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HomeMy WebLinkAboutExhibit 2AGREEMENT BETWEEN THE CITY Of Miami FLORIDA AND MIAMI-E ADE COUNTY GOB Project Number 82-70585/Parks and Facility Improvements Little Haiti Soccer Park THIS AGREEMENT (the "Agreement") by and between Miami -Dade County, a political subdivision of the State of Florida (the "County"), through its governing body, the Board of County Commissioners of tvliami-Dade County, Florida (the "Board") and the City of Miami, Florida, a municipal corporation organized under the laws of the State of Florida, through its governing body, and Commissioners of the City of Miami, Florida (the "Municipality") ss 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 "BBC GOB 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/Par.ks and Facility Improvements, It#re "Project") is eligible for funding from the BBC GOB Program in a total .amount not to exceed $26,761,000 (the "Funding AMMocation"); and WHEREAS, the Municipality is undertakingcompletion of construction and improvements to park facilities at Little Haiti Soccer Park (the `'Project '82-70585"), Grapefand Water Park (the "Project 82-70586"), and improve linear parks, 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 $663,061,000 (the "Total Project Cost"). Project 82-70585 is estimated to cost '332,300,000.and will be funded from the sources listed in Exhibit 1; .and Funding Better Communities Municipal Agrcernent 1 of 1] WHEREAS, •pursuant to the terms of this Agreement the County has agreed to allocate $5,277.000 from the Series A 2005 Bonds for the'Project 82-70585 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 roles in the funding for the Project costs with respect to such Funding Cycle Allocation, NOW THEREFORE, pursuant to Resolution No. R_5-95405, which specifically authorizes the County Manager to execute such agreements, sub -agreements and other required contracts and documents, to expend Building Bever 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 purpcse of this Agreement is to clarify the parties' roles and obligations regarding the funding being provided with respect to Project 82- 70585. Section 2. 'Funding 'Responsibiliti es: a Project Funding Plan: A Project 82-70585 funding plan identifying the Funding 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. b. Representations of the Aunicipatity: The Municipality covenants and warrants that it has, in combination with the Funding Allocation, the amount of funding necessary for the completion of 'Project 62- 70585. The additional sources of funding .are fisted in Exhibit 1. c. 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 $5,277,000. This amount represents a portion of the amount necessary 10 complete the Project. This sum shall be provided in accordance with the reimbursement procedures contained in the County's GOB Administrative Mules attached as Attachment 1. In the event that the Project Milestones, as defined aid set forth in Exhibit 1 of this Agreement are not within 10% -of completion, the dollars to be funded for subsequent Milestones gray be decayed for one calendar year in accordance with the Administrative Rules, see Section 18 of this Agreement. Section 3. Effective Date and Term: This Agreement shall take effect upon execution and shall terminate upon the completion of Project 82-70585, including the completion alai! final closeout documentation. Builaing Feuer Cormu risie: Munfcips] Agrberrent 2of11 Section 4. Compliance with Codes and Laws: Each party agrees to abide by ail -Applicable Laws necessary for the development and completion of Project 132- 70585. "Applicable Law" means any applicable •Iaw (including, without limitation, any environmental law), enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, fegulation, guideline, judgment, decree, writ, injunction. franchise, permit, certificate, license, authorization, or other -direction or requirement of any governmental authority, political subdivision, or any division zr department thereof. now existing or hereinafter enacted, 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, aI1 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 tocompetitive 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 Countyfequirements: All records of the Municipality and its contractors pertaining to 'Project 82-70 6 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 ix)rtion of the Work and that such records shall maintained within Uiami-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 10 includesuch language in its subcontracts. All applicable County Rules, Regulations, Ordinances, #resolutions, Administrative Orders, and the County Clatter referenced in this agreement are posited on the County's website: "miamidade.gov". 'Section 6. Access and Audits: The Municipality shall maintain adequate fecords to justify all charges, expenses, and costs incurred which represent the funded portion of Project 82-70585 for at least three (3) years after completion of the Project. The County shall 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 BetterCommunitieE Municipal Agreement 3of11. Pursuant to Section 2-1076 of the Miami -Dade County Code the County shall have the right to engage the services of an independent private -sector inspector general ("1PSIG") to monitor and investigate compliance with the 4terrrms of this Agreement The Office of the M1A \kI-DA13E COUNTY 'INSPECTOR GENERAL (IG) shall have the authority and power to review past, present and proposed County programs, accounts, records, contracts and transactions, and contracts such es -this Agreement for improvements some cost of which is funded with County funds. As such, the IG may, on a random basis, performaudits 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 1G shall have the power to retain and coordinate the services of an Independent Private Sector Inspector General 1(1PS1G) 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 process including, but not limited to, project design, establishment of bid specifications, bid submittals, activities of the Municipality and contractor arrd their respective officers, agents and employees, lobbyists, subcontractors, rnaterialmen, staff and el .officials in order to ensure compliance with contract specifications and detect corruption and fraud. The 1G shall 'have the power to subpoena witnesses, administer oaths and require the production of records. Upon ten (10) days written notice 10 the Municipality (and any affected contractor and materialrnan) front IG, the Municipality (and any affected contractor and rnaterialrnan) s°hall make all requested records and documents -available to the IG for inspection and -copying. The 1G shall have the power to report and/or recommend to the Board whether a particular project, program, contract or transaction is or was necessa-ry 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 an time, within budget and in conformity with plans, specifications, and applicable law. 'The .K3 shall have the power to analyze the need for, and reasonableness of, proposed change orders. The 1G is authorized to investigate any alleged violation by a 'contractor of its Code of iBusiness Ethics, pursuant Miarni-Dade County Code Section 2-$.1. The provisions in this section shall .,apply to the Municipality, its contractors and their respective officers, -agents and employees. The Municipality 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 liability 10 accrue to 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 County shall have no obligation to exercise any of its rights for the benefit of the Municipality. 'Section 7. lelattoreship of the Prattle s: The parties agree that the Municipality .is an independent entity responsible solely for Project '82-7058'5 and not an agent ,or servant .of •the County. No party or its officers, elected .or appointed of�Ficals, Building &etier Communities Municipal Ag'r?errenr 4 of l ] employees, agents, independent contractors or consultants ill be considered employees or agents of any other party, nor 4o have been authorized 4o in x .any expense on behalf of any other party, nor to act for or to bind :anyother pasty, nor shall an employee claim any right in or entitlement to any ,pension, wor#(ers' 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 whom they ,ace 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 der 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 ere solely providing funding assistance for Project 82-70585 .and are not involved in the design, construction, operation or maintenance of Project82-70585. Section 9. Breach, Opporturrity to Cure and Termination: (a) Each of the following stall .constitute a default by theMunicipality: (1) If the Municipality uses the Funding Cycle Allocation for:cessts not associated with Project 82-70585 (i.e. ineligible costs), and She Municipality fails to cure its default within thirty X30) days ,after written notice of the default is given .o the ,Munioipafity by e County; provided, however, that if not reasonably possible 4o cum such default within the thirty (30) day period, such cure period shall be extended -for up to one hundred eighty (180) days following he date of the original notice if within bitty (30) days after°such written notice the Municipality commences diligently and thereafter continues to cute. (2) if the •Municipality shall breach any of the other covenants or provisions in this Agreement other than es referred to in Sion 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 cortntenoes 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 to 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 thirty430) day period, such cure period shall be extended for up to or'e hundred eighty (180) days following the date of the original i of oe if within thirty (30) days after such written notice the County -commences diligently and thereafter continues to cure. Building Betrer CommunitieE Municipal Agreement 5of (c) .Remedies: (1) 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 the County shell 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 -law 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 cumulative 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 other 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 party shall 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 berelieved of any liability for breach of this Agreement forevents or obligations arising prior to such termination. Section 10. Litigation CostsNen: In the event that the Municipality or the County institutes any action or suit to enforce the provisions of this Agreement, the prevailing party in such litigation shall be entitled to reasonable costs and attorney's fees at the trial, appellate and post -judgment levels. This Agreementshall be governed by and construed in accordance with the laws of the Stage 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 Agreement shall be in the Eleventh Judicial Circuit in and for WVliami-Dade County, Florida, or in the United States District Court for the Southern District of Florida, in Miami -Dade County, Florida. 'Section 11. Naming Rights and Advertisements: In the event that any naming rights or advertisement space is offered on a facility constructed or improved with BBC GOB Program funds, then Miami -Dade County's name, logo, .and slogan shall Building Beier Cosnrnuritles Municipal Agreement 6 of 1 appear on the facility not less than once and equal to -half the number of times the most frequent sponsor or advertiser is named, whichever is greater. Lettering used for Miami -Dade County will be no less than 75% of the size of the largest fettering used for any sponsor or advertiser unless waived by the Board. The Municipality must include the following credit line in all promotional marketing materials tefa€ted 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 bossiness 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 (or 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 copies to: Mary Conway Director of Capital Improvements 444 SW 2ntl Avenue 1 0rr' floor Miami, 'Florida 33130 With copies to: Jorge L. Fernandez City Attorney 444 SW 2"ti Avenue 9th floor Miami, Florida 33130 Section 13. Modification and Amendment: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 matter of judicial construction, be construed more severely against one of the parties than the othe r. Building BenerCornmunines MunrcFpi Agreement 7ofll 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 related to this Agreement unless in writing and signed by the party waiving such right. No delay or failure to exercise a right under this Agreement shall impair such right or shall be oonstrued to be a waiver thereof. Any waiver shall be limited to the particular right so waived and shall not be deemed a waiver of the same right at a later time or of any other right under this Agreement. Waiver by any party of any breach 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 82-70585 •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 -82-70585 open safely and properly maintained for all Miami -Dade County residents, and d) allow all Miami -Dade County residents equal access and use of Project 62-70585 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 stated in Attachment 1 and as may hereafter 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 the governing body of the County, and it has granted the Miami -Dade County Manager the required power and authority to execute this Agreement. The County agrees to provide the Funding Cycle Allocation to the Municipality for thepurpose of developing and improving Project 82-70585 in accordance with each of the attached Exhibit Forms, incorporated herein as Exhibits A-J of Attachment 1 (Administrative Rules). Miami -Dade County shall only be obligated to reimburse the -Municipality provided the Municipality is not in breach of this agreement and the Municipality has demonstrated that it has adequate funds to .complete 'Project 82- 70585. 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 Municipality shall be solelyresponsible for submitting all documentation, as required by the specific Administrative Rules incorporated herein as Attachment 1, to the County Manager or his designee 'for this purpose. Section 19. Invalidity of Provisions, 'Severability: 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 Better Communities ?Municipal A-greement 8of]] 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 Municipalitydoes hereby agree to indemnify and hold harmless the County to the extent and within the limitations of Section 768.28 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 claim or judgment by any one person which exceeds the sum of $1i00,000, 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 Municipalityto the extent and within the limitations of Section 768.28 'Florida Statutes, subject #o 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 S100,000, 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 County. However, nothing herein shall be deemed to indemnify the Municipality .from any liability or claim arising out of the negligent performance -or failure of performance 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 thereto, incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained in this Agreement. The parties agree that there are no -commitments, agreements, or understandings concerning the subject matter of dhis Agreement that are not contained in this Agreement, and that this Agreement contains the entire agreement betwe-en 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 be modified, altered or amended only by a written amendment .duty executed by both parties hereto or their authorized representatives. Building Bet+er Communities Municipal Agreement 9of1] IN WITNESS THEREOF, the parties through their duly authorized representatives 41ereby execute this AGREEMENT with an effective date of , 2006. City of Miami, Florida, a Florida municipal corporation By: City Manager Date ATTEST: Bv: Priscilla A. Thompson City Clerk Date: ,approved as to Insurance Rwuireyri)nts: By: LeeAnn Brehm 0.ri.4g Risk Management w 4,' r Approved as to form and correctness: By: Jorge L. Fernandez City Attorney For the Board of Commissioners, City of Miami, Florida CLERK Attest: By: Clerk Date 4 AMlI-DADE COUNTY, FLORIDA By: County Manager M4AM1-DADE COUNTY, FLORIDA BY IT'S BOARD OF COUNTY COMMISSIONERS Stephen P. Clark Center Building Better Communities Municipal Ag7,eer'rment ]Oof ]] 111 NW 1 Street Miami, Honda 33128 HARVEY RUVIN, •CLERK Attest: By: Deputy Clerk Date Approved by County Attorney as to form and legal sufficiency. Building Benet Communities Municipal Agreemem ]] of]]