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HomeMy WebLinkAboutAgreement between City & Dade Heritage Trust inc.AGREEMENT BETWEEN CITY OF MIAMI AND THE DADE HERITAGE TRUST, INC. FOR THE RENOVATION OF OLD MIAMI HIGH SCHOOL ALSO KNOWN AS FIRST MIAMI HIGH AGREEMENT BETWEEN CITY OF MIAMI AND THE DADE HERITAGE TRUST, INC. This AGREEMENT made on this lkth day of 1 , 2006, by and between the CITY OF MIAMI, a municipal corporation established under the laws of the State of Florida ("CITY") and the DADE HERITAGE TRUST, INC. a not -for -profit corporation organization, hereinafter referred to as the "TRUST," together referred to as the "Parties." WHEREAS, the City owns Southside Park, located approximately at 140-142 SW 11Th Street, Miami, Florida 33139; and WHEREAS, the Trust was founded in 1972 as a non-profit membership organization committed to advocating for, preserving and restoring Miami-Dade's historic properties; and WHEREAS, Old Miami High (also known as First Miami High School), a 1905 bungalow -style structure was scheduled for demolition in connection with a high-rise development being developed by KV Brickell Partners, Ltd. (the "Developer"); and WHEREAS, due to the efforts of a coalition of the Trust, the City and Old Miami High alumni, the Developer agreed to donate the structure to the City for public use; and WHEREAS, Old Miami High (the "Building") was subsequently relocated to the City's Southside Park, located at 140/142 SW llth Street, Miami, Florida 33139 and described on Exhibit "A" attached hereto (the "Property") for prospective use as a community center; and WHEREAS, the Trust was allocated a $350,000 Special Category Grant ("Grant") from the Florida Secretary of State, as well as $350,000 from the Miami -Dade County General Obligation Bond funding ("Bond") (together, the "Grant" and the "Bond" are referred to herein as the "Funding") for the renovation and restoration of the Building; and WHEREAS, the Trust will receive $35,000 of the Grant to cover its expenses on a reimbursable basis in connection with the administration of the Grant; and WHEREAS, a condition of the Florida Secretary of State grant is the City's acceptance of a restrictive covenant (attached hereto as Exhibit "B") to comply with historic preservation regulations for a period of ten (10) years; and WHEREAS, the City and the Trust now desire to enter into an Agreement to allow the Trust to undertake the renovation and restoration of the Building (the "Project") utilizing the 1 Funding, as welt as any other funds procured by the Trust for this purpose, and to administer said Grant in connection with the Project; NOW, THEREFOR, in consideration of the mutual covenants recorded herein, the Parties hereto agree as follows: ARTICLE I. RECITALS. All recitals set forth above are incorporated into this Agreement and made a part hereof. ARTICLE H. SCOPE OF SERVICES. The Trust agrees to undertake and complete the Project with the Funding and perform any services the Trust deems necessary related to the Project, including, but not limited to the administration of the Funding in accordance with the terms and conditions governing such funds. The Parties agree that the Trust would continue to apply for grant funds during the term hereof for use in connection with the Project and that Funding will be used by the Trust to: A. Administer the Grant and other funds prospectively allocated for the completion of the Project; B. Oversee the restoration of the Building through the issuance of a Certificate of Occupancy, including supervision of all predevelopment and construction services, including but not limited to, architectural, engineering and construction management services, permitting, labor and materials; provided, however, that in the event that the Funding is depleted prior to the issuance of a Certificate of Occupancy for the Building, the Trust's obligations shall terminate pursuant to Article III herein and at such time, the Trust shall ensure that any and all documents regarding professional, architectural, engineering and construction services provided by the Trust with respect to the Project shall be owned by the City; C, Provide and pay for the costs of all professional architectural, engineering and construction services in connection with the Project; D. Provide a project schedule, detailing each major work item and expected completion dates for the Project and component phases (if any); E. Prior to the Trust's execution of a contract with a general contractor for the Project and commencement of any construction provide the City with a project budget, including a detailed construction scope of work and a statement from the proposed general contractor that it 2 is willing to perform the proposed scope of work for the projected budget amount; the Trust will also provide the City with a copy of the contract with the general contractor once it has been fully executed. F. Provide a proposed and/or actual sources of funding budget outlining the various funding sources -for the Project. If not all funds are available currently, please indicate which potential sources will be used to complete the Project. ARTICLE III. TERM. Both Parties agree that the term of this Agreement ("Term") shall commence upon execution of the Agreement by all Parties ("Effective Date") and terminate upon the depletion of the Funding for the Project. If the Trust obtains additional funding for the Project, the City Manager may accordingly, in his sole discretion, modify the term of this Agreement. ARTICLE IV. CANCELLATION. The City reserves the right to cancel, terminate and declare this Agreement null and void, at its option, for any reason whatsoever. Notice of cancellation shall be given in writing by the City Manager by mail to the Trust and shall provide an effective date of said cancellation of not less than thirty (30) days from the date of said notice by the City to the Trust, unless an earlier date is mutually agreeable to the Parties. ARTICLE V. INDEMNIFICATION AND HOLD HARMLESS. The Trust shall indemnify, hold harmless and defend the City from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising during the term of this Agreement, for any personal injury, loss of life or damage to property sustained in or on the Property and for any claims, suits, actions, damages or causes of action arising from the Trust's administration of Funding for the -Project during and after the term of this Agreement, by reason of or as a result of the actions of the Trust, its employees, agents, contractors, subcontractors or officials, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all costs, reasonable attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof. The City agrees that the signatory for the Trust and the beneficiaries and officers of the Trust shall 3 have no personal liability to the City. The City shall be liable for claims, suits, actions, damages or causes of action arising as a result of any act of negligence by the City or its authorized agents or representatives; provided however, that the City's liability shall be limited by applicable Florida law regarding sovereign immunity in tort actions. ARTICLE VI. INSURANCE, The Trust shall obtain and maintain or cause to be obtained and maintained in full force and effect at all times during the term of this Agreement, the insurance coverage specified in Exhibit C attached hereto and incorporated herein by reference. The Trust understands and also agrees to adhere to the City's Insurance policies specified below. The City's Department of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to the Trust in accordance with the terms of this Agreement. In the event that the insurance requirements have changed, Exhibit "C" attached hereto shall be amended by the parties in accordance with the terms of this Agreement to reflect such change. The policy or policies of insurance required shall be so written that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to the City. Said notice should be delivered to the City's Department of Risk Management, 444 SW 2 Avenue, 9'h Floor, Miami, Florida 33130, with copy to the City of Miami, Department of Public Facilities/Asset Management Division, 444 SW 2nd Avenue, 3rd Floor, Miami, Florida 33130, or such other address that may be designated from time to time. A current Evidence and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Department of Public Facilities/Asset Management Division upon commencement of the term of this Agreement and thereafter as reasonably required by the City. The policies required herein shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications as to management and financial strength: the company should be rated "A" as to management, and no less than class "X" as to financial strength, in accordance with the latest edition of Best's Key Rating Guide, or the companies shall hold a valid Florida Certificate of Authority issued by the State of Florida, Department of Insurance, and be members of the Florida Guarantee Fund. Receipt of any insurance documentation by the City or by any of its representatives, which indicates less 4 coverage than required, does not constitute a waiver of the Trust's obligation to satisfy the insurance requirements herein. In the event the Trust shall fail to procure and maintain, or cause to be procured and maintained, such insurance, the City may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by the City shall be paid by the Trust to the City as an additional fee upon demand within thirty (30) days of the City's demand therefor. The Trust's failure to procure or cause to be procured such insurance shall in no way release the Trust from its obligations and responsibilities as provided herein. ARTICLE VII. REMOVAL OF CONSTRUCTION/RENOVATION DEBRIS. It shall be the responsibility of the Trust to remove any and all construction and renovation debris as determined by generally accepted construction industry practices. ARTICLE VIH. NOTICE TO PROCEED WITH CONSTRUCTION. The Trust shall commence construction on the Project upon issuance of a Notice to Proceed from the City. Such notice to proceed shall be issued upon the occurrence of the following: (1) receipt of proof of insurance pursuant to Article VI herein, (2) approval of Project designs by the City, pursuant to Article IX herein, and (3) receipt of proof of all required permits, pursuant to Article IX herein. ARTICLE IX. DESIGN AND CONSTRUCTION STAGE. A. The Trust shall seek prior review and written approval of the Director of Public Facilities, Asset Management Division for any plans, specifications and costs of the work to be performed prior to the commencement of the Project, which approval may be withheld or conditioned in the City's sole discretion. B. The Trust must submit to the City copies of all permits, licenses and permitted plans for the Project. ARTICLE X. CITY'S ACCESS TO PROPERTY. The City and its authorized representative(s) shall, upon reasonable advance notice, have access to the Building and the Property to (a) inspect the Building, (b) to perform any obligations 5 of the Trust hereunder which the Trust has failed to perform following written notice thereof to the Trust and the Trust's failure to perform such obligation within fifteen (15) calendar days of such notice, (c) to assure the Trust's compliance with the terms and provisions of this Agreement and all applicable laws, ordinances, rules and regulations, (d) to show the Building and the Property to prospective purchasers, lessees or trusts, and (e) for other purposes as may be deemed necessary by the City. The Trust shall have the right to have one or more of its representatives or employees present during the time of any such entry. The City shall not be liable for any loss, cost, or damage to the Trust by reason of the exercise by the City of the right of entry described herein for the purpose listed above, unless, such loss, cost or damage results from the negligence of the City or its authorized representative. The making of periodic inspections or the failure to do so shall not operate to impose upon the City any liability of any kind whatsoever nor relieve the Trust of any responsibility, obligations or liability assumed under this Agreement. ARTICLE XL OWNERSHIP AND INVENTORY. Title to the Property and all improvements thereto shall be vested in the City. Furthermore, title to all alterations made in or to the Building or the Property in connection with the Project shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain on and be surrendered with the Building and Property. ARTICLE XII. NOTICES. It is understood and agreed between the Parties that written notice addressed to the following Parties and addresses shall constitute sufficient notice under this Agreement: CITY OF MIAMI City of Miami City Manager 3500 Pan American Drive Miami, FL 33133 6 WITH COPIES TO: City of Miami City Attorney 444 SW 2nd Avenue, Suite 945 Miami, FL 33130 City of Miami Attn: Director Department of Parks & Recreation 444 SW 2"d Avenue, 8th Floor Miami, Florida 33130 City of Miami Attn: Director Department of Public Facilities/Asset Management Division 444 SW 2"a Avenue, 3`d Floor Miami, FL 33130 DADE HERITAGE TRUST, INC. Dade Heritage Trust, Inc. Attn: President c/o 190 SE 12th Terrace Miami, Florida 33131 WITH COPY TO: Dade Heritage Trust, Inc. Attn: Executive Director c/o 190 SE 12th Terrace Miami, Florida 33131 ARTICLE XIII. NO PARTNERSHIP. Both Parties agree this Agreement recognizes the autonomy of the contracting Parties. Nothing contained herein shall make, imply or be construed to make any party to this Agreement a principal, agent, partner, joint venturer or affiliate of the other. It is expressly understood and intended that the Trust is not an instrumentality of the City. Furthermore, the Trust's agents and employees are not agents or employees of the City as a result of this Agreement. 7 ARTICLE XIV. NON-DISCRIMINATION. The Trust shall not discriminate as to race, color, religion, sex, national origin, age, disability, marital status in connection with the Project. ARTICLE XV. LITIGATION. Any dispute arising from this Agreement shall be resolved in the courts of Miami -Dade County, Florida. The Parties shall attempt to mediate any dispute without litigation. However, this is not intended to establish mediation as a condition precedent before pursuing specific performance, equitable or injunctive relief. ARTICLE XVI. COURT COSTS AND ATTORNEY(S)' FEES. In the event it becomes necessary for either party to institute legal proceedings to enforce or interpret the provisions of this Agreement, each party shall pay its own court costs and attorney's fees through all trial and appellate levels. Each party acknowledges that Florida law provides for mutuality of attorneys' fees as a remedy in contract cases and specifically and irrevocable waives its right to collect attorneys' fees from the other party under applicable laws including specifically, but not limited to Section 57.105, Florida Statutes. It is the express intent of the Parties hereto that in no event will either party be required to pay the other party's attorney's fees and court costs for any action arising out of this Agreement. ARTICLE XVII. WAIVER OF' JURY TRIAL. The Parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the Parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and the Trust entering into this Agreement. 8 ARTICLE XVIII. NO LIABILITY. The Trust assumes all risk of loss resulting from the renovation and restoration of the Property during the term of this Project. The City agrees that the signatory for the Trust, and the beneficiaries and officers of the Trust shall have no personal liability to the City. In no event shall the City be liable or responsible for injury, loss or damage to the property, improvements, and/or equipment belonging to or rented by the Trust, its officers, agents, employees, contractors, subcontractors, invitees or patrons occurring in or about the Building and Property that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Building and Property, or from the breakage, leakage, obstruction or other defects of the pipes, wires, appliances, plumbing, air conditioning or lighting fixtures of the Building, or from hurricanes or any act of God or any act of negligence of any user of the facilities or occupants of the Property whether such damage or injury results from conditions arising upon the Property or from other sources arising from the Trust's use of the Building and Property and implementation of the Project during the term of this Agreement. The Trust shall indemnify and hold harmless the City with respect to such injuries, losses, or damages, unless such injuries, losses, or damages arise from the negligence of the City or its authorized agents or representatives, in which case, the City shall be liable for such injuries, losses or damages; provided, however, that the City's liability shall be limited by applicable Florida law regarding sovereign immunity in tort actions. ARTICLE IXX. VIOLATIONS, LIENS AND SECURITY INTERESTS. The Funding shall be used by the Trust to secure the cancellation, discharge, or bond off in the manner permitted by law, all notices of violations arising from, or otherwise connected with the Project, which shall be issued by any public authority having or asserting jurisdiction. The Funding shall be used by the Trust to promptly pay its contractors, subcontractors, and materialmen for all work and labor done at the Trust's request. Should any lien, claim, or encumbrance be asserted or filed relating to the Project, the Trust shall utilize the Funding to bond against or discharge the same regardless of validity, within thirty (30) calendar days of the Trust's receipt of notice of the filing of said lien, claim, or encumbrance. In the event the Trust fails to remove or bond against said lien or claim in the full amount stated, the City without obligation to do so, may bond, settle, or otherwise remove such lien or claim and the Trust shall remit to the City within thirty (30) calendar days of the City's 9 demand therefor, any amounts paid by the City to extinguish such claim or lien, including City's costs, expenses, and reasonable attorneys' Fees. The Trust further agrees to hold the City harmless from and to indemnify the City against any and all claims, demands and expenses, including reasonable attorney's fees, of any contractor, subcontractor, materialman, laborer or any other third person with whom the Trust has contracted with respect to the Project arising from the terms of this Agreement. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or Agreement on the part of the City to subject the City's interest or estate to any liability under any construction or other lien asserted by any contractor, subcontractor, materialman or supplier against any part of the Property or any of the improvements thereon. To the extent permitted by applicable law, all contracts, subcontracts, purchase orders, or other Agreements involving the Property shall provide for the waiver of any lien rights in the Property and provide that the contracting party agrees to be bound by such provision and include the waiver provision in any sub Agreement. ARTICLE XX. HAZARDOUS MATERIALS. The Trust shall, at its sole cost and expense, at all times and in all respects comply with all applicable federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders, administrative actions and administrative orders, including, without limitation, any Hazardous Material Laws ("Hazardous Materials Laws") relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances, under any such laws, ordinances or regulations (collectively "Hazardous Materials"). The Trust shall, at its sole cost and expense, procure, maintain in effect, and comply (or cause the same to occur) with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Property required for the Trust's use, or storage of, any Hazardous Materials in or about the Property in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon 10 termination or expiration of this Agreement, the Trust shall, at its sole cost and expense, cause all Hazardous Materials, including storage devices, placed in or about the Property by parties the Trust retained to provide services in connection with the Project, to be removed from the Property and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws, The City acknowledges that it is not the intent of this Article to prohibit the Trust from working on the Property in connection with the Project. The Trust and its agents and contractors may operate according to the custom of the industry, so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, all applicable governmental requirements. The requirements of this Section of the Agreement shall survive the expiration or termination of this Agreement. ARTICLE XXI. MISCELLANEOUS. A. Title and Headings. Title and paragraph headings are for convenient reference and are not a part of this Agreement. B. No Assignments. The Parties agree that no assignment will be made in connection with this Agreement without prior written approval of the other party, which approval will not be unreasonably withheld, and that all assignees shall be governed by the terms and conditions of this Agreement. C. Compliance with Laws. The Trust accepts this Agreement and agrees to implement and complete the Project in compliance with all applicable federal, state and local laws, ordinances and regulations, including but not limited to the South Florida Building Code. The Trust shall comply therewith as the same presently exist and as they may be amended hereafter. D, Proof of Licensure. The Trust agrees to require proof of all required current licenses and certificates from parties contracted by the Trust to provide services in connection with the Project. Examples of services or operations requiring such licensure or certification include, but are not limited to, construction trades and professional architecture and engineering services. E. Interpretation. This Agreement is the result of negotiations between the Parties and has been typed/printed by one party for the convenience of both Parties. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the 11 judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction nor that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both Parties have equally participated in the preparation of this Agreement. F. Amendments and Modifications. This Agreement contains all the terms and conditions agreed upon by the Parties. No amendments or modifications to this Agreement shall be binding on either party unless in writing, approved as to form and correctness by the City Attorney and signed by the City's authorized representatives and the President of the Trust. The City Manager is authorized to amend, modify and execute amendments to this Agreement for and on behalf of the City as needed. G. Invalidity. If any provision of this Agreement is held invalid or void, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. H. Entire Agreement. This instrument and its attachments constitute the sole and only Agreement of the Parties hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. I. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, regardless of any conflict of law or other rules which would require the application of the laws of another jurisdiction. Proper venue for this Agreement shall be Miami -Dade County, Florida. J. Authority. Each of the Parties hereto acknowledges it is duly authorized to enter into this Agreement and that the signatories below are duly authorized to execute this Agreement on behalf of the respective Parties to this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective and duly authorized officers the day and year first written above. 12 ATTEST: Priscilla A. Th mpson City Clerk APPROVED AS TO INS ' REQUIREMENTS: rfirrfiln r ( f By: Jit Li _L i ania F. Carrill+ Risk Management Administrator WITNESS S: Signature (Secretary reasurer) Print Name ds. Title (Treasurer or Secretary) Dade H stage Trust, Inc. ignature 13 CITY By: Joe , 'o1 City ; anager APPRO D AS TO FORM AND CO' . ` •,; SS: By Jor _ 1, • ity A orne DADE HERITAGE TRUST, INC. a Florida non-profit corporation. A/4 44 moo I/ %0/SErIoS r7 cair Print Name /De Titl6 (President of Vice President) Dade Heritage Trust, Inc. CORPORATE SEAL.