random audits, as well as .audit, investigate, monitor, oversee, inspect, and review the operations, activities and performance .and procurement ,prooess including, but not limited to, project design, .establishment of bid specifications, bid submittals, activities of the Mur♦icipality and contractor and theirrespective officers, agents and employees, lobbyists, subcontractors, materialmen, staff and eleoted officials in order to ensure compliance with contract specifications and detect corruption and fraud. The 1G shall have the power 4o subpoena witnesses, administer oaths and require the production of records. Upon ten {10) -days written notice to the Municipality (and any affected contractor and materiaiman) from 1G, the Municipality (and any affected contractor and rnateriainan) shall make all requested records and documents available,to the IG for inspection and copying. The IG shall have the power to report and/or recommend to the Board whether a particular project, program, contract or transaction is or was necessary and, if deemed necessary, whether the method used for implementing the project or program is or was efficient both financially and operationally. ,Monitoring of an existing project or program may include reporting whether the project is on time, within budget and in conformity with plans, specifications, and .applicable law. The IG shalt have the power to analyze the need for, and reasonableness of, proposed change orders. The IG is authorized to investigate any alleged violation by a contractor of its Code of Business Ethics, pursuant Miami -Dade County Code 'Section 2-8.1. The provisions in this section shall apply to the .Municipality, its contraotors and their respective officers, agents and employees. The M-unicipality -shall incorporate the provisions in this section in all contracts and all other .agreements executed by its contractors in connection with the performance of this Agreement. Any rights that the County has under this Section shall not be the basis for any liabitityto accrue #o the County from the Municipality, its contractors or third parties for such monitoring or investigation or for the failure to have conducted such monitoring or investigation and the C-ounty shall have no obligation to exercise any of its rights for the benefit of the Municipality. Section 7. Relationship -of the Parties: The parties agree that the Municipality is an independent entity responsible solely for 'Project 82-70886 and not an agent or servant of the County. No party or its Officers, elected or appointed officials, Buiidirag Better Communities Municipal A,Freement 4 of ] 1 employees, agents, independent contractors or consulta-nts shall .be considered employees or agents of any other party, nor to have been authorized to incur any expense on behalf of any other party, nor to act for or to bind any other party, nor shall an employee claim any right in or :entitlement to any pension, workers' compensation benefit, •unemployment compensation,civil service or other employee rights or privileges granted by operation of law -or .otherwise, except through and .against the entity by whore they are employed. Section 8. Liability: The parties to this Agreement shall not be deemed to assume any liability for the negligent or wrongful acts, or omissions of the ,other party. Nothing contained herein shall be construed as a waiver, by either party, of the liability limits .established in section 768.28 of °the Florida Statutes. The Municipality acknowledges that the County, its employees, commissioners and agents are solely providing funding assistance for. Project 82-70586 and are not involved in he design, construction, operation or maintenance of Project'8.2-70586. Section 9. Breach, Opportunity to Cure and Termination: (a) Each of the following shall constitute a default by the Municipality: (1) If the Municipality uses the Funding Cycle Allocation for costs r7ot associated with Project 82-70586 (i.e. ineligible costs), and the Municipality fails to cure its default within thirty (30) days after written notice .of the default is given to the Municipality by the County; provided, however, that if not reasonably possible cure such default within the thirty (30) day period, such cure period shall be extended for up to one hundred eighty (180) days following the dale of the original. notice if within thirty (30) days after such written notice the ,Municipality commences diligently and thereafter continues to CUM. (2) If the Municipality shall breach any of the other covenants or provisions in this Agreement other than as referred to in Section 9(a)(1) and the Municipality fails to cure its default within thirty (30) days after written notice of the default is given to the Municipality by the County; provided, however, that if not reasonably possible to cure such default within the thirty (30) day period, such cure period shall be extended for up to one Hundred eighty (180) days following the date of the original notice if within thirty (30) days after such written notice the Municipality commences diligently and thereafter continues to cure. (b) Each of the following shall constitute a default by the County: (1) if the County shall breach any of the covenants or provisions in this Agreement and the County fails fo cure its default within thirty (30) days after written notice of the default is given to the County by the Municipality; provided, however, that if not reasonably possible to cure such default within the thirty (30) day period, such cure period shall be extended for up to one hundred eighty (180) days following the date of the original notice if within thirty (30) days .after such written notice the County commences diligently and thereafter continues to cure. _Building Better CotnmunitileE Municipal Agreement 5of1] (c) *Remedies: (') Upon the occurrence of .a default as provided in Section '9(a)(1) and such default is not cured within the applicable grace .period, in addition to all other remedies conferred by this Agreement shall request the Municipality to reimburse and the -Municipality shall reimburse to the County, in whole or in part as *he County shall determine, all funds provided by the County hereunder. (2.) Either party may institute litigation to recover damages for any default or to obtain any other remedy at taw or in equity ,(including specific performance, permanent, preliminary or temporary injunctive relief, and any other kind of equitable remedy). (3) Except with respect to rights and remedies ,expressly declared to be exclusive in this Agreement, the rights .and remedies of the parties are cimulative and the exercise by any party of one or more of such rights or remedies shall not preclude the -exercise by it, at the same or different times, of -any of .er rights or remedies for the same default or any other default. (4) Any failure of a party to exercise any right or remedy as provided in this Agreement shall not be deemed a waiver by that party of any claim for damages it may have by reason of the default. (d) Termination: (1) Notwithstanding anything herein to the contrary, either parity eha1l have the right to terminate this Agreement, by giving written notice of termination to the other party, in the event that the other party is in material breach .of this Agreement. (2) Termination of this Agreement by any Party is not effective until five (5) business days following receipt of the written notice of termination. (3) Upon termination of this Agreement pursuant to Section 9(d)(1) above, no party shall have any further liability or obligation to the other party except as expressly set forth in this Agreement; provided that no party shall be relieved of any liability for breach of this Agreement for events or •obligations arising prior to such termination. Section 10. Litigation CostsNenue: in the event that the .1V1unici.pality or the County institutes any action or suit to enforce the provisions ofthis Agreement, the prevailing party in such litigation shall be entitled ,to reasonablecosts and attorney's fees at the trial, appellate and post -judgment levels. This Agreement -shall be ,governed by and construed in -accordance with the taws of the State of Florida. The County and the Municipality agree to submit to service of process and jurisdiction of the State of Florida for any controversy or claim arising out of or relating 4o this Agreement or a breach of this Agreement. Venue for any court action between the parties for .any such controversy arising from or related to this Agreementshall be in the Eleventh Judicial Circuit in and for Miami -Dade County, `Florida, or in the United States District Court for the Southern District of 'Florida, in Miami-Dede County, Florida. Section 11. Naming Rights .a d Advertisements: In the event that any naming rights or advertisement space is offered on .a facilityconstructed or improved with BBC GOB Program funds, then Miami -Dade County's name, logo, and slogan shall molding &utter Co nrnuniaies Mtir,tcipel Areement 6 of 11 appear on the facility riot less than once .and equal to half the number of times the mast frequent sponsor or advertiser is earned, whichever is greater. Lettering used for Miami -Dade County will be no less than 75% of the size of the largest lettering used for any sponsor or ,adv-ertiser unless waived by the Board. The Municipality must include the following credit line in all promotional marketing materials related to this funding including web sites, news and press releases, public -service announcements, broadcast media, programs, and publications: 'THIS PROJECT IS SUPPORTED BY THE BUILDING BETTER COMMUNITIES BOND PROGRAM AND THE MAYOR AND BOARD OF COUNTY COMMISSIONERS OF MiAMI- DADE COUNTY." Section 12. Notice: Any notice, consent or other communication required to be given under this Agreement shall be in writing, and shall be considered given when delivered in person or sent by facsimile or electronic mail (provided that any notice sent by facsimile or electronic mail shall ,simultaneously be sent personal delivery, overnight courier or certified mail as provided herein), one business day after being sent by reputable overnight carrier or 3 business day after being mailed by certified mail, return receipt requested, to the parties at the addresses 'set forth below for ,at such other address as a party may specify by notice given pursuant to this Section to the other party): The County: George M. Burgess, County Manager Miami -Dade County, Stephen P. Clark Center 111 NW 1 'Street, Suite 2910 Miami,Florida 33128 The Municipality: Pedro G. Hernandez, City Manager City of Miami 3500 Pan American Drive Miami, Florida 33106 With caries fin: Mary Conway Director of Capital Improvements 444 SW 2nd Avenue 10th floor t�liarni, Florida 33130 With copies to: Jorge L. 'Fernand '' Lily f'1; 1/fir j. Avenue 2ncl nu ta th floor M earn i, Florida 33130 Section 13. Modification andAmendment: Except as ,expressly permitted herein to the contrary, no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and equal dignity herewith. Section 14. ,Joint Preparation: The preparation of this Agreement has been a joint effort of the parties, and the resulting document shall not, solely as a ratter of judicial construction, be construed more severely against one of the .parties than the other. Building Better Cotatmunities Municipal Agreement 7 of ] 1 Section 15. Headings: 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. Section 16. Waiver: There shall be no waiver -of any right elated to this Agreement unless in writing and signed by the party waiving such aright. No delay .or failuve#o exercise a right under this Agreement shall impairsuch 'right or shall be construed to be a waiver thereof. Any waiver shall be limited 4o the particular right so waived and shall not becdeemed -a waiver of the same right at a later time or of .any other right under this Agreement. Waiver by any party of any beach of -any provision of this Agreement shall not be considered as or constitute a continuing waiver or a waiver of any other breach of the same or any other provision -of -this Agreement. Section 17. Representation of the 'Municipality: The -Municipality represents that this Agreement has been duly authorized by and the Miami City Commissioners, as the governing -body of the City of Miami, Florida and it has .granted the City Manager, or his designee, the required power and authority to execute this Agreement. The Municipality agrees to a) maintain Project 62-70566 'for a minimum of 25 years, b) agrees to govern itself, in regards to the subject Project, in -accordance with Article 6 of the County Charter, c) keep Project 82-70586 open safely and properly maintained for all Miami -Dade County residents, and .d) atiow all Miami -Dade County residents equal access and use of Project 82-70586 and not discriminate when charging facility admission fees based on where a resident resides in the County. The Municipality also :agrees to accept and comply with the Administrative Rules as staged in Attachment 1 and as may here --after be amended. Section 18. Representation of the County: The County represents that this Agreement has been duly approved, executed and -delivered by the Board, as he governing body of the County, and it has granted the Miami -Cade County Manager the required power and authority to execute this Agreement. The County agreesio provide the Funding Cycle Allocation to the Municipality for the purpose of developing and improving Project 82-70586 in accordance with each of the attached Exhibit Forms, incorporated herein as Exhibitss A-J of Attachment 1 (Administrative Rules). Miami -Dade County shall only be obligated to rermbuise the Municipality provided the Municipality is not in breach of this agreement land the Municipality has demonstrated that it has adequate funds 4o complete Project . 2- 7058'6. The County shall administer, in accordance with the appropriate regulations, the funds .available from the BBC GOB Program as authorized by Board Resolutions. Any and all reimbursement obligations of the County shall be fully subject to and contingent upon the availability of funding from the County for the specific purpose contained herein. The Municipalityshall be solelyresponsible for submitting all documentation, as required by the specific AdministrativeRules incorporated herein es Attachment 1, to the County Manager or his designee for this purpose. Section 1.9. lnvaiidity of Provisions, Severabiiity: Wherever possible, .each provision of the Agreement shall be interpreted in such manner as to be ,effective and valid under applicable law, but if any provision of this Agreement shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the -remainder of °such Building Setter Communities Municipal Ageerner•,t 8 of 11 provision or the remaining provisions of this Agreement, provided that the material purposes of this Agreement can be determined and effectuated. Section 20. Indemnity: The Municipality does hereby agree to indemnify and 4oid harmless the County lo the extent and within the •limitations of Section 766.26 Florida 'Statutes, subject to the provisions of that statute, whereby the Municipality shall not be held liable to pay a personal injury or property damage deign or judgment by any one person which exceeds the sum of 1100,000, or any =claim or judgments or portions thereof, which when totaled with all other occurrences, exceeds the sum of $200,000 from any and all personal injury or property damage claims, liabilities, losses or causes of action which may arise solely as -a -result of the negligence of the Municipality. However, nothing herein shall be deemed to indemnify the County from any liability or claim arising out of the negligent performance or failure of performance of the County or any unrelated third party. The County does hereby agree to indemnify and hold harmless the Municipality to the extent and within the limitations of Section 768.28 Florida 'Statutes, subject to the provisions of that statute, whereby the County shall not be held liable to pay.a personal injury or property damage claim or judgment by any one .person which exceeds the sum of $100,000, or any claim or judgments or portions thereof, which when totaled with all other occurrences, exceeds the scam of $200,000 from any.and all personal injury or property damage claims, liabilities, fosses or causes of action which may arise solely as a result of the negligence of the County. However, nothing herein shall be deemed to indemnify the Municipality from any liability or clairn arising out of the negligent performance or failure of .performannce of the Municipality or any unrelated third party. Section 21. Assignment: The Municipality may not assign all or any portion of this Agreement without the prior written consent of the County. Section 22. Entirety of Agreement: This Agreement, and the attachments hereto, incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained in this Agreement. The parties agree that there ere no commitments, agreements, .or understandings concerning the subject matter of this Agreement that are ,not contained in this Agreement, and that this Agreement contains the entire agreement between the parties as to all matters contained herein. Accordingly, it is agreed 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 any oral representations or modifications concerning this Agreement shall be of no force or effect, and that this Agreement may bemodified, altered or amendedonly by a written amendment duly executed by both parties hereto or their authorized representatives. .Building Setter Communities Municips1 Agreement 90f11 IN WITNESS THEREOF, the parties through their. duly authorized representatives hereby execute this AGREEMENT with - an effective date of , 2006. ATTEST: By: Priscilla A. Thompson City Clerk Date: Approved as to insurance Require ents: Bv: LeeAnn Brehm Mting Risk Management . Di r City of Miami, Florida, a Florida Iiiurticipal corporation By: City Manager Date Approved as to fora and correctness: By: forge L. Fernandez City Atlorney For the Board of Commissioners, Cityof Miami, 'Florida , CLERK Attest: By: Clerk De4e M.IAMI-DADE COUNTY, FLORIDA By: County Manager MIAMI-DADE COUNTY, FLORIDA BY ITS BOARD OF COUNTY COMMISSIONERS Budding Better CommunnicE lilunicipal Agreement lOofl] Stephen P. Clark Center 111 NW 1 Street MVliami, Florida 33128 HA'RVEY RUVlN, CLERK Attest: By: Deputy Clerk Date Approved by County Attorney as to form and legal sufficiency. .Building Fetter Cornr`nunitie: Municipal Agweement 11of]]